Sadler, Max Patrick AKA Sadler, Max

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-92,513-01 THRU WR-92,513-04
EX PARTE MAX PATRICK SADLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. WO2-74193-M(A) IN THE 194TH DISTRICT COURT
FROM DALLAS COUNTY
YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.
DISSENTING OPINION
This is a post-conviction application for writ of habeas corpus in which Applicant
seeks, among other things, an out-of-time petition for discretionary review. In November
of 2004, in open plea proceedings, he pled guilty to two instances of aggravated sexual
assault of a child and two instances of indecency with a child. On appeal, his appellate
counsel filed an Anders brief. Anders v. California, 386 U.S. 738 (1967). The court of
appeals affirmed the trial court’s judgments. Sadler v. State, Nos. 05-04-01514 through 05-
04-01817, 2005 WL 3418162, at *1 (Tex. App.—Dallas Dec. 14, 2005) (mem. op., not
designated for publication) (“We advised appellant he has a right to file a pro se response,
but appellant did not file a pro se response.”).
SADLER — 2
Appellate counsel apparently failed to notify applicant of his right to file a brief of
his own in his direct appeal and failed to notify Applicant of the court of appeals disposition
of his case, and Applicant now seeks an out-of-time petition for discretionary review. 1 The
convicting court recommends we grant Applicant’s request to pursue an out-of-time
petition so that he may now make his case that there were non-frivolous issues that could
have been raised on direct appeal. Today, the Court follows that recommendation. I would
not.
This is Applicant’s first post-conviction writ application. He has waited more than
sixteen years to argue that he was wrongly denied the ability to file a petition for
discretionary review. The time preceding the expiration of sixteen years after his conviction
was affirmed was ample time within which he should have contacted his appellate counsel
to inquire about the resolution of his direct appeal and to pursue an out-of-time petition for
discretionary review. If Applicant wanted to pursue discretionary review in this Court, he
should have acted well before now. The equitable relief of post-conviction habeas corpus
should not lie for those who “slumber on their rights.” See Ex parte Smith, 444 S.W.3d
661, 666 (Tex. Crim. App. 2014) (recognizing “the maxim the equity aids the vigilant and
not those who slumber on their rights”).
That appellate counsel filed an Anders brief and the court of appeals thereafter
affirmed Applicant’s conviction strongly suggests that a petition for discretionary review
1
Although the Court of Appeals says it advised Applicant of his right to file a pro se
supplement to appellate counsel’s Anders brief, apparently it sent that advisory to the same
incorrect address that appellate counsel erroneously used. In any event, the Court today has refused
to grant Applicant’s request for an out-of-time appeal, so I need not address that aspect of his
claim.
SADLER — 3
would avail Applicant nothing in this case. See Sadler, 2005 WL 3418162, at *1 (“We find
nothing in the record that might arguably support the appeals.”). He has no right to such a
petition in any event. See TEX. R. APP. P. 66.2 (“Discretionary review by the Court of
Criminal Appeals is not a matter of right, but of the Court’s discretion.”). Indeed, this Court
is free to refuse any petition for discretionary review, even when it is arguable that the
lower appellate court reached the wrong result. Our discretionary review authority is more
concerned with shepherding the jurisprudence than with assuring a correct result in every
individual case. See Arcila v. State, 834 S.W.2d 357, 360 (Tex. Crim. App. 1992),
overruled on other grounds Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997)
(“Our principal role as a court of last resort is the caretaker of Texas law, not the arbiter of
individual applications.”).
Although I do not necessarily object when the Court grants an out-of-time petition
to an appellant who has diligently pursued that avenue of relief, I see no justification for
doing so to benefit an applicant who could, and should, have initiated that pursuit many
years ago. The claims Applicant now asserts he would raise are commonplace, 2 and the
court of appeals would almost certainly have addressed them on direct appeal, in its
Anders-mandated review of the record, had there been any arguable merit to them. On the
basis of the claims made in his writ application, it will almost certainly avail him nothing
to pursue discretionary review, and it will only waste this Court’s scarce resources without
any jurisprudential payback.
2
Applicant claims that he could have raised the following issues on direct appeal: (1) denial
of his statutory and common law right of allocution; (2) failure of the trial court to
inquire/admonish him of citizenship status before accepting his guilty plea; (3) involuntary jury
trial waiver; and (4) insufficient evidence to support his guilty plea.
SADLER — 4
I therefore respectfully dissent.
FILED: February 2, 2022
PUBLISH