Ward v. State

• Decision Date: 25 November 1987
• Docket Number: No. 325-86,325-86
• Parties: Kenneth Joseph WARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 794

740 S.W.2d 794

Kenneth Joseph WARD, Appellant, v. The STATE of Texas, Appellee.

No. 325-86.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 25, 1987.

Jeff Blackburn, on appeal only, Amarillo, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

In his Petition for Discretionary Review the appellant, Kenneth Joseph Ward, seeks a review of the judgment revoking his probation. The Seventh Court of Appeals affirmed the revocation of his probation in a published opinion. Ward v. State, 704 S.W.2d 903 (Tex.App.--Amarillo, 1986, pet. pending). The appellant questions whether the Court of Appeals correctly held that despite his attorney's failing to designate timely the record and therefore failing to have a statement of facts included in the appellate record, he was nonetheless not deprived of his State and Federal rights to the effective assistance of counsel on appeal. ¹

The appellant was originally given a six-month's probation for theft. In a motion to revoke his probation the State alleged that the appellant committed a burglary of a habitation and therefore violated a term of his probation. After a hearing, his probation was revoked on October 4, 1984.

Although an order of appointment is not within the record, it is apparent that the appellant was represented by appointed counsel at the hearing on the motion to revoke. Appointed counsel timely filed a written notice of appeal on October 10, 1984. Thereafter, notice of completion of the record was sent to appellant's trial counsel, but not to the appellant. On October 25, 1984, the trial judge approved the record consisting of the transcript, but no statement of facts. The record was then filed in the Court of Appeals on November 20, 1984.

After receiving notice of the filing, the appellant's trial counsel notified the Court of Appeals that his representation of appellant was limited to the trial only. The Court of Appeals abated the appeal and ordered a hearing to be held by the trial court to determine whether the appellant was indigent, and if found to be indigent to appoint him an attorney to pursue his appeal.

On December 20, 1984, in compliance with this order, the trial court appointed the appellant's trial counsel to represent him on the appeal. Within seven days of his appointment appellate counsel designated the transcription of the court reporter's notes for inclusion in the record. However, the Court of Appeals denied the appellant's motion for an extension of time in which to file the statement of facts. Thereafter, a motion by appellant's current appellate counsel ² to abate the appeal and remand the case to the trial court with instructions that it be "returned to the posture it occupied at the moment notice of appeals was given," was also denied in an unpublished per curiam opinion. Ward v. State, No. D7-84-0254-CR (delivered April 30, 1985). Consequently, the record contains no statement of facts.

The Court of Appeal's decision to deny the appellant authority to designate the record in an untimely manner was based on its conclusion that Art. 40.09(2), V.A.C.C.P. ³ (repealed) was not subject to time extensions. Basically, Article 40.09(2), supra required a written statement specifying matter for inclusion in the record to be filed within twenty days of the giving of notice of appeal. Moreover, Article 40.09(2), supra, further stated, "[t]he failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter is not timely filed." In addition, the Court of Appeals refused to allow the appellant to begin the appellate process anew because it correctly concluded that "an indigent defendant must designate the record ...," Ward v. State, supra at slip opinion p. 2, as any other defendant. Accordingly, it held that the "appellant cannot accomplish indirectly, by abatement, what it cannot accomplish directly, by extension of time...." Id.

The appellant pursued his appeal and claims that the failure of counsel to timely designate the record and therefore have a statement of facts included in the record constitutes ineffective assistance of counsel on appeal.

A state is not required by the Federal Constitution to provide appellate courts or a right to appellate review. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891, 898 (1956); McKane v. Durston, 153 U.S. 684, 687-688, 14 S.Ct. 913, 914-915, 38 L.Ed. 867, 868 (1894). Nonetheless, Texas has granted criminal defendants a statutory right of appellate review. Article 44.02, V.A.C.C.P. (1966). When a State elects to act in a field where its action has significant discretionary elements, it must act consistent with the dictates of the Texas and Federal Constitutions. Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 839, 83 L.Ed.2d 821, 833 (1985).

It is well established that an indigent defendant is entitled to an adequate record on appeal. Griffin v. Illinois, 351 U.S. at 18-19, 76 S.Ct. at 590-91, 100 L.Ed. at 898-99; Guillory v. State, 557 S.W.2d 118, 120 (Tex.Cr.App.1977). At the time appellant's case was tried the record on appeal was subject to one's compliance with a number of strict procedural rules. See Chapter 44, V.A.C.C.P. (1966). As previously noted, among these procedural rules was the requirement that a designation of material to be included within the appellate record must be made within twenty days of giving notice of appeal. Article 40.09(2), supra. As previously noted, the Court of Appeals concluded that the time limitations detailed in Art. 40.09(2), supra, were not subject to an extension, thus, they were mandatory. And, the failure of appellant's attorney to comply with this rule was imputed to the appellant.

Such an analysis assumes that the appellant was being represented by counsel at the time the designation of the record was due. The question then actually presented is not whether the twenty day designation requirement of Article 40.09(2), supra is mandatory or capable of extension ⁴ but rather did the appellant actually have counsel charged with the responsibility of complying with its provisions? That is, it must initially be determined whether the appellant was represented by counsel and if so, did counsel render effective assistance in perfecting and pursuing a meaningful appeal.

As a threshold observation, it is abundantly clear that an appointed attorney's legal responsibilities do not magically and automatically terminate at the conclusion of the trial. ⁵ In Harrison v. State, 516 S.W.2d 192 (Tex.Cr.App.1974) the defendant's appointed counsel failed to file timely a brief and advised this Court by a letter "that he does not represent the appellant for purposes of appeal. Id. Dispensing with that rather self-serving claim this Court stated rather emphatically: "[T]here is nothing in the record to indicate that the trial court permitted appointed counsel to withdraw. As far as this court is concerned the trial counsel still represents appellant on appeal." Id. at 192-193.

The basis for this principle is that a defendant's trial counsel is in a position to not only advise his client as to the propriety of an appeal but is also in the best position of taking the statutory prerequisites to perfecting an appeal. Yet, this is not to imply that trial counsel must remain as defendant's "counsel for life." On the contrary, counsel may seek the trial court's permission to withdraw at any time so long as the defendant's appellate rights remain protected, the appellant is given notice of withdrawal, and the trial court's signed order permitting the withdrawal is within the record, and if the defendant is still indigent, a substitute counsel is appointed. See Ex parte McDonald, 483 S.W.2d 258 (Tex.Cr.App.1972).

The necessity for strict rules of withdrawal is recognized and required by the Texas Code of Professional Responsibility. ⁶ SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS Art. X, § 9, DR 2-110 (1987). Disciplinary Rule 2-110(A) sets forth the general provisions governing an attorney's withdrawal:

(A) In general.

(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

The primary purpose of DR 2-110 is to ensure that the withdrawal of counsel does not prejudice the rights of the client. See DR 2-110(A)(2). It is readily apparent that an attorney may not withdraw without the permission of the trial court. Moreover, DR 2-110 explicitly requires as a minimum, that withdrawing counsel: (1) give notice to his client, (2) allow time for employment of other counsel and (3) deliver to the client all papers and property to which the client is entitled. The import of DR 2-110 is clear. The withdrawal of counsel is not a procedure to be taken lightly. The ramifications of failing to properly withdraw are all too apparent in the present case.

The continuity of representation from trial to appeal is necessary to correct the ambiguity of representation which all too often follows a conviction. The ambiguity of representation in this case does not appear to be the result of the conscious indifference of any particular party. Nonetheless, this ambiguity operates to severely limit the appellant's right to meaningful...