IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-95,069-01 & WR-95,069-02
EX PARTE CHRISTOPHER LEE MABE, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 42608CR/A & 42609CR/A IN THE 40TH DISTRICT COURT
FROM ELLIS COUNTY
SLAUGHTER, J., filed a concurring opinion.
CONCURRING OPINION
I join in the Court’s decision to grant Applicant post-conviction habeas corpus relief
in the form of an out-of-time petition for discretionary review. I write separately to
emphasize, yet again, the importance of appellate counsel’s duty to provide timely and
accurate information to clients regarding their right to file a pro se PDR following the
resolution of their direct appeals. Here, appellate counsel failed to adequately inform
Applicant of this right, thereby depriving Applicant of his ability to pursue review in this
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Court. This situation happens far too frequently and is a troubling sign that some appellate
attorneys are routinely failing to carry out their duties in this regard, thereby resulting in
unfairness to clients and excessive post-conviction litigation to correct such errors.
I. Background
On October 5, 2018, Applicant pleaded guilty to two charges of aggravated sexual
assault of a child. Pursuant to a plea agreement, the trial court placed Applicant on deferred
adjudication community supervision for a period of 10 years and imposed a $2,000 fine for
each offense. Less than a year later, the State filed a motion to adjudicate Applicant’s guilt,
alleging a litany of probation violations. The court found the State’s allegations true,
adjudicated Applicant guilty on both charges, and imposed two consecutive life sentences.
Applicant timely appealed. On July 27, 2022, the court of appeals affirmed the trial court’s
judgments. See Mabe v. State, Nos. 10-21-00282-CR, 10-21-00283-CR, 2022 WL 2977476
(Tex. App.—Waco July 27, 2022, no pet.). The deadline to file a petition for discretionary
review occurred 30 days later, but no petition was filed. See TEX. R. APP. P. 68.2(a)
(providing that petition must be filed within 30 days after either the day the court of
appeals’ judgment was rendered or the day the last timely motion for rehearing or timely
motion for en banc reconsideration was overruled by the court of appeals).
In his instant post-conviction habeas application, Applicant alleges that appellate
counsel failed to properly advise him regarding his right to file a pro se PDR in this Court.
The record reflects that, on July 29, 2022, appellate counsel sent Applicant a letter notifying
him of the court of appeals’ decision along with a copy of the court’s opinion and
judgments. The letter indicated that there were “quite a few discrepancies” in the court’s
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opinion and that there were viable “grounds to appeal.” But counsel seemed to suggest that
he would be assisting Applicant with filing the PDR by stating, “We have 30 days to put
in a petition for discretionary review of the Order denying the appeal . . . . The fee for the
petition is $7500.00. We believe that the petition to the Texas Court of Criminal Appeals
is the proper remedy at this point.” Applicant alleges in his application that this language
caused him to incorrectly believe that appellate counsel would handle filing the PDR on
Applicant’s behalf and that the $7,500 was a filing fee to be paid to this Court, rather than
attorney’s fees.
Appellate counsel filed an affidavit responding to Applicant’s allegations. Counsel
explained that after sending the aforementioned letter, he had a telephone conversation
with Applicant to discuss next steps, which could include filing either a PDR or an Article
11.07 writ application. According to counsel, Applicant stated that he would need to speak
to his mother before moving forward because he was concerned about whether she would
be able to afford the fees. Counsel stated that he did not use the term “pro se” during this
conversation, but he did tell Applicant that if he were unable to hire appellate counsel to
file a PDR, “he could file on his own.”
The habeas court ultimately found that, while appellate counsel’s letter informed
Applicant of his right to file a PDR, it violated Rule of Appellate Procedure 48.4 by failing
to inform Applicant in writing that he could do so pro se. Accordingly, the habeas court
recommended granting Applicant an out-of-time PDR on that basis.
II. Appellate Counsel’s Duties Under the Appellate Rules
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Criminal defendants have a constitutional right to the effective assistance of
counsel. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). This
right to effective assistance extends to the first direct appeal. Evitts v. Lucey, 469 U.S. 387,
395–96 (1985); Ward v. State, 740 S.W.2d 794, 799 (Tex. Crim. App. 1987). Although a
criminal defendant has no right to the assistance of counsel for purposes of actually
pursuing discretionary review, appellate counsel still has a duty to advise the defendant
regarding his right to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim.
App. 2008) (detailing appellate counsel’s duties to clients upon denial of relief on appeal).
This obligation is codified in the Texas Rules of Appellate Procedure:
In criminal cases, the attorney representing the defendant on appeal shall,
within five days after the opinion is handed down, send his client a copy
of the opinion and judgment, along with notification of the defendant’s
right to file a pro se petition for discretionary review under Rule 68. This
notification shall be sent certified mail, return receipt requested, to the
defendant at his last known address. The attorney shall also send the court of
appeals a letter certifying his compliance with this rule and attaching a copy
of the return receipt within the time for filing a motion for rehearing. The
court of appeals shall file this letter in its record of the appeal.
TEX. R. APP. P. 48.4 (emphasis added).
As Rule 48.4 clearly states, appellate counsel must: (1) send the defendant a copy
of the court of appeals’ opinion and notify the defendant, in writing, of his right to pursue
a pro se PDR “within five days after the opinion is handed down;” (2) send that notification
via certified mail, with a return receipt requested; and (3) send the court of appeals a letter
certifying compliance with Rule 48.4. As the record here reflects, counsel’s letter to
Applicant referenced the possibility of filing a PDR, but the letter made no mention of
Applicant’s right to do so pro se. Thus, the letter failed to strictly comply with the
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requirements of Rule 48.4. Further, although counsel claims to have advised Applicant of
his ability to file a pro se PDR during a subsequent phone conversation, it is unclear
whether Applicant understood counsel’s statements. It is precisely because of the
possibility of miscommunication or misunderstanding that Rule 48.4 requires that this
information be put into writing. Counsel’s letter here was misleading and suggested that
counsel would handle the filing of the PDR for a fee. It is apparent from the record that
Applicant decided not to pursue a PDR because of financial considerations. Given the
circumstances, I agree with the habeas court’s assessment that counsel’s conduct in failing
to properly advise Applicant in writing that he could pursue a pro se PDR deprived
Applicant of an entire proceeding, such that he is entitled to an out-of-time PDR. See Ex
parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim. App. 1997) (per curiam) (“If appellate
counsel’s action or inaction denies a defendant his opportunity to prepare and file a petition
for discretionary review, that defendant has been denied his sixth amendment right to
effective assistance of counsel.”); Ex parte Owens, 206 S.W.3d 670, 675 (Tex. Crim. App.
2006) (noting that counsel’s failure to inform a client of his right to pursue a petition for
discretionary review “deprive[d] him of an entire proceeding”).
III. Appellate Counsel’s Duties Under the Rules of Professional Conduct
More generally, I also note that the Texas Disciplinary Rules of Professional
Conduct require lawyers to effectively communicate with their clients in a manner that
permits the clients to make informed decisions related to their cases. Tex. Disciplinary
Rules Prof’l Conduct R. 1.03(a)–(b). Further, “in representing a client, a lawyer shall not[]
neglect a legal matter entrusted to the lawyer.” Id. R. 1.01(b)(1). Ultimately, appellate
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counsel’s failure to properly communicate with Applicant regarding his right to pursue a
pro se PDR fell short of the standards for professionalism set forth in the disciplinary rules.
Such failure also places unnecessary burdens on the courts and causes judicial inefficiency
that wastes taxpayer dollars. I certainly understand and acknowledge that we are all human
beings who make mistakes. But, given the sheer volume of cases in which this or similar
problems arise, it is my ethical obligation to bring attention to this issue so that all attorneys
may be reminded of the effect of failing to properly communicate with their clients. 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.”). By bringing attention to this issue,
perhaps this attorney and other appellate attorneys will be motivated to implement
procedures to ensure that similar situations do not occur in the future.
With these comments, I join the Court’s opinion.
Filed: November 1, 2023
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