Gonzales, Jimmy AKA Gonzales, Jimmy Jr. ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,720-01
EX PARTE JIMMY GONZALES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 20681-A IN THE 23RD DISTRICT COURT
WHARTON COUNTY
SLAUGHTER, J., filed a concurring opinion.
CONCURRING OPINION
I join in the Court’s decision to grant Applicant postconviction habeas relief in the
form of an out-of-time petition for discretionary review. I write separately to emphasize
the importance of appellate counsel’s duty to timely inform clients of their right to file a
pro se PDR following the resolution of their direct appeals by the courts of appeals. It
appears that appellate counsel here failed to adequately inform Applicant of this right after
the court of appeals affirmed his conviction, thereby depriving Applicant of his ability to
pursue review in this Court. This type of situation happens far too frequently and is a
troubling sign that some appellate attorneys are failing to properly communicate with their
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clients (particularly those who are incarcerated) regarding their right to seek discretionary
review.
The record here reflects that appellate counsel was appointed to represent Applicant
for his direct appeal, and counsel subsequently filed an Anders brief. The court of appeals
issued an opinion affirming Applicant’s conviction on November 29, 2018. Gonzales v.
State, No. 13-18-00193-CR, 2018 WL 6218531 (Tex. App.—Corpus Christi–Edinburgh
Nov. 29, 2018, no pet.) (mem. op., not designated for publication). However, Applicant
alleges that appellate counsel never informed him of the outcome of his appeal. Applicant
attached documentation from the TDCJ mailroom stating that there is no record of him
receiving any legal mail from November 29, 2018, to December 29, 2018.
In response to the allegations, appellate counsel admits that he did receive an email
from the court of appeals informing him of its opinion in Applicant’s case. Appellate
counsel further acknowledges that he failed to provide Applicant a copy of the opinion or
inform him of the decision. However, appellate counsel also asserts that he previously
notified Applicant of his right to file a pro se PDR in writing at the time that he filed
Applicant’s appeal. 1 Nevertheless, because counsel failed to inform Applicant of the
appellate court’s decision, Applicant was unaware that he should file his PDR with this
Court.
1
Specifically, counsel asserts that after filing his Anders brief in the court of appeals, he sent
Applicant a letter stating that Applicant could seek discretionary review with this Court if the court
of appeals were to deny relief. Appellate counsel attached the letter, dated August 28, 2018.
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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 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, his appellate counsel still has the duty to notify him
of 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 the language of this rule makes clear, informing
the client of the right to pursue discretionary review before the court of appeals’ decision
on the case does not discharge the lawyer’s duty. Instead, it is only after the court of appeals
has issued its decision that appellate counsel should, within five days, send the client a
copy of the court’s opinion along with notification of the client’s right to file a pro se PDR.
See id. Also, to ensure that the appellate record properly reflects that counsel has fulfilled
this duty, counsel should forward this correspondence to the appellate court along with a
letter verifying that he has complied with the rule. Id.Gonzales - 4
More generally, I also note here 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
adequately communicate with clients about the status of their direct appeals is unfair to
clients and falls short of the standard for professionalism set forth in the disciplinary rules.
Not only this, but it results in 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, based on the sheer volume of writ
applications this Court sees annually in which this or similar problems arise, I feel that it
is my ethical obligation to bring attention to this issue so that 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.”). It is my hope that, by bringing attention to this issue,
appellate attorneys will be motivated to take preventative measures to ensure that such
situations do not occur in the future.
With these comments, I join the Court’s opinion.
Filed: January 11, 2023
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