IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,158-01
EX PARTE CHARLES GARTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 18F0532-102-A IN THE 102ND DISTRICT COURT
BOWIE COUNTY
SLAUGHTER, J., filed a concurring opinion.
CONCURRING OPINION
I join in the Court’s decision to grant Applicant post-conviction habeas relief in the
form of an out-of-time appeal based on ineffective assistance of trial counsel. After
Applicant was convicted of two counts of aggravated sexual assault of a child and
sentenced to eighty years’ imprisonment on each count, he expressed to trial counsel his
desire to appeal the convictions. According to Applicant’s allegations, counsel informed
Applicant that he did not intend to represent Applicant on appeal but would provide him
the necessary paperwork for perfecting an appeal. Counsel had Applicant sign some
paperwork but never advised Applicant on how to perfect his appeal. In support of his
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claim, Applicant provided purported text messages between his sister and counsel. Those
messages show that Applicant’s sister texted counsel asking about Applicant’s appeal and
counsel replied by stating that he would not “forget [Applicant’s] appeal,” that he had filed
a motion for new trial thereby extending the window for filing a notice of appeal, and that
he intended to file a notice of appeal on Applicant’s behalf. The record reflects that counsel
did indeed file a motion for new trial, but, in spite of his assurances, he never filed a notice
of appeal. It also appears that counsel never withdrew as counsel of record.
In response to Applicant’s habeas allegations, the habeas court ordered trial counsel
to provide an affidavit. When counsel did not initially respond within 30 days as ordered,
the habeas court entered a second order requiring an affidavit within 7 days. Counsel again
failed to respond. Thus, having received no response from counsel, the habeas court had
no choice but to resolve Applicant’s claim based solely on the allegations in the application
and the text messages from Applicant’s sister.
These circumstances highlight two unfortunate recurring themes in our post-
conviction habeas review of ineffective-assistance claims. First, it appears that some
attorneys are struggling to stay on top of their obligations at the conclusion of their
representation, resulting in harm to clients who are then prevented from pursuing the next
stage of appellate review of their convictions. Here, counsel clearly failed to carry out his
duties at the end of his representation, including failing to file a notice of appeal on
Applicant’s behalf. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988)
(“[T]rial counsel, retained or appointed, has the duty, obligation and responsibility to
consult with and fully to advise his client concerning [the] meaning and effect of the
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judgment rendered by the court, his right to appeal from that judgment, the necessity of
giving notice of appeal and taking other steps to pursue an appeal, as well as expressing
his professional judgment as to possible grounds for appeal and their merit, and delineating
advantages and disadvantages of appeal.”); see also Jones v. State, 98 S.W.3d 700, 703
(Tex. Crim. App. 2003) (stating that “[i]f the defendant decides to appeal, the [trial]
attorney must ensure that written notice of appeal is filed with the trial court”). In addition
to depriving Applicant of his statutory right to pursue a direct appeal, counsel’s error has
also now resulted in both the habeas court and this Court having to expend resources to
undo the effects of counsel’s error. Thus, this case serves as a reminder that trial counsel’s
role at the post-conviction stage—including filing a motion for new trial, if any; filing a
timely notice of appeal; filing a motion to withdraw if counsel will not be completing the
appeal; and advising the client on the next steps to pursue an appeal if desired—is critical
for ensuring that a defendant’s right to appeal is properly preserved. 1 Failure to fulfill these
obligations is not only unprofessional and unfair to clients, but it also wastes judicial
resources by spawning the type of corrective post-conviction litigation before us here.
Though I recognize that we are all human beings who make mistakes, based on the sheer
1
See American Bar Association, Criminal Justice Standards, Defense Function, Standard 4.9-1(a)-
(d), “Preparing to Appeal” (“If a client is convicted, defense counsel should explain to the client
the meaning and consequences of the court’s judgment and the client’s rights regarding appeal . . . .
Defense counsel should take whatever steps are necessary to protect the client’s rights of appeal,
including filing a timely notice of appeal in the trial court, even if counsel does not expect to
continue as counsel on appeal. Defense counsel should explain to the client that the client has a
right to counsel on appeal (appointed, if the client is indigent), and that there are lawyers who
specialize in criminal appeals. Defense counsel should candidly explore with the client whether
trial counsel is the appropriate lawyer to represent the client on appeal, or whether a lawyer
specializing in appellate work should be consulted, added or substituted.”) (emphasis added).
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volume of writ applications this Court sees annually in which this or similar problems arise,
I feel that it is my ethical obligation to bring attention to this issue so that attorneys may be
reminded of the effect of failing to stay on top of their responsibilities. 2
Second, I have previously noted that, when an attorney is ordered to provide an
affidavit in response to an Applicant’s habeas allegations and wholly fails to do so, that
attorney violates his obligations under the Texas Rules of Professional Conduct, as well as
his oath and the Texas Lawyer’s Creed; thus, it may be appropriate for this Court to take
action and require an explanation from counsel. See Ex parte Touchet, 615 S.W.3d 160,
161 (Tex. Crim. App. 2021) (Slaughter, J., concurring) (“An attorney’s complete failure to
respond to claims raised against him not only hinders judicial economy, but in some
instances may result in the Court’s inability to fully and fairly decide a claim. Such a
serious infraction warrants action by the habeas court. If the habeas court fails to take
appropriate action, then this Court should do so or at least require habeas counsel to
respond.”). 3 Though I agree wholeheartedly with the habeas court’s recommendation to
grant relief under these circumstances, it concerns me that counsel will not be required to
2
See Tex. Code Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly
establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of
Professional Conduct should take appropriate action.”). My hope is that attorneys will implement
practices that spur them to regularly check on the status of their cases so they may fulfill their duty
to meet important filing deadlines for their clients.
3
See also Tex. Disciplinary Rules Prof’l Conduct R. 8.04 (“A lawyer shall not violate these rules
[or] . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation [or] . . . violate
any other laws of this state relating to the professional conduct of lawyers and to the practice of
law.”). Lawyers who violate the Rules may be subject to discipline. Id. R. 1.01(b) & cmts 6-7
(“[A]n incompetent lawyer is subject to discipline,” as is one who neglects “a particular legal
matter” or who “frequent[ly] fail[s] to carry out fully the obligations owed to one or more clients.”).
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answer either for the underlying failure to file a notice of appeal or his later failure to
respond to the habeas court’s order for an affidavit. Perhaps there is some justification for
counsel’s conduct, but in the absence of any response from counsel, this Court will never
know. I continue to believe that, to ensure the integrity of judicial proceedings and the
accuracy of our determinations on post-conviction habeas review, this Court should at least
consider issuing a show-cause order in such situations. Allowing such non-responsiveness
by counsel to go unaddressed sends a negative message about the importance of post-
conviction habeas litigation, undermines this Court’s authority, and ultimately impedes our
ability to fairly decide habeas claims. Though a show-cause order is undoubtedly not
warranted in all cases, it should be an option for this Court to consider in extreme situations,
particularly for repeated infractions.
With these comments, I join the Court’s opinion granting Applicant relief.
Filed: November 2, 2022
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