Brandon v. Carraway v. the State of Texas ( 2024 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-93,950-01, WR-93,950-02, & WR-93,950-03
EX PARTE BRANDON V. CARRAWAY, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. W17-75820-S(A), W17-75821-S(A), AND W17-75822-S(A)
IN THE 282ND DISTRICT COURT
OF DALLAS COUNTY
SLAUGHTER, J., filed a concurring opinion.
CONCURRING OPINION
I join in the Court’s decision to grant Applicant post-conviction habeas corpus relief
in these cases. I write separately to, once again, emphasize the importance of appellate
counsel’s duty to provide timely and accurate information to clients regarding the right to
file a pro se petition for discretionary review following resolution of a direct appeal. In this
case, appellate counsel failed to adequately inform Applicant of this right, thereby
depriving Applicant of his ability to pursue discretionary review in this Court. This
situation happens far too frequently and is a troubling sign that some appellate attorneys
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are routinely failing to carry out their duties in this regard, thereby resulting in unfairness
to clients and excessive post-conviction litigation to correct such errors. 1
I. Background
On March 21, 2018, Applicant was convicted of compelling prostitution of a person
under the age of 18, sexual assault of a child, and trafficking of a person under the age of
18. After Applicant pleaded true to the alleged enhancements, the jury sentenced him to
prison terms of 35 years, 25 years, and 30 years on each charge, respectively. Appellate
counsel filed a direct appeal in which he raised a single issue challenging the sufficiency
of the evidence to support the conviction for compelling prostitution. On April 25, 2019,
the court of appeals delivered its opinion rejecting Applicant’s sufficiency challenge and
affirming the convictions. Carraway v. State, Nos. 05-18-00367-CR, 05-18-00368-CR, 05-
18-00369-CR, 2019 WL 1856681, at *1 (Tex. App.—Dallas Apr. 25, 2019, no pet.) (mem.
op., not designated for publication). Generally, the deadline to file a petition for
discretionary review would have occurred 30 days later, see TEX. R. APP. P. 68.2(a), but
appellate counsel sought, and obtained, an extension of the deadline to June 27, 2019. See
TEX. R. APP. P. 68.2(c). Nonetheless, no petition was filed.
In his habeas pleadings, Applicant alleges that appellate counsel never directly
informed him of the court of appeals’ decision or of his right to seek discretionary review.
1
Though this opinion focuses on the Court’s decision to grant Applicant relief in the form of an
out-of-time PDR with respect to his conviction for compelling prostitution, I also agree with the
Court’s decision to grant Applicant relief in the form of out-of-time pro se briefs in the court of
appeals with respect to his sexual assault and trafficking convictions, based on appellate counsel’s
failure to either raise any grounds on appeal challenging those convictions or withdraw in
accordance with the requirements of Anders v. California, 386 U.S. 738 (1967).
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Instead, Applicant claims that he learned the outcome of his direct appeal after the clerk of
the court of appeals sent him a “courtesy copy” of the court’s opinion. Applicant also
alleges that, but for appellate counsel’s error, he would have timely filed a pro se PDR with
this Court.
In response to Applicant’s allegations, appellate counsel filed an affidavit in which
he explained that throughout the representation, Applicant’s mother, Ms. Carraway, was
his “point of contact” for communicating with Applicant. So, after the court of appeals
issued its opinion in these cases, appellate counsel sent a copy of the court’s opinion to Ms.
Carraway, believing that she would forward the information to Applicant. Moreover,
appellate counsel stated that he advised Ms. Carraway of Applicant’s right to file a PDR,
either with retained counsel or pro se, believing that Ms. Carraway would “discuss moving
forward with [Applicant].” According to appellate counsel, he thought that these
communications with Ms. Carraway were tantamount to communicating with Applicant
directly, and that Ms. Carraway had, in fact, forwarded the information to Applicant.
The habeas court ultimately found in Applicant’s favor, concluding that appellate
counsel failed to inform Applicant that his convictions had been affirmed and that
Applicant had the right to file a pro se PDR. The habeas court also concluded that, but for
appellate counsel’s error, Applicant would have timely filed a PDR. Thus, the habeas court
recommended that this Court grant Applicant the opportunity to file an out-of-time PDR.
II. Appellate Counsel’s Duties Under the Appellate Rules
Criminal defendants have a constitutional right to the effective assistance of
counsel. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). This
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right to effective assistance extends to the first direct appeal. Evitts v. Lucey, 469 U.S. 387,
395–96 (1985); Ward v. State, 740 S.W.2d 794, 799 (Tex. Crim. App. 1987). Although a
criminal defendant has no right to the assistance of counsel for purposes of actually
pursuing discretionary review, appellate counsel still has a duty to advise the defendant
regarding his right to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim.
App. 2008) (detailing appellate counsel’s duties to clients upon denial of relief on appeal).
This obligation is codified in the Texas Rules of Appellate Procedure:
In criminal cases, the attorney representing the defendant on appeal shall,
within five days after the opinion is handed down, send his client a copy
of the opinion and judgment, along with notification of the defendant’s
right to file a pro se petition for discretionary review under Rule 68. This
notification shall be sent certified mail, return receipt requested, to the
defendant at his last known address. The attorney shall also send the court of
appeals a letter certifying his compliance with this rule and attaching a copy
of the return receipt within the time for filing a motion for rehearing. The
court of appeals shall file this letter in its record of the appeal.
TEX. R. APP. P. 48.4 (emphasis added). As Rule 48.4 clearly states, appellate counsel must:
(1) send a copy of the court of appeals’ opinion, along with notification of the defendant’s
right to file a pro se PDR, to the defendant’s last known address within five days after the
opinion is handed down; (2) send that notification via certified mail, with a return receipt
requested; and (3) send the court of appeals a letter certifying compliance with Rule 48.4.
As the record in this case demonstrates, appellate counsel failed to fulfill these
duties, instead believing it adequate to send notification to Applicant’s mother. But Rule
48.4 plainly provides that counsel must communicate directly with the defendant about his
right to pursue a pro se PDR. Counsel’s duty is not discharged by merely passing off to a
family member the obligation to inform his client. See Schulman, 252 S.W.3d at 411
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(stating that counsel “must ensure that his client has been informed of his right to file a pro
se PDR”) (emphasis added). Thus, given the circumstances, I agree with the habeas court’s
assessment that counsel’s conduct in failing to directly advise Applicant that he could
pursue a pro se PDR deprived Applicant of an entire proceeding, such that he is entitled to
an out-of-time PDR. See Ex parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim. App. 1997) (“If
appellate counsel’s action or inaction denies a defendant his opportunity to prepare and file
a petition for discretionary review, that defendant has been denied his sixth amendment
right to effective assistance of counsel.”); Ex parte Owens, 206 S.W.3d 670, 675 (Tex.
Crim. App. 2006) (noting that counsel’s failure to inform the defendant of his right to
pursue a petition for discretionary review “deprive[d] him of an entire proceeding”).
III. Appellate Counsel’s Duties Under the Rules of Professional Conduct
More generally, I also note that the Texas Disciplinary Rules of Professional
Conduct require lawyers to keep clients reasonably informed of any case developments
and to effectively communicate with their clients in a manner that permits the clients to
make informed decisions related to their cases. Tex. Disciplinary Rules Prof’l Conduct R.
1.03(a)–(b). Further, “in representing a client, a lawyer shall not[] neglect a legal matter
entrusted to the lawyer.” Id. R. 1.01(b)(1). Ultimately, appellate counsel’s failure to
communicate directly with Applicant regarding his right to pursue a pro se PDR fell short
of the standards for professionalism set forth in the disciplinary rules. Such failure also
places unnecessary burdens on the courts and causes judicial inefficiency that wastes
taxpayer dollars. I certainly understand and acknowledge that we are all human beings who
make mistakes. But, given the sheer volume of cases in which this or similar problems
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arise, it is my ethical obligation to bring attention to this issue so that all attorneys may be
reminded of the effect of failing to properly communicate with their clients. See Tex. Code
Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly establishing that
a lawyer has committed a violation of the Texas Disciplinary Rules of Professional
Conduct should take appropriate action.”). By bringing attention to this issue, perhaps this
attorney, and other appellate attorneys, will be motivated to implement procedures to
ensure that similar situations do not occur in the future.
With these comments, I join the Court’s opinion.
Filed: January 31, 2024
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