Wilson, Kwesie ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,015-01
EX PARTE KWESIE WILSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 14F0523-005-A IN THE 5TH DISTRICT COURT
FROM BOWIE COUNTY
A LCALA, J., filed a concurring opinion in which J OHNSON, J., joined.
CONCURRING OPINION
I respectfully concur in this Court’s order that remands this application to the
convicting court. I, however, do not join the Court’s order. For the reasons explained in my
concurring opinion in Ex parte Pointer, I would include language in the Court’s order
advising the habeas court of its statutory obligation to appoint post-conviction counsel to an
indigent pro se habeas applicant if the court determines that the interests of justice require
representation. See Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02 (Tex. Crim.
App. June 8, 2016) (Alcala, J., concurring) (citing T EX. C ODE C RIM. P ROC. art. 1.051(d)(3)
(“An eligible indigent defendant is entitled to have the trial court appoint an attorney to
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represent him in . . . a habeas corpus proceeding if the court concludes that the interests of
justice require representation”)). Because the Court’s order omits any reference to this
statutory provision that entitles an indigent pro se habeas applicant to appointed counsel
under certain circumstances, I cannot join the Court’s order.
More broadly, in accordance with the reasoning of my dissenting opinion in Ex parte
Garcia, No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr. 6, 2016), I would
encourage habeas courts to utilize the statutory authority in Article 1.051 in order to liberally
appoint counsel for pro se applicants who appear to have colorable ineffective-assistance-of-
counsel claims. Such a course, I believe, will improve the integrity of the criminal-justice
system by ensuring that defendants’ bedrock Sixth Amendment rights are adequately
protected through a more rigorous system of post-conviction review.1
With these comments, I respectfully concur.
Filed: June 15, 2016
1
Last week, I issued four opinions discussing my position that indigent defendants with
colorable ineffective-assistance-of-counsel claims should be appointed counsel in the interests of
justice. See Ex parte Honish, No. WR-79,976-05 (Tex. Crim. App. June 8, 2016) (Alcala, J.,
dissenting); Ex parte Desilets, No. WR-76,998-02 (Tex. Crim. App. June 8, 2016) (Alcala, J.,
dissenting); Ex parte Davis, No. WR-84,123-01 (Tex. Crim. App. June 8, 2016) (Alcala, J.,
dissenting); Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02 (Tex. Crim. App. June 8, 2016)
(Alcala, J., concurring). I note that a majority of the judges on this Court appear to disagree with the
simple application of the plain language of the statute that mandates the appointment of counsel in
these situations. See Ex parte Garcia, No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr.
6, 2016) (Keller, P.J., concurring); Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02 (Tex.
Crim. App. June 8, 2016) (Yeary, J., concurring, joined by Keasler, Hervey, and Newell, JJ.). Given
this Court’s refusal to apply the plain statutory language under these circumstances, I have no option
but to urge the Legislature to step in to correct this injustice.
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