We have known for some time that the "must" in Tex.R.App.P. 35.2 really means "if you want to". Now the time limit in Tex.R.App.P. 20.2 is also gone. See Turner, 71 S.W.3d at 930. And the new defense motion is for a Jack hearing (see 64 S.W.3d at 694)and then a Prudhomme remand for hearing on an out-of-time motion for new trial in the middle of the appellate process. (The way around Rules 21.4, 2 and Drew). Justice Nuchia predicted as follows: "I suspect this new procedure will encourage a practice of disrupting the orderly and prompt flow of direct appeals by what could well become a routine defense practice of seeking abatements when no motion for new trial was filed." Anyone have any opinion yet about whether he was right?
Doesn't Prudhomme equally apply to timely filing of notice of appeal or amendments thereto (i.e., constitutional need and authority to shorten the process apart from Rule 2?) I realize that invoking jurisdiction is different from the steps thereafter required to effect a meaningful appeal, but if counsel abandons you by failing to file a notice of appeal and the intermediate court can establish this through a Jack hearing, I have to wonder why it lacks authority to bend Rules 26.1(a) or 25.2(d). Is it just because Rule 25.2 uses "perfect" as the operative word, which, of course, requires perfection? Don't get me wrong, I like the results of Olivo and Woods, 68 S.W.3d 667. I just can't help being amused by the difference in remedies according to when counsel is ineffective and the demise of Chief Justice Nye's observation that "the administration of justice is fair and equal only when all parties are required to adhere to the rules in both civil and criminal cases." Strickland, 818 S.W.2d at 460.
[This message was edited by Martin Peterson on 06-12-02 at .]
I suppose calling the "rules" the "Texas Suggestions of Appellate Procedure" might be more accurate, but it might be difficult to get through the legislature that way.
Your point is well taken - it is becoming more and more difficult to determine when there has been compliance with a rule since the rule seems to stay the same, but what it means keeps changing!
Looking at the cases you cite strenghtens my belief in the reporting of ineffective assistance to SOMEONE who will DO SOMETHING about it.
As a practical matter, there are seldom contests to claims of appellate indigency in our criminal courthouse. While our court keeps track of deadlines on records and will ultimately jail court reporters if necessary, I'd bet 20.2 doesn't even rate suggestion status.
I'm highly skeptical of out-of-time motions for new trial. I think the right case might eliminate that thorn.
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