Ex parte Wilson, No. 72759

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: PER CURIAM; MEYERS; BAIRD; Just as trial counsel is responsible for representing a defendant during the procedural gap between sentencing and the decision to appeal, appellate counsel has a duty to represent a defendant until an informed decision whe
• Citation: 956 S.W.2d 25
• Docket Number: No. 72759
• Decision Date: 05 November 1997
• Parties: Ex parte David Wayne WILSON.

Page 25

956 S.W.2d 25 Ex parte David Wayne WILSON. No. 72759. Court of Criminal Appeals of Texas,
En Banc. Nov. 5, 1997.

Page 26

Sandra K. Foreman, Huntsville, (State Counsel for Offenders), for appellant.

Lynn P. Hardaway, Assistant District Attorney, Baldwin Chin, Assistant District Attorney, Houston, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION

PER CURIAM.

After a trial before the court, Applicant was convicted of aggravated assault. The court found one of the enhancement allegations to be true and assessed punishment at confinement for twenty years. The Court of Appeals affirmed the conviction. Wilson v. State, No. 01-92-01224-CR, 1993 WL 542176 (Tex.App.--Houston [1st], delivered December 30, 1993). In August, 1995, Applicant filed this application for a post-conviction writ of habeas corpus in accord with Article 11.07, V.A.C.C.P. Applicant claims that under Ex parte Jarrett, 891 S.W.2d 935 (Tex.Cr.App.1995), his appellate attorney deprived him of the opportunity to file a petition for discretionary review.

FACTS

Applicant alleges that his attorney did not inform him that the Court of Appeals had affirmed his conviction. He also claims counsel failed to advise him about the merits and possible advantages and disadvantages of pursuing discretionary review as required by Jarrett. In response, appellate counsel filed an affidavit that he had mailed a copy of the Court of Appeals' opinion to Applicant after the conviction was affirmed. Counsel stated he told Applicant he would not represent him any further because Applicant had filed a grievance against him and because counsel did not believe a petition for discretionary review would have any merit. Counsel asserted that he "did not have the type of correspondence or conversations contemplated by Ex parte Jarrett," but that Jarrett was decided almost ten months after Applicant's conviction was affirmed. The trial court found the facts asserted in counsel's affidavit to be true. Counsel's affidavit raises the issue of retroactivity of Jarrett.

EX PARTE JARRETT

We begin our retroactivity analysis with Jarrett. In Jarrett this Court held that an appellate attorney has a duty to explain the meaning and effect of an appellate court decision, to express professional judgment about possible grounds for review, and to discuss advantages and disadvantages of further review. Jarrett, 891 S.W.2d at 940, 944. Despite attaching these duties to appellate counsel, this Court reaffirmed its decision in Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App.1982), that a defendant has no constitutional right to counsel for pursuing discretionary review, even though a defendant has a right to prepare and file a petition for discretionary review. Jarrett, 891 S.W.2d at 939. Closer analysis of Jarrett shows the duties imposed on appellate counsel overstep the bounds of the right to counsel on direct appeal because no such right exists for pursuing discretionary review. However, the ultimate holding in Jarrett is still correct. If appellate counsel's action or inaction denies a defendant his opportunity to prepare and file a petition for discretionary review, that defendant has been denied his sixth amendment right to effective assistance of counsel. Jarrett, 891 S.W.2d at 939.

Counsel's duty as set out in Jarrett originates from two related sources: Article 26.04, V.A.C.C.P., as amended in 1987, and Ex parte Axel, 757 S.W.2d 369 (Tex.Cr.App.1988). We relied on Art. 26.04 by deciding that the point at which a defendant should be informed of the disposition of the appeal and what step comes next is part of the direct appeal process. However, we then extended

Page 27

the direct appeal process into the discretionary review area by requiring counsel to give advice pertaining to the merits of discretionary review as if appellate counsel's duties were analogous to those in Axel.

This Court's reliance on Art. 26.04 and Axel is misplaced because these concern an appeal one has of right. Attendant to an appeal of right is a right to counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Texas accords defendants an appeal of right. See Article 44.02, V.A.C.C.P. However, the scope of the right to counsel is governed by the right to which it attaches. It makes sense that counsel on direct appeal must inform a defendant of the result of the appeal. However, since a defendant has no further right to counsel, it makes no sense to require counsel to discuss the merits of what the defendant would include in a petition for discretionary review. A defendant given an appeal of right is entitled to counsel who must inform the defendant, in accord with Axel, of the right to appeal, including expressing 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. Counsel must advise a defendant of rights pertaining to direct appeal. That is why in Axel this Court found the attorney to have been ineffective on appeal. In contrast, because a defendant has no right to counsel for pursuing discretionary review, appellate counsel has no constitutional or statutory duty to give advice to a defendant pertaining to the merits of discretionary review. Counsel may not deny a defendant the right or opportunity to avail himself of discretionary review, but counsel need not discuss the merits of such review because a defendant has no right to counsel for discretionary review.

The scope of the duty attached to counsel is governed by the right to which that duty attaches. The right to counsel on an appeal of right, under Art. 26.04, ends with the conclusion of the direct appeal. That means counsel on appeal must inform a defendant of the result of the direct appeal and the availability of discretionary review. But, because there is no right to counsel on discretionary review, the duty of counsel ends there. While it may be wiser to give more complete information to a defendant, it is neither constitutionally nor statutorily required.

In Jarrett this Court erroneously analogized the duties of appellate counsel after the court of appeals has decided a case, to that of the trial attorney in Axel after the defendant has been sentenced. In Axel this Court explained that the trial attorney continues as counsel for appellate purposes, unless he affirmatively withdraws, because the defendant has a right to counsel on appeal. This Court decided that trial counsel has a duty to protect a defendant so that he can exercise that right to appeal. In contrast, according to Ayala, a defendant has no right to counsel for pursuing discretionary review. Thus, Jarrett was based on the incorrect premise that the duties imposed by Axel on a trial attorney turned appellate attorney, because a defendant has a right to counsel on appeal, were analogous to those of an appellate attorney for a process for which a defendant has no right to counsel. Those duties set out in Axel stem from the interdependent rights to counsel and appeal. Because there is no right to counsel on discretionary review, the appellate attorney has no duty to inform a defendant of details pertinent to further review.

We overrule Jarrett to the extent it held that an appellate attorney has an obligation to inform a defendant of anything other than the fact that his conviction has been affirmed and he can pursue discretionary review on his own. This information sufficiently protects a defendant's right to file a petition for discretionary review. Counsel has no other constitutional obligations because a defendant has no right to counsel for purposes of discretionary review.

In the instant case the trial court found appellate counsel's affidavit to be true. In that affidavit counsel stated that he mailed Applicant a copy of the Court of Appeals' opinion and informed Applicant that he did not believe a petition for discretionary review would have any merit. This is sufficient to protect Appellant's right, if he desired,

Page 28

to file a petition for discretionary review. Accordingly, relief is denied.

MEYERS, J., not participating.

BAIRD, Judge, dissenting.

This habeas corpus petition presents a single question: whether the rule announced in Ex parte Jarrett, 891 S.W.2d 935 (Tex.Cr.App.1994), is retroactive. However, the majority avoids the retroactivity issue by overruling Jarrett "to the extent it held that an appellate attorney has an obligation to inform a defendant of anything other than the fact that his conviction has been affirmed and he can pursue discretionary review on his own." Ante at 27. Because the majority does not resolve the issue presented and fails to recognize the true holding of Jarrett, I dissent. ¹

I.

In Jarrett, supra, the applicant contended counsel's failure to advise an appellant of the court of appeals' decision, the right to petition this Court for discretionary review and the plausible grounds and possible merit of such a petition constituted ineffective assistance of counsel. In Jarrett, we set forth the duties of appellate counsel following the decision of the court of appeals:

Pursuant to Rule 91 appellate counsel has a duty to notify the appellant of the actions of the appellate court and to consult with and fully advise the appellant of the meaning and effect of the opinion of the appellate court. Finally, although appellate counsel has no duty to file a petition for discretionary review, Ayala, 633 S.W.2d. at 528, appellate counsel does have the duty, under art. 26.04, to advise the appellant of the possibility of review by this Court as well as expressing his professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review. ²

Id., 891 S.W.2d at 940.

The majority purports to agree with Jarrett to the extent appointed appellate counsel has the duty to inform his indigent client...