[355] OPINION ON STATE’S MOTION FOR REHEARING
WOMACK, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and MANSFIELD, KELLER and HOLLAND, Judges, joined.
The State petitioned this Court for review of the Court of Appeals’ opinion, Oldham v. State, 889 S.W.2d 461 (Tex.App.—Houston [14th Dist.] 1994), which held that the appellant was denied counsel at a critical stage of the proceedings, and which abated the appeal and remanded the cause to the trial court to allow the appellant to file an out-of-time motion for a new trial. On original submission, this Court dismissed the State’s petition for discretionary review as improvidently granted. We then granted the State’s motion for rehearing, on which this opinion is issued. We shall reverse.
The appellant was represented by retained counsel at her trial for forgery committed on January 9, 1989, in violation of Texas Penal Code § 32.32. On January 13, 1992, she was found guilty by a jury. On that same date, the trial court sentenced her to three years confinement. The appellant filed a pro se notice of appeal and indigency on February 10, 1992. The next day the appeal was assigned to the Fourteenth Court of Appeals, with a notation on the letter of assignment from the trial court that the attorney of record on appeal was “to be determined.” On March 16, 1992, the trial court found the appellant indigent and appointed appellate counsel.
[356] On March 20, 1992, the appellant, through her appellate counsel, filed a motion in the Court of Appeals to abate the appeal. She requested that the court set aside the sentence, start the appellate timetable anew, and remand the case to the trial court to allow the appellant leave to file a motion for new trial, on the ground that she was denied the constitutional right to counsel during a critical stage of the appellate proceedings, namely the time period within which her motion for new trial had to be filed. The Court of Appeals denied this motion on March 26, 1992. On April 9, 1992, the appellant filed a second motion to abate the appeal on the same ground. The Court of Appeals overruled that motion on April 16, 1992. The appellant urged fifteen points of error to the Court of Appeals, four of which dealt with the same subject matter as her motions to abate.
On September 29, 1994, the Court of Appeals issued its opinion, Oldham v. State, 889 S.W.2d 461 (Tex.App.—Houston [14th Dist.] 1994), in which it determined that the appellant had been denied her Sixth Amendment right to counsel. The Court of Appeals abated the appeal, set aside the notice of appeal, and remanded the cause to the trial court to allow the appellant to file her motion for new trial and the orderly conduct of subsequent post-trial proceedings. Id. at 463.
The Court of Appeals began its analysis by stating, “Texas Rule of Appellate Procedure 31(a)(1) requires that if a motion for new trial is to be filed, it must be done within thirty days of sentencing. See Tex.R.App.P. 31(a)(1). However, Texas Rule of Appellate Procedure 2(b) allows this Court to extend the thirty day deadline for ‘good cause’ shown. See Tex.R.App.P. 2(b).” Oldham v. State, 889 S.W.2d 461, 462 (Tex.App.—Houston [14th Dist.] 1994).
The appellant claimed that she had been denied her right to counsel in violation of the Federal Constitution, the State Constitution, the Code of Criminal Procedure, and various eases interpreting them. The Court of Appeals found a constitutional violation, and it relied on Rule 2(b)1 as authority to set aside the sentence and notice of appeal, abate the appeal, and allow the appellant to file her motion for a new trial. The Court of Appeals reasoned that Rule 2(b) could be used to “suspend” Rule 31(a)(1) which required that a motion for a new trial be filed within 30 days after sentencing. In essence, the Court of Appeals used Rule 2(b) to extend the time limit for the filing of the appellant’s motion for a new trial some two years and eight months, this being the time from the appellant’s sentencing to the date of the Court of Appeals’ decision.
We believe the Court of Appeals was in error to rely on Rule 2(b) as a mechanism to extend the time limits for the filing of a motion for a new trial imposed by Rule 31(a)(1).
Rule 2 of the Texas Rules of Appellate Procedure2 provides:
(a) Relationship to Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals, the Court of Criminal Appeals or the Supreme Court as established by law.
(b) Suspension of Rules in Criminal Matters. Except as otherwise provided in these rules, in the interest of expediting a decision or for other good cause shown, a court of appeals or the Court of Criminal [357] Appeals may suspend requirements and provisions of any rule in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. Provided, however, that nothing in this rale shall be construed to allow any court to suspend requirements or provisions of the Code of Criminal Procedure.
The courts of appeals have considered and used Rule 2(b) in a variety of cases. See, e.g., Callis v. State, 756 S.W.2d 826 (Tex.App.— Houston [1st Dist.] 1988) (using Rule 2(b) to abate appeal and remand to allow untimely filing of a motion for new tidal upon finding the appellant was denied counsel during time limit to file motion for a new trial); McMillan v. State, 769 S.W.2d 675 (Tex.App.— Dallas 1989) (using Rule 2(b) to suspend time limits to file a notice of appeal after case remanded for a hearing on a motion for a new trial); Boulos v. State, 775 S.W.2d 8 (Tex.App.—Houston [1st Dist.] 1989) (using Rule 2(b) to allow untimely motion for extension of time to file late notice of appeal); Torres v. State, 804 S.W.2d 918 (Tex.App.—El Paso 1990) (holding that use of Rule 2(b) to abate the appeal and return the case to the trial court for a hearing on the appellant’s ineffective assistance claim would violate the Rule 2(a) prohibition against enlarging jurisdiction); Bowler v. State, 822 S.W.2d 334 (Tex.App.—San Antonio 1992) (finding no good cause shown under Rule 2(b) to remand for an evidentiary hearing on an ineffective assistance claim because such a claim is cognizable by habeas corpus); Harris v. State, 827 S.W.2d 442 (Tex.App.—San Antonio 1992), and Harris v. State, 818 S.W.2d 231 (Tex.App.—San Antonio 1991) (using Rule 2(b) to abate the appeal and remand for an out-of-time motion for new trial based on newly discovered evidence); State ex rel. Holmes v. Shaver, 824 S.W.2d 285 (Tex.App.—Texarkana 1992) (using Rule 2(b) to abate the appeal and remand to the trial court to conduct a rehearing on out-of-time motions for new trial); Sanchez v. State, 885 S.W.2d 444 (Tex.App.—Corpus Christi 1994) (using Rule 2(b) to allow untimely motion for extension of time to file late notice of appeal); Hilton v. State, 870 S.W.2d 209 (Tex.App.—Beaumont 1994) (abating appeal and remanding to the trial court for a hearing to allow the appellant to attempt to establish good cause under Rule 2(b) to allow an out-of-time motion for new trial); Tuffiash v. State, 878 S.W.2d 197 (Tex.App.—San Antonio 1994) (using Rule 2(b) to abate the appeal and remand to the trial court for an out-of-time motion for a new trial based on newly discovered evidence, conceding that such claim is also cognizable in habeas); Broadnax v. State, 900 S.W.2d 452 (Tex.App.—Texarkana 1995) (refusing to use Rule 2(b) to allow untimely notice of appeal); Garza v. State, 904 S.W.2d 877 (Tex.App.—Corpus Christi 1995) (refusing to use Rule 2(b) to allow trial court’s untimely granting of a new trial to become valid retrospectively); Boyette v. State, 908 S.W.2d 56 (Tex. App.—Houston [1st Dist.] 1995) (using Rule 2(b) to abate appeal and remand to allow untimely filing of a motion for new trial upon finding the appellant was denied counsel during time limit to file motion for a new trial); Cooper v. State, 917 S.W.2d 474 (Tex.App.—Fort Worth 1996) (refusing to use Rule 2(b) to allow untimely notice of appeal); Crowell v. State, 949 S.W.2d 37 (Tex.App.—San Antonio 1997) (refusing to use Rule 2(b) to allow untimely hearing on motion for a new trial claiming ineffective assistance of counsel because such claim is cognizable in habeas corpus); Burnett v. State, 959 S.W.2d 652 (Tex.App.—Houston [1st Dist.] 1997) (refusing to use Rule 2(b) to allow remand for an out-of-time motion for a new trial because record did not support claim of denial of counsel).
This Court has also had occasion to use and to comment on the role of Rule 2(b) in the appellate process.
Less than two months after we adopted Rule 2(b), this Court utilized it to grant out-of-time discretionary review on the Court’s own motion in Davis v. State, 721 S.W.2d 857 (Tex.Cr.App.1986), and ultimately remanded the case to the Court of Appeals. In a dissent critical of the Court’s actions, calling the majority a “loose cannon on deck,” Judge Clinton stated:
As I do, the Austin Court will surely wonder what is the “good cause shown,” and since presumably it must invite and afford time for the parties to brief the Adams [358] question, the Austin Court would be justified in believing that to review the record again for prejudice to preparation of a defense is certainly not “in the interest of expediting a decision” in this cause.
Id. at 858 (Clinton, J., dissenting).
In Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987), this Court used Rule 2(b) to prohibit entertainment of a motion for rehearing in the case. In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), we used Rule 2(b) to grant rehearing in the case on the Court’s own motion. Rose represented the last time we endorsed use of Rule 2(b) to suspend the Rules of Appellate Procedure.
In State ex rel. Cobb v. Godfrey, 739 S.W.2d 47 (Tex.Cr.App.1987), the trial court orally granted the defendant’s motion for a new trial within the time limits to rule on it, but did not sign the order granting the motion until five days after the time limit had expired. We held that motion had been overruled by operation of law and the order granting the motion was a nullity. The respondent, the trial judge below, requested that this Court use Rule 2(b) to suspend the rules, which we declined to do, stating:
Suspension of rules of appellate procedure by this Court is a serious matter, not to be undertaken lightly. Rule 31(e), supra, serves the vital function of promoting certainty regarding the finality of a judgment, in a ease in which a motion for new trial has been filed. Under Rule 31(e)(3), respondent lost jurisdiction to rule on the motion when it was overruled by operation of law. Respondent has failed to show good cause why this Court should suspend this rule, other than to remedy his own tardiness. For these reasons, we decline to suspend the rules pursuant to Rule 2(b), supra, as suggested by respondent.
Id. at 49.
In Tallant v. State, 742 S.W.2d 292 (Tex.Cr.App.1987), in refusing to permit discretionary review on a ground that was not first presented to the Court of Appeals for review, we stated: “There was and is a provision for suspending rules of appellate procedure. See former rule 4 and Tex.RApp.Pro. Rule 2(b). There is none for ignoring, disregarding or violating them on the part of any party or appellate court, especially this one. Transgressions of rules of appellate procedure which this Court has insisted be followed cannot be summarily dismissed.” Id. at 294. See also Rochelle v. State, 791 S.W.2d 121 (Tex.Cr.App.1990) (refusing to use Rule 2(b) to allow discretionary review on a ground not addressed by the Court of Appeals). And in Ex parte Herrera, 860 S.W.2d 106 (Tex.Cr.App.1993), we refused to use Rule 2(b) to allow an out-of-time motion for a new trial based on newly discovered evidence.
In addition to our own use of Rule 2(b), we have had occasion to consider use of the Rule by the courts of appeals.
The San Antonio Court of Appeals in Garza v. State sought to withdraw its opinion and issue a new opinion after a petition for discretionary review had been filed and the time limit for substituting its opinion had expired. Garza v. State, 896 S.W.2d 192 (Tex.Cr.App.1995). See Tex.R.App.P. 101. The appellant urged that Rule 2(b) permitted the suspension of Rule 101 by the Court of Appeals, although the Court of Appeals had not specifically relied on Rule 2(b) for its actions. This Court rejected the argument and noted that Rule 2(b) could not be used to extend the Court of Appeals jurisdiction. “The time limits set forth in the Rules of Appellate Procedure are not discretionary. ... If appellate courts were able to suspend the timetables, to which they are held to comply, there would be nothing this Court could do to promote the timeliness of the appellate process and the very purpose of the Rules would be undermined.” Id. at 194.
In Olivo v. State, 918 S.W.2d 519 (Tex.Cr.App.1996), we rejected the appellant’s argument that Rule 2(b) could be used to allow an untimely motion for extension of time to file a late notice of appeal, holding that the Court of Appeals never obtained jurisdiction over the appeal to do anything but dismiss it for lack of jurisdiction. We recognized, however, that the constraint found in Rule 2(a) would not have prevented the Court of Appeals from using Rule 2(b) in the manner suggested, but that the court was powerless to act since a timely appeal was never per-[359] feeted. Id. at 523. See also Harris v. State, 818 S.W.2d 231, 232-33 (Tex.App.—San Antonio 1991) (Rule 2(a) does not prevent use of Rule 2(b) on this issue).
In State v. Adams, 930 S.W.2d 88 (Tex.Cr.App.1996), the Texarkana Court of Appeals used Rule 2(b) to suspend the time limits in Rule 31(a)(1) and allow out-of-time motions for new trial based on newly discovered evidence. See State ex rel. Holmes v. Shaver, 824 S.W.2d 285 (Tex.App.—Texarkana 1992). Upon the granting of the motions by the trial court, the State appealed arguing that Rule 2(b) did not permit such action. The First Court of Appeals, in Houston, was assigned the case, but refused to address the argument, stating that the Texarkana Court had concluded that the abatement and remand was proper. On the State’s petition for discretionary review, we reversed and remanded the ease instructing the First Court to address the issue.3 While we did not reach a conclusion on the issue presented in the case, we directed the Court of Appeals’ attention to State v. Bates, 889 S.W.2d 306 (Tex.Cr.App.1994), and Garza v. State, 896 S.W.2d 192 (Tex.Cr.App.1995), for guidance.
Most recently, in State v. Garza, 931 S.W.2d 560 (Tex.Cr.App.1996), this Court was presented the novel situation where the trial court erroneously granted a motion for a new trial which had been overruled by operation of law, and upon conviction in the second trial, the defendant, receiving a greater sentence, appealed contending that the second sentence was void, since the trial court was not authorized to grant the new trial. The Court of Appeals agreed, and set aside the second sentence, reinstating the first. On petition for discretionary review, the State urged that the Court of Appeals erred by refusing to use Rule 2(b) to validate the trial court’s order granting the new trial. We disagreed, stating:
Finally, and most importantly, in our view Rule 2(b) does not authorize the retroactive suspension of rules governing events that have already occurred at the trial level before the record has been conveyed to the appellate court. True, on its face the rule allows suspension of provisions of “any” rule, even those governing motion for new trial. Nevertheless, the suspension of a rule is permitted only in accordance with the conditions enumerated in the rule, viz: “in the interest of expediting a decision or for other good cause shownf.]” This language signifies that what Rule 2(b) contemplates in the way of “good cause” is one of the relatively rare situations in which suspending a rule, rather than following it, will actually facilitate processing the case through the appellate court, by “expediting a decision” or otherwise. It does not authorize courts of appeals to reach back, after the appeal has been perfected and the record filed, and alter the course of events at the trial court level, as the State asked the court of appeals to do here.
Id. at 563.
In the case at hand, the Court of Appeals had been properly vested with jurisdiction to hear the appeal, and therefore it was bound by and had the authority to act pursuant to the Rules of Appellate Procedure, including Rule 2(b). Nothing in Rule 2(a) prevented the Court of Appeals from using Rule 2(b) in the manner attempted. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Cr.App.1996).
However, we think it is clear that using Rule 2(b) to “suspend” or enlarge appellate time limits which regulate the orderly and timely process of moving a case from trial to finality of conviction is overstepping the contemplated uses of Rule 2(b). In State ex rel. Cobb v. Godfrey, we stated that Rule 31 serves the vital function of promoting certainty regarding the finality of a judgment; in Tallant v. State, we stated that the Rules may not be disregarded; in Garza v. State, we stated that the time limits in the Rules are not discretionary; and in State v. Garza, we stated that Rule 2(b) is to be reserved for cases where suspending a rule will actually facilitate processing the case through the appellate court.
[360] It has been suggested that abating an appeal and allowing an out-of-time motion for new trial will have the ultimate effect of speeding up the appellate process. See, e.g., Driggers v. State, 940 S.W.2d 699, 707 (Tex.App.—Texarkana 1996); Sanchez v. State, 885 S.W.2d 444, 446 (Tex.App.—Corpus Christi 1994); Tuffiash v. State, 878 S.W.2d 197, 201 (Tex.App. — San Antonio 1994);4 Torres v. State, 804 S.W.2d 918 (2) (Tex. App. — El Paso 1990). Despite this argument’s appeal, we are not persuaded that Rule 2(b) is the appropriate vehicle to give it effect. While in a small number of cases the litigation process may ultimately be shortened, we think that the associated delays and restarting of the appellate process upon such speculation makes this an improper use of Rule 2(b). See Torres v. State, 804 S.W.2d 918, 920 (Tex.App.—El Paso 1990) (“we are not disposed to encourage a practice of disrupting the orderly and prompt flow of direct appeals by what could well become a routine defense practice of seeking abatement for random trolling of the record for signs of ineffective assistance”). Rule 2(b) is in essence an escape valve to be used by an appellate court when a ease becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process; although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants.
Our holding on this issue is strictly limited to the use of Rule 2(b). We should not be understood as restricting a court of appeals’ power to abate an appeal and remand a case under authority other than Rule 2(b). When judicial resources can be conserved in the interest of justice, we encourage the courts of appeals to adopt and continue to use methods for resolving issues sooner rather than later, as long as such methods are legally endorsed. Moreover, a denial of constitutionally guaranteed counsel will be remedied, and the use of Rule 2(b) to effectuate this remedy is not necessary.
We now turn to review of the Court of Appeals’ holding that the appellant was denied counsel. The State asserts that the record in this case does not support the appellant’s claim of denial of counsel, and argues that the appellant’s claim of denial of counsel should be heard on an application for a post-conviction writ of habeas corpus rather than on her direct appeal. In Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Cr.App.1980) we stated:
Experience has taught us that in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape, perhaps because of the very alleged ineffectiveness below, that would adequately reflect the failings of trial counsel. Indeed, in a case such as this, where the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be just the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.
However, a claim on direct appeal of denial of counsel should be entertained and upheld if supported by the record. See, e.g., Warren v. State, 744 S.W.2d 614 (Tex.Cr.App.1988).
While we have held that a defendant is entitled to counsel at a hearing on a motion for a new trial, Trevino v. State, 565 S.W.2d 938, 940 (Tex.Cr.App.1978), this Court has yet to address the issue of whether a defendant is entitled to counsel during the time limit for filing a motion for new trial to assist the defendant in preparing the motion. See Wayne R. LaFave & Jerold H. Israel, Crimi[361] nal Procedure § 11.2(b) (2nd ed.1992) (defendant’s right to counsel at post-trial proceedings before the trial judge that challenge the conviction is not clear). This is the very question we left unanswered in Connor v. State, 877 S.W.2d 325, 326-27 (Tex.Cr.App.1994). Some courts of appeals cases have held that there is such a right. See, e.g., Boyette v. State, 908 S.W.2d 56 (Tex.App.—Houston [1st Dist.] 1995); Oldham v. State, 889 S.W.2d 461 (Tex.App.—Houston [14th Dist.] 1994); Cox v. State, 797 S.W.2d 958 (Tex.App.—Houston [1st Dist] 1990); Callis v. State, 756 S.W.2d 826 (Tex.App.—Houston [1st Dist.] 1988). However, we are not asked today to address this issue and we will not do so, finding that the appellant has failed to show that she was denied counsel during the time limit for filing a motion for new trial.
A defendant has a right to file a motion for a new trial. Tex.R.App.P. 30, 31. This right emanates exclusively from the Rules of Appellate Procedure, and the Rules must be strictly complied with when seeking the remedy. See Drew v. State, 743 S.W.2d 207, 223 (Tex.Cr.App.1987) (there is no common law right to move for a new trial in a criminal case; remedy must be pursued in the manner prescribed). The mere filing of a motion for a new trial, whether thereafter pursued or abandoned, has the effect and advantage of extending the appellate time limits in which to give notice of appeal from thirty days to ninety days after sentencing, Tex.R.App.P. 41(b)(1), and it is often used exclusively for this purpose. See Trevino v. State, 565 S.W.2d 938, 942 (Tex.Cr.App.1978) (Dally, J., dissenting) (abandoning motion for new tidal is legitimate and commonplace practice). Motions for new trial have substantively been used primarily for claims of newly discovered evidence or jury misconduct. See George E. Dix & Robert 0. Dawson, 43 Texas Practice § 41.01 (1995). However, except to adduce facts of a matter not otherwise shown on the record, a motion for new trial is not a requisite to presenting a point of error on appeal. Tex.R.App.P. 30(a).
The appellant in this case did not file a motion for a new trial. She has never indicated any grounds she would have raised in a motion for a new trial. She has never claimed that if she were to file a motion for a new trial that she would be entitled to a new trial, or even a hearing on her motion. The appellant has not claimed that her appeal or other rights were injured in any way due to her failure to file a motion for a new trial, or that she was not able to raise certain grounds because she did not first file a motion for a new trial. She does not claim that her trial counsel was ineffective for failing to file a motion for a new trial. The appellant does not assert that she was not informed by her trial counsel of the opportunity and grounds for filing a motion for a new trial. In fact, she has not even claimed that if given the opportunity to do so, that she would have filed, or would now in fact file, a motion for a new trial. She does claim, instead, simply that she was without counsel during the time limit for filing the motion for a new trial.
In the Court of Appeals, the appellant argued that her trial attorney was released on the day of sentencing, and since appellate counsel was not appointed until sixty-two days later, she was without assistance of counsel during the time period for filing a motion for an new trial, a critical stage of the proceedings at which she is guaranteed Sixth Amendment right to counsel. The State countered that since there was no evidence in the record that her trial attorney was released, the appellant was still represented by counsel. Oldham v. State, 889 S.W.2d 461, 462 (Tex.App.-Houston [14th Dist.] 1994).
The Court of Appeals held that “Under the black letter of the law, the state is correct.” The court recognized that trial counsel remains the defendant’s counsel for all purposes until expressly permitted to withdraw, but when a trial attorney believes that representation has ended, the appellant as a practical matter receives no assistance at all even though there may still be an attorney of record on the case, citing Ward v. State, 740 S.W.2d 794, 798-800 (Tex.Cr.App.1987). The Court of Appeals then found that the appellant’s trial counsel “seemed to believe his representation of appellant ended after trial,” and held that the appellant was likewise, as a practical matter, without representation. Oldham v. State, 889 S.W.2d at 462.
[362] The Court of Appeals also relied on three other courts of appeals’ opinions in making its determination that the appellant had been denied counsel.
In Callis v. State, 756 S.W.2d 826, 827 (Tex.App.—Houston [1st Dist.] 1988), the appellant’s appointed trial counsel filed a notice of appeal on the date of sentencing. The docket sheet and notice of assignment contained notations that counsel on appeal was “to be determined,” but trial counsel never filed a motion to withdraw. The appellant complained that his appellate counsel was not appointed until after the time limit for filing-a motion for new trial had passed. The trial court conducted a hearing and found that the date of appellate counsel’s appointment could not be determined. The court held that it would be sheer speculation to conclude that the appellant was represented by counsel at this stage of the proceedings, and that the appellant had successfully met his burden of showing that he was not represented by counsel during a critical stage of the prosecution. Id.
In Cox v. State, 797 S.W.2d 958 (Tex.App.—Houston [1st Dist.] 1990), the First Court of Appeals again found denial of counsel during the time period for filing a motion for a new trial. The appellant in that case was appointed appellate counsel 33 days after sentencing. The court did not elaborate further on the details of the case, other than to cite Callis and find a denial of counsel.
The San Antonio Court in Ortega v. State, 837 S.W.2d 831 (Tex.App.-San Antonio 1992), considered the issue, but distinguished Callis. The court held, based on Ward v. State, 740 S.W.2d 794 (Tex.Cr.App.1987), appointed counsel remains as the defendant’s counsel for all purposes until expressly permitted to withdraw, even if the appointment is for trial only. The court found nothing in the record to support a conclusion that trial counsel was permitted to withdraw or otherwise replaced by counsel until the appellate counsel was appointed, twenty days after the time limit for filing a motion for new trial had expired. The mere fact that no motion for a new trial was filed, the court reasoned, did not mean that the appellant was denied counsel during that time. Ortega v. State, 837 S.W.2d at 832.
In this case, the Court of Appeals followed Callis and Cox, and criticized Ortega on the ground that the San Antonio Court had not correctly applied the rule set forth in Ward, namely that although there was an attorney of record, the appellant nonetheless essentially received no assistance at all because trial counsel mistakenly believed that his representation had ended.
In Steel v. State, 453 S.W.2d 486, 487 (Tex.Cr.App.1970), we recognized that “retained counsel, even one who has not been fully compensated for past services or compensated for further service, cannot wait until a critical stage of the proceedings is reached and bow out without notice to the court and the accused and ‘frustrate forever accused’s right to protect his vital interests.’ ” In Ward v. State, 740 S.W.2d 794, 796-97 (Tex.Cr.App.1987), we stated that “it is abundantly clear that an appointed attorney’s legal responsibilities do not magically and automatically terminate at the conclusion of the trial.... The continuity of representation from trial to appeal is necessary to correct the ambiguity of representation which all too often follows a conviction.” In Ex parte Axel, 757 S.W.2d 369, 374 (Tex.Cr.App.1988), we held that “trial counsel, retained or appointed, had the duty, obligation and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, and the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal. The decision to appeal belongs to the client.”
We have scoured the record in search of the evidence showing that trial counsel thought his duties were completed with the end of the trial, and had thereafter abandoned the appellant. The appellant points us to none, the Court of Appeals points us to none, and we can find none ourselves. The only relevant facts the record shows are that the appellant filed a pro se notice of appeal [363] and indigency on the twenty-eighth day after sentencing, there is a notation in the letter of assignment that attorney of record on appeal is to be determined, and appellate counsel was appointed sixty-two days after sentencing.
We hold that such facts do not rebut the presumption that the appellant was represented by counsel and that counsel acted effectively. Cf. Dyches v. State, 382 S.W.2d 928, 930 (Tex.Cr.App.1964) (“there is nothing in the record to show or indicate that the appellant was harmed by the failure of his counsel to file motion for new trial”). There is nothing in the record to suggest that the attorney did not discuss the merits of a motion for a new trial with the appellant, which the appellant rejected. When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected. Additionally in this case, the fact that the appellant filed a pro se notice of appeal is evidence that she must have been informed of at least some of her appellate rights, and we presume she was adequately counseled unless the record affirmatively displays otherwise.
We hold that the record shows that the appellant was officially represented by counsel at all times in the litigation, and the appellant has failed to overcome the presumption that counsel was acting effectively at all times.
Experience has taught us that in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape, perhaps because of the very alleged ineffectiveness below, that would adequately reflect the failings of trial counsel. Indeed, in a case such as this, where the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be ... the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.
Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Cr.App.1980). “For this reason we have held that, when direct appeal has not provided an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, we will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal. Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Cr.App.1997).” Jackson v. State, 973 S.W.2d 954, 957 (Tex.Cr.App., 1998).
The judgment of the Court of Appeals is reversed, and the case is remanded to that court for consideration of the appellant’s remaining points of error.
MEYERS, J., dissents.
OVERSTREET, J., files a dissenting opinion.
PRICE, J., files a dissenting opinion.