Ex parte Sandoval , 508 S.W.3d 284 ( 2016 )

Keller, P.J.,

filed a concurring opinion

in which Keasler and Hervey, JJ., joined.

In Texas, as in the federal system, trial courts are authorized to appoint counsel on habeas in the interests of justice.¹ The dissent says that the Court of Criminal Appeals should compel trial courts to appoint counsel whenever there is a “substantial” or even a “colorable” claim of ineffective assistance of trial counsel. The dissent says this Court has created a broken system and calls on us to enforce the plain language in the statute. But what the dissent wants us to do, quite plainly, is to usurp the trial court’s discretion and compel the trial court to appoint counsel in cases in which the author of the dissent determines that the interests of justice require it. The Legislature committed this responsibility to the sound judgment of the trial court, and if there is anything we should enforce, it is the law as written.

The statutory language in question says:

Whenever a court or the courts’ desig-nee authorized under Subsection (b)² to appoint counsel for indigent defendants in the county determines for purposes of a criminal proceeding that a defendant charged with or appealing a conviction for a felony or a misdemeanor punishable by confinement is indigent or that the interests of justice require representation of a defendant in the proceeding, the court or the court’s designee shall appoint one or more practicing attorneys to represent the defendant in accordance with this subsection and the procedures adopted under Subsection (a).³

The judges to whom subsection (b) refers are judges of county courts, statutory county courts, and district courts trying criminal cases in the county. So the plain language of the statute indicates that the trial court determines what the interests of justice require. For the life of me, I cannot find the plain language that the dissent says requires-not just permits, but requires-m. appellate court to make that determination. Neither do I see how, by following what the statute actually says, this Court is refusing to enforce the plain language in the statute. It simply is not true that substituting our determination of the interests of justice for the trial court’s is in accordance with the statutory language.

The dissent’s references to almost all cases, and most indigent defendants, and claims that will almost always fail, are equally ungrounded in fact. They are unsupported by the facts, the Constitution, statutes, or the few cases cited. The dissent also offers no statistics or citations to authority to support her allegation that affluent applicants fare better on post-conviction habeas than poor people.⁴

The dissent does cite one case⁵ for the proposition that, at the direct-appeal stage, and in the absence of a motion-for-new-trial hearing, this Court will presume that counsel performed adequately. But all we did in that case was follow Supreme Court precedent. We said, “Consistently with Strickland, we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he ‘made all significant decisions in the exercise of reasonable professional judgment.’ ”⁶ Because the record did not reflect counsel’s reasons for not striking certain jurors, we held that Jackson had failed in his burden of proof.

The dissent’s reliance on Martinez v. Ryan⁷ is similarly misplaced. The Supreme Court held there that a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance if, in the state’s initial-review collateral proceeding, there was no counsel or ineffective counsel.⁸ A substantial claim is one that has some merit.⁹ The Supreme Court did not suggest that a state habeas petitioner is entitled to appointed counsel, and, in fact, there would have been no need to create an exception to the federal procedural-default doctrine if that had been the Court’s intent.

A habeas applicant has the burden to plead facts which, if true, entitle him to relief and ultimately to establish those facts by a preponderance of the evidence.¹⁰ To this day, the applicant in the case at bar has not alleged that his trial counsel did even a single thing wrong, let alone that he rendered ineffective assistance. Applicant claims, instead, that it is highly unlikely that any attorney could have provided effective assistance on direct appeal and that appellate counsel was prevented from researching and raising possible meritorious claims of ineffective assistance of trial counsel. This is not even a colorable claim of ineffective assistance, let alone a substantial claim or one that has some merit.

In her affidavit, appellate counsel says that she did not raise ineffective assistance because there was nothing in the record that would have supported such a claim and that such claims are generally made on habeas. It is true that ineffective-assistance claims cannot usually be resolved without reference to facts outside the trial record. But it is not at all uncommon for the acts or omissions that would support a claim of ineffective assistance to appear in the trial record. Common complaints concern the failure to object, the failure to strike a venireman, the failure to seek a lesser-included-offense instruction, opening the door to unfavorable testimony, and other such matters, all of which appear in the record. Appellate counsel’s failure to find anything in the record that would support an ineffective-assistance claim is just one more reason to deny relief in this case.

I join the Court in denying relief.

1 . Tex. Code Crim. Proc. art. 1.051(c), art. 26.04(c).

2 . Tex. Code Crim. Proc. art. 26.04. Subsection (b) says procedures adopted under Subsection (a) shall authorize only the judges of county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges’ designee, to appoint counsel for indigent defendants in the county.

3 . Id. (emphasis added)

4 . Extensive information is available on the appointment of trial counsel in Texas. See Ex parte Garcia, 486 S.W.3d 565 (Tex. Crim. App. 2016) (Keller, P.J. concurring).

5 . Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).

6 . Id. at 771.

7 . 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

8 . Id. at 1318.

9 . Id.

10 . Ex parte Whisenant, 443 S.W.3d 930, 932 (Tex. Crim. App. 2014).