dissenting.
I respectfully dissent to the overruling of appellant’s second ground of error. For the reasons hereinafter stated, I would sustain appellant’s second ground of error to the extent hereinafter set out. In my view, the decision of the Supreme Court of the United States in Evitts v. Lucey, 469 U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) mandates the disposition I would make of this appeal.
The indictment in this case was returned on January 25, 1984. On March 13, 1984, appellant executed an affidavit of inability to employ counsel and, on that day, an attorney was appointed to represent him. On June 18, 1984, after proper motion to withdraw, that attorney was permitted to withdraw. On June 25, 1984, the counsel who tried the case and, incidently, is prosecuting this appeal was, in the language of *88the court’s order “appointed as counsel herein” without limitation as to time.
On October 30, 1984, the ease proceeded to trial on its merits. On October 31, 1984, the jury returned its verdict and notice of appeal was given. On December 13, 1984, appellant made specific application for appointment of counsel on appeal. On December 17, 1984, appellant’s trial counsel notified the court reporter that he had been “orally appointed” to represent appellant in the appeal of this case and filed a designation of material, including a statement of facts for inclusion in the record. On December 28,1984 and January 9,1985, appellant filed motions for extension of time within which to file a transcription of the record. As noted by the majority, the last day within which appellant could normally have designated material for inclusion in the record had passed prior to the attempted designation, Tex. Code Crim.Proc.Ann. art. 40.09(2) (Vernon Supp.1984), and under authority of this Court’s decision in Hernandez v. State, 670 S.W.2d 686 (Tex.App.—Amarillo 1984, no pet.), both motions for extension of time were denied by this Court. Accordingly, the record is now before us without a statement of facts.
It is well established that an indigent defendant is entitled to an adequate record on appeal and to the effective assistance of counsel on that appeal. Anders v. California, 386 U.S. 738, 741-42, 87 S.Ct. 1396, 1398-99, 18 L.Ed.2d 493 (1967); Guillory v. State, 557 S.W.2d 118, 120-21 (Tex.Crim.App.1977). That constitutional requirement of the effective assistance of counsel on appeal to comply with the demands of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, was explicated, delineated, and again emphasized by the Court’s decision in Ev-itts v. Lucey, supra. That decision was, of course, made subsequent to this Court’s decision in Hernandez v. State, supra, and we did not have the benefit of its teaching and requirement in reaching that decision. The decisions of the Court of Criminal Appeals in the cases of Zamora v. State, 568 S.W.2d 355 (Tex.Crim.App.1978); Hoagland v. State, 541 S.W.2d 442 (Tex.Crim.App.1976); and Rhoda v. State, 514 S.W.2d 937 (Tex.Crim.App.1974), were also reached prior to the Evitts decision.
In Evitts, the defendant’s counsel, although he had filed a proper notice of appeal, failed to file a “statement of appeal” as required by the Kentucky Rules of Appellate Procedure. Apparently, this “statement of appeal” was an instrument which would designate and include additional information pertinent to the record on that appeal. The failure of defendant’s counsel to timely file such a statement with his brief and the record in the Court of Appeals resulted in the dismissal of his appeal. Upon the dismissal, the defendant moved for reconsideration and tendered a statement of appeal which complied with the requisite rules. That motion was overruled. The action of the Court of Appeals was sustained by the Supreme Court of Kentucky giving rise to the appeal to the Supreme Court of the United States.
En route to its decision, the Evitts Court made this observation:
In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, and the consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that — like a trial— is governed by intricate rules that to a lay-persón would be hopelessly forbidding. An unrepresented appellant — like an unrepresented defendant at trial — is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right — like nominal representation at trial — does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. (Emphasis added.)
Id. 469 U.S. at-, 105 S.Ct. at 836, 83 L.Ed.2d at 830. The Court went on to hold *89that the failure of Lucey's attorney to comply with the applicable rules and timely file the required “statement of appeal” deprived Lucey of his right to have his conviction reviewed by an appellate court, the result of which was to deprive Lucey of his Fourteenth Amendment due process right to effective assistance of an attorney on appeal. The recent decision in Thomas v. Arm, — U.S. -, 106 S.Ct. 466, 88 L.Ed.2d 435, 1985, 38 Crim.L.Rep. (BNA) 3031, 3035 (1985) reaffirms the mandate that the Due Process Clause of the Fourteenth Amendment requires an opportunity granted at a meaningful time and, in a meaningful manner to obtain an appellate hearing.
Parenthetically, I must note that absent a statement of facts, our appellate review of this case is extremely limited. Bush v. State, 370 S.W.2d 875 (Tex.Crim.App.1963). Moreover, it seems to be established that an appointed counsel for an indigent defendant is obligated to continue to serve until permitted by the court to withdraw. Harrison v. State, 516 S.W.2d 192, 193 (Tex.Crim.App.1974). Therefore, under this record, appellant was continually represented by counsel during the course of the trial and during the crucial time periods necessary to perfect an appeal and ensure the preparation of a proper record for proper appellate review.
In my mind, the situation presented to us in the instant case and the situation presented to the Evitts Court are, in their essentials, strikingly similar. In Evitts, the defendant, as is our appellant, was entitled to an appeal to a Court of Appeals as a matter of right. In Evitts, the defendant’s failure to timely file an instrument required by appellate rules deprived that defendant of appellate review. In the instant case, the failure to timely file the designation for inclusion of the statement of facts limits severely our appellate review, the effect of which, in this case, is to prevent him from obtaining an appellate hearing in a meaningful manner.
In my view, the Court’s decision in Evitts speaks to the fact situation in the instant case and requires us to find that the failure to allow appellant the use of a statement of facts in our review of his case deprives him of a meaningful review by this Court and of the effective assistance of counsel on appeal.
The factual situation presented to the Court in David v. State, No. 796-84 (Tex.Crim.App. Dec. 18, 1985) was different from that existent in Evitts and in this case. Therefore, the Court did not discuss Evitts nor its ramifications and requirements. I realize, therefore, that our Court of last resort in this state has not yet had the opportunity to speak upon the problem presented in this cause. Nevertheless, the Court of last resort in the United States has, in my opinion, so spoken. I believe we are obligated to follow that holding.
I would, therefore, abate this appeal and remand the cause to the trial court for the preparation of a statement of facts to be shown in a supplemental record to be forwarded to this Court. To the majority’s failure to do this, I must respectfully dissent.