Trial Counsel's Responsibilities In Texas
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. (Rule of Appellate Procedure 40(b)(1) requires that notice of appeal be written and filed with the clerk of the trial court).
In Ex parte Axel, 757 S.W.2d 369 (Tex. Cr. App. 1988), the Court set forth the independent duties of both trial counsel and the trial court with respect to the initial stages of the appellate process.
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.
The Court held:
Trial 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. Id. at 374.
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. Id.