Marquezgonzalez, Juan ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-92,747-02 & WR-92,747-03
EX PARTE JUAN MARQUEZGONZALEZ, Applicant
ON APPLICATION FOR WRITS OF HABEAS CORPUS
CAUSE NOS. W-1776747-A & W-1900401-B IN THE 204TH DISTRICT COURT
DALLAS COUNTY
SLAUGHTER, J., filed a concurring opinion.
CONCURRING OPINION
While I join in the Court’s decision to grant Applicant post-conviction habeas relief
in the form of an out-of-time appeal, I feel compelled to write separately yet again to
emphasize the importance of trial counsel’s duty to provide timely and accurate advice to
defendants regarding their appellate rights upon the conclusion of the trial proceedings. In
this case, trial counsel failed to fulfill his obligations to Applicant by not just failing to
advise Applicant that he could receive a free court-appointed attorney on appeal, but by
actually actively misleading Applicant into believing he would need to pay for counsel on
appeal. Trial counsel also failed to file any notice of appeal in spite of Applicant’s clearly
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stated desire to pursue an appeal. These and similar issues occur far too frequently and are
a troubling sign that many trial attorneys are either unaware of, or are neglecting, their
responsibility to assist in protecting their clients’ appellate rights.
In October 2019, a jury found Applicant guilty of two counts of aggravated sexual
assault of a child, resulting in sentences of 35 and 25 years’ imprisonment, respectively.
Applicant alleges that, shortly after sentencing, he informed trial counsel of his desire to
appeal. Trial counsel offered to represent Applicant on appeal for a $35,000 fee. However,
trial counsel did not inform Applicant of his right to appointed appellate counsel if the court
found him indigent. Counsel also did not file any notice of appeal on Applicant’s behalf.
Applicant states that he was unable to afford trial counsel’s fee and did not pursue an appeal
at the time because he was unaware of his right to an appointed attorney on appeal.
After Applicant filed this application for post-conviction habeas relief seeking an
out-of-time appeal, the habeas court ordered trial counsel to file an affidavit in response to
Applicant’s allegations. Despite the habeas court’s multiple attempts to contact trial
counsel, counsel never filed an affidavit. Following a magistrate’s investigation, the habeas
court learned that trial counsel resigned from the State Bar in April 2023 in lieu of
disciplinary action for unrelated matters. 1 The habeas court ultimately recommended
1
While trial counsel has already been subjected to disciplinary action and has resigned from the State Bar,
I still wish to emphasize that when an attorney is ordered to provide an affidavit in response to an
Applicant’s habeas allegations, even if that attorney is no longer practicing law, he is still legally and
ethically bound to respond to the court’s order. See Ex parte Touchet, 615 S.W.3d 160, 162 (Tex. Crim.
App. 2021) (Slaughter, J., concurring) (“An attorney’s complete failure to respond to claims raised against
him not only hinders judicial economy, but in some instances may result in the Court’s inability to fully
and fairly decide a claim.”).
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granting Applicant an out-of-time appeal based on trial counsel’s failure to properly advise
Applicant of his appellate rights.
I agree wholeheartedly with the habeas court’s recommendation and with this
Court’s decision to grant Applicant relief. We have repeatedly emphasized that trial
counsel bears the responsibility for advising a criminal defendant regarding his right to a
direct appeal and the steps that must be taken to perfect such an appeal. More than three
decades ago, in Ex parte Axel, we explained,
[T]rial counsel, retained or appointed, has the duty, obligation and
responsibility to consult with and fully to advise his client concerning [the]
meaning and effect of the judgment rendered by the court, his right to appeal
from that judgment, the necessity of giving notice of appeal and taking other
steps to pursue an appeal, as well as expressing his professional judgment as
to possible grounds for appeal and their merit, and delineating advantages
and disadvantages of appeal.
757 S.W.2d 369, 374 (Tex. Crim. App. 1988). The United States Fifth Circuit Court of
Appeals has similarly explained, “The attorney’s role in this context is to provide
information on how to appeal and the opportunity to do so . . . . The Constitution requires
that the client be advised not only of his right to appeal, but also of the procedure and time
limits involved and of his right to appointed counsel on appeal.” United States v. Faubion,
19 F.3d 226, 231 (5th Cir. 1994) (citation and quotation omitted). We have also specifically
held that trial counsel’s duties at the post-conviction stage include assisting the defendant
with filing a pro se notice of appeal if trial counsel will not be representing the defendant
on appeal. See Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (stating that “[i]f
the defendant decides to appeal, the [trial] attorney must ensure that written notice of appeal
is filed with the trial court. . . . A contemporaneous presentation of the pro se notice [of
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appeal] with a motion to withdraw by trial counsel serves as actual notice to the trial court
of the defendant’s desire to appeal.”). 2
By comparing trial counsel’s conduct in this case to the foregoing standards, it is
abundantly clear that counsel’s actions here fell far short of what was required of him under
the Sixth Amendment. Not only did counsel fail to give basic advice about Applicant’s
appellate rights and the procedures for perfecting an appeal—counsel also misled
Applicant into believing that he would need to pay for appellate counsel, thereby implying
that Applicant would not receive court-appointed counsel. While counsel’s conduct in this
case is perhaps more egregious than that in other recent cases I have addressed, this case
nevertheless serves as another reminder of the crucial nature of trial counsel’s duties at the
conclusion of the trial proceedings—including filing a motion for new trial, if any; assisting
the defendant with filing a timely notice of appeal; filing a motion to withdraw if counsel
will not be completing the appeal; advising the client of his right to court-appointed counsel
if he is indigent; and advising the client on the next steps to pursue an appeal. Such steps
2
These requirements are also embodied in the American Bar Association’s Criminal Justice
Standards, which state,
If a client is convicted, defense counsel should explain to the client the meaning and
consequences of the court’s judgment and the client’s rights regarding appeal . . . . Defense
counsel should take whatever steps are necessary to protect the client’s rights of appeal,
including filing a timely notice of appeal in the trial court, even if counsel does not expect
to continue as counsel on appeal. Defense counsel should explain to the client that the client
has a right to counsel on appeal (appointed, if the client is indigent), and that there are
lawyers who specialize in criminal appeals. Defense counsel should candidly explore with
the client whether trial counsel is the appropriate lawyer to represent the client on appeal,
or whether a lawyer specializing in appellate work should be consulted, added or
substituted.
American Bar Association, Criminal Justice Standards, Standard 4-9.1.
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are all critical for ensuring that a defendant’s right to appeal is properly preserved, and
failure to fulfill these obligations is both unprofessional and unfair to clients.
I also note that, in addition to depriving Applicant of his right to pursue a direct
appeal, trial counsel’s error here has also now caused the habeas court, the State, and this
Court to expend additional resources to undo the effects of trial counsel’s failures. While I
recognize that we are all human beings who make mistakes, this type of error can no longer
be considered a simple mistake given the number of times this Court has addressed this
very issue—it is borderline willful ignorance of an attorney’s obligations to his clients that
results in a significant waste of judicial resources. Because of 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 yet again bring attention to this issue so that attorneys may
continue to be reminded of the effect of failing to fulfill their responsibilities at the
conclusion of their representation and take steps to prevent such problems from arising in
the future. 3, 4
With these comments, I join the Court’s opinion granting Applicant relief.
Filed: September 13, 2023
3
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.”). My hope is that attorneys will implement practices that prevent these types of issues
from recurring.
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, trial counsel’s failure to
adequately communicate with clients about the appeals process is unfair to clients and falls short of the
standards for professionalism set forth in the disciplinary rules.
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