Martinez, Rogelio Cortez ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,882-01
EX PARTE ROGELIO CORTEZ MARTINEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2011-DCR-02120-C IN THE 197 TH DISTRICT COURT
FROM CAMERON COUNTY
A LCALA, J., filed a dissenting opinion in which J OHNSON, J., joined.
DISSENTING OPINION
This is another claim of ineffective assistance of counsel addressed by this Court
based on pleadings that have been presented by a pro se litigant. I respectfully dissent from
this Court’s judgment that denies post-conviction habeas relief in this case. Instead, I would
remand this case to the habeas court for the appointment of counsel in the interests of justice,
permit counsel to amend applicant’s ineffectiveness-claim pleadings, and decide the ultimate
merits of applicant’s claim after those events.
As I have previously expressed in my dissenting opinions in Ex parte Garcia and Ex
parte Honish, in my view, an indigent pro se habeas applicant is entitled to the assistance of
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appointed post-conviction counsel in the interests of justice whenever either the pleadings
or the face of the record gives rise to a colorable ineffective-assistance claim. See Ex parte
Garcia, No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr. 6, 2016) (Alcala, J.,
dissenting); Ex parte Honish, No. WR-79,976-05, 2016 WL 3193384 (Tex. Crim. App. June
8, 2016) (Alcala, J., dissenting). Without the appointment of counsel in those situations, I
have observed that it is unlikely that most pro se applicants will be able to properly present
their substantial ineffective-assistance claims, thereby increasing the likelihood that such
claims will be deprived of meaningful consideration on post-conviction review and, as a
result, that violations of defendants’ fundamental Sixth Amendment rights will go
unremedied. See Garcia, 2016 WL 1358947, slip op. at 2, 16; Honish, 2016 WL 3193384,
at *2. And, as I have observed in my prior opinions, the statutory basis for appointing
counsel to an indigent pro se habeas applicant in the interests of justice already exists in
Texas, but that statutory basis is seldom used by this Court in order to mandate the
appointment of counsel in these situations. See 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 represent
him in . . . a habeas corpus proceeding if the court concludes that the interests of justice
require representation.”).
Applying these principles here, and having liberally construed applicant’s pro se
pleadings to examine them for substantive merit rather than for technical procedural
compliance, I conclude that these pleadings are adequate to give rise to a colorable
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ineffective-assistance claim that would justify the appointment of counsel in the interests of
justice under the current Texas statutory scheme. In order to afford applicant his one full bite
at the apple in this initial habeas proceeding, and in order to ensure that applicant has been
fully afforded his Sixth Amendment rights, I would remand this case to the habeas court for
the appointment of post-conviction counsel and further proceedings as to applicant’s
ineffectiveness claims. Because the Court instead declines to do so and denies relief, I
respectfully dissent.
Filed: June 29, 2016
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