Ayala v. State , 1982 Tex. Crim. App. LEXIS 933 ( 1982 )

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ROBERTS, Judge.

After he was convicted of burglary on a plea of guilty, Ayala gave notice of appeal. His appointed counsel (who was joined on the brief by another attorney) filed a brief which certified that the appeal was “without merit and . .. frivolous”; the attorney certified that he delivered a copy of the brief to the appellant and advised him that he could examine the record and file a brief pro se. See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Jackson v. State, 485 S.W.2d 553 (Tex.Cr.App.1972); Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969). The appellant did not file a brief pro se. The court of appeals affirmed, agreeing that the appeal was “wholly frivolous and without merit.”¹

The appointed counsel has filed a petition for discretionary review. The only ground for review ² is a “request” that we examine the record for error. The reasons for review,³ in toto, are:

“APPELLANT REQUESTS THAT THIS HONORABLE COURT EXAMINE THE RECORD AND TRANSCRIPT OF THE CASE FOR ERROR AND TO GRANT A NEW TRIAL, [sic]

“Appellant wishes to acknowledge to the Court that he brings this motion without specifing [sic] to the Court error. Further, that he brings this motion without pointing out to the Court important questions of state law in conflict with the applicable decisions of the United States Supreme Court. Appellant wishes to acknowledge that after notice by certified mail from counsel Appellant did not request to view the record or file a pro se brief. However, Appellant has demanded that counsel file this Motion for discretionary review of his appeal by the Court of Criminal Appeals.” Petition for Discretionary Review 3.

This petition lacks even colorable grounds for review, but we write because it reflects a misconception about the duty of appellate counsel which others may share.

The United States Constitution does not require a state to provide appellate courts or a right to appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687-688, 14 S.Ct. 913, 914-915, 38 L.Ed. 867 (1894). But, if a state chooses to provide them, the Fourteenth Amendment forbids it to deny poor defendants an adequate review. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Specifically, it may not deny indigent defendants the services of counsel on the first level of appeal from a criminal conviction, which it grants as a matter of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). “[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Id. at 357, 83 S.Ct. at 816 (emphasis in original). But the Fourteenth Amendment does not require a state to provide indigents with the services of counsel in seeking discretionary review beyond the first step of appeal. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Since an appellant has no constitutional right to counsel in seeking such discretionary review, he could not be deprived of the effective assistance of counsel by his counsel’s failure to file a timely application for review of an intermediate court’s decision. Wainwright v. Torna, - U.S. -, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam).⁴

In Texas, a defendant in any criminal action has the right of appeal. V.A.C.C.P., Article 44.02. Except for cases in which the death penalty has been assessed, the appeal as a matter of right is to a court of appeals. Texas Constitution, Article 5, Section 5. The decisions of the courts of appeals may be reviewed by this court, but the appellant has no right to such a review. “Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.” Id. Therefore, the Fourteenth Amendment does not require that indigent appellants be provided with the services of counsel in seeking discretionary review in this court. Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Indigent appellants are not deprived of the effective assistance of counsel if appointed counsel fail to file a petition for discretionary review of a court of appeals’ decision. See Wainwright v. Torna, - U.S. -, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam). The United States Constitution does not impose a duty on appointed counsel to file a petition for discretionary review by this court.

State law imposes no such duty, either. See V.A.C.C.P., Articles 26.04 and 26.05. In fact, Tex.Cr.App.R. 302(c) indicates that filing a petition for discretionary review should be far from a matter of routine:

“(c) In determining whether to grant or deny discretionary review, the following, while neither controlling nor fully measuring the Court of Criminal Appeals’ discretion, indicates the character of reasons that will be considered:

“(1) Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter;

“(2) Where a court of appeals has decided an important question of state or federal law which has not been, but should be, settled by the Court of Criminal Appeals;

“(3) Where a court of appeals has decided an important question of state or federal law in conflict with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States;

“(4) Where a court of appeals has declared unconstitutional, or appears to have misconstrued, a statute, rule, regulation, or ordinance;

“(5) Where the justices of the court of appeals have disagreed upon a material question of law necessary to its decision; and

“(6) Where a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of supervision.”

Tex.Cr.App.R. 302(c).

This appellant had no right to “demand” that his appointed counsel file a petition for discretionary review, and counsel had no duty to file it. It is without merit, and it is refused.

McCORMICK, J., concurs in result.

1 . Ayala v. State, No. 05-81-00818-CR, slip op. at 2 (Tex.App.—Dallas, January 27, 1982) (unreported).

2 . A petition for discretionary review “shall include” grounds for review or questions presented for review. Tex.Cr.App.R. 304(d)(4).

3 .A petition for discretionary review “shall include” reasons for review. Tex.Cr.App.R. 304(d)(5).

4 . This is not to say that indigent appellants have no recourse from the misfeasances of appointed counsel after the decision of an intermediate court. If an appointed counsel deprived the client of his right to apply, pro se, for discretionary review — by volunteering to make a timely application for discretionary review and failing to do so, for example — then there might be a due process violation. See Wainwright v. Torna, - U.S. -, -, n. 4, 102 S.Ct. 1300, 1301, n. 4, 71 L.Ed.2d 475 (1982).