Ex Parte Crow, No. AP-75176.

• Court: Supreme Court of Texas
• Writing for the Court: Keller
• Citation: 180 S.W.3d 135
• Parties: Ex parte Rickie Lynn CROW, Applicant.
• Decision Date: 23 November 2005
• Docket Number: No. AP-75176.

180 S.W.3d 135 Ex parte Rickie Lynn CROW, Applicant. No. AP-75176. Court of Criminal Appeals of Texas. November 23, 2005.

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Gary A. Udashen & Charles Patrick Reynolds, Dallas, for Appellant.

Christina O'Neal, Asst. D.A., Dallas, Matthew Paul, State's Attorney, Austin, for the State.

OPINION

KELLER, P.J., delivered the opinion of the unanimous Court.

The question in this case is whether an applicant must show prejudice to establish entitlement to an out-of-time petition for

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discretionary review (PDR) due to counsel's failure to follow the requirements of Ex parte Wilson.¹ We hold that a limited showing of prejudice is required. Finding that applicant has made this limited showing, we grant relief.

I. BACKGROUND

Applicant was charged with the offense of aggravated robbery. He pled "not guilty" and was subsequently convicted. He appealed. Represented by counsel on appeal, applicant challenged the legal and factual sufficiency of the evidence and alleged Batson² error. The court of appeals affirmed the trial court's judgment on April 4, 2003, but appellate counsel failed to inform applicant of the court of appeals's decision. As a consequence, applicant did not become aware of the court of appeals's decision until after the time for filing a petition for discretionary review had expired.

In a pro se application for writ of habeas corpus, filed with the trial court on April 13, 2004, applicant contended that he discovered the court of appeals's opinion after his own inquiry, that he was deprived of his right to file a PDR, and that, had one been filed, there was a significant chance his conviction would have been reversed. Applicant did not explain in his application why he believed a PDR would have had merit.

We filed and set this case to determine whether Hernandez v. State,³ applying the prejudice prong of Strickland⁴ to the punishment phase of noncapital cases,⁵ had any impact on the rule announced in Wilson. Briefing was requested and applicant was appointed counsel for that purpose. Habeas counsel argued that a showing of prejudice was not required and, in the alternative, that the Batson claim had merit. In its brief, the State claimed that a showing of prejudice was required and that applicant failed to show prejudice because all of his claims on appeal were without merit.

II. ANALYSIS

Hernandez suggests that a prejudice component is always part of an ineffective assistance claim because the government is not responsible for deficient attorney performance and should not be held accountable absent some real harm.⁶ But we must also address the present case in light of another, much more recent decision, Johnson v. State.⁷ Johnson likewise held that all attorney errors should be viewed through the prism of the Strickland framework, except in conflict of interest cases and where the defendant is denied the right to counsel altogether.⁸

But Johnson recognized that Supreme Court precedent treats certain attorney errors a little differently under Strickland's prejudice prong than is ordinarily the case.⁹ For attorney errors that involve a deprivation amounting to a structural defect, the prejudice inquiry is more limited.¹⁰ These errors are rare, but

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include deficient conduct that results in the deprivation of an entire judicial proceeding, such as an appeal.¹¹ When a defendant's right to an entire judicial proceeding has been denied, the defendant is "required to show a reasonable probability that, absent counsel's errors, a...