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Court of Criminal Appeals of Texas.


NO. PD-0568-16

Decided: December 14, 2016

HERVEY, J., filed a concurring opinion in which KELLER, P.J., and KEASLER, J., joined.


I concur in the judgment of the Court, but I write separately to address the issues raised by Griffith, to explain why I agree with the decision of the court of appeals, and to respond to the dissent.


• On July 26, 2013, Griffith was sentenced and filed a pro se notice of appeal. He also requested a free copy of the record. That same day, the trial court issued an order granting Griffith's request for a free record and appointing appellate counsel.

• On August 13, 2013, appointed appellate counsel filed a timely motion for new trial alleging that Griffith's Eighth Amendment right to be free from cruel and unusual punishment was violated by his disproportionate sentence. (The motion was later overruled by operation of law.).

• On August 15, 2013, a new attorney hired by Griffith filed a motion to substitute as appellate counsel. The next day, the trial court granted the motion.

• On November 22, 2013, the clerk's record was filed in the court of appeals. • On January 22, 2014, the reporter's record was filed in the court of appeals.

• On April 9, 2014, substitute appellate counsel filed a motion to abate the appeal for an opportunity to file an out-of-time motion for new trial.

• On April 22, 2014, Griffith filed his brief on the merits.

• On April 23, 2014, the motion to abate was denied.


Griffith argues that the period during which a defendant can file a motion for new trial in criminal cases is unconstitutional because it does not allow appellate counsel a meaningful opportunity to present ineffective-assistance-of-counsel claims. However, because there are a number of such claims that can be raised in a motion for new trial, and because Griffith did not take every step available to him to raise a meaningful ineffective claim in his case, I agree with the decision of the Court to refuse his petition for discretionary review.


Many claims can and should be litigated at the motion-for-new-trial stage. For example, if new evidence is discovered after the jury retires to deliberate, the defendant must allege that the newly discovered evidence entitles him to relief or the claim is waived. Pena v. State, 353 S.W.3d 797, 807–08 (Tex. Crim. App. 2011); see Carlisle v. State, 549 S.W.2d 698, 704 (Tex. Crim. App. 1977) (reversing and remanding because trial court erroneously overruled motion for new trial based on newly discovered evidence); see also TEX. R. APP. P. 21.3 (setting out grounds for granting a new trial, many of which refer to newly discovered evidence). In addition, if trial counsel is aware of exculpatory evidence that is not effectively used at trial, the defendant can make an ineffective claim in his motion for new trial. TEX. R. APP. P. 21.7 (the court “may receive evidence by affidavit or otherwise”). Finally, counsel can be deficient when he fails to object to erroneous language in a jury charge. Willis v. State, No. 06-02-00108-CR, 2003 WL 21524704 (Tex. App.—Texarkana July 8, 2003, no pet.) (mem. op.) (not designated for publication) (holding that the failure of defense counsel to object to erroneous punishment charge authorizing an illegal sentence is ineffective assistance of counsel); McDade v. State, No. 06-01-00134-CR, 2002 WL 31719501, at *4 (Tex. App.—Texarkana 2002, no pet.) (not designated for publication) (holding that counsel was deficient when he failed to object to error in jury charge referring to aggravated assault when the charge was assault on a public servant).


Although Griffith argues that the entire motion-for-new-trial procedural framework is unconstitutional because no meaningful ineffective-assistance-of-counsel claims can be raised using that procedure, I do not believe that we should address his claim because he has not availed himself of every opportunity in his own case to raise a meaningful ineffective claim.

The period for filing a motion for new trial is a critical stage of the proceedings such that a defendant has a right to the effective assistance of counsel under the Sixth Amendment. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007). If a defendant is denied effective representation at that stage, and the defendant is harmed by that violation, he is entitled to relief. Id. The proper remedy is to “reset the appellate deadlines and abate the appeal,” allowing an out-of-time motion for new trial to be filed. Griffith v. State, No. 08-13-00242-CR, 2016 WL 1639496, at *3 (Tex. App.—El Paso Apr. 22, 2016); see Harris v. State, 827 S.W.2d 442, 443 (Tex. App.—San Antonio 1992, no pet.). To prove harm, the defendant must present at least one “facially plausible” claim to the court of appeals that could have been argued in a motion for new trial but was not due to ineffective assistance of counsel.1 Cooks, 240 S.W.3d at 912; Bearman v. State, 425 S.W.3d 328 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (abating the appeal for the appellant to file an out-of-time motion for new trial because he presented a “facially plausible” claim that trial counsel was ineffective). To make a “facially plausible” claim, a defendant is not required to marshal all evidence germane to potential ineffective-assistance-of-counsel claims, but he has to do more than just listing things trial counsel may have possibly done (or not done) that could possibly constitute ineffective assistance of counsel. See Cooks, 240 S.W.3d at 911–12.

Here, Griffith was represented by counsel during the entire window in which he could file a motion for new trial, and a timely motion for new trial was filed. In addition, there is no record evidence that Griffith's appointed appellate counsel wanted to present an ineffective-assistance-of-counsel claim but was unable to do so due to insufficient time. In other words, Griffith does not even allege that his appointed appellate counsel was unable to present a meaningful ineffective-assistance-of-counsel claim, nor does he claim that he was deprived of effective representation during the motion-for-new-trial period. Instead, Griffith claims that no meaningful ineffective-assistance-of-counsel claim could have been presented because the reporter's record was not filed until almost five months after the deadline. However, he neglects to mention other pertinent facts. For example, Griffith's retained appellate counsel represented him for about eight months before filing the motion to abate in the court of appeals, and for about two-and-one-half of those months, appellate counsel had access to the clerk's record and the reporter's record. Yet, after all of that time, Griffith only generically alleged that the appeal should be abated because “there are certain issues which require investigation and development.” In his brief filed 13 days later, he made another general allegation that “certain issues” require more investigation, but this time he included a laundry list of potential areas in which trial counsel could have been ineffective:

the failure to conduct necessary investigation and to interview witnesses; the failure to file discovery motions; the failure to adequately review medical records; the failure to adequately prepare; the failure to object to the introduction of extraneous offenses/bad acts; the failure to object to speculative testimony from unproved, unqualified witnesses; the failure to test witnesses regarding their purported expertise, and/or the scientific basis for their ‘expert’ testimony, the failure to consult with and/or obtain expert assistance for purposes of trial; the failure to adequately present evidence to support the motion to suppress; the failure to object to improper voir dire by the State; and the failure to object to improper closing arguments by the State.

Although these contentions may appear more specific than the initial allegation that “certain issues” require more investigation, they still fall woefully short of even a “facially plausible” claim. Id. For instance, Griffith makes two record-based claims that his trial counsel failed to object to improper voir dire and closing arguments by the State. But, after almost 80 days with the reporter's record, Griffith failed to give even one record cite to support his bald assertions. Id.

It seems to me that, instead of attacking the motion-for-new-trial procedural framework, counsel's time would have been better spent trying to present a “facially plausible” claim so that Griffith could have the opportunity he claims he never had—a chance to present a meaningful ineffective-assistance-of-counsel claim in a motion for new trial. After all, according to counsel there were plenty of “facially plausible” claims that could have been made.

Beyond the motion for new trial, if in fact a defendant has a plausible ineffective-assistance-of-counsel claim, many of them can be addressed on direct appeal with the support of both the clerk's and reporter's records. Finally, these claims can also be addressed on habeas.


The dissent once again insinuates that this Court unfairly ignores the needs of the poor by denying them sufficient and/or effective assistance of counsel. And, while this is not a post-conviction writ case, much time is spent dwelling on the perceived ill of our habeas system, and the part this Court plays in effectuating that system. As succinctly stated by the dissent,

in Ex parte Garcia, I highlighted what I view as an ongoing and widespread problem regarding the absence of appointed habeas counsel to assist indigent applicants in pursuing their colorable ineffective-assistance claims.

Dissenting Op. at 7 (citing Ex parte Garcia, 486 S.W.3d 565 (Tex. Crim. App. 2016) (Alcala, J., dissenting, in which Johnson, J., joined)). However, in reality we have no idea how widespread the problem is. Further the dissent adds that,

In Garcia, I urged this Court to take steps towards remedying this problem through the appointment of counsel for indigent habeas applicants who have colorable ineffective-assistance claims, but this Court has refused to require the appointment of counsel under those circumstances, which would largely rectify this problem. As I observed in Garcia, the statutory basis for appointing counsel under those circumstances already exists in Texas. In particular, I noted that Article 1.051 of the Texas Code of Criminal Procedure entitles an indigent habeas applicant to appointed post-conviction counsel whenever the habeas court determines that “the interests of justice of justice require representation.” Based on that statutory authority, I suggested that this Court should remand any pro se habeas application to the habeas court for appointment of counsel in the interest of justice when “either the pleadings or the face of the record gives rise to a colorable, nonfrivolous [ineffective-assistance] claim.”

Id. at 8 (internal citations omitted). The dissent seems to ignore the fact that it is not up to the judiciary to amend the manner in which attorneys are appointed. That is for the legislature to decide. And while the dissent appears to suggest that merely appointing a lawyer will “fix the system,” a few considerations are missing.

When a writ is granted by this Court, the trial court can appoint an attorney to represent an indigent defendant. Further, many trial courts are already appointing counsel for purposes of representation on writ, and it will do the system and everyone in it absolutely no good, if the attorney is not sufficiently skilled to handle a writ. This point applies whether the attorney handling the writ is appointed or retained. Thus, even the “affluent” who can afford habeas counsel are not served if the attorney is unskilled.

Despite proclamations that the system “is broken” and the problem of ineffective assistance of counsel is “widespread” (Dissenting Op. at 11) we have no numbers, no statistics, no real hard facts supporting the notion that thousands of indigent defendants are being unfairly treated. We cannot even predict how many ineffective assistance of counsel claims have had or will have merit.

And if the problem is so widespread, are we suggesting that almost the entire defense bar (as the list of those attorneys who presently handle habeas is quite small) is inept? This court and “legal scholars” know that concept is ridiculous.

Some proposals such as amending the Fair Defense Act to supply guidelines and requirements for attorneys who wish to handle more writs could be useful. Educating attorneys specifically in the realm of writ law would also be useful.2 But most importantly, this Court already fairly and fully reviews all writs as required by the Texas Constitution and laws of this State.

Relying on lyrical analysis to defend our practice against grievances over the manner in which this Court performs its duties, I cite the following

You say you want a revolution Well, you know We all want to change the world You tell me that it's evolution Well, you know We all want to change the world

But when you talk about destruction Don't you know that you can count me out Don't you know it's gonna be All right, all right, all right. ․

THE BEATLES, REVOLUTION (Apple Records 1968).


1.   A similar standard is applied when a trial court fails to hold a hearing on a motion for new trial. The Amarillo Court of appeals has explained that,Failure to hold a hearing on appellant's motion for new trial is an abuse of discretion when the motion raises matters not determinable from the record, as long as the defendant provides a supporting affidavit showing reasonable grounds for holding that relief should be granted. The affidavits need not establish a prima facie case, or even reflect every component legally required to establish relief. It is sufficient if a fair reading of the affidavit gives rise to reasonable grounds in support of the allegations.Obella v. State, No. 07-15-00271-CR, 2016 WL 3660018, at *2 (Tex. App.—Amarillo 2016, pet. filed) (per curiam) (internal citations omitted).

2.   The Court of Criminal Appeals and the State Bar of Texas has “rolled out” the first Writ Academy, which is specifically designed to train attorneys to properly litigate post-conviction habeas corpus claims.