concurring in part and dissenting in part.
The majority opinion by Judge Clinton and the opinion by Judge Teague (concurring and dissenting) deal with a non-issue in this cause.
This proceeding involves a post-conviction habeas corpus application brought under the provisions of Article 11.07, V.A.C.C. P.
Applicant, inter alia, contends that he was denied ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments in that his retained counsel did not give notice of appeal or perfect the appeal, as requested, and withdrew from the case without notice to him or to the trial court. He argues that such action deprived him of his appeal. He does not allege or claim that he had no knowledge of his appellate rights, and that it was the duly or responsibility of either his counsel or the trial court or both to inform him thereof, and that neither did so, and that he, as a result, forfeited his appeal. Such is a non-issue in this case. Further, the meager record was not developed along these lines. There is nothing in this record to show that counsel or the court did not in fact inform the applicant of his appellate rights. The applicant is entitled to relief on the issue he raised, not on the basis of a court created issue or issues found in an unauthorized advisory opinion.
Applicant was convicted of aggravated robbery in cause no. 309,325-A in the 174th District Court of Harris County in March, 1980. After the jury verdict, the court assessed punishment at 35 years imprisonment. No notice of appeal was given and the conviction became final.
Applicant, now confined in the Texas Department of Corrections, filed the instant habeas application in the convicting court as required by Article 11.07, supra.
In the sworn pro se handwritten habeas application and typed “memorandum in support of habeas corpus”, applicant contends, inter alia, that he received ineffective assistance of counsel from his retained trial counsel. The main thrust of this contention is that he requested his attorney to give notice of appeal; that his attorney promised to give such notice; that at the time of sentencing, (March 31, 1980) in answer to the trial judge’s inquiry as to an appeal, counsel told the judge he would prepare the “papers”; that counsel never gave notice of appeal, never requested to withdraw from the case and abandoned the case without notice to the applicant or the trial court; that several attempts to contact counsel resulted in “no reply from him.” Applicant urges he was deprived of his appeal by the actions of his counsel. Applicant asserts he is indigent at this time.
In response to applicant’s habeas application in the convicting court, the State filed a response that there were “controverted, previously unresolved facts material to applicant’s confinement which require further investigation by the court.” The State asked that the trial court order applicant’s trial counsel to file an affidavit responding to the applicant’s allegations of ineffective assistance of counsel. The court entered such order.
*376Great difficulty ensued in obtaining the requested affidavit. Finally, counsel appeared in open court and the assistant district attorney requested that sworn testimony be taken from counsel in lieu of the affidavit earlier sought. Applicant was not present, nor was he represented by counsel.
Counsel testified that he had indeed represented the applicant in the 1980 aggravated robbery case. The record also reflects:
“Q. Would you tell the Court what you did after Mr. Axel was convicted of aggravated robbery and in relation to appealing his case?
“A. I did not give notice of appeal because I never intended to appeal his case. I explained to Clifton what the process of appeal was, that it was a costly situation and that I was not financially able to support his appeal.
“Q. Did Mr. Axel specifically ask you to represent him on appeal?
“A. If I remember correctly, that’s about the way that it went.
“Q. And do you remember whether or not you specifically told him you would not represent him on appeal?
“A. Oh, yes, I did explain to him that I would, not represent him on appeal
“Q. Did you ever state to the court in open court that you would represent Mr. Axel on appeal?
“A. To the best of my recollection I did not because I feel if I had, that would have been tantamount to telling the court that I would address the court to the fact that we were asking for an appeal.
“Q. So it is your testimony that you never told Mr. Axel you would represent him on appeal but then turned around and failed to do anything for him?
“A. I don’t see where there was any failure because I never told him that 1 was going to represent him on appeal.
“Q. Do you know whether or not he understood that?
“A. I feel reasonably certain that he understood it.
******
“Q. Mr. Axel also states that you never filed any type of a motion with the court. Would you say to the court that you essentially were leaving this case, you were not going to handle his appeal?
“A. At the point in time that Mr. Axel was found guilty that ended my period of time with him. I had no need to file a motion to withdraw because I had concluded the case.
“Q. And Mr. Axel understood that you were not going to represent him on appeal?
“A. I told him that.
“Q. Were you retained or appointed, Mr. Jackson?
“A. Retained.” (Emphasis supplied.)
Before the district judge of the convicting court was the sworn habeas application and the testimony of trial counsel. In his findings, the judge, who was the trial judge, found that counsel did not tell applicant that he would represent applicant on appeal and that “applicant was not deprived of his right to an appeal.” It was recommended to this Court that relief be denied.1 The record was forwarded to this Court.
It is observed again that at no time has applicant alleged or claimed that he was deprived of his appeal because he lacked knowledge of his right of appeal or appellate procedures and that no one informed him of his rights. He does not assert that the trial judge had a constitutional, statutory or other duty to admonish and inform him of his right of appeal and procedural *377steps, and that the judge did not do so, nor does he claim his attorney had such duty but did not do so.2 What he does allege and claim is that he knew of his right of appeal and asked his retained counsel to give such and appeal his conviction, and that counsel promised to do so but did not, and that counsel withdrew without notice to him or the trial court.
When the matter was presented to this Court an order was entered on April 22, 1988, to file and set for submission “to make the determination whether th< trial court must admonish the defendant of his right of appeal.” The Court was misled for such issue is not presented by this cause.3 In the majority opinion the issue is altered again “to determine where lies the burden of counseling a defendant on his appellate rights.”
Since these issues were not raised by applicant no evidence was developed on the same. The “file and submit” order was improvidently entered and the majority displays a lack of judicial discipline to write and decide a non-issue from an undeveloped record regardless of how dear to the heart the non-issue may be to some judges.
The majority opinion states:
“... We hold that at sentencing the Judge of the trial court has discretion but not a duty or responsibility, to inform a defendant of his right of appeal and of other appellate matters to the extent deemed appropriate in the premises.
“We also hold that 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 of 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 decision to appeal belongs to the client.”
These are gratuitous “holdings.” There is nothing in this record to show that the trial judge and counsel did not do what is “recommended.” Applicant does not claim otherwise. Even if one agrees with such “holdings” they were not called for in the instant case. Appellate judges should avoid seizing upon just any case as a vehicle to write on favorite subjects or whatever may tickle their fancy. I dissent to the action of the Court in doing so and in rendering an advisory opinion.
However, I agree that applicant is entitled to the relief on the issue he does raise. Applicant claims that he told counsel he wanted to appeal. Counsel agrees that applicant did. Applicant alleges counsel promised to give notice of appeal but did not, and in fact withdrew from the case without notice to him or permission from the court. Counsel, who was retained for trial, stated that he told applicant that he would not represent him on appeal, and that applicant understood; that he did not give notice of appeal because he did not intend to appeal the case. Counsel did not file a motion to withdraw from the case because he felt that he had concluded the case in accordance apparently with his agreement or contract, as retained counsel, with the applicant. The trial court was made aware of the situation. Whether at that time applicant was indigent and without funds is not clearly reflected by this record.4
*378From the undisputed evidence, we know that counsel here knew that applicant wanted to appeal but he gave no notice of appeal for the applicant, nor indicated to the trial court of applicant’s desires in this regard, nor did he request permission from the court to withdraw from the case. He simply abandoned the applicant at a critical stage of the proceedings. This he cannot do whether he be appointed or retained as counsel. See Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970); Atilus v. United States, 406 F.2d 694 (5th Cir.1969); Ward v. State, 740 S.W.2d 794, 798 (Tex.Cr.App.1987). See also Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975); Ex parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975).
Applicant is entitled to the relief he seeks —an out of time appeal. Thus I concur in the result reached, but express my alarm at the manufacturing of issues and the lack of judicial discipline demonstrated in this cause.
. The court further found that counsel "did contact and attempt to bring to court the various witnesses the applicant complains of." In the second of two contentions applicant alleged counsel failed to contact alibi witnesses whose names and addresses were given him. The witnesses were not named. Counsel testified one of the witnesses was applicant’s sister who testified, that another was a Mrs. Washington, who promised on the day of trial to come to court but didn't show, and the other was a "Clifton Axel look-alike," and that a great deal of time was spent in the neighborhood where the young man was supposed to have lived, that a vehicle supposedly his was located, but the person was never found.
. Counsel testified he explained "the process of appeal” to applicant.
. The State’s brief referred to in Judge Teague’s opinion was filed only after the order was entered changing the issue raised in this cause.
. It is undisputed that the applicant was represented at trial by retained counsel. The majority in reciting the facts states that at the time of the 1980 conviction applicant was “by now an indigent he alleges" and later refers to “this presumptively indigent applicant,” whatever that term is supposed to mean, given this record. Judge Teague in his opinion refers to “applicant, who was indigent when he was sentenced. ..." Nowhere in his habeas application does applicant allege he was indigent at the time of his conviction and at the time he was sentenced. In his "memorandum" he states "... the defendant could not afford to pay the Hon. Thomas Jackson any longer because he was now in costody (sic) of the Sheriffs Dept. Harris *378County Jail, and was sentenced to confined (sic) in The Texas Department of Corrections — ” The docket sheet reflects that applicant was in jail and "no bond” was permitted. The fact that a defendant is held without bail, legally or illegally, does not automatically transform him into an indigent nor does a qualified claim of inability to pay because of custody. Applicant’s trial counsel testified he explained to applicant that ”... I (attorney) was not financially able to support his appeal.” In his memorandum applicant faults his counsel for failing "to give notice to him and the court he was not paid to handle his clint (sic) appeal, and was not going to handle it on appeal.” Whether applicant was indigent at the time of conviction is actually immaterial because of counsel’s actions in abandoning him.