Opinion
WR-95,946-01
10-23-2024
EX PARTE WESLEY HENDERSON, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2021CR4006-W1 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY
OPINION
PER CURIAM
Applicant was convicted of continuous sexual abuse of a child and sentenced to ninety-nine 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 2021CR4006 from the 175th District Court of Bexar 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. In numerous recent opinions, I have emphasized the importance of trial counsel's duty to timely file a notice of appeal when his client expresses a desire to appeal. See, e.g., Ex parte Hampton, 688 S.W.3d 912 (Tex. Crim. App. 2024) (Slaughter, J., concurring); Ex parte Joshua, 678 S.W.3d 8 (Tex. Crim. App. 2023) (Slaughter, J., concurring). This case constitutes yet another unfortunate example of trial counsel's failure to fulfill his obligations in this regard. I have chosen to highlight this issue because it is one that arises far too frequently, and correcting such errors results in both unfairness to appellants and excessive post-conviction litigation that consumes a significant amount of judicial resources. Further, given our clear instructions to trial attorneys on this matter, there is simply no plausible justification for attorneys to continue making this entirely avoidable mistake. See, e.g., Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (stating that trial counsel "must ascertain whether the defendant wishes to appeal"; "[i]f the defendant decides to appeal, the [trial] attorney must ensure that written notice of appeal is filed with the trial court") (emphasis added); 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.") (emphasis added).
In Jones, we recognized that in many instances trial counsel will not be representing the defendant on appeal, and in those situations, trial counsel should present the defendant's signed pro se notice of appeal alongside counsel's motion to withdraw. Jones, 98 S.W.3d at 703 ("A 'contemporaneous' presentation of the pro se notice with a motion to withdraw by trial counsel serves as actual notice to the trial court of the defendant's desire to appeal."). Alternatively, trial counsel may "sign the notice himself, in which case, he effectively 'volunteers' to serve as appellate counsel." Id.
See also American Bar Association, Criminal Justice Standards, Defense Function, Standard 4.9-1(a)-(d), "Preparing to Appeal" ("If a client is convicted, defense counsel should explain to the client the meaning and consequences of the court's judgment and the client's rights regarding appeal . . . . Defense counsel should take whatever steps are necessary to protect the client's rights of appeal, including filing a timely notice of appeal in the trial court, even if counsel does not expect to continue as counsel on appeal. Defense counsel should explain to the client that the client has a right to counsel on appeal (appointed, if the client is indigent), and that there are lawyers who specialize in criminal appeals. Defense counsel should candidly explore with the client whether trial counsel is the appropriate lawyer to represent the client on appeal, or whether a lawyer specializing in appellate work should be consulted, added or substituted.") (emphasis added).
In this case, trial counsel (who is also acting as habeas counsel for purposes of pursuing an out-of-time appeal) has conceded that he failed to timely file Applicant's notice of appeal, despite being aware of Applicant's desire to appeal. Counsel states that, after filing the motion for new trial in this case, he was not initially sure whether his firm would continue representing Applicant on appeal, so he did not immediately file the notice of appeal. However, recognizing that it was his duty to protect Applicant's right of appeal regardless of who would be representing Applicant on appeal, counsel later filed the notice of appeal, but it was five days late. Counsel thus acknowledges that Applicant received ineffective assistance of counsel and that Applicant is entitled to an out-of-time appeal.
Counsel further explains that the court of appeals had the wrong attorney listed as Applicant's trial counsel, so counsel did not receive any of the notices sent by the appellate court regarding the late notice of appeal. Counsel explains that, had he received those notices, he would have requested a 15-day extension to file the notice of appeal, pursuant to Rule of Appellate Procedure 26.3. See Tex. R. App. P. 26.3 ("The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).").
Counsel's candor, as well as his efforts to assist Applicant in securing the right of appeal through corrective post-conviction litigation, are commendable. Nevertheless, this case serves as yet another reminder of the importance of trial counsel's role in protecting the defendant's right of appeal by immediately filing a notice of appeal upon learning of the defendant's desire to appeal-even if, as here, counsel is unsure whether he will continue representing the defendant on appeal. Too many times, we have seen miscommunication between trial and appellate counsel, or a delay in retaining or appointing appellate counsel, which then results in the defendant missing the deadline for filing his notice of appeal. It is for this reason that this Court has indicated that trial counsel should file the notice of appeal soon after the trial court enters its judgment, even if it is unclear who will ultimately be representing the defendant on appeal. Though I recognize that we are all human beings who make mistakes, this type of error can be easily avoided by taking these simple steps. Because of the sheer volume of writ applications this Court sees annually in which this or similar problems arise, it is my ethical obligation to yet again bring attention to this issue so that attorneys may continue to be reminded of the effect of failing to stay on top of their responsibilities and take steps to prevent such problems from arising in the future.
See Tex. Code Jud. Conduct, Canon 3(D)(2) ("A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action.").
With these comments, I join the Court's opinion granting Applicant relief.