33rd / 424th District Courts

I continue to see a bit of confusion about this issue. Please see Jones v. State, 98 S. W. 3d 700 (Tex. Crim. App. 2003). The Court refers to its earlier opinion in Ex parte Axel, 757 S.W.2d 369 (Tex.Cr.App.1988), and recalls:

Recognizing that in order "for an unknowing defendant to learn of his appellate rights someone must advise him of them," we indicated that "trial counsel is not only the best source of such advice but also that it is his duty as an attorney to give it[.]" Id. at 373. Trial counsel's representation does not end upon sentencing, but rather, continues in the form of advising the defendant as to his right to appeal and assisting him in making an informed decision whether to exercise that right. Id. We held:
[T]rial counsel, retained or appointed, 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.

The Court then proceeds to explain the process:

Trial counsel's responsibilities consist of a two-step process. First, the attorney must ascertain whether the defendant wishes to appeal. The decision to appeal lies solely with the defendant, and the attorney's duty is to advise him as to the matters described above. If the defendant does not wish to appeal, trial counsel's representation ends. If the defendant decides to appeal, the attorney must ensure that written notice of appeal is filed with the trial court. [FN2] At this point, trial counsel has two options. He may sign the notice himself, in which case, he effectively "volunteers" to serve as appellate counsel. Id. Alternatively, 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.' " Id. (quoting Ward v. State, 740 S.W.2d 794 (Tex.Crim.App.1987)). A "contemporaneous" presentation of the pro se notice with a motion to withdraw by trial counsel serves as actual notice to the trial court of the defendant's desire to appeal.

The court then outlines the trial court's duties, stating that "The pro se notice and accompanying motion to withdraw put the trial court on notice that, unless the defendant has retained another attorney, the issue of indigency must be resolved." And further, "These duties of the trial court clearly arise when written notice of appeal has been filed. Do the duties also arise when no notice has been filed, but the trial court nevertheless learns of the defendant's desire to appeal? We believe that, given the facts in this case, the answer is 'yes.'"