# Ward v. State > Court of Criminal Appeals of Texas · November 25, 1987 · 740 S.W.2d 794 URL: https://www.frixlaw.com/law-library/cases/9664791 ## Case - **Full name:** Kenneth Joseph WARD, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 25, 1987 - **Citations:** 740 S.W.2d 794; 1987 Tex. Crim. App. LEXIS 714; 1987 WL 1793 - **Precedential status:** Published - **Opinion:** Concurrence by Teague - **Judges:** Duncan, Teague - **Cited by:** 201 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664791 ## How later opinions describe it (automated extraction) - holding that appellant had been denied his right to effective assistance of counsel on appeal in violation of his due process rights under the Fourteenth Amendment and the Texas Constitution 12 when appellant “as a practical matter received no assistance as to the substantive … - explaining that a trial attorney’s “legal responsibilities do not magically and automatically terminate at the conclusion of the trial”; rather, trial counsel continues to represent the defendant after trial until the trial court gives the attorney express permission to withdr… - stating that appointed trial counsel remains defendant’s counsel for all purposes until trial court expressly permits withdrawal, even if appointment was for trial only - holding that when defendant is deprived of effective counsel during period for filing motion for new trial, remedy is to abate appeal and reset appellate guidelines ## Opinion text TEAGUE, Judge, concurring. Notwithstanding what I will later state, I certainly agree with the majority opinion’s conclusion that given the facts and circumstances of this case, Kenneth Joseph Ward, the appellant, is entitled to an out-of-time appeal, because, through no fault of his, but probably because of “the system” that then existed, which this Court, by failing to step in when given the opportunity, allowed to perpetuate itself, he has been denied and deprived of his constitutional right to appeal the trial court’s order revoking his probation. Given the record of this cause, appellant is clearly entitled to be granted an out-of-time appeal. To understand what I will later state, I believe that it is necessary for the reader to first familiarize himself or herself with the poem “La muse historique”, that was written by the 15th century poet Jean Loret, in which Loret described a Mother Goose tale in these words “Comme un conte de la Mer-oye/Se trouvant fabuleux et faux.” The majority opinion truly gives meaning to those words that Loret wrote so many, many years ago. I further find that to fully appreciate the majority opinion, it is also necessary for the reader to recall from his or her childhood the following Mother Goose rhyme, which is found in MS.’s addition to Mother Goose’s Melody (c. 1803): Humpty Dumpty sat on a wall, Humpty Dumpty had a great fall; All the King’s horses, And all the King’s men, Couldn’t put Humpty Dumpty back together again. No matter how much those members of this Court who join the majority opinion might desire to turn the clock back to that day when appellant’s court appointed trial counsel gave written notice of appeal on behalf of appellant, and thus be able to apply what the majority opinion advocates *801 today, now for then is simply inapplicable to this cause. I find that even if this Court in the future is presented with an identical set of facts to this cause, involving a ease that arose before September 1, 1987, because the clock cannot be turned back, virtually all, if not all, of what the majority opinion states should be the law will have little or no meaning to that case. I must, however, point out that the majority opinion by Judge Duncan makes it self-evident that a majority of this Court’s collective minds is usually willing to change on a given issue. Today’s majority opinion gives meaning to my belief. Not too awfully long ago at least eight members of this Court voted to refuse to grant William John Pacheco’s petition for discretionary review. I was the only judge of this Court who dissented to the refusal. The facts that were presented there are no better than those present in this cause; in fact, they may be worse. See Pacheco v. State, 692 S.W.2d 59 (Tex.Cr.App.1985). Perhaps, given what the Court does today, the defendant Pachecho should now return to this Court and obtain the meaningful appeal that he has been denied in the past. I will not repeat all of what I stated in the dissenting opinion that I filed in Pacheco, supra, because that would only be repeating much of what this majority opinion in part states. I will only state the following: “However, if the defendant opts to have his conviction reviewed by an intermediate court of appeals, but he failed to obtain such review, it is the State that has unconstitutionally deprived him of his appeal. It is the State that must see that the defendant who wishes to appeal his conviction receives a meaningful review of that conviction.” (64). James Blaine Shead, whose motion for leave to file application for writ of mandamus and/or prohibition was denied by this Court on October 30, 1985, see our number 15,351, also see Shead v. State, 711 S.W.2d 345 (Tex.App.-Dallas 1986, P.D.R. refused February 4, 1987, see our numbers 649-86, 650-86, 651-86, and 652-86), is another defendant who will probably benefit from today’s decision. In this instance, the State clearly let this appellant down in his effort to have a meaningful review of the revocation hearing that was held in the trial court, and this Court correctly orders that he be granted an out-of-time appeal. Justice, once again, triumphs in the Court of Criminal Appeals. Probably what motivated me to write in this “Humpty Dumpty” case rests in the fact that the majority opinion devotes none of its time to discussing the duty of retained trial counsel, opting instead to give all of its attention to counsel who has been appointed only for the trial and who thereafter makes the good faith mistake of filing a written notice of appeal on behalf of the client. By the majority opinion’s silence on this subject, I must assume that none of what it advocates is applicable to retained trial counsel and that this Court’s decision of Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976), in which this Court implicitly held that a retained trial attorney’s legal responsibilities automatically terminate at the conclusion of the trial, which is contrary to the legal duty that this Court places today upon an attorney who has only been appointed for trial purposes, will control in that instance. Another reason that causes me to write is the majority opinion’s use of Harrison v. State, 516 S.W.2d 192 (Tex.Cr.App.1974, for citation only purposes), as its linchpin to commence its travels to the conclusion it finally reaches. 1 As reflected in the citation, as well as by the record of the cause, that opinion was only authored by a Commissioner of this Court, which opinion was not formally approved by this Court. It is axiomatic that an opinion by a Commissioner of this Court, which has not been approved by the En Banc Court, has absolutely no prece-dential value. At a maximum, it only rep *802 resents the views of that person, and nobody else. The commissioner who wrote the formally unapproved opinion by this Court of Harrison, supra, first set out certain facts, namely: “The court-appointed trial counsel has advised this court by letter that he does not represent the appellant for purposes of appeal” and “there is nothing in the record to indicate that the trial court permitted appointed counsel to withdraw.” Without citing any authority whatsoever, and not even discussing the subject, the commissioner then stated the following: “As far as this court is concerned the trial counsel still represents appellant on appeal.” (192-193). That, of course, only represents his view on the subject, and not this Court’s view. Nevertheless, by plucking from Harrison, supra, an unsupported statement in law, and by using it as his authority, I find that this enables the author of the majority opinion to have a starting point for his short treatise on the subject of why counsel who is appointed only for trial purposes has purchased himself a free appellate case, even though counsel had no direct knowledge that this occurred or happened. The author of the majority opinion, thereafter by implicating the principle of law that unquestionably led to the passage of the amendment to Art. 26.04, V.A.C.C.P., which is not applicable to this cause because it was not in effect when notice of appeal was given in this cause, and by implicating the Disciplinary Rules of the Code of Professional Responsibility, which, because this Court held in Pannell v. State, 666 S.W.2d 96 (Tex.Cr.App.1984), do not for purposes of our criminal law have the force and effect of law, are also inapplicable to this cause, is able to swiftly glide his yacht named “Justice” into the out-of-time appeal port that is operated and managed by this Court. The subject that I find this Court should be addressing is found within the concurring opinion that Justice Countiss filed when this cause was in the court of appeals. There, His Honor stated the following: “I am not entirely comfortable with our decision, however, because I do not know who is at fault for this incomplete record.” Justice Countiss then suggested in his opinion that the problem that occurred in this cause would probably not have existed “if the trial court had told the defendant at sentencing about certain basic appellate requirements”, which he sets out in his opinion. I find that if we must find a target to throw stones at, we should select this Court because it, and not appellant’s counsel, is the guilty party that caused appellant’s predicament; done by omission, if you please. Why counsel filed the written notice of appeal is not reflected in the record before us. Notwithstanding this omission, I believe it is highly likely that counsel was probably operating on the premise that at that time written notice of appeal had to be given within 15 days of imposition of sentence, see Art. 40.08(b), V.A.C.C.P., if no motion for new trial was filed, and, because he did not then know whether he was going to file such a motion, which is permissible in a revocation of probation proceeding, see Ausborne v. State, 499 S.W.2d 179, 180 (Tex.Cr.App.1973), he chose to prematurely file the written notice of appeal to assure that the world would know that appellant wanted to appeal the trial court’s order of revocation. In Ex parte Drewery, 677 S.W.2d 533 (Tex.Cr.App.1984), this Court puts its seal of approval to giving premature notice of appeal. Thus, it appears to me that counsel should be lauded, and not criticized, for his efforts to see that appellant received his constitutional appeal. The time for giving notice of appeal, of course, is a critical stage of the proceedings. See, for example, Thomas v. Beto, 423 F.2d 642, 643 (5th Cir.1970). However, if the defendant is not advised at that time of his right to appeal, of the procedure and time limits involved, and his right to appointed counsel on appeal if indigent, the right to have review of what occurred in the trial court actually becomes a meaningless constitutional right and renders such right only an illusion. And, in order to eliminate any question about whether the *803 defendant received such advice, who better than the trial judge is best equipped to give that advice? This case, as many others with similar facts, makes it clear to me that it is certainly not trial counsel, whether counsel is court appointed or retained. I am thus in agreement with Justice Countiss’s suggestion that the only sure way to make certain that a foul-up such as occurred in this cause may not be repeated is to place the responsibility on the trial judge to advise the defendant at the proper time of his appellate rights, whether he be represented by retained or court appointed counsel. See Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) (Held, there is no longer any legal distinction between representation by court appointed counsel and retained counsel.) E.g., U.S. ex rel. Smith v. McMann, 417 F.2d 648 (2nd Cir.1969); U.S. ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir. 1971). Also see Rule 32(a)(2), F.R.C.P., and Walters v. Harris, 460 F.2d 988 (4th Cir. 1972). By virtue of such a holding, we will all know at which target our stones should be thrown, and will additionally give meaning to what Justice Draughn of the Houston Fourteenth Court of Appeals recently stated in that court’s unpublished opinion of Lynch v. State, No. C14-86-687-CR, July 30, 1987 [Available on WESTLAW, TX-CS database]: “A State has the right to establish and enforce reasonable procedural rules for an appeal and to sanction the loss of appellate review if the rules are not followed. (Citations omitted.)” Given what I have stated, I believe the reader will conclude as I have, that the majority opinion is largely an academic discussion on the legal duties that court appointed trial counsel might have after the trial has been completed. I will close by pointing out that probably the most glaring omission in the majority opinion is its failure to discuss what a court of appeals must do if the appellate rules have not been complied with. Should the court of appeals simply ignore those rules and grant the defendant an out-of-time appeal, or should it enforce the rules and then let this Court ignore the procedural rules and grant him an out-of-time appeal? Either way reflects badly upon our criminal justice system. In any event, the majority opinion gives no guidance to our intermediate appellate courts. And that to me, in addition to what I have previously stated, is probably what causes it to be so seriously lacking. For the above and foregoing reasons, I only agree with the majority opinion’s conclusion, that appellant is entitled to be granted an out-of-time appeal. . The statements found in I Tex.Crim. Practice Guide, § 1.05[2], at pp. 1-54 were obviously based upon the assumed fact that Harrison, supra, was an opinion that had been approved by the En Banc Court. However, as we shall see, that did not occur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664791. Public record. Not legal advice.