IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-85,374-01, WR-85,374-02, WR-85,374-03 & WR-85,374-04
EX PARTE FRED RODRIGUEZ, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. D-42,913-A, D-42,914-A, D-42,915-A & D-42,916-A
IN THE 358 TH DISTRICT COURT FROM ECTOR COUNTY
A LCALA, J., filed a concurring opinion in which J OHNSON, J., joined.
CONCURRING OPINION
I agree with the Court’s order that remands this pro se habeas application to the
convicting court for further development of the record, but I would expand the scope of the
topics to be addressed on remand. In addition to the matters discussed in this Court’s remand
order, I would also instruct the habeas court to consider applicant’s contention that his trial
counsel was ineffective during applicant’s guilty-plea proceedings. I, therefore, respectfully
concur in this Court’s order, as written.
This Court’s remand order does not expressly state why it declines to remand
applicant’s ineffective-assistance claim, but, given the conclusory nature of applicant’s pro
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se pleadings, it appears likely that the Court has determined that applicant’s allegations in
this regard are inadequate to give rise to any colorable basis for relief. I disagree with this
approach that denies applicant the opportunity to factually develop his ineffective-assistance
claim based solely on the unsophisticated state of his pro se pleadings. As I have previously
indicated, in my view, an indigent pro se habeas applicant is entitled to the benefit of liberal
construction when this Court reviews his pleadings to determine whether they warrant further
development in the habeas court. See Ex parte Honish, __S.W.3d__, No. WR-79,976-05,
2016 WL 3193384, at *3 (Tex. Crim. App. June 8, 2016) (Alcala, J., dissenting).
Furthermore, I have suggested that, whenever a pro se habeas applicant’s pleadings or the
face of the record gives rise to a colorable ineffective-assistance claim, then the proper
course is for this Court to remand the case to the habeas court for appointment of counsel in
the interests of justice so that counsel may then amend the ineffectiveness pleadings to
comply with this Court’s pleading standards. See Ex parte Garcia, 486 S.W.3d 565, 577-78
(Tex. Crim. App. 2016) (mem. op.) (Alcala, J., dissenting); Honish, 2016 WL 3193384, at
*2-3. In support of this assertion, I have observed that the Code of Criminal Procedure
mandates the appointment of counsel for a pro se habeas applicant whenever “the court
concludes that the interests of justice require representation,” which, in my view, applies to
any situation in which this Court determines that a colorable claim exists for which legal
expertise is needed in order to ensure that the claim is properly litigated. See Garcia, 486
S.W.3d at 578 (citing T EX. C ODE C RIM . P ROC. art. 1.051(d)(3)). Without the appointment
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of counsel in such situations, I have observed that it is unlikely that most pro se applicants
will be able to properly present their substantial ineffective-assistance claims, thereby
increasing the likelihood that such claims will be deprived of meaningful consideration on
post-conviction review and, as a result, that violations of defendants’ fundamental Sixth
Amendment rights will go unremedied. See id. at 574-75; Honish, 2016 WL 3193384, at *2.
Applying these principles here, I conclude that applicant’s pleadings are adequate to
give rise to a colorable ineffective-assistance claim that would justify the appointment of
counsel in the interests of justice and further development in the habeas court. I, therefore,
would instruct the habeas court on remand to appoint counsel, permit counsel to amend the
instant ineffectiveness-claim pleadings, and make findings of fact and conclusions of law on
the issue of ineffective assistance of counsel in addition to the other matters included in this
Court’s remand order. Because the Court declines to remand this case for consideration of
the issue of ineffective assistance of counsel and instead limits the scope of the matters to be
addressed on remand to the issue of whether applicant’s guilty plea was voluntary, I
respectfully concur in this Court’s remand order.
Filed: September 14, 2016
Do Not Publish