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EX PARTE ROLANDO CALDERILLA v. <<

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Court of Criminal Appeals of Texas.

EX PARTE ROLANDO CALDERILLA, Applicant

NO. WR-92,582-02

Decided: September 21, 2022

I join in the Court's decision to grant Applicant post-conviction habeas relief in the form of an out-of-time petition for discretionary review. I write separately to emphasize the importance of appellate counsel's duty to inform clients of their right to file a pro se PDR following resolution of their direct appeal by the court of appeals. It appears that appellate counsel here wholly failed to inform Applicant of this right, thereby depriving Applicant of his ability to pursue review in this Court. This happens far too frequently and is a troubling sign that some appellate attorneys are failing to properly communicate with their clients (particularly those who are incarcerated).1

Appellate counsel was appointed to represent Applicant for his direct appeal, and subsequently submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Applicant also filed a pro se brief with the appellate court. The court of appeals ultimately issued an opinion affirming Applicant's conviction. Calderilla v. State, NO. 09-19-00113-CR, 2020 WL 3455017 (Tex. App.—Beaumont June 24, 2020, no pet.) (mem. op., not designated for publication). Applicant indicated that he received the opinion and orders from the appellate court, but contended that he was never advised by counsel of his right to file a pro se PDR. Appellate counsel's affidavit stated that it is his normal practice to advise his clients of their PDR rights, but he further indicated that he did not have any copies of the letter he sent Applicant. The mail logs from the prison reveal that Applicant received two letters from the appellate court, but no letters from counsel.

Criminal defendants have a constitutional right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This right to effective assistance extends to the first direct appeal. Evitts v. Lucey, 469 U.S. 387, 395–96 (1985); Ward v. State, 740 S.W.2d 794, 799 (Tex. Crim. App. 1987). Although it is true that a criminal defendant has no right to the assistance of counsel for purposes of actually pursuing discretionary review, his appellate counsel still has the duty to notify him of his right to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim. App. 2008) (detailing appellate counsel's duties to clients upon denial of relief on appeal). This obligation is codified in the Texas Rules of Appellate Procedure:

In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review under Rule 68. This notification shall be sent certified mail, return receipt requested, to the defendant at his last known address. The attorney shall also send the court of appeals a letter certifying his compliance with this rule and attaching a copy of the return receipt within the time for filing a motion for rehearing. The court of appeals shall file this letter in its record of the appeal.

TEX. R. APP. P. 48.4 (emphasis added). Additionally, the Texas Disciplinary Rules of Professional Conduct require lawyers to effectively communicate with their clients in a manner that permits the clients to make informed decisions related to their cases. Tex. Disciplinary Rules Prof'l Conduct R. 1.03(b).

It is very concerning when appellate attorneys fail to follow the substantive and ethical requirements imposed on them. When appellate counsel fails to timely notify a defendant of his right to pursue discretionary review, he deprives his client of an essential opportunity to seek further review of his case. Ultimately, such a failure is unfair to defendants and is extremely unprofessional. Not only this, but it results in unnecessary burdens on the courts and on prison officials, who then must check the mail logs to determine if correspondence was indeed sent. Overall, counsel's failure to properly advise his client of his right to seek discretionary review simply creates judicial inefficiency that wastes taxpayer dollars. I also note that, when appellate counsel does advise his client of that right, as counsel is required to do, counsel should forward the return receipt of the letter to the appropriate court of appeals, as required by Texas Rule of Appellate Procedure 48.4, to ensure that the appellate record properly reflects that counsel has fulfilled his duty in this regard.

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

FOOTNOTES

1.   I understand that appellate attorneys are human beings who make mistakes like the rest of us. But, given the sheer number of cases we see in which attorneys serving as appellate counsel have failed to satisfy their duties to their clients, I feel compelled to call attention to such failures with the hope that appellate counsel across the state will become more conscientious about their duties.

SLAUGHTER, J., filed a concurring opinion.

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