Ward v. State

704 S.W.2d 903, 1986 Tex. App. LEXIS 11991

• Court: Court of Appeals of Texas
• Decided: January 22, 1986
• Docket: 07-84-0254-CR
• Status: Published

Opinions

REYNOLDS, Chief Justice.

Appellant Kenneth Joseph Ward appeals from a judgment revoking probation. The appeal raises the question whether appellant, who failed to comply with the mandatory requirements for timely designating the transcription of the court reporter’s notes for inclusion in the record on appeal, is entitled to the transcription upon claims of denial of effective assistance of counsel and lack of proper admonishment on the dangers of self-representation on appeal. Under this record, the question will be answered in the negative, and the judgment will be affirmed.

The probation previously granted appellant was revoked by the trial court’s 4 October 1984 order. Appellant’s trial counsel of record timely filed appellant’s written notice of appeal on 10 October 1984. No designation of a transcription of the court reporter’s notes for inclusion in the record on appeal was filed within 20 days after the giving of notice of appeal as required by statute. Tex.Code Crim.Proc. Ann. art. 40.09, §§ 2, 5 (Vernon Supp.1986). On 25 October 1984, the trial court approved the record on appeal, which did not include a transcription of the court reporter’s notes, and, there being no objection filed to the record, it was filed in this Court on 20 November 1984.

Upon receipt of the Court’s notice of the record filing, appellant’s counsel of record advised that he had not been appointed counsel on appeal. Then, for the reasons explained in an unpublished opinion, this Court abated the appeal, ordered the trial court to hold a hearing to determine appellant’s indigency and, if indigency be determined, to appoint counsel on appeal, who was to file appellant’s brief within thirty days from the date of appointment. Ward v. State, No. 07-84-0254-CR (Tex.App.-Amarillo, Dec. 19, 1984, no pet’n).

In response to the Court’s order, the trial court made its 20 December 1984 order appointing appellant’s trial counsel as appellant’s attorney on appeal. Seven days later on 27 December 1984, counsel designated the transcription of the court reporter’s notes for inclusion in the record on appeal and, on 12 February 1985, moved for extension of time for filing the transcription with the clerk of the trial court. The motion was denied for want of authority to include the untimely designated transcription in the record on appeal as explicated in Hernandez v. State, 670 S.W.2d 686 (Tex.App.—Amarillo 1984, no pet’n). In Hernandez, we pointed out that Article 40.09, supra, 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, and documented the lack of authority to suspend the 20-day requirement. Id. at 688-89.

Thereafter, another attorney, representing that he “has been retained as co-counsel on appeal only,” moved for, and was granted, extensions of time to file appellant’s brief. Within the extended time granted for filing the brief, appellant moved that the appeal be abated and the case be returned to the point at which notice of appeal was given so that he could have effective assistance of counsel and a meaningful appeal. The motion was denied.

Appellant’s brief advances six grounds of error. By the first four grounds, he contends his Federal and State constitutional right to effective assistance of counsel was denied by the trial court’s failure to timely appoint counsel on appeal. In presenting the contention, he does not question, but concedes, that by the holdings of Hernandez v. State, supra, and the cases cited there, he has waived his right to a complete record. Instead; he urges that since he was represented by appointed counsel at trial and gave notice of appeal, the trial court, having a duty to insure an adequate record on appeal, had the further duty, even in the absence of guidelines, to timely appoint an attorney on appeal. Then, appellant concludes, it is presumed that the appointed attorney would have filed a proper designation of the record and avoided the exclusion of the transcription from the record on appeal.

At the outset of the consideration of appellant’s faulting the trial court for not timely appointing counsel on appeal, it is appropriate to notice several matters. First, in the record before us, no appointment of trial counsel is recorded, although the clerk’s certificate furnished with the notice of appeal shows that counsel was appointed. Thus, the information that trial counsel was not appointed counsel on appeal comes from counsel’s response to the notice of the filing of the appellate record. Second, assuming counsel was not formally appointed counsel on appeal, there is no record that appellant requested the appointment of counsel on appeal. And third, the trial court’s appointment of appellant’s trial counsel as his counsel on appeal was made without any expressed finding on the question of appellant’s indigency.

But aside from that, the fact remains that appellant’s trial counsel did give timely notice of appeal. By giving the notice of appeal, trial counsel voluntarily became appellant’s attorney of record on appeal, Robinson v. State, 661 S.W.2d 279, 283 (Tex.App.-Corpus Christi 1983, no pet’n), particularly since there is nothing in the record to evidence the appointing court’s permission for counsel to terminate his representation. Harrison v. State, 516 S.W.2d 192, 192-93 (Tex.Cr.App.1974). It logically follows that the exclusion of the transcription from the record on appeal cannot be charged to the trial court’s failure to sooner make a formal, appointment of counsel on appeal.

Moreover, in a similar factual situation, we recently held, albeit not unanimously, that a defendant’s claimed denial of effective assistance of counsel because counsel was appointed too late to timely designate the record on appeal was not tenable when there was a failure to comply with the time limits for designating the transcription for inclusion in the record on appeal. Gollihar v. State, 701 S.W.2d 85 (Tex.App.1986). As we reiterated in Gollihar, the 20-day time limit for designating the transcription is a reasonable procedural requirement which must be adhered to by all appellants, whether indigent or not, and we are without authority to hold otherwise. For these reasons, appellant’s first four grounds are overruled.

With his last two grounds, appellant presents his contention that the trial court violated his Federal and State constitutional right to a meaningful appeal by failing to admonish him as to the dangers of self-representation on appeal. In this regard, he suggests that the trial court erred in failing to admonish him to file a designation of the record, a principle said to be a recognized conflict with the holding in Hernandez v. State, supra. Without a complete trial court record, we, of course, are uninformed whether the trial court gave any admonishment or made the explanation suggested in Robinson v. State, supra, at 283, to appellant. Nevertheless, it suffices to state, as we did in Gollihar v. State, supra, that the reasonable, mandatory procedural requirements for designating the record on appeal do not deny appellant a constitutional right to a record on appeal; they only condition that right on his merely filing a simple designation of the transcription within 20 days after he gave notice of appeal. Consequently, the last two grounds of error are overruled.

The judgment is affirmed.

COUNTISS, J., concurs. BOYD, J., dissents.