Gollihar v. State

701 S.W.2d 85, 1986 Tex. App. LEXIS 11849

• Court: Court of Appeals of Texas
• Decided: January 2, 1986
• Docket: 07-84-0278-CR
• Status: Published

Opinions

REYNOLDS, Chief Justice.

This appeal requires us to determine whether appellant’s failure to comply with a reasonable, nonjurisdictional statutory rule of procedure for designating the record on appeal may be the basis of his claimed denial of effective assistance of counsel on appeal. Holding that it may not, we affirm.

Appellant Donald Charles Gollihar was convicted of the offense of burglary, for which his punishment was assessed at confinement for ten years and a fine of $8,000. On the day sentence was imposed, 31 October 1984, appellant timely gave notice of appeal, the prerequisite to invoking this Court’s jurisdiction over the appeal. Carter v. State, 656 S.W.2d 468, 469 (Tex.Cr.App.1983).

Forty-three days later, on 13 December 1984, appellant applied to the trial court for appointment of counsel on appeal. The court formally appointed appellant’s previously appointed trial counsel to represent appellant on appeal.

On 17 December 1984, forty-seven days after appellant gave notice of appeal, appellant’s appointed counsel filed a designation of material, including a transcription of the court reporter’s notes, for inclusion in the record on appeal. Then, since Article 40.-09, § 5, Texas Code of Criminal Procedure Annotated (Vernon Supp.1986), requires that if appellant desires the inclusion of a transcription of the court reporter’s notes in the record on appeal, the designation shall be made within 20 days after the giving of notice of appeal, appellant, acting through his counsel, moved this Court on 28 December 1984 and on 9 January 1985 for an extension of time to file the transcription in the trial court. Both motions were overruled on the authority of Hernandez v. State, 670 S.W.2d 686 (Tex.App.—Amarillo 1984, no pet’n). In Hernandez, we documented the lack of authority to suspend the 20-day designation requirement, and observed the holding in the cited decisions of our court of last resort for appeals in criminal matters that if the 20-day requirement is not met, the right to have the transcription included in the record on appeal is waived. 670 S.W.2d at 688-89.

Now, appellant contends, by his two grounds of error, that he was deprived of effective assistance of counsel on appeal because (1) the trial court failed to appoint counsel to represent him on appeal in time to designate the record on appeal, and (2) the rules governing the inclusion of the transcription of the court reporter’s notes in the record on appeal are unconstitutional as applied to him in this cause. For the reasons to be stated, the grounds are overruled.

The constitutional right of a criminal defendant to effective assistance of counsel on appeal was established by Evitts v. Lucey, 469 U.S. -, - - -, 105 S.Ct. 830, 836-37, 83 L.Ed.2d 821, 830-31 (1985). That right was declared in order to comport with the demands of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. at -, -, 105 S.Ct. at 832, 836, 83 L.Ed.2d at 825, 830.

But that right, as it is asserted under the circumstances of this appeal, does not automatically override all other considerations; indeed, the question of the denial of effective assistance of counsel on appeal cannot be reached unless, as appellant submits in his second ground of error, the rules governing the inclusion of a transcription of the court reporter’s notes in the record on appeal are unconstitutional as applied to him in this cause. That question is the cornerstone of consideration in this appeal.

It is accepted that the Due Process Clause of the Fourteenth Amendment requires an opportunity granted at a meaningful time and in a meaningful manner to obtain an appellate hearing. Thomas v. Am, — U.S.-,-106 S.Ct. 466, 474, 88 L.Ed.2d-(1985). In this regard, a state may prescribe reasonable requirements, including those of limitation, for triggering the right to appellate review and determination. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982). And it follows that a state accords due process when it curtails or terminates an appeal for appellant’s failure to comply with a reasonable procedural rule. Thomas v. Am, supra.

Article 40.09 of the Texas Code of Criminal Procedure Annotated (Vernon Supp.1986) is the statutory prescription for the record on appeal. Sections 2 and 5 of the article operate in concert to prescribe that if an appellant desires to have all or any portion of a transcription of the court reporter’s notes included in the record, he shall file his designation within 20 days after giving his notice of appeal. As we noted in Hernandez, supra, at 688, no authority is granted for extending or suspending the nonjurisdictional 20-day limitation, for it was excluded from the authorization statutorily granted to extend the time specified for meeting some of the time limits prescribed for the appellate process.

The statutory provisions certainly grant the opportunity at a meaningful time to obtain the inclusion of the transcription in the record on appeal. The 20-day time limit for the designation of the transcription for inclusion in the record is a reasonable one for the filing of a simple designation; indeed, a 10-day time limit for filing objections to a magistrate’s report, obviously a more onerous burden, has been held to be reasonable. Thomas v. Arn, supra, — U.S. at-, -, 106 S.Ct. at 468, 474. And the time limit applies equally to all appellants, whether indigent or nonindi-gent, who must adhere to the requirement. Zamora v. State, 568 S.W.2d 355, 356 (Tex.Cr.App.1978); Hoagland v. State, 541 S.W.2d 442, 443 (Tex.Cr.App.1976); Rhoda v. State, 514 S.W.2d 937, 939 (Tex.Cr.App.1974).

Thus, the operation of the rules governing the record on appeal are not unconstitutional as applied to appellant in this cause. They did not deny him a right, in violation of the Due Process Clause, to have the transcription of the court reporter’s notes included in the record on appeal; they only conditioned that right on his merely filing a simple designation of the transcription within 20 days after he gave his notice of appeal. Appellant simply failed, as did the defendants in Zamora, Hoagland and Rhoda, to exercise due diligence to invoke that right, and so, like the defendants in those cases, he waived the right. To hold otherwise, particularly under the guise of the denial of effective assistance of counsel, would be to sanction an appellant’s complete control of the timetables in the appellate process, an intolerable situation.

Beyond that, our Court of Criminal Appeals, when faced with the exact question to be first decided in this appeal, validated the mandatory operation of sections 2 and 5 of article 40.09 in rendering its decisions in Zamora, Hoagland and Rhoda. It is to be presumed that the Court rendered its decisions in full awareness of, and after finding the statutory provisions complied with, the pertinent due process requirements for procedural rules. Accord, David v. State, No. 796-84 (Tex.Cr.App., Dec. 18, 1985). And, since the Court has decided the exact question, we, as an intermediate court, are not authorized to disobey or circumvent it. Hernandez v. State, supra, at 689.

Accordingly, the judgment of the trial court is affirmed.

BOYD, J., dissents.