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471 S.W.2d 392

Chavez v. State

Court of Criminal Appeals of Texas

Decided October 13, 1971

Court of Criminal Appeals of Texas · decided 1971-10-13

Cited by 4 later decisions — most recently May 1978

4 state decisions

Key passage — most relied on by later courts

““In Steel v. State, Tex.Cr.App., 453 S.W.2d 486 (1970), we noted that the failure of non-appointed counsel in a criminal case to perfect an appeal from a conviction, when requested to do so by the accused, violates the requirement that the accused be afforded the effective aid of counsel on appeal. See Atilus v. United States, 406 F.2d 694 (5th Cir. 1969). By analogy, it is clear that if the defendant manifested a desire to appeal then the absence of counsel, due to death, to pursue this appeal would also be a denial of assistance of counsel at a critical stage in a criminal proceeding.””

quoted by 2 later decisions, including Watson v. State, Martinez v. State

Relies on Atilus v. United States · Steel v. State · Gomez v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1971-10-13

View the full empirical analysis of this case →

¶1*393OPINION

DAVIS, Commissioner.

¶2This is an appeal from a conviction for assault with intent to murder with the punishment assessed at three years.

¶3Appellant was represented in the trial court by the Honorable Murray J. Howze. A Certificate of the Clerk appears in the record certifying that retained counsel for appellant died in the month of February, 1971.

¶4The record was approved on May 24, 1971, approximately three months after death of counsel. We find nothing to indicate that appellant was represented by counsel after Mr. Howze’s death. Moreover, the record fails to reflect that the appellant was personally notified of completion of the record or that he, in fact, had any knowledge of his attorney’s death.

¶5We are, therefore, confronted with the question of what action should be taken where defendant has manifested his desires to appeal; his attorney has died before the completion of the record; the record has been forwarded to this court and no brief or motion on appellant’s behalf has been filed.

¶6In Steel v. State, Tex.Cr.App., 453 S.W.2d 486 (1970), we noted that the failure of non-appointed counsel in a criminal case to perfect an appeal from a conviction, when requested to do so by the accused, violates the requirement that the accused be afforded the effective aid of counsel on appeal. See Atilus v. United States, 406 F.2d 694 (5th Cir. 1969). By analogy, it is clear that if the defendant manifested a desire to appeal then the absence of counsel, due to death, to pursue this appeal would also be a denial of assistance of counsel at a critical stage in a criminal proceeding.

¶7To avoid the possibility of depriving this appellant of the effective aid of counsel on appeal and an adequate appellate review, this appeal will be abated, as the State by written motion has requested, in order that the trial court can properly notify the appellant of his attorney’s death so that he may retain assistance of counsel on appeal or in the alternative to inquire and determine whether the circumstances would require the appointment of counsel for the appeal.

¶8See Gomez v. State, Tex.Cr.App., 471 S.W.2d 393, this day decided.

¶9It is so ordered.

¶10Opinion approved by the Court.

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