EX PARTE CONTRERAS v. << (2024)

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 the defendant 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 her 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);¹ 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).²

In this case, trial counsel (who is also acting as habeas counsel for purposes of pursuing an out-of-time appeal) has conceded that she failed to timely file Applicant's notice of appeal, despite being aware of Applicant's desire to appeal. Counsel states that, immediately after the conclusion of the trial proceedings, the trial court indicated that it was appointing appellate counsel, and her co-counsel then provided Applicant the contact information for the newly appointed appellate attorney. Believing that her representation of Applicant had concluded at that point, trial counsel assumed that appellate counsel would handle filing the notice of appeal, and she took no further action. But these circumstances highlight precisely why it is crucial that trial counsel file the notice of appeal immediately after the conclusion of the trial proceedings, even if appellate counsel is being appointed. 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. There is no valid reason to wait to file the notice of appeal until appellate counsel becomes the attorney of record. Though I recognize that we are all human beings who make mistakes, this type of error can be easily avoided if trial counsel takes the simple step of filing the notice of appeal alongside counsel's motion to withdraw, thereby ensuring that the defendant's appellate rights are immediately protected. 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.³

With these comments, I join the Court's opinion granting Applicant relief.

FOOTNOTES

1.   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.

2.   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).

3.   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.”).

Slaughter, J., filed a concurring opinion.