eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Appeals of Texas
 2007-04

James Hail Benson v. State ( 2007 )


Menu:

  •   Opinion issued April 5, 2007  

























    In The  

    Court of Appeals

    For The  

    First District of Texas



    NO. 01-05-00063-CR



    JAMES HAIL BENSON, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 208th District Court

    Harris County, Texas

    Trial Court Cause No. 818465



    DISSENTING OPINION ON EN BANC

    The majority misstates the relief actually requested by appellant, James Hail Benson, misconstrues the statement that he made in his pro se notice of appeal, and then, in violation of the doctrine of stare decisis, proceeds to use this case to overrule and "abandon" the well-reasoned and six-year-old precedent of Jack v. State, 42 S.W.3d 291 (Tex. App.--Houston [1st Dist.] 2001, order) (Jack I). In so doing, the majority establishes in Texas jurisprudence a classic "catch-22," (1) which violates the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19. Accordingly, I respectfully dissent.

    The Problem: A Legal Catch-22

    Texas Courts have long noted that, in reviewing a criminal defendant's contention that he received ineffective assistance of counsel at trial, we look to the totality of the trial representation to determine the effectiveness of counsel, indulging a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A claim of ineffective assistance must be firmly supported in the record, see id., and it can be extremely difficult to show that trial counsel's performance was deficient when there is no proper evidentiary record developed at a hearing on a motion for new trial. See Johnson v. State, 176 S.W.3d 74, 79 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd); Sudds v. State, 140 S.W.3d 813, 819 (Tex. App.--Houston [14th Dist.] 2004, no pet.) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)).

    This aptly demonstrates what the Texas Court of Criminal Appeals has long recognized, i.e., "[w]ithout doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review." Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978) (quoted in Jack I, 42 S.W.3d at 292) (emphasis added). Texas courts have consistently held that "the time period for filing a motion for new trial is a critical stage of a criminal proceeding in which defendants are entitled to assistance of counsel." Jack I, 42 S.W.3d at 292 (citations omitted). Moreover, as acknowledged by the majority, "[w]hen a defendant is deprived of effective assistance of counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time limits." See Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987); see also Jack v. State, 64 S.W.3d 694, 697 (Tex. App.--Houston [1st Dist.] 2002, order) (Jack II).

    Accordingly, the Texas Court of Criminal Appeals has indicated that trial courts should appoint appellate counsel "at the same time that a defendant gives notice of appeal to ensure that a defendant's post trial rights and options are fully protected." Jack v. State, 149 S.W.3d 119, 122 n.4 (Tex. Crim. App. 2004) (Jack III). Under Texas Rule of Appellate Procedure 25.2(a)(2), a trial court should "enter the certification of appeal at the time of sentencing, and it is at that time, if an indigent defendant has the right to appeal and wishes to do so, the trial court will appoint counsel." Id. (citing Tex. R. App. P. 25.2(a)(2)).

    However, a serious problem arises when, as here, a case "sometimes slip[s] through the crack and, although notice of appeal was timely filed, appointment of appellate counsel was not made until long after" the date that the notice of appeal was filed. Jack III, 149 S.W.3d at 122 n.4. In such cases, if the defendant wants to appeal his conviction on the ground that his trial counsel was ineffective, but the trial court does not appoint appellant counsel until after the deadline has past for filing a motion for new trial, the defendant will be precluded from presenting a meaningful appeal. He will not be able to present a proper evidentiary record developed at a hearing on a motion for new trial--all because of an administrative error made by the trial court. He will be caught up in a legal catch-22. It is this problem that we effectively addressed in Jack I and Jack II.

    Jack I & Jack II

    In Jack I, the defendant's court-appointed appellate counsel filed a motion to abate the appeal and for leave to file an out-of-time motion for new trial. 42 S.W.3d at 292. She asserted that because the trial court appointed appellate counsel more than 30 days after the defendant was sentenced, the defendant was unrepresented by counsel during the 30-day period for filing a motion for new trial. Id. She also asserted that had she been timely appointed, she would have filed a motion for new trial, alleging ineffective assistance of trial counsel because trial counsel did not subpoena material witnesses. Id. Although we noted that everything in the record indicated that the defendant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial, we recognized that the Texas Court of Criminal Appeals has previously held that "[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected." Id. at 293 (quoting Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000)); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (en banc) (emphasis added).

    Obviously, a presumption is not truly rebuttable if one is not allowed an opportunity to rebut it. Accordingly, we held that an abatement was proper to "allow appellant the opportunity to rebut the rebuttable presumption" that he was effectively represented by counsel during the critical 30-day period for filing a motion for new trial. Jack I, 42 S.W.3d at 293 (citing Tex. R. App. P. 44.4, 43.6). In doing so, we expressly followed Texas Rule of Appellate Procedure 44.4, which provides:

    A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:



    (1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and



    (2) the trial court can correct its action or failure to act.



    Tex. R. App. P. 44.4(a) (emphasis added). In such circumstances, we "must direct the trial court to correct the error" and "then proceed as if the erroneous action or failure to act had not occurred." Tex. R. App. P. 44.4(b). Moreover, Texas Rule of Appellate Procedure 43.6 provides that we "may make any other appropriate order that the law and nature of the case require." Tex. R. App. P. 43.6. We also relied on McIntire v. State, 698 S.W.2d 652, 662 (Tex. Crim. App. 1985) (op. on reh'g) (abating to determine feasibility of hearing on three-year-old motion for new trial) and Crosson v. State, 36 S.W.3d 642, 294 (Tex. App.--Houston [1st Dist.] 2000, order) (abating for suppression hearing, listing many similar situations for which abatement has been ordered).

    Accordingly, we then abated the appeal and remanded the cause to the trial court for a hearing to determine whether appellant had counsel and whether he received effective assistance of counsel during the 30-day period for filing a motion for new trial. Jack I, 42 S.W.3d at 294.

    Subsequently, in Jack II, we noted that the trial court's findings upon the abatement and remand defeated the presumption that the defendant had considered and rejected filing a motion for new trial during the critical 30-day period. 64 S.W.3d at 696. We also noted that the proper remedy was to abate the appeal and remand the cause to recommence the time period for filing a new trial motion. Id. at 697. We did so, without disturbing the trial court's judgment, and ordered that upon remand, the appellate timetables were to begin anew, starting from the date of our order. Id. We explained that if the trial court granted the new trial motion, the appellate record was to be supplemented with that order, and the defendant's appeal would be dismissed. Id. We also explained that if the trial court overruled the new trial motion, the record would be supplemented with that order and the record of any hearing held on the motion, and the parties would be permitted to brief any issues related to the overruled motion. Id.

    In regard to the remand after Jack I, as noted by Justice Cohen in his concurring opinion:

    No judicial resources were wasted in this case. The trial judge signed his findings 38 days after our abatement order issued. The record got here three weeks later. The abatement hearing covers only six pages of testimony and lasted only minutes. The defendant answered seven questions; trial counsel answered five. The trial judge commented that this was a "simple record" to make.



    Id. at 698 (Cohen, J., concurring) (emphasis added). More importantly, this Court recognized and effectively and efficiently followed Rules 44.4 and 43.6 and case law to abate the case, ensuring that the defendant was able to timely and properly present his appeal to this Court.

    The Issue Presented

    In overruling Jack I, the majority asserts that appellant "asks that we abate the present appeal and remand the cause to the trial court for an evidentiary hearing to determine whether he received effective assistance of counsel during the period for filing a motion for new trial." See Jack I, 42 S.W.3d at 294. However, appellant seeks no such relief at all.

    Unlike the defendant in Jack I, here, appellant did not file a motion to abate his appeal for the opportunity to rebut the "rebuttable presumption" that he had considered and rejected filing a new trial motion. Rather, appellant, in his August 25, 2005 brief, articulates his point of error as follows:

    A new trial should be granted because of the violation of Appellant's right to effective assistance of counsel, when the trial court neglected to give appellant appointed counsel in order to assist the Appellant for timely filing of a motion for new trial and evidentiary hearing thereon.



    Although appellant cites both Jack I and Jack II under this point, the only request made by appellant of this Court is that

    the cause be REMANDED back to the trial court, with instructions for the trial court to allow Appellant 30 days to file a Motion for New Trial to more fully develop his claim of grounds of ineffective assistance of counsel, and to actually conduct an evidentiary hearing 75 days from the date of the filing of any motion . . . .



    See Jack II, 64 S.W.3d at 697 (emphasis added).

    Appellant in no way argues for an abatement under Jack I "to determine whether he received effective assistance of counsel during the period for filing a motion for new trial" as represented by the majority. In fact, appellant expressly argues that he is entitled to a remand to present his new trial motion, see Jack II, because "the instant records supply more than sufficient evidence to rebut any presumption of counsel" after sentencing. In its September 26, 2005 brief, the State argues that appellant "presents nothing for review" and, alternatively, that appellant has simply failed to rebut the rebuttable presumption. Thus, the issue of whether or not to overrule and abandon Jack I is not properly before this Court. (2)

    In support of his argument that the record, as it now stands, provides enough information to rebut the rebuttable presumption that he considered a new trial motion and rejected it, appellant refers to his pro se notice of appeal, dated July 29, 2004, upon which he wrote:

    Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL.



    RESPECTFULLY SUBMITTED, JAMES BENSON, DEFENDANT, PRO SE.

    Rather than reading appellant's pro se notice of appeal literally as a simple statement of fact, i.e., that he in fact did not have legal representation "SINCE SENTENCING," the majority misconstrues the statement as "conclusory." However, "conclusory" is defined as "[e]xpressing a factual inference without stating the underlying facts on which the inference is based." Black's Law Dictionary 284 (7th ed. 2001). Here, appellant's statement that he had not been represented by counsel "SINCE SENTENCING" is an affirmative statement of fact--it is not expressing a factual inference.   

    The majority faults appellant for not presenting this Court with a record showing that he (1) asserted that his "trial counsel failed to consult with and fully advise appellant about the meaning and effect of the judgment rendered by the trial court"; (2) alleged that his "trial counsel failed to consider or discuss the option of filing a motion for new trial, or that he refused to file one, or even that appellant made such a request"; and (3) argued that "trial counsel failed to express his professional judgment as to possible grounds for appeal and their merit, or failed to delineate advantages and disadvantages of appeal." It concludes that because appellant did not make these representations to the trial court or to this Court, "the record here is insufficient to rebut the presumption that trial counsel advised appellant about his appellate rights, rules, and odds of success" and that "appellant's conclusory statement is [in]sufficient to rebut the presumption that trial counsel continued to effectively represent him."

    How could appellate counsel make such a record after this Court has now, in overruling and abandoning Jack I, deprived him of the ability to rebut the rebuttable presumption that appellant considered and rejected filing a new trial motion? He cannot. Appellant is caught in this Court's catch-22. How would an indigent defendant, not represented by counsel "SINCE SENTENCING," possibly know to, or how to, make such a record in the trial court for consideration by this Court? He could not. Again, he is caught in this Court's catch-22. (3)

    Moreover, although such representations certainly may serve to rebut the rebuttable presumption that an appellant has considered and rejected a new trial motion when one is not filed in a case, the law does not require that these specific representations be made or proved to rebut the presumption. In support of its conclusions that these specific representations are required to rebut that presumption, the majority relies on Ex Parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) and Burnett v. State, 959 S.W.2d 652, 659 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Neither case is applicable here.

    The Court of Criminal Appeals in Ex Parte Axel held that trial counsel "has 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, 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." 757 S.W.2d at 374. Because the defendant's trial counsel effectively abandoned him, the court found that "in reality this presumptively indigent applicant did not receive any practical assistance of counsel in protecting and preserving his appellate rights." Id. Thus, it concluded that the defendant had been denied effective assistance of counsel on appeal in violation of his due process rights and held that he was "entitled to an out of time appeal." Id. at 374-75. Because it was not an issue in the case, the court did not even consider or discuss the rebuttable presumption that an appellant has considered and rejected a motion for new trial when one is not filed in a case.

    Burnett is substantively and easily distinguishable because the pro se notice of appeal in issue, which was apparently filed by the defendant's mother, stated that "appellant was told by his attorney that appellant needed to 'write this letter' . . . to appeal the length of sentencing." 959 S.W.2d at 654-55. Unlike the instant case, the defendant did not inform the trial court that he had not been represented by counsel "SINCE SENTENCING."

    The bottom line is that the majority's misconstruction of appellant's statement as "conclusory" cannot be justified in light of appellant's affirmative and unequivocal statement that he was in fact not represented by counsel "SINCE SENTENCING." In fact, as noted by the majority, the trial court did not even certify appellant's right to appeal until January 14, 2005, almost five months after appellant filed his pro se notice of appeal. Moreover, this Court actually had to abate the appeal to order the trial court to appoint appellate counsel. As acknowledged by the majority, the trial court on remand stated on the record, "Well, I don't know why you weren't appointed a lawyer on appeal because you should have been appointed a lawyer . . . ." Here, as in Ex Parte Axel, appellant has demonstrated that he was effectively abandoned by trial counsel.

    Nevertheless, despite the record before us, including our own actual abatement and remand of the case ordering the trial court to appoint appellate counsel, the majority actually holds that "the record shows that appellant was officially represented by counsel at all times in the litigation, and appellant has failed to overcome the presumption that counsel was acting effectively at all times." Then, rather than addressing appellant's actual point of error and argument, the majority uses its extraordinary holding to revisit and overrule Jack I by "abandon[ing] the abatement procedure used in Jack I."

    Welcome Back Jack

    Abandoning abatement as used in Jack I and the majority's reasoning in doing so is problematic for a number of reasons. First, this Court has no authority to ignore the requirements of Rule 44.4 as outlined above. If a trial court's failure to act "prevents the proper presentation of a case" on appeal and the trial court can correct the error, an appellate court "must direct the trial court to cure the error." Tex. R. App. P. 44.4 (emphasis added). As noted by the Court of Criminal Appeals in Jack III, trial courts should appoint appellate counsel "at the same time that a defendant gives notice of appeal to ensure that a defendant's post trial rights and options are fully protected." 149 S.W.3d at 122 n.4. Failure to do so necessarily prevents a defendant from properly presenting his appeal in violation of the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19.

    Second, in regard to the majority's representation that "we added a step to the appellate process," in Jack I, again, Rule 44.4 actually requires that we direct the trial court to cure any error that "prevents the proper presentation of a case." Tex. R. App. P. 44.4. Moreover, even the majority, citing Ward v. State, recognizes that "[w]hen a defendant is deprived of counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time tables." See 740 S.W.2d 794 (Tex. Crim. App. 1987). Following Rule 44.4 and established precedent is not "adding a step" to the appellate process.

    Third, the majority's conclusion that the Court of Criminal Appeals "criticized" and "disapproved" of abatement as used in Jack I and "questioned our legal authority" to abate is unfounded. In the three years since the Court of Criminal Appeals issued its opinion in Jack III, this Court has continued to abate cases under Jack I when necessary. Only now has this Court come to the conclusion, under "the pronouncements of our superior court," that the precedential value of Jack I and Jack II has been abrogated. Yet, in Jack III, the court merely held that "[r]egardless of the validity of the procedure ordered by the court of appeals, its decision turned out to be an interlocutory order, not a final one." 149 S.W.3d at 125. Thus, it dismissed the State's petition for discretionary review and remanded the case to us for further proceedings. Id. It is well-settled law that "[w]hen a party attempts to appeal a non-appealable interlocutory order, appellate courts have no jurisdiction except to declare the interlocutory nature of the order and dismiss the appeal." Lipshey Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 70 (Tex. App.--Dallas 1997, no writ); see Yancey v. Jacob Stern & Sons, Inc., 564 S.W.2d 487, 488 (Tex. Civ. App.--Houston [1st Dist.] 1978, no writ). After ascertaining that dismissal was proper, it would have been improper for the court to issue any such advisory opinion. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Texas courts simply have no jurisdiction to render advisory opinions. See id.

    It is true that in discussing the issue presented in the State's petition for discretionary review and in laying out the procedural posture of the case, the Court in Jack III did quote the criticism in the opinions of the three justices on our Court who dissented in Jack II. 149 S.W.3d at 122; see Jack II, 64 S.W.3d at 698 (Taft, J., dissenting) (Nuchia, J., joined by Radack & Taft, JJ., dissenting to denial of en banc reconsideration). However, the court also quoted Justice Cohen's concurring opinion, acknowledging the problem that we addressed in Jack I. 149 S.W.3d at 121-22 n.4. It is also true that the court in Jack III asserted that we did not reveal the rule upon which we relied in abating the case. 149 S.W.3d at 121. However, in Jack I, we clearly stated that we were following Rules 44.4 and 43.6 and case law in initially abating the case. 42 S.W.3d at 293. Also, the court in Jack III did note that "the State is correct" that it, in the words of the State, "has thrice reviewed this out-of-time motion for new trial abatement procedure." 149 S.W.3d at 123; see Smith, 17 S.W.3d at 662; Oldham, 977 S.W.2d at 363; Price v. State, 826 S.W.2d 947, 947 (Tex. Crim. App. 1992). However, the court emphasized that in these cases it held that abatement was invalid only "under the cited rule of appellate procedure." Jack III, 149 S.W.3d at 124. In Jack I, we noted that the Court in Oldham limited its holding on the issue to the use of Rule 2(b):

    Our holding on this issue is strictly limited to the use of Rule 2(b). We should not be understood as restricting 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.

    Jack I, 42 S.W.3d at 293 (quoting Oldham, 977 S.W.2d at 360) (emphasis added). Accordingly, in Jack I, we expressly did not rely on Rule 2(b) in initially abating the case. Id. at 294. Thus, Price, Oldham, and Smith are simply inapplicable.

    Fourth, in regard to the assertion that abatement as used in Jack I has "the opposite effect" of conserving "judicial resources," this case serves to illustrate precisely why that statement is patently false. For example, appellate counsel could have, after his appointment on April 15, 2005, filed in this Court a Jack I motion to abate to allow him the opportunity to rebut the rebuttable presumption that appellant considered and rejected filing a new trial motion. We certainly could have abated the case for a "minutes"-long hearing to determine the issue and then, if necessary, ordered that he be allowed to file his new trial motion. Had the trial court granted the new trial motion, we would have immediately dismissed this appeal. Had the trial court denied the motion, appellant could have timely and meaningfully presented his point in this appeal. This could have been accomplished well before appellant's brief was filed on August 25, 2005.   

    As noted above, appellant requested no such relief. Thus, this Court should have timely addressed the issue when the case came at issue on September 26, 2005, after the State filed its brief. We should have, under Jack II and Ward, sustained appellant's first issue and ordered that appellant be allowed to file his new trial motion. Again, had the trial court granted the motion, we would have immediately dismissed the appeal. Had the trial court denied the motion, appellant could have timely and meaningfully presented his point in this appeal. This could have been accomplished before this case was submitted on May 23, 2006.

    However, rather than handle our business in a timely and efficient manner, the majority now suggests that appellant later "develop a record of ineffective assistance of trial counsel or lack of trial counsel" through a subsequent and separate "post-judgment phase through habeas corpus proceedings." See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005). Under article 11.07, appellant may not even bring such a post-conviction writ until after his conviction becomes final, i.e., after he has exhausted his appeals. See id. at § 3. Also, he would not have the right to counsel to assist him in such a habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987). Thus, the majority's suggestion rings hollow. Not only does it create yet another more burdensome obstacle for appellant, it would make another court reinvent the wheel by doing the work that we could have accomplished after a "minutes"-long hearing. More importantly, as noted below, appellant has a right to present his appeal "at a meaningful time and in a meaningful manner." Ward, 740 S.W.2d at 800 (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)) (emphasis added).   

    Finally, in regard to the notion that abating a case under Jack I might be "an admirable exercise in equity," it must be stated that such abatements are not merely equitable, but actually required under the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. Art. I, § 19. It is more than unseemly for a court of law to create a catch-22, precluding a defendant from properly presenting his appeal because, through no fault of his own, his case "slipped through a crack" when the trial court untimely appointed his appellate counsel. Justice Felix Frankfurter wrote that "[f]airness of procedure is 'due process in the primary sense.'" Joint Anti-Facist Ref. Comm. v. McGrath, 341 U.S. 123, 161, 71 S. Ct. 624, 643 (1951). He further emphasized that

    Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances.



    Id. at 174, 71 S. Ct. at 650.

    In Evitts v. Lucey, the United States Supreme Court held that there is a constitutional guarantee of effective assistance of counsel on appeal in every criminal prosecution. 469 U.S. 387, 395-96, 105 S. Ct. 830, 836 (1985). In Evitts, although the defendant's retained counsel filed a notice of appeal, brief, and record, he failed to submit a statement of appeal required by the Kentucky Rules of Appellate Procedure. Id. at 389, 105 S. Ct. at 832. After the Kentucky Court of Appeals dismissed the defendant's appeal for failure to file a statement of appeal, the Supreme Court affirmed the granting of a writ of habeas corpus because the defendant had been denied effective assistance of counsel on appeal. Id. at 390, 405, 105 S. Ct. at 832-33, 841. The Supreme Court emphasized:

    In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that--like a trial--is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant--like an unrepresented defendant at trial--is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right--like nominal representation at trial--does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.



    Id. at 396, 105 S. Ct. at 836.

    Thus, the Supreme Court held that appellate counsel's failure to file the statement of appeal constituted a lack of effective assistance of counsel on appeal in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 397-98, 105 S. Ct. at 836-37. The Court noted, "counsel's failure was particularly egregious in that it essentially waived respondent's opportunity to make a case on the merits; it is difficult to distinguish respondent's situation from that of someone who had no counsel at all." Id. at 395, n.6, 105. S. Ct. at 835, n.6.

    Relying on Evitts, the Texas Court of Criminal Appeals, in Ward, noted that the failure of appellate counsel to comply with a simple procedural rule operated to deny the defendant "an opportunity at a meaningful time and in a meaningful manner to present his appeal." 740 S.W.2d at 800 (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)). It noted that the absence of a statement of facts severely limited appellate review and rendered the defendant's "appeal a 'meaningless ritual.'" Id. (quoting Evitts, 469 U.S. at 394, 105 S. Ct. at 834).

    In Ward, although the defendant's trial counsel remained the defendant's counsel on appeal because he failed to withdraw, counsel actually believed that his representation of the defendant ceased after trial. Id. The court explained that "as a practical matter," the defendant "received no assistance as to the substantive issues that may be presented on appeal." Id. Accordingly, the court held that the defendant had been denied his right to effective assistance of counsel on appeal in violation of his Fourteenth Amendment due process rights under the Federal Constitution and article one, section 19 of the Texas Constitution. Id. It reversed the court of appeals decision to the contrary and remanded the case to that court "with instructions to abate the appeal." Id. (emphasis added). Further, it ordered that "all applicable time limits on appeal shall be calculated as if the notice of appeal were given on the date of the overruling of the final motion for rehearing of this Order, or on the 16th day after rendition of this Order if no motion for rehearing is filed." Id.

    Here, the record conclusively establishes that appellant, "SINCE SENTENCING," was not represented by counsel. The trial court did not even certify appellant's right to appeal until almost five months after appellant filed his pro se notice of appeal, and we had to actually abate the appeal to order the trial court to appoint appellate counsel. The trial court's failure to timely appoint appellate counsel precluded appellant from filing a new trial motion and properly presenting the issue of whether his trial counsel provided effective assistance, i.e., it denied appellant "an opportunity at a meaningful time and in a meaningful manner to present his appeal." Ward, 740 S.W.2d at 800. Thus, "as a practical matter," appellant "received no assistance" as to the substantive issue that he seeks to present on appeal. Id.

    Accordingly, this Court should sustain appellant's first point of error, abate the appeal, and remand the cause to recommence the time period for filing a motion for new trial. Id.; Jack II, 64 S.W.3d at 697. On remand, the appellate time tables should begin anew. Ward, 740 S.W.2d at 800; Jack II, 64 S.W.3d at 697. This Court's failure to do so, and its abandonment of abatement as used in Jack I, violates the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19.   

    Conclusion

    Here, appellant's case "slipped through a crack," and the trial court's failure to timely appoint appellant counsel deprived him of the ability to present his appeal in a "meaningful time" and in a "meaningful manner." Rather than recognizing the simple fact that the record, as it stands, demonstrates that appellant was not represented by counsel during the time period for filing a motion for new trial, the majority misconstrues as "conclusory" the statement of appellant made in his pro se notice of appeal that he had not been represented "SINCE SENTENCING." It then misstates the relief that appellant is seeking, and, in violation of the doctrine of stare decisis, uses this case to overrule and abandon the well-reasoned and six-year-old precedent of Jack I.

    The majority ignores Rules 44.4 and 43.6 and Evitts and Ward. In effect, it creates a legal catch-22 in violation of both the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. Art. I, § 19. Here, the words of Justice Robert H. Jackson are most appropriate:

    Let it not be overlooked that due process of law is not for the sole benefit of the accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice . . . .

    Shaughnessy v. United States, 345 U.S. 206, 224-25, 73 S. Ct. 625, 635 (Jackson, J., dissenting).  











    Terry Jennings

    Justice



    Panel consisted of Justices Keyes, Alcala, and Bland.



    En banc consideration was requested. Tex. R. App. P. 41.2(c).



    A majority of the Court voted for en banc consideration.



    The en banc court consists of Chief Justice Radack and Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley, and Bland.



    Justice Alcala, writing for the majority of the en banc Court, joined by Chief Justice Radack and Justices Taft, Nuchia, Hanks, Higley, and Bland.



    Justice Jennings, dissenting.



    Justice Keyes, dissenting.



    Publish. Tex. R. App. P. 47.2(b).



    1. "Catch-22" is defined as "a dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions." The New Oxford American Dictionary 270 (1st ed. 2001). It originates from the title of the novel authored by Joseph Heller.

    2. In fact, as noted by the majority, this Court, after the case had already been submitted on May 23, 2006, ordered sua sponte an abatement as used in Jack I on July 19, 2006. Only then did the State challenge this Court's sua sponte order.

    3. As Joseph Heller wrote in Catch-22:

    [Captain] Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

    "That's some catch, that Catch-22," he observed.

    "It's the best there is," Doc Daneeka agreed.

    Joseph Heller, Catch-22 46 (Simon & Schuster 2004) (1961).