concurring and dissenting.
In Martin v. Texas, 737 F.2d 460 (5th Cir.1984), also see Martin v. Texas, 694 F.2d 423 (5th Cir.1982), the Fifth Circuit Court of Appeals, in a case that involved a defendant from Texas who had been convicted of capital murder but whose punishment had been assessed at life imprisonment instead of death, because the jury answered one of the special issues submitted to it pursuant to Art. 37.071, V.A.C. C.P., in the negative, stated the following, notwithstanding that trial counsel had been retained only to represent the defendant at his trial and apparently through sentencing, but not beyond that point in the proceedings:
It is now settled law [in this circuit] that the failure of [trial] counsel to advise a defendant of his right to appointed counsel on appeal if indigent amounts to ineffective assistance. (Citations omitted.) (My emphasis.) This is true whether the defendant’s attorney is retained or appointed. (Citations omitted.) (462).
Thus, given the express wording of the holding, it appears to me that this holding is limited just to indigent defendants, and that the retained attorney must have been aware that the defendant was in fact indigent before he is required to admonish the defendant about his appellate rights.
The facts that are set out in Martin, supra, reflect that retained trial counsel discussed at length with the defendant an appeal, but strongly urged that no appeal take place because he feared that if the defendant appealed his conviction for capital murder and his life sentence, and this Court granted him a new trial, the State might be able to thereafter successfully retry the defendant for capital murder and the jury might answer the special issues submitted to it in the affirmative, thus requiring the trial judge to sentence the defendant to death. Counsel expressly told the defendant that given these circumstances he was not going to give notice of appeal or represent him on any appeal, and he didn’t do either one.
In Martin, supra, the Fifth Circuit found that retained counsel failed to advise his client that because he was then indigent he was entitled not only to the services of court appointed counsel but to a free record as well. The Fifth Circuit granted the defendant Martin relief, by affirming the federal district court’s decision to grant him an out-of-time appeal.
The Fifth Circuit in Martin, supra, albeit implicitly, also placed the legal duty and responsibility on the trial judge, where the trial judge was aware that the defendant *379was indigent, to advise or admonish the defendant at his sentencing about his appellate rights, regardless of whether court appointed trial counsel had already admonished the defendant about his appellate rights.
Given the above, it appears that the above holdings in Martin v. Texas, supra, are limited just to indigents.
This Court’s majority opinion by Judge Clinton adopts in principle what the Fifth Circuit has already held in Martin, supra, as far as retained counsel being requi.ed to admonish his now indigent client goes, but, by not expressly limiting its holding just to indigents, implicitly, if not expressly, expands what the Fifth Circuit stated and held in Martin, supra, to include all defendants, regardless of whether or not they are indigent.
We ... 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 to appeal from that judgment, the necessity of giving notice of 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. (Page 374.)
To this part of the majority opinion I concur. However, because the majority opinion fails and refuses to place a like duty on the trial judge, I am compelled to dissent.1
Given the record before us, it is clear to me that applicant’s retained trial attorney, after being advised by applicant after sentencing that although he was able to afford counsel for his trial, he was unable to afford to employ counsel for the appeal, and, albeit implicitly, also unable to afford to pay for the record of appeal, did not advise the indigent applicant of his appellate rights when applicant was sentenced. Given our facts, and the Fifth Circuit’s decision of Martin v. Texas, supra, and the cases cited in Martin, supra, applicant, who was obviously indigent when he was sentenced, because he was not admonished by his retained trial attorney about his appellate rights, is clearly entitled to be granted an out-of-time appeal by this Court even though the pertinent events took place over eight years ago.2
*380It appears to me that this Court can, and should at the first opportunity, enact and place in the Rules of Appellate Procedure the rule that it adopts today that is applicable either to court appointed or retained trial counsel. A like rule can and should be enacted and also placed in the Rules of Appellate Procedure that would be applicable to trial judges who have jurisdiction over felonies and misdemeanor “jail house” offenses. See and compare Rule 32(a)(2), Federal Rules of Criminal Procedure. Also see and compare Walters v. Harris, 460 F.2d 988 (4th Cir.1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973).
My quarrel with the majority opinion is only with its holding that “at sentencing the judge of trial court has discretion, but not a duty or responsibility, to inform a defendant of his right to appeal and of other appellate matters to the extent *381deemed appropriate in the premises.” (Page 374.) I find that the duty to admonish a defendant about his appellate rights should be placed on both trial counsel and the trial judge, and not just trial counsel. There are several valid reasons for my position.
First, this Court’s records reflect or indicate that a substantial majority of our felony trial judges and our misdemeanor “jail house” judges are already admonishing defendants at sentencing about their appellate rights. Even Hon. Deborm S. Williams, the Assistant District Attorney of Harris County who represents the Great State of Texas in this cause, agrees that requiring all such trial judges to admonish all defendants at sentencing about their appellate rights would not unduly add to their present tasks that they must perform.
Second, this Court’s records reflect or indicate that court clerks come and go, but docket sheets usually remain forever. How many attorneys are there, however, who keep their files forever? How many attorneys are there, even after today, who will maintain a record forever reflecting that they admonished the defendant about his appellate rights?
When this Court is given the opportunity to prevent relegating an issue of fact to a swearing match, it should do so.
I agree with the majority opinion that retained or court appointed counsel should admonish his client about his appellate rights.
I respectfully dissent to the majority opinion’s failure to also place this legal duty on the trial judge.3
Thus, I concur and dissent.
. Presiding Judge Onion, in his "Opinion concurring in part and dissenting in part," laments and wails that the majority opinion by Judge Clinton addresses "non-issues in this case"; that the majority of this Court, which, after almost 8 years on the Court, I find is impossible to do, has been "misled"; that the majority of this Court “displays a lack of judicial discipline"; that the majority opinion writes on a “subject” that is only “dear to the heart ... of some judges", or, to put it another way, a majority of this Court writes on "favorite subjects or whatever may tickle their fancy”; and that the majority opinion is nothing less than an advisory opinion. Although I, for one, will confess that the subject of who should admonish a defendant about his appellate rights does "tickle my fancy", nevertheless, given the importance of the subject, the fact that the record is sufficiently perfected to discuss the subject, and especially given the fact of the number of out-of-time appeals that this Court has been granting in recent times, I totally and wholly disagree with all of Presiding Judge Onion’s criticisms, notwithstanding that I do agree with his implicit suggestion that, as it did between September 1, 1987, and August 31, 1988, in at least 62 cases, this Court could have "whipped out” and "sent down” another "unanimous per curiam form opinion" granting the defendant an out-of-time appeal. When the decision was made to "file and set" this cause to discuss the subject, who should admonish the defendant about his appellate rights, I, for one, as apparently at least a majority of this Court also did, concluded that the time had arrived for this Court to discuss the subject of who should admonish the defendant about his appellate rights. I pause to point out, because this Court is a democratic institution, that if at any time after this Court ordered this case "filed and set" to discuss that subject, it would have been a very simple task for a majority of this Court to vote to "unfile and unset" this cause, and enter another order to the effect, "file and set and hand down on the same day another unanimous form per curiam opinion granting the defendant in this cause an out-of-time appeal”, but it didn’t and it hasn't chosen to vote to do that.
My disagreement with the majority opinion by Judge Clinton is not with what he states and holds; it is simply that he does not go far enough in his opinion; in particular, he does not put the same duty that he puts on trial counsel on the trial judge to admonish a defendant about his appellate rights.
. I pause to point out that our procedure today that governs what must take place after a de*380fendant is found guilty and punished, iu order to perfect an appeal, is far different from the time when applicant was found guilty, assessed punishment, and sentenced over eight years ago. Under the majority opinion, when is trial counsel supposed to admonish the defendant about his appellate rights? Before sentencing? After sentencing? If a motion or amended motion for new trial is Hied, after the trial judge overrules the motion for new trial?
Notwithstanding the fact that the majority opinion does not expressly require that the trial judge be implicated in the process, but given the fact that its express holding is not limited just to indigent defendants, I find that it does take one giant step for all defendants.
One major fault I find that the majority opinion has is that on page 374 it appears to give the impression that, when it comes to retained counsel, this has always been one of this Court’s rules. However, until the Supreme Court held in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), that there was no distinction between court appointed and retained counsel, as far as being effective counsel, this Court had long held that "In those cases where the court selects and appoints the attorney who represents an accused, this Court reviews carefully the competency of the attorney. Where the accused selects his own attorney, such review is not so searching. Rodriguez v. State, Tex.Cr.App., 170 Tex.Cr.R. 295, 340 S.W.2d 61.” Cleaver v. State, 498 S.W.2d 945, 947 (Tex.Cr.App.1973). And this rule was carried over to appeals. However, this Court did have the rule, apparently adopted from what the Fifth Circuit had stated and held in its decisions, that when the defendant was indigent, even though represented at trial by retained counsel, if he made known or indicated to the trial judge at the proper time of his indigency, and of his desire to appeal his conviction, the trial judge was required to inform the defendant of his right to a "free” appellate record and to be represented by court appointed counsel. See, for example, Simmons v. State, 511 S.W.2d 308, 311 (Tex.Cr.App.1974). As far as my research reflects, that was the only exception. Thus, in this State, the rule that previously existed was that a defendant who was represented at trial by retained counsel, if he did not communicate to the trial judge the fact that he was then indigent, even when he communicated this fact to his retained trial attorney, provided that the attorney did not engage in fraud or deceit to deprive the defendant of his appeal, until he went to federal court he did not get an appeal. It appears that it was the Fifth Circuit’s decision of Atilus v. United States, 406 F.2d 694 (5th Cir.1969) was the foundation for the rule stated above in Martin v. Texas, supra, which firmly laid down the requirement that retained trial counsel must abmonish an indigent defendant about his appellate rights. Thus, this Court’s members deceive themselves if they believe that today’s decision is some sort of land mark decision in this area of the law. Furthermore, I believe that if one will take the time to carefully read Ward v. State, 740 S.W.2d 794 (Tex.Cr.App.1987), upon which the majority opinion so heavily relies, he will find as I have that Ward is clearly factually not on point with the facts of this cause. Given what this Court stated and held in Pannell v. State, 666 S.W.2d 96 (Tex.Cr.App.1984), that this State’s Disciplinary Rules of the Code of Professional Responsibility are not laws of this State, and thus unenforceable in this Court, I am unable to understand how the majority opinion can rely so heavily upon something recommended by the American Bar Association, as it does, if one carefully reads the provision of Art. 26.04(a), V.A.C.C.P., upon which the majority opinion also relies, I believe that he will easily see as I have that that statute does not cover the factual situation at Bar. If one will also take the time to carefully read Dyches v. State, 382 S.W.2d 928 (Tex.Cr.App.1964), and Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968), upon which the majority opinion relies, he will easily see as I did that those cases are not factually on point with the facts of this cause. In fact, I have not yet found any authority that the majority opinion cites, outside of one Fifth Circuit decision, that even comes close to being on point factually with the facts of this cause. Given the above, it is apparent to me that the majority opinion is terribly lacking in authoritative support for anything that it states and holds. Notwithstanding what I have just stated, I do find that the majority opinion constitutes one giant step for all defendants by formally and expressly requiring that someone admonish a convicted defendant about his appellate rights.
. Given what the majority opinion states and holds, I believe that it will be the wise retained trial attorney, whose contract of employment terminates upon sentencing, or when punishment is assessed, and he does not intend to remain on the case after that point in the proceedings, who will prepare a preprinted fill-in-the blanks motion to withdraw from the case, with an attached order granting him permission to withdraw from the case at that time, present same to the trial judge, after filling in the blanks, and have the trial judge sign the order granting him permission to withdraw. Of course, the defendant should be present when counsel presents his motion to withdraw to the trial judge. As to what counsel should do if the trial judge refuses to permit him to withdraw from the case, other than give the trial judge a copy of that provision found in Article I, § 10, of the Federal Constitution, which proscribes States from passing any law that "impairs the obligation of contracts”, and being principled enough to go to jail for contempt of court, I am unable to say at this time. If the trial judge grants retained counsel’s motion to withdraw, and signs the order, I believe that wise retained counsel will also be prepared at that time to file with the clerk of the court a preprinted fill-in-the blanks type form, with the blanks filled in, assuming that he has already done so, stating therein that he has "Axelized” the defendant about his appellate rights, by stating that he has admonished the defendant about all of the subject matter contained on 374 of the majority opinion, sign same, and attach thereto a certificate of service stating that a copy of same has been served on the defendant, by hand delivering a copy of same to the defendant on that date. It appears that the following "Axer admonishment should be sufficient:
TO WHOM IT MAY CONCERN:
I, the undersigned, have this date admonished and advised the defendant that I do not intend to represent him on any appeal of his case. I have also admonished and advised the defendant of the meaning and effect of the judgment rendered by the trial court, and his right to appeal from that judgment, the necessity of filing timely written notice of appeal with the clerk of the trial court, and the steps he must take in order to perfect any appeal. I have also admonished and advised him as to possible grounds for appeal and their merit. I have further delineated the advantages and disadvantages of an appeal. After so admonishing and advising the defendant, I asked him if he understood what I had just told him, and he replied in the affirmative, both orally and with a nod of the head in the affirmative. During all of this time the defendant appeared to me to be fully mentally competent.
I did all of the above on this the — day of _, A.D., 19-
Attorney at Law