WRIT NO. W91-35666-H(B)
EX PARTE ) COURT OF CRIMINAL EDWARD JEROME XXX ) APPEALS OF TEXAS
) 1ST CRIMINAL
Applicant ) DALLAS COUNTY, TEXAS
MEMORANDUM OF LAW IN SUPPORT OFAPPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONYCONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
EdwardJerome XXX was represented at his revocation hearing and was initiallyrepresented on appeal by Phillip H. Jones, Esq. The State Bar of Texas has already disciplined Jones for thevery issues Mr. XXX raises in this 11.07 writ:
On Oct. 15, Phillip Howard Jones [#10936950], 54, of Plano accepted a12-month, fully-probated suspension with conditions, effective Dec. 1 TheDistrict 6-A Grievance Committee found that in June 1999, the complainantretained Jones to defend him in a criminal action seeking to revoke hisprobation. The complainant paid Jones $2,000 for the representation. Thecomplainant was unable to make an informed decision about how he wished toproceed in the matter because he did not adequately understand the maximumsentence he could receive if the motion to revoke was granted. At a contestedhearing on the motion, the complainant was sentenced to 30 years in jail.Thereafter, Jones filed a motion for new trial which was denied by operation oflaw. Jones failed to file a notice of appeal. He violated Rules 1.01(b),1.02(a)(3), and 1.03(a) and (b).
Texas Bar Journal, April 2002 (attachedhereto as Attachment A).
Notsurprisingly, this is not the first time that Jones has been disciplined by thestate bar. He also received aprobated suspension on November 2, 1985, a probated suspension on February 12,1998, and an active suspension on June 1, 1988.
Inthe course of the proceedings in this case, Jones filed ramblingpleadings. For example, inan unsupported Motion to Dismiss State’s Motion to Proceed with Adjudication ofGuilt, Jones explains Mr. XXX’s alleged probation violation as follows:
No promise was made, or could be made with absolute honestyor with a guarantee of successful performance, that Movant would experience noother difficulties or challenges either during the course of his probation orduring his lifetime. None of uscould honestly make such a promise. Movant would argue that each of us can, however, promise.
In that same pleading, he castigated thestate:
[T]he State had decided to “back on” themore serious original charge to insignificant, unrelated probation violations,an act so transparent that the most innocent ‘bystander’ can perceive theState’s policy as a pure and simple case of “the tail wagging the dog” and itis the viciousness of the dog that causes one to think twice about theapparently skewed relationship between our criminal justice system and theethics of those charged with its administration.
In his Motion for New Trial arguing thatJudge Wader was not impartial, Jones wrote:
As Defendant argued in his pre-trialMotion to Dismiss State’s Motion, as his attorney argued at trial [sic.], theviolations alleged by the State are in no way egregious and pose no threat tothe safety of society, but assume the character of the demonic when consideredin the light of the violation originally charged to Defendant, a distastefulviolation in a gutless universe governed by a purely aesthetic morality. (emphasis added)
Moreover, in connection with theproceedings, Jones often failed to show up to court dates so that the DistrictCourt even considered entering a show cause order against him. See Docket Sheet.
I. LEGAL BACKGROUND
On April 13, 1992, Mr. XXX pleaded guiltyto the offense of aggravated sexual assault of a child under 14 and was placedon ten years deferred adjudication. On September 10, 1999, a hearing was held on the state’s Motion toRevoke Probation and, following the hearing, the District Court adjudicated Mr.XXX’s guilt and sentenced him to thirty years imprisonment.
OnSeptember 24, 1999, Jones filed a Motion for New Trial on Mr. XXX’sbehalf. He filed a Modified Motionfor New Trial on October 21, 1999. Mr. Jones did not set the new trial requests for a hearing and,consequently, they were denied by operation of law.
OnDecember 27, 1999, Jones forged Mr. XXX’s name to a Notice of Appeal. See Affidavit of Edward Jerome XXX (“XXXAff.”) (attached hereto as Attachment B) at ¶ 7.
On October 17, 2000, the Fifth Court ofAppeals dismissed Mr. XXX’s appeal, noting:
Appellant filed a motion for new trial onSeptember 24, 1999; thus his notice of appeal was due by December 9, 1999. See Tex. R. App. P. 26.2(a)(2). Appellantfiled a notice of appeal on December 27, 1999, within the fifteen day period provided by rule26.3(a). Appellant did not, however,file an extension motion in this Court as required by rule 26.3(b).Accordingly, because appellant's notice of appeal was untimely, we dismiss theappeal for want of jurisdiction. (footnote omitted).
In other words, Jones did not timely filethe Notice of Appeal nor did he comply with Tex. R. App. P. 26(a)(2) for filingan out-of-time Notice of Appeal.
II. FACTUAL BACKGROUND
Mr. XXX was charged with violating hisprobation by testing positive on one occasion for opiates and for beingunsuccessfully discharged from sex offender counseling.
Priorto the revocation hearing, Jones told Mr. XXX that, if he did not contest therevocation, the state offered to recommend a sentence of ten years imprisonmentto the Court. SeeXXX Aff. at ¶ 3. Jones told Mr. XXX that he rejected theoffer on Mr. XXX’s behalf. Id. at ¶ .4 First, he told Mr. XXX that ten years was the maximumsentence he faced even if he were to be revoked. Id.at ¶ 3. Second, he told Mr. XXXthat he would likely be continued on probation after “a little JTL” which he explainedwas a “judicial tongue lashing.” Id. Third, he told Mr. XXX that the state’s ten year recommendation offerwas “ridiculous” because, if all else failed, he would be able to get theDistrict Court to sentence Mr. XXX to “SAF-P.” Id. Had Mr. XXX knew that he faced life imprisonment upon adjudication andhad he known that he was ineligible for “SAF-P,” he would have waived arevocation hearing and agreed to the state’s recommendation that he besentenced to ten years imprisonment upon revocation. Id. at ¶ 4.
Followinghis revocation, Mr. XXX requested that Jones file a Notice of Appeal on hisbehalf. Id. at ¶ 6. Asreflected in two letters sent by Jones to Mr. XXX, Jones fully understood Mr.XXX’s desire to appeal from the judgment and sentence in this case. SeeAttachments C & D hereto. Nevertheless, Jones did not file aNotice of Appeal until December 27, 1999- fifteen days after the expiration oftime to file a Notice of Appeal. SeeTex. App. P. 26.2(a)(2). When filing the out-of-time appeal,Jones did not request an extension of time as provided for under Tex. R. App.P. 26.3(b).
A. Ineffective Assistance by Jones for Failing to CorrectlyExplain Consequences in the Event of Adjudication
Asnoted above, prior to the revocation hearing held in this matter Jones told Mr.XXX that, if he did not contest the revocation, the state offered to recommenda sentence of ten years imprisonment to the Court. SeeXXXAff. at ¶ 3. Jones told Mr. XXXthat he (Jones) had rejected the offer because ten years was the maximumsentence Mr. XXX faced even if he were to be revoked. Id.at ¶ 4. Indeed, it is clear that Jones misunderstood thepunishment range in this case because he argued at the sentencing hearing thatMr. XXX should be sentenced “[a]t the most two to three” years imprisonment”until he was reminded by the court that the minimum sentence of imprisonmentfor a first degree felony is five years. See Transcriptof Revocation Hearing at 64 (attached hereto as Attachment E).
Likewiseit is also clear that Jones misunderstood that, upon adjudication, a term ofimprisonment was required. First, prior to the revocation hearing, he told Mr. XXX the state’s tenyear recommendation offer was “ridiculous” because, if all else failed, hewould be able to get the District Court to sentence Mr. XXX to “SAF-P.” See XXX Aff. at ¶ 3. Second,after the District Court adjudicated Mr. XXX’s guilt, Jones still argued thatMr. XXX should be “continued on probation or given the opportunity to go totreatment.” See Attachment E. Nevertheless, Mr. XXX was never eligible for “SAF-P.” SeeTex. Code Crim. P. Art. 42.12 § 14(b)(2)(A). Nor was Mr. XXX eligible to be “continued on probation”following the adjudication of his guilt. Id. at 42.12 §3g(a)(1)(E).
Asnoted above, the state bar proceedings conclusively established that Mr. XXX“was unable to make an informed decision about how he wished to proceed in thematter because he did not adequately understand the maximum sentence he couldreceive if the motion to revoke was granted” because of Jones’ misadvice. See Attachment A.
Itis well established that a defendant is entitled to competent counsel duringthe course of probation revocation proceedings. It is likewise well established that acounsel's failure to fully explain a plea offer effectively denies a defendantthe opportunity to make an informed decision about whether to accept or rejectthe offer and thereby deprives him of the effective assistance of counsel. See State v. Williams, 83 S.W.3d 371 (Tex. App.--Corpus Christi2002). Instructive is the federalcase of United States v. Day, 969 F.2d 39 (3rd Cir. 1992) which held that a defendant receivesineffective assistance of counsel when he is “seriously misled about hissentence exposure” by his counsel while considering a plea bargain offer.
Here,Mr. XXX avers that, had he known of his true sentencing exposure, he would haveaccepted the state’s offer for a ten year sentence recommendation uponrevocation in exchange for not contesting the revocation. See XXX Aff. at ¶ 4. This makes sense. It would have been obvious to Mr. XXXthat he escaped revocation on at least one other occasion. It was also obvious that Mr. XXX had nodefense to the charge that he used opiates while on probation and thatadjudication on that charge alone was likely if he could not be sent to“SAF-P.” Moreover, although it wasnot explained to him, he faced a minimum of five years imprisonment uponadjudication in any event.
Upongranting habeas relief on this ground, the remedy would be to allow Mr. XXX anew habeas hearing in which he does not contest revocation in exchange for thestate’s ten year punishment recommendation upon revocation. Cf. Ex Parte Lemke, 13 S.W.3d 791(Tex. Crim. App. 2000).
B. Ineffective Assistance by Jonesfor Failing to File a Timely Notice of Appeal
There is no question that Mr. XXX desiredJones to file a Notice of Appeal on his behalf. That fact is established not only by Mr. XXX’s affidavit butalso is established by letters sent to Mr. XXX by Jones both before and afterthe Notice of Appeal was filed. See XXX Aff. at ¶ 6; Attachments C &D. Finally, this issue waslitigated in connection with the disciplinary proceedings against Jones and theDisciplinary Board found that “Jones failed to file a notice of appeal” despitebeing requested to do so. See Attachment A.
Itis well established that Jones had a duty to file a Notice of Appeal on Mr.XXX’s behalf given Mr. XXX’s expressed desire to appeal from the judgment andsentence:
We also hold that trial counsel, retainedor appointed, has the duty, obligation and responsibility to consult with andfully to advise his client concerning meaning and effect of the judgmentrendered by the court, his right to appeal from that judgment, the necessity ofgiving notice of appeal and taking other steps to pursue an appeal, as well asexpressing his professional judgment as to possible grounds for appeal andtheir merit, and delineating advantages and disadvantages of appeal. Thedecision to appeal belongs to the client.
While the former practice was orally togive notice of appeal in open court, it was permissible then -- and now ismandatory under Tex. R. App. Pro.Rule 40(b)(1) -- that notice be given in writing filed with the clerk of thetrial court. But it was not then, and is not now, required that written noticeof appeal be made by trial counsel, and thus "volunteer" to becomeattorney of record on appeal. "Such notice shall be sufficient if it showsthe desire of the defendant to appeal from the judgment or other appealableorder," ibid; cf.former article 44.08(a). A written notice of appeal signed solely by defendantis an indication that trial counsel "does not wish to pursue his client'sappeal;" when complemented by a contemporaneously presented motion towithdraw showing good cause, and along the lines of DR 2-11(A), Texas Code ofProfessional Responsibility, and, "the trial court is immediately placedon notice that appellate counsel must be appointed," -- unless, of course, defendant hasretained another attorney.
In the instant cause, that retainedcounsel did not intend to handle the resultant appeal does not justify hisfailing to assist his allegedly indigent client in giving notice of appeal.Contrary to his assertion at the evidentiary hearing, "that ended myperiod of time with him," counsel did need to file a motion to withdrawbecause, knowing that applicant did indeed desire to appeal, in truth he had not "concluded the case." As we saidin Ward, supra, at740:
"In the present case, the arguablelimitation of representation for trial purposes only is not dispositive. Sinceappellant's trial counsel did not affirmatively withdraw, he remainedappellant's counsel on appeal."
We find that in reality this presumptivelyindigent applicant did not receive any practical assistance of counsel inprotecting and preserving his appellate rights. Thus he has been deniedeffective assistance of counsel on appeal in violation of his due process rightsunder the Fourteenth Amendment and his due course rights under Article I, § 10,of our own Bill of Rights.
Ex Parte Axel, 757 S.W.2d 369, 374-75 (Tex. Crim. App.1988) (citations and footnote omitted). See also, Jonesv. State, 98 S.W.3d 700,702-03 (Tex. Crim. App. 2003).
Moreover,in deciding to grant habeas relief in the form of allowing an applicant to filean out-of-time appeal, a habeas court does not look to the merits of the appeal butsimply determines whether the applicant had expressed a desire to appeal to hiscounsel. Ex Parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App.2005) (“When a defendant's right to an entire judicial proceeding has beendenied, the defendant is ‘required to show a reasonable probability that,absent counsel's errors, a particular proceeding would have occurred, but he[is] not required to show that the proceeding would have resulted in afavorable outcome.’ Or put anotherway, to meet the limited showing of prejudice in this context, ‘counsel'sdeficient performance must actually cause the forfeiture of the proceeding inquestion.’"). Here, as notedabove, Mr. XXX can clearly establish “that he would have availed himself of the[appeal] proceeding in question.” Id.
Mr. XXX respectfully requests that theDistrict Court be directed to grant him habeas relief based upon the firstground raised above and permit a new habeas hearing in which the staterecommends that he be imprisoned for a term of ten years. In the alternative, Mr. XXX requestspermission to file an out-of-time appeal with the Fifth Court of Appeals fromthe judgment and sentence entered by the District Court on September 10, 1999.
CERTIFICATE OF SERVICE
I,F. Clinton Broden, certify that on April 16, 2007, I caused a copy of the above document to be mailed by firstclass mail, postage prepaid, on the Dallas County District Attorney’s Office,133 North Industrial Blvd., Dallas, Texas 75207.