These proceedings involve a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.
In June, 1980, applicant was convicted by a jury of aggravated rape after which the court assessed punishment at 35 years' imprisonment on July 11, 1980. Applicant was represented by court-appointed counsel at trial and the same counsel was later appointed to represent applicant on appeal. An appellate brief was filed on applicant's behalf.
On April 1, 1982, the Corpus Christi Court of Appeals reversed the conviction on the basis of fundamental error in the jury charge, a submission on a theory not plead in the indictment. Lopez v. State (Tex.App.-Corpus Christi, No. 3-81-167-CR — 1982).
The State then filed a petition for discretionary review which was granted by this Court to determine if the Court of Appeals had properly found fundamental error. On April 10, 1985, this Court in an unpublished opinion remanded the cause to the Court of Appeals for further proceedings consistent withAlmanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985), which opinion dealt with jury charge error and which was decided after the opinion of the Court of Appeals in Lopezv. State, supra. See Lopez v. State (Tex.Cr.App. No. 368-82). On remand the Corpus Christi Court of Appeals affirmed the conviction after applying Almanza. Lopez v.State, 697 S.W.2d 761 (Tex.App.-Corpus Christi 1985).
Applicant filed his pro se post-conviction habeas application in the convicting court on September 14, 1987, alleging that he *Page 31 was in confinement in the Texas Department of Corrections, that upon remand of the cause by this Court to the Court of Appeals his court-appointed counsel did not file an additional brief and the cause was "resubmitted . . . without benefit of brief."
In his habeas application applicant acknowledges that upon original submission of his cause to the Court of Appeals his counsel briefed the cause "under the authority of the case law then in effect" and that "on that basis" a reversal was ordered. He alleges, however, that upon remand his counsel failed to file a brief despite the fact that fundamental changes in the law had occurred. Applicant apparently has reference to the decision in Almanza.
He further alleges that counsel "on his own volition, and without notice to the applicant apparently withdrew from the case upon receiving notice of the reversal" by the Court of Appeals. He cites Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App. 1982). Applicant alleges he was denied the effective assistance of counsel upon remand and resubmission of his cause to the Court of Appeals in violation of the Sixth Amendment and of the federal constitution and Article I, § 10 of the state constitution.
"In a post conviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief." Ex parte Maldonado, 688 S.W.2d 114 (Tex.Cr.App. 1985).
There can be little question that the indigent applicant was entitled to counsel at the Court of Appeals level. Ayalav. State, 633 S.W.2d 526, 527 (Tex.Cr.App. 1982);Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). There can be little doubt that applicant was entitled to counsel upon remand of the cause to the Court of Appeals. To support his claim of ineffective assistance of counsel applicant alleges, without more, that "apparently" counsel withdrew after the reversal by the Court of Appeals. Applicant gives us no basis for this assertion. While the State's petition for discretionary review was before this Court after the reversal, applicant's court-appointed counsel filed a brief in Cause No. 368-82. In Lopez v. State, 697 S.W.2d 761 (Tex.App.-Corpus Christi 1985), in which the court applied Almanza, the court-appointed counsel is listed as attorney for the applicant, while applicant asserts (without proof) that no brief was filed by his counsel. He points to no requirement of the law that after remand such a brief must be filed, nor does he demonstrate how the brief on original submission before the Court of Appeals and the brief filed in this Court, all available and before the Court of Appeals, were insufficient so as to deny him effective assistance of counsel when the Court of Appeals performed a harm analysis in light ofAlmanza.
In my opinion the applicant has not alleged and proved facts which, if true, would entitle him to relief. Ex parteMaldonado, supra. I would dismiss the application without prejudice to applicant's right to replead and support his allegations "with adequate reasoning, argument, and testimonial and recorded evidence," which illustrates, if it does, that he was denied the effective assistance of counsel following remand.
For the reasons stated, I dissent.
McCORMICK and TEAGUE, JJ., join this opinion. *Page 32
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