Ayala v. State

CLINTON, Judge,

concurring.

The majority opinion is fraught with very high potential for much low mischief. Even now one feels pity for the indigent appellant whose appointed counsel achieved a reversal in the court of appeals and proudly retired from the appellate affray with his victory, leaving his erstwhile client to fend for himself when the State seeks discretionary review from this Court.

*529In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Supreme Court of the United States held that “where the merits of the one and only appeal an indigent has of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor,” id., U.S. at 357, 83 S.Ct. at 816 (emphasis in original). That the Supreme Court later turned that holding upside down to come to its conclusion in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) does not oblige this Court to stand our own Constitution on its head.

In a context of the constitutional caution that discretionary review by this Court “is not a matter of right, but of sound judicial discretion,” Article V, § 6, it is easy to conclude that denial of discretionary review by this Court is not fundamentally unfair and perforce no violation of due process requirements. But it is a mistake to concentrate on mandates of “the due course of the law of the land,” Article V, § 19, such that one ignores the constitutional insistence that “[a]ll free men... have equal rights,” Article I, § 3. Granted that the Opinion of the Court in Ross v. Moffitt, supra, U.S. at 611-616, 94 S.Ct. at 2444-2447, resolved “equal protection notions” of the Fourteenth Amendment against Moffitt on its own theory of relativeness: “But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas,” id., at 616, 94 S.Ct. at 2446-2447, still the Supreme Court was declaring just what it concluded is the “duty of the State under our cases,” and even then the Supreme Court wound up by finding that duty is “only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellant process,” id., at 616, 94 S.Ct. at 2447—back again, then, to its perception of that which is “fair.”1

Though no appellant in a cause has the “right” to have this Court grant discretionary review, he certainly has the right to petition the Court “for review of the decision of a court of appeals in that case,” Article 44.45(b)(1), V.A.C.C.P. Yet, in finding that an appointed appellate attorney has no duty to file a petition for discretionary review by this Court, though it may not actually say so, the majority opinion leaves one with the firm impression that an indigent appellant is not entitled to assistance of appointed counsel in preparing and filing his petition for discretionary review. That view comes perilously close to approving unequal treatment “founded upon unreasonable and unsubstantial classification of persons” who are paupers. See Rucker v. State, 170 Tex.Cr.R. 487, 342 S.W.2d 325, 3272 (1961). It also presages trouble in store for the appellant who is converted into a respondent on the State’s filing its petition for discretionary review. All of which is just some of the mischief alluded to at the outset.

However, like Judge Teague, because the petition for discretionary review was prepared and has been filed by an appointed appellate counsel, I would not reach beyond *530the merit of the petition, and since it has none I concur in refusing it.

ONION, P. J., joins.

. As envisioned by the Supreme Court majority, in framing a request for review an indigent appellant could satisfactorily make do with the brief prepared and filed by appellate counsel in the intermediate court of appeals. However, this Court routinely refuses a petition for review which merely restates failed grounds of error since that does not give us reasons why review should be granted. See Tex.Cr.App. Rule 302(c).

. Though addressing a different problem in Rucker, supra, the Court solved it by resort to general constitutional principles of equal rights and equal protection, viz:

“[A] state law is not repugnant to either constitutional provision so long as unequal treatment of persons is based upon a reasonable and substantial classification of persons. Unequal treatment of persons under a state law which is founded upon unreasonable and unsubstantial classification constitutes discriminatory state action and violates both the state and federal constitutions.”