Opinion
NO. WR-83,312-01
04-06-2016
EX PARTE JAVIER TAMEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM NUECES COUNTY
JOHNSON, J., filed a dissenting statement in which MEYERS, ALCALÁ, and RICHARDSON, JJ., joined. DISSENTING STATEMENT
I.
My name is Les Cassidy. I am over the age of eighteen (18) years and have personal knowledge of the facts stated herein which are true and correct. I am not disqualified by law from making this affidavit.
I am attorney licensed to practice law in Texas since 1985.
"I was retained to represent Mr. Javier Tamez after the State filed its 5th Motion to Revoke in July 2012. I met Mr. Tamez in jail. We reviewed the motion together and discussed his defenses. I contacted his witnesses and arranged to have testimony at his hearing.
After the hearing, Mr. Tamez' probation was revoked and he was sentenced to ten (10) years TDCJ. I advised him at the hearing of the consequences and meaning of his conviction, his parole eligibility, his right to appeal and the
requirements to provide notice of his intention to appeal and the deadline for filing the same. I advised against filing an appeal and stated my reasons. I also met with his spouse and discussed the same. I do not recall referring her to attorney Charles Smith. He (Mr. Tamez) indicated he would consult with other counsel. He was aware I was not filing an appeal on his behalf and did not request I take any action in that regard."
II.
My name is Les Cassidy. I am over the age of eighteen (18) years and have personal knowledge of the facts stated herein which are true and correct. I am not disqualified by law from making this affidavit. This affidavit is supplemental to an affidavit I executed on December 4, 2014.
"When I advised Javier Tamez against filing an appeal and stated my reasons, I ascertained at that time he was not interested in filing an appeal. This was within the time allowed by the rules for filing a Notice of Appeal."
The above texts are the entirety of trial counsel's two affidavits. From these documents, I can deduce a few things. First, the second affidavit is in some conflict with the first affidavit. In the first, Cassidy stated that he told applicant that he had a right to appeal, although advising against it for unstated reasons, and of the deadline for filing a notice of appeal and conceded that applicant stated that he wanted to consult with other counsel. By the time of his second affidavit, Cassidy had apparently concluded that applicant's expressed desire to consult with another attorney about an appeal was the same as applicant saying that "he was not interested in filing an appeal." I conclude that applicant expressed a clear desire to consult another attorney about an appeal because Cassidy had been very clear that applicant should not file an appeal and that Cassidy would not help applicant file an appeal. And because applicant had explicitly stated that he wanted to consult another attorney about an appeal, Cassidy should have known that, to protect his client's rights, he was required to file a notice of appeal and a motion to withdraw. Neither of which appears in the record.
And what were Cassidy's reasons for urging applicant to not appeal? Why did he not say in either affidavit? My curiosity is piqued. Were the facts so bad that appeal would be an exercise in futility? Or did Cassidy fail to adequately prepare, as is alleged in the affidavit of applicant's wife, and was trying to avoid an allegation of ineffective assistance?
Cassidy states that he does not recall referring applicant's wife to a specific attorney, Charles Smith (whose fee was alleged to be $25,000, up front), but that is not to say that he did not do so. Many of the actions that Cassidy described are of the sort that a criminal-defense attorney will discuss with most clients. Referring a client to an appellate attorney is not so common. "I do not recall" does not equate to "I didn't do it."
Nowhere in either affidavit does Cassidy state that he informed applicant that, if applicant did not have the resources to hire another attorney, he could petition the trial court to appoint counsel for applicant's appeal of right. Perhaps he assumed that applicant had money left after paying Cassidy's fee, but it is frequently the case that a defendant is able to hire trial counsel but may not have sufficient remaining resources to hire appellate counsel, especially if the defendant has been in custody for an extended period. On this basis alone, I would remand to the trial court so that it can ascertain whether applicant is indigent and therefore entitled to court-appointed counsel.
Whether applicant is financially able to hire counsel or is eligible for appointed counsel, there is nothing in the record that establishes that Cassidy fulfilled his duty to file notice of appeal and a motion to withdraw. I would hold that applicant is entitled to an out-of-time appeal. Filed: April 6, 2016
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