Ex parte Garton

EX PARTE CHARLES GARTON, Applicant

No. WR-94,158-01

Court of Criminal Appeals of Texas

November 2, 2022

DO NOT PUBLISH

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO 18F0532-102-A IN THE 102ND DISTRICT COURT FROM BOWIE COUNTY

Slaughter, J., filed a concurring opinion.

OPINION

PER CURIAM.

Applicant was convicted of two counts of aggravated sexual assault of a child and sentenced to eighty years' imprisonment. He filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that he was denied his right to an appeal because counsel failed to timely file a notice of appeal. Based on the record, the trial court has found that counsel failed to timely file a notice of appeal.

Relief is granted. Ex parte Axel, 757 S.W.2d 369 (Tex Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). Applicant may file an out-of-time appeal of his conviction in cause number 18F0532-102- from the 102nd District Court of Bowie County. Within ten days from the date of this Court's mandate, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him on direct appeal. Should Applicant decide to appeal, he must file a written notice of appeal in the trial court within thirty days from the date of this Court's mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.

CONCURRING OPINION

Slaughter, J., filed a concurring opinion.

I join in the Court's decision to grant Applicant post-conviction habeas relief in the form of an out-of-time appeal based on ineffective assistance of trial counsel. After Applicant was convicted of two counts of aggravated sexual assault of a child and sentenced to eighty years' imprisonment on each count, he expressed to trial counsel his desire to appeal the convictions. According to Applicant's allegations, counsel informed Applicant that he did not intend to represent Applicant on appeal but would provide him the necessary paperwork for perfecting an appeal. Counsel had Applicant sign some paperwork but never advised Applicant on how to perfect his appeal. In support of his claim, Applicant provided purported text messages between his sister and counsel. Those messages show that Applicant's sister texted counsel asking about Applicant's appeal and counsel replied by stating that he would not "forget [Applicant's] appeal," that he had filed a motion for new trial thereby extending the window for filing a notice of appeal, and that he intended to file a notice of appeal on Applicant's behalf. The record reflects that counsel did indeed file a motion for new trial, but, in spite of his assurances, he never filed a notice of appeal. It also appears that counsel never withdrew as counsel of record.

In response to Applicant's habeas allegations, the habeas court ordered trial counsel to provide an affidavit. When counsel did not initially respond within 30 days as ordered, the habeas court entered a second order requiring an affidavit within 7 days. Counsel again failed to respond. Thus, having received no response from counsel, the habeas court had no choice but to resolve Applicant's claim based solely on the allegations in the application and the text messages from Applicant's sister.

These circumstances highlight two unfortunate recurring themes in our post-conviction habeas review of ineffective-assistance claims. First, it appears that some attorneys are struggling to stay on top of their obligations at the conclusion of their representation, resulting in harm to clients who are then prevented from pursuing the next stage of appellate review of their convictions. Here, counsel clearly failed to carry out his duties at the end of his representation including failing to file a notice of appeal on Applicant's behalf. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) ("[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."); see also 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"). In addition to depriving Applicant of his statutory right to pursue a direct appeal, counsel's error has also now resulted in both the habeas court and this Court having to expend resources to undo the effects of counsel's error. Thus, this case serves as a reminder that trial counsel's role at the post-conviction stage-including filing a motion for new trial, if any; filing a timely notice of appeal; filing a motion to withdraw if counsel will not be completing the appeal; and advising the client on the next steps to pursue an appeal if desired-is critical for ensuring that a defendant's right to appeal is properly preserved.^[1] Failure to fulfill these obligations is not only unprofessional and unfair to clients, but it also wastes judicial resources by spawning the type of corrective post-conviction litigation before us here. Though I recognize that we are all human beings who make mistakes, based on the sheer volume of writ applications this Court sees annually in which...