Opinion
NO. WR-84,922-01 NO. WR-84,922-02 NO. WR-84,922-03 NO. WR-84,922-04
06-15-2016
EX PARTE LENDELL NOEL MORGAN, Applicant
ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. 0719435A , 0719436A, 0719438A, & 0719437A IN THE 8TH DISTRICT COURT FROM HOPKINS COUNTY ALCALA, J., filed a concurring opinion in which JOHNSON, J., joined. CONCURRING OPINION
This is another claim of ineffective assistance of counsel addressed by this Court based on pleadings that have been presented by a pro se litigant. I respectfully concur in this Court's order that remands this application to the convicting court for further development of the record. I, however, do not join the Court's order because it fails to accurately track the statutory language in the Code of Criminal Procedure, in that it improperly limits an indigent habeas applicant's entitlement to the assistance of appointed post-conviction counsel to situations involving a live hearing on remand. As I explained in my concurring opinion in Ex parte Pointer, in order to comply with the statutory requirements in the Code, this Court's order should instead more broadly require a habeas court to appoint counsel in a wider range of circumstances. See Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02 (Tex. Crim. App. June 8, 2016) (Alcala, J., concurring). As I noted in Pointer, Article 1.051 of the Code of Criminal Procedure mandates that an indigent pro se habeas applicant be afforded the assistance of appointed post-conviction counsel whenever the court determines that the interests of justice require representation. See TEX. CODE CRIM. PROC. art. 1.051(d)(3) ("An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in . . . a habeas corpus proceeding if the court concludes that the interests of justice require representation"). In light of this statutory authority, this Court's order should instruct the habeas court to appoint counsel to this pro se, indigent applicant either (1) if the habeas court holds a hearing on remand, or, in any event, (2) if the court determines that the interests of justice require representation regardless of whether there is a hearing. Because the Court's order fails to track the statutory language in the Code of Criminal Procedure by incorrectly suggesting that the habeas court's authority to appoint post-conviction counsel is limited to situations involving a hearing on remand, I cannot join the Court's order.
More broadly, in accordance with the reasoning of my dissenting opinion in Ex parte Garcia, No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr. 6, 2016), I would encourage habeas courts to utilize the statutory authority in Article 1.051 in order to liberally appoint counsel for pro se applicants who, as here, appear to have colorable ineffective- assistance-of-counsel claims. Such a course, I believe, will improve the integrity of the criminal-justice system by ensuring that defendants' bedrock Sixth Amendment rights are adequately protected through a more rigorous system of post-conviction review.
Last week, I issued four opinions discussing my position that indigent defendants with colorable ineffective-assistance-of-counsel claims should be appointed counsel in the interests of justice. See Ex parte Honish, No. WR-79,976-05 (Tex. Crim. App. June 8, 2016) (Alcala, J., dissenting); Ex parte Desilets, No. WR-76,998-02 (Tex. Crim. App. June 8, 2016) (Alcala, J., dissenting); Ex parte Davis, No. WR-84,123-01 (Tex. Crim. App. June 8, 2016) (Alcala, J., dissenting); Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02 (Tex. Crim. App. June 8, 2016) (Alcala, J., concurring). I note that a majority of the judges on this Court appear to disagree with the simple application of the plain language of the statute that mandates the appointment of counsel in these situations. See Ex parte Garcia, No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr. 6, 2016) (Keller, P.J., concurring); Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02 (Tex. Crim. App. June 8, 2016) (Yeary, J., concurring, joined by Keasler, Hervey, and Newell, JJ.). Given this Court's refusal to apply the plain statutory language under these circumstances, I have no option but to urge the Legislature to step in to correct this injustice. --------
With these comments, I respectfully concur. Filed: June 15, 2016 Do not publish