Ex Parte Jarrett

OPINION DENYING STATE’S MOTION FOR REHEARING

MEYERS, Judge.

On original submission, we remanded this cause for a further evidentiary hearing before the convicting court. The issue is whether applicant’s counsel on appeal rendered him reasonably effective assistance after the Court of Appeals affirmed his conviction. We held that an attorney on appeal has the duty, not only to advise his client of any disposition by the appellate court, but also to counsel his client thoroughly concerning the availability and desirability of further discretionary review by this Court. Our remand of the instant cause was to afford applicant a chance to prove his appellate counsel deficient in this respect.

The State Prosecuting Attorney urges us to reconsider the scope o a defense attorney’s duty after his client’s conviction is affirmed on direct appeal. He insists that our opinion on original submission mistakenly implies “that a defendant has a constitutional right to effective assistance of counsel for purposes of preparing a petition for discretionary review,” contrary to Ayala v. State, 633 S.W.2d 526 (Tex.Crim.App.1992). State’s Motion for Rehearing at 2. While he agrees that appellate attorneys should inform their clients of an appellate court’s disposition and of their right to pursue further discretionary remedies, he argues that the duty of an appellate attorney does not extend farther than this.

At the outset we emphasize that nothing in our original opinion was intended to compromise the holding of Ayala. We adhere to our settled position that indigent defendants are not entitled by the Constitution or laws of Texas or of the United States to the assistance of counsel for purposes of pursuing discretionary post-conviction remedies. See Coleman v. Thompson, 501 U.S. 722, 755-57, 111 S.Ct. 2546, 2568, 115 L.Ed.2d 640, 673 (1991). Accordingly, an indigent defendant may not compel the appointment of counsel at state expense to seek such remedies on his behalf.

But that is not the case here. As we understand his petition, applicant does not *944maintain that the State must afford him an attorney to petition for discretionary review. Rather, he contends only that the attorney who does represent him on appeal is obliged to afford reasonably effective legal assistance until his representation is concluded. Our analysis of the problem therefore begins, as it did on original submission, with an examination of the Code of Criminal Procedure, article 26.04, which provides, among other things, that “[a]n attorney appointed under this subsection shall represent the defendant until ... appeals are exhausted[.]”

According to statutory law and the rules of this Court, the judgment of an intermediate appellate court in a criminal case does not become final at once. See Tex.Code Crim.Proc. arts. 42.045, 44.45(a); Tex.R.App.Proe. 86(a). Consequently, the rendition of a judgment does not immediately exhaust the appellate process. During the entire period of time between the rendition of an opinion by the appellate court and the date upon which it becomes final, therefore, the appellate lawyer still represents his client and remains under a duty to provide him with satisfactory legal counsel. According to the Constitution of the United States, such counsel is not satisfactory unless it meets an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Hence, the central question in the instant cause is what minimal advice must an objectively reasonable attorney provide to a client whose only remaining concern in the case is whether he should seek further discretionary review of his criminal conviction. We think the question practically answers itself. As we held on original submission, it is the professional duty of an appellate lawyer to explain the meaning and effect of an appellate court decision in his client’s case, to acquaint his client with available options for further review of the case, and to assist his client with the decision whether to seek such review.

We do not mean to hold, of course, that appellate attorneys must continue as advocates for their clients through the discretionary review process itself. But it is, after all, a critical part of an attorney’s job to help his client make decisions of substantial legal significance. And, at the moment a client learns his criminal conviction has been affirmed, there can be no decision of greater legal significance or of more pressing importance than whether to seek further review. It is not enough just to know that such review may be available. Before making a decision whether to follow this course one must also know the mechanics of discretionary review, appreciate the legal issues involved, and possess an ability to assess the likelihood of success. These skills are the professional tools of lawyers, and it is entirely appropriate that a person who is actually represented by legal counsel look to his attorney for professional advice on this subject.

Accordingly, we are of the opinion that an attorney who still represents a criminal defendant at the moment his conviction is affirmed on direct appeal does not provide reasonably effective assistance merely by communicating to his client that the latter’s conviction was affirmed or by informing his client that further review may be possible within certain time limits. He must also stand ready to assist his client until the appellate process is exhausted and the attorney/client relationship concluded with the decision whether to seek discretionary review, and he must make it clear to his client that he is ready to do so.

Given the time limitations applicable to the discretionary review process and the distance over which communication between lawyer and client must often take place, it may be necessary as a practical matter in many instances for the attorney to furnish his client with much of this information before further consultation. But it is not the place of this Court to prescribe the minutiae of a satisfactory lawyer/client relationship, and we do not purport to do so here. The point is only that criminal defendants must not be made to forfeit substantial legal rights because lawyers have failed adequately to perform them *945professional responsibilities. In each case such as this, therefore, the question is whether a criminal defendant actually lost the opportunity to petition this Court for discretionary review because of deficient performance by his attorney. If the facts show that he did, he is entitled to appropriate relief in a habeas corpus proceeding.

The State’s motion for rehearing is, accordingly, denied.

February 8, 1995.

McCORMICK, P.J., and WHITE, MANSFIELD and KELLER, JJ., dissent.