Ex parte Jarrett, 71923

• Decision Date: 21 September 1994
• Docket Number: No. 71923,71923
• Parties: Ex Parte Lawrence A. JARRETT, Appellant.
• Court: Texas Court of Criminal Appeals

Page 935

891 S.W.2d 935

Ex Parte Lawrence A. JARRETT, Appellant.

No. 71923.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 21, 1994.

Opinion Denying Rehearing Feb. 8, 1995.

Lawrence A. Jarrett, pro se.

John B. Holmes, Jr., Dist. Atty., and Lynn Hardaway, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

This is an application for writ of habeas corpus filed pursuant to Tex.Code Crim.Proc.Ann. art. 11.07. Applicant was convicted of possession of a controlled substance and sentenced to forty-four years confinement. The Court of Appeals affirmed. Jarrett v. State, 818 S.W.2d 847 (Tex.App.--Houston [1st] 1991, no pet.). Applicant contends he was denied effective assistance of counsel. Specifically, applicant alleges he was not notified by appellate counsel of the Court of Appeals' affirmance of the judgment of the trial court, thus depriving applicant of the opportunity to prepare and file a petition for discretionary review.

I. THE FACTS

In an unpublished order, we originally remanded this case and ordered the habeas judge to make findings of fact as to whether applicant was informed that the trial court's judgment had been affirmed by the Court of Appeals and that applicant had the right to seek discretionary review from this Court. The habeas judge was permitted to gather these facts by either affidavit or evidentiary hearing whereby appellate counsel could address applicant's factual allegations and applicant would have an opportunity to respond. The habeas judge, relying solely upon appellate counsel's affidavit, determined applicant's claim of ineffective assistance of counsel lacked merit. Appellate counsel's affidavit stated that applicant was notified by mail of the resolution of his appeal and advised of his right to file a petition for discretionary review pro se. Applicant was not given an opportunity to respond to counsel's affidavit.

II. THE STANDARD

The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution. This right of representation is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980); and, Lisenba v. California, 314 U.S. 219, 236-237, 62 S.Ct. 280, 289-290, 86 L.Ed. 166 (1941). Generally, in determining the effectiveness of counsel we utilize the two prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Cr.App.1993); and, Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Cr.App.1993). The first prong is a determination of whether counsel's performance failed to constitute "reasonably effective assistance." Menchaca, 854 S.W.2d at 131. Stated another way, we determine whether counsel's performance was deficient. Strickland, 466 U.S. at 685, 104 S.Ct. at 2063. If counsel's performance was deficient we then determine whether there is a reasonable probability the results would have been different but for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine the confidence in the outcome of the proceeding. Menchaca, 854 S.W.2d at 131.

However, the Supreme Court observed in Strickland, "In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. For example, in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), appellate counsel failed to file a statement of appeal as required by state law, resulting in the dismissal of the appeal. The Supreme Court noted, "In a situation like that here, counsel's failure was particularly egregious in that it essentially waived respondent's opportunity to make a case on the merits; in this sense it is difficult to distinguish respondent's situation from that of someone who had no counsel at all." Evitts, 469 U.S. at 394 n. 6, 105 S.Ct. at 835 n. 6. This Court has followed the rationale of Evitts when a defendant has been deprived of his right to appeal due to counsel's inaction. Ward v. State, 740 S.W.2d 794, 800 (Tex.Cr.App.1987).

In Ex parte Axel, 757 S.W.2d 369 (Tex.Cr.App.1988), we were confronted with the issue of who must advise the defendant of his right to appeal. Axel, 757 S.W.2d at 373. Axel had not been notified of his right to appeal by the court or his attorney, nor had counsel withdrawn or been dismissed pursuant to Tex.Code Crim.Proc.Ann. art. 26.04. This Court was faced with an ineffective assistance of counsel claim based upon counsel's actions not at a proceeding but during the procedural gap between trial and appeal. We determined that a "lawyer should take whatever steps are necessary to protect the defendant's right of appeal." Axel, 757 S.W.2d at 373. To that end we held that trial counsel, retained or appointed,

... has the duty, obligation and responsibility to consult with and fully advise the 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. ....

Axel, 757 S.W.2d at 374. Consequently, this Court granted an out-of-time appeal to Axel. Id., 757 S.W.2d at 375.

Similarly, the instant case involves a claim of ineffective assistance of counsel in failing to advise a defendant of another criminal procedure. Specifically, this case provides the opportunity to determine the duties of appellate counsel following the affirmance of the judgment of the trial court by the court of appeals.

III.

A. Tex.Code Crim.Proc.Ann. art. 26.04

Tex.Code Crim.Proc.Ann. art. 26.04(a) provides:

Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice require representation of a defendant in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him. An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel. ¹

In Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App.1982), counsel filed an Anders brief on direct appeal. ² The Court of Appeals affirmed the conviction. Although counsel advised Ayala there were no grounds for review, Ayala demanded that counsel file a petition for discretionary review. We held appointed counsel has no duty in such circumstances to file a petition for discretionary review. Ayala, 633 S.W.2d at 528.

Ayala was decided before the 1987 amendment to art. 26.04(a), which added the language italicized above. The statute requires an appointed attorney to represent the defendant until "appeals are exhausted." In Ayala this Court emphasized the difference between an appeal and discretionary review. Except for cases in which the death penalty has been assessed, a defendant in Texas has the right of appeal to a court of appeals. Ayala, 633 S.W.2d at 528. This Court may review decisions of courts of appeals, but an appellant has no right to discretionary review. Id. Thus, our holding in Ayala retained its vitality after the 1987 amendment to art. 26.04(a).

Nevertheless, we observed in Ayala:

This is not to say that indigent appellants have no recourse from the misfeasances of appointed counsel after the decision of an intermediate court. If an appointed counsel deprived the client of his right to apply, pro se, for discretionary review--by volunteering to make a timely application for discretionary review and failing to do so, for example--then there might be a due process violation. See, Wainwright v. Torna, 455 U.S. 586, 588 n. 4, 102 S.Ct. 1300, 1301 n. 4, 71 L.Ed.2d 475 (1982).

Ayala, 633 S.W.2d at 528, n. 4. See also, Ayala, 633 S.W.2d at 529 (Concurring opinion, Clinton, J.). Appellant's right to file a petition for discretionary review may not be abridged by the actions of counsel. Id. Accordingly, failure to notify the appellant of the right to file a petition for discretionary review prejudices the rights of the appellant and constitutes a violation of the constitutional right to effective assistance of counsel. Appellant has no right to review, but Tex.R.App.P. 200 presumes appellant has a right to prepare and file a petition for discretionary review.

In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Supreme Court held there was no constitutional right to appointed counsel to pursue discretionary review. Counsel's failure to pursue discretionary review does not represent a denial of effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 102 S.Ct 1300, 71 L.Ed.2d 475 (1982). Though there is no right to have discretionary review granted by this Court, we have held that due to the very fact that the provision exists there is a right to make a request to this Court. Ayala, 633 S.W.2d at 528. Therefore, if this right is abridged or denied through the misfeasance or nonfeasance of counsel there is an abridgment of the Sixth and Fourteenth Amendments through which the State benefits and the individual's rights are constitutionally curtailed. See, Cuyler, 446 U.S. at 344, 100 S.Ct. at 1715. See also, Ayala, 633 S.W.2d at 528.

B. Tex.R.App.P. 91

Tex.R.App.P. 91 provides for post-appeal notification of the appellant of the appellate proceedings:

On the date an opinion of an appellate court is handed down, the clerk of the appellate court shall mail or deliver to the clerk of the trial court, to the trial judge who tried the case,...