Bowen, Michael Deiondre

Court: Court of Criminal Appeals of Texas
Date filed: 2023-06-07
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           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                   NO. WR-94,535-01


              EX PARTE MICHAEL DEIONDRE BOWEN, Applicant


            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. WRIT12282 IN THE 354TH DISTRICT COURT
                           HUNT COUNTY


       SLAUGHTER, J., filed a concurring opinion.

                               CONCURRING OPINION

       I join in the Court’s decision to grant Applicant postconviction habeas relief in the

form of an out-of-time petition for discretionary review. I write separately to once again

emphasize the importance of appellate counsel’s duty to provide timely and accurate

information to clients regarding the right to file a pro se PDR following resolution of a

direct appeal. Here, appellate counsel failed to inform Applicant of this right, thereby

depriving Applicant of his ability to pursue review in this Court. This situation happens far

too frequently and is a troubling sign that some appellate attorneys are failing to properly
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communicate with their clients (particularly those who are incarcerated) regarding their

right to seek discretionary review.

I.     Background

       In 2019 Applicant was convicted of aggravated robbery. Appellate counsel filed a

direct appeal, but on August 10, 2021, the court of appeals issued an opinion affirming

Applicant’s conviction. Bowen v. State, No. 05-19-00598-CR, 2021 WL 3519468 (Tex.

App.—Dallas Aug. 10, 2021, no pet.) (not designated for publication). In his instant

postconviction habeas application, Applicant alleges that appellate counsel never informed

him of the appellate court’s decision. Instead, he claims that he learned of the decision on

August 8, 2022, after his written inquiry to the clerk of the court of appeals regarding an

update on his case yielded a response that the appellate court affirmed his conviction in

August 2021. Applicant then filed this application for a postconviction writ of habeas

corpus seeking an out-of-time PDR.

       In response to Applicant’s allegations, appellate counsel did not initially “recall

receiving the Memorandum Opinion” from the court of appeals “due to the passage of

time.” But then, after reviewing her files, she affirms that she received a copy of the opinion

on August 10, 2021. Counsel admits that she did not send a copy of the opinion to

Applicant, nor did she advise him of his right to file a pro se PDR. She further concedes

that the failure to provide Applicant with the opinion was “an inadvertent but costly

mistake.” Ultimately, counsel expresses her regret with respect to the failure and

apologizes to “all parties and Courts involved in this matter.”

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, his appellate counsel still has the duty to advise

him 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 a copy of the court of

appeals’ opinion and notify her client 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. Unfortunately, counsel’s failure to abide by Rule 48.4 deprived Applicant of his

opportunity to pursue an entire proceeding. 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
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petition for discretionary review “deprive[d] him of an entire proceeding”). Thus, I agree

with the Court that the appropriate remedy under these circumstances is to put Applicant

back in the position he would have been in but for counsel’s error by granting him an out-

of-time PDR.

III.   Appellate Counsel’s Duties Under the Rules of Professional Conduct

       More generally, I also note here that the Texas Disciplinary Rules of Professional

Conduct require lawyers to keep clients reasonably informed of any case developments

and 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 counsel’s failure to properly communicate with clients about

the status of their direct appeals is unfair to clients and falls short of the standard for

professionalism set forth in the disciplinary rules. Not only this, but it results in

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. In fact, in this case appellate counsel acknowledged her mistakes and expressed

remorse, apologizing to all involved. I appreciate that. But, based on the sheer 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 properly communicate with their clients. See Tex. Code Jud.

Conduct, Canon 3(D)(2) (“A judge who receives information clearly establishing that a
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lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct

should take appropriate action.”). It is my hope that, by bringing attention to this issue,

appellate attorneys will be motivated to take steps to ensure that such situations do not

occur in the future.

       With these comments, I join the Court’s opinion.



Filed: June 7, 2023

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