33rd / 424th District Courts

From Whitehead v. State, NO. 2077-02 (Crim. App. 2004), http://caselaw.findlaw.com/scripts/getcase.pl?court=tx&vol=app/207702a&invol=1 We frequently see some confusion about trial counsel's obligation regarding the appeal, or at least initiating it.

Retained trial counsel has a duty to ensure that a notice of appeal is filed if the defendant wishes to appeal. (65) The attorney then has two options: (1) he can effectively volunteer to serve as appellate counsel by signing the notice of appeal himself, or (2) "the defendant may file the notice pro se, which serves as an indication that trial counsel does not wish to pursue his client's appeal." (66) Nothing in the appellate rules requires retained trial counsel to serve as counsel on appeal if he does not sign the notice. (67) In fact, Rule 6.4 specifically bars appointed counsel in a criminal case from filing a "nonrepresentation" notice but does not mention retained counsel. Retained counsel must file a (68) but that motion should ordinarily be granted. (69) If there is a question of indigence, however, the trial judge may delay leave to withdraw until the indigence proceedings are complete. (70)

Footnotes applicable to this snippet . . .
65. Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003).

66. Id. (internal quotation marks omitted).

67. See Rules 6.1 - 6.6.

68. Ex Parte Axel, 757 S.W.2d 369, 373-374 (Tex. Crim. App. 1988).

69. Id. ("But it was not then, and is not now, required that written notice of appeal be made by trial counsel, and thus "volunteer" to become attorney of record on appeal"; holding that a pro se notice of appeal combined with a motion to withdraw places the trial court on notice that the defendant, if indigent, needs appointed counsel, unless another attorney has already been retained).

70. Id. at 374 n. 7 ("the judge may require withdrawing trial counsel to continue to serve through such indigency proceeding, and withhold signing an order granting leave to withdraw until that bit of business is done").