IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-84,278-01 & WR-84,278-02
EX PARTE MARCUS PURNELL WILHITE, Applicant
ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. 1141857-A & 1178148-A IN THE 208 TH DISTRICT COURT
FROM HARRIS COUNTY
A LCALA, J., filed a concurring opinion in which J OHNSON, 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 pro se habeas 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
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counsel to situations involving a live hearing on remand.1
This Court’s order should not instruct the habeas court to appoint counsel to an
indigent habeas applicant only in the event of a live hearing on remand. Rather, 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. The plain
language in the Code mandates a habeas court to appoint counsel for an indigent habeas
applicant when the interests of justice require it. Article 1.051 of the Code of Criminal
Procedure states,
(d) An eligible indigent defendant is entitled to have the trial court appoint an
attorney to represent him in the following appellate and postconviction habeas
corpus matters: . . .
(3) a habeas corpus proceeding if the court concludes that the interests of
justice require representation[.]
See T EX. C ODE C RIM. P ROC. art. 1.051(d)(3). In view of this statutory authority, this Court’s
order should instruct the habeas court to appoint counsel (1) when the habeas court holds a
hearing, or, in any event, (2) when the interests of justice require representation in a habeas
proceeding regardless of whether there is a hearing. Although the Code does not define the
term “interests of justice,” that term, as it applies here, refers to a judge’s discretion to make
1
I note that this Court’s order cites to Code of Criminal Procedure Article 26.04, but that
article does not suggest that counsel must be appointed only in the event of a live hearing. Rather,
Article 26.04 more broadly indicates that a court “shall appoint” counsel “for purposes of a criminal
proceeding” whenever the court determines “that the interests of justice require representation of a
defendant in the proceeding[.]” TEX . CODE CRIM . PROC. art. 26.04(c). Given its reference to the
necessity of appointing counsel in any “criminal proceeding” in which the interests of justice require
it, I can see no basis in Article 26.04 for instructing habeas courts to appoint counsel to indigent
applicants only in the event of a live hearing.
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a ruling in the interests of fairness and equity in a particular situation depending on the facts.2
In other cases, I have expressed my view that, when a pro se habeas application gives
rise to a colorable ineffective-assistance claim, based either on the substance of the pleadings
or the bare face of the record, an applicant should receive appointed counsel in the interests
of justice based on the statutory authority in Article 1.051(d)(3). See, e.g., Ex parte Garcia,
No. WR-83,681-01, 2016 WL 1358947, slip op. at 16 (Tex. Crim. App. Apr. 6, 2016)
(Alcala, J., dissenting). I need not further discuss here what may constitute a colorable claim
in other cases because, in this case, by remanding it to the habeas court, this Court has
already implicitly determined that applicant’s ineffective-assistance claim is colorable. In
the instant case, this Court’s majority order determines that applicant has alleged facts that,
if true, might entitle him to relief, or it otherwise concludes that factual development is
necessary. This Court’s majority order also requires the habeas court to make findings of fact
and conclusions of law as to whether trial counsel’s performance was deficient and whether
that performance prejudiced applicant. Having determined that applicant may be entitled to
relief based on the facts that have been presented thus far, these circumstances would, in my
view, justify this Court ordering the habeas court to appoint counsel in the interests of justice
on remand. But, at the very least, this Court’s order should accurately track the language in
the Code of Criminal Procedure as a means of informing the habeas court of its obligation
2
See, e.g., Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (explaining that the
“interests of justice” is a concept encompassing matters such as the “fairness, integrity, or public
reputation of judicial proceedings”).
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to appoint counsel if it determines that representation is necessary in the interests of justice.
In deciding whether to appoint habeas counsel on remand, 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. As the Supreme Court has recognized, the right to the effective assistance of counsel
is a “bedrock principle in our justice system,” without which the very fairness and accuracy
of the underlying criminal proceeding cannot be guaranteed. Martinez v. Ryan, 132 S. Ct.
1309, 1317 (2012). But, without the assistance of an attorney for the purpose of raising an
ineffective-assistance claim, the Supreme Court has also recognized that a pro se,
incarcerated habeas applicant will likely be unable to properly present such a claim, even if
his claim is meritorious. See id. at 1317-18 (observing that a prisoner is in “no position to
develop the evidentiary basis for a claim of ineffective assistance,” and acknowledging that,
“as an equitable matter,” a post-conviction habeas proceeding, “if undertaken without
counsel . . . may not have been sufficient to ensure that proper consideration was given to a
substantial [ineffective-assistance] claim”). These are relevant factors that should be taken
into account by a court in assessing whether the interests of justice require appointed counsel
in any given case. I further note that, because a habeas proceeding is most likely the only
time that the effectiveness of counsel may be challenged, a habeas court should not only
appoint counsel under the circumstances presented here, but it should also liberally permit
the amendment of claims by that appointed habeas counsel. See Ex parte Saenz, No. WR-
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80,945-01, 2016 WL 1359214, at *4 (Tex. Crim. App. Apr. 6, 2016) (permitting filing of
supplemental or amended habeas claims prior to disposition of pending application). This
is necessary because it is likely that a pro se litigant who is unskilled in the law will have
failed to properly plead and prove his claim.
The appointment of habeas counsel under these circumstances, I believe, will improve
the integrity of the criminal-justice system by ensuring that defendants have received
effective counsel at trial and will reduce the number of wrongfully convicted people. Aside
from my disagreement with the language in this Court’s order, I concur in the Court’s order
that remands this case to the habeas court for further factual development.
Filed: June 15, 2016
Do Not Publish