             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                          NOS. WR-84,786-01 & WR-84,786-02



                EX PARTE JEFFREY SHAWN POINTER, Applicant



          ON APPLICATIONS FOR WRIT OF HABEAS CORPUS
    CAUSE NOS. CR07-300A & CR07-301A IN THE 235TH DISTRICT COURT
                           COOKE COUNTY

       A LCALA, J., filed a concurring opinion in which J OHNSON, J., joined.

                                CONCURRING OPINION

       This is another claim of ineffective assistance of counsel addressed by this Court

based on pleadings that have been presented by a pro se litigant. I respectfully concur in this

Court’s order that remands this pro se habeas application to the convicting court for further

development of the record. I, however, do not join the Court’s order because it fails to

accurately track the statutory language in the Code of Criminal Procedure, in that it

improperly limits an indigent habeas applicant’s entitlement to the assistance of appointed
                                                                                          Pointer - 2

counsel to situations involving a live hearing on remand.1

       This Court’s order should not instruct the habeas court to appoint counsel to an

indigent habeas applicant only in the event of a live hearing on remand. Rather, to comply

with the statutory requirements in the Code, this Court’s order should instead more broadly

require a habeas court to appoint counsel in a wider range of circumstances. The plain

language in the Code mandates a habeas court to appoint counsel for an indigent habeas

applicant when the interests of justice require it. Article 1.051 of the Code of Criminal

Procedure states,

       (d) An eligible indigent defendant is entitled to have the trial court appoint an
       attorney to represent him in the following appellate and postconviction habeas
       corpus matters: . . .
       (3) a habeas corpus proceeding if the court concludes that the interests of
       justice require representation[.]

See T EX. C ODE C RIM. P ROC. art. 1.051(d)(3). In view of this statutory authority, this Court’s

order should instruct the habeas court to appoint counsel (1) when the habeas court holds a

hearing, or, in any event, (2) when the interests of justice require representation in a habeas

proceeding regardless of whether there is a hearing. Although the Code does not define the

term “interests of justice,” that term, as it applies here, refers to a judge’s discretion to make


1
         I note that this Court’s order cites to Code of Criminal Procedure Article 26.04, but that
article does not suggest that counsel must be appointed only in the event of a live hearing. Rather,
Article 26.04 more broadly indicates that a court “shall appoint” counsel “for purposes of a criminal
proceeding” whenever the court determines “that the interests of justice require representation of a
defendant in the proceeding[.]” TEX . CODE CRIM . PROC. art. 26.04(c). Given its reference to the
necessity of appointing counsel in any “criminal proceeding” in which the interests of justice require
it, I can see no basis in Article 26.04 for instructing habeas courts to appoint counsel to indigent
applicants only in the event of a live hearing.
                                                                                         Pointer - 3

a ruling in the interests of fairness and equity in a particular situation depending on the facts.2

       In other cases, I have expressed my view that, when a pro se habeas application gives

rise to a colorable ineffective-assistance claim, based either on the substance of the pleadings

or the bare face of the record, an applicant should receive appointed counsel in the interests

of justice based on the statutory authority in Article 1.051(d)(3). See, e.g., Ex parte Garcia,

No. WR-83,681-01, 2016 WL 1358947, slip op. at 16 (Tex. Crim. App. Apr. 6, 2016)

(Alcala, J., dissenting). I need not further discuss here what may constitute a colorable claim

in other cases because, in this case, by remanding it to the habeas court, this Court has

already implicitly determined that applicant’s ineffective-assistance claim is colorable. In

the instant case, this Court’s majority order determines that applicant has alleged facts that,

if true, might entitle him to relief, or it otherwise concludes that factual development is

necessary. This Court’s majority order also requires the habeas court to make findings of fact

and conclusions of law as to whether trial counsel’s performance was deficient and whether

that performance prejudiced applicant. Having determined that applicant may be entitled to

relief based on the facts that have been presented thus far, these circumstances would, in my

view, justify this Court ordering the habeas court to appoint counsel in the interests of justice

on remand. But, at the very least, this Court’s order should accurately track the language in

the Code of Criminal Procedure as a means of informing the habeas court of its obligation



2
        See, e.g., Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (explaining that the
“interests of justice” is a concept encompassing matters such as the “fairness, integrity, or public
reputation of judicial proceedings”).
                                                                                            Pointer - 4

to appoint counsel if it determines that representation is necessary in the interests of justice.

       In deciding whether to appoint habeas counsel on remand, I would encourage habeas

courts to utilize the statutory authority in Article 1.051 in order to liberally appoint counsel

for pro se applicants who, as here, appear to have colorable ineffective-assistance-of-counsel

claims. As the Supreme Court has recognized, the right to the effective assistance of counsel

is a “bedrock principle in our justice system,” without which the very fairness and accuracy

of the underlying criminal proceeding cannot be guaranteed. Martinez v. Ryan, 132 S. Ct.

1309, 1317 (2012). But, without the assistance of an attorney for the purpose of raising an

ineffective-assistance claim, the Supreme Court has also recognized that a pro se,

incarcerated habeas applicant will likely be unable to properly present such a claim, even if

his claim is meritorious. See id. at 1317-18 (observing that a prisoner is in “no position to

develop the evidentiary basis for a claim of ineffective assistance,” and acknowledging that,

“as an equitable matter,” a post-conviction habeas proceeding, “if undertaken without

counsel . . . may not have been sufficient to ensure that proper consideration was given to a

substantial [ineffective-assistance] claim”). These are relevant factors that should be taken

into account by a court in assessing whether the interests of justice require appointed counsel

in any given case.3 I further note that, because a habeas proceeding is most likely the only


3
         Perhaps it could be argued that, because there is no established constitutional right to habeas
counsel, this Court should never remand for the appointment of counsel in the interests of justice.
But this suggestion would seriously misunderstand the nature of the complaint before us. Here, the
issue is the right to effective trial counsel and the systematic failure in Texas to provide an adequate
vehicle to ensure that right. Direct appeal, when an indigent defendant has an absolute right to
appointed counsel, fails to adequately protect the right to effective trial counsel because most
                                                                                              Pointer - 5

time that the effectiveness of counsel may be challenged, a habeas court should not only

appoint counsel under the circumstances presented here, but it should also liberally permit

the amendment of claims by that appointed habeas counsel. See Ex parte Saenz, No. WR-

80,945-01, 2016 WL 1359214, at *4 (Tex. Crim. App. Apr. 6, 2016) (permitting filing of

supplemental or amended habeas claims prior to disposition of pending application). This

is necessary because it is likely that a pro se litigant who is unskilled in the law will have

failed to properly plead and prove his claim.

        The appointment of habeas counsel under these circumstances, I believe, will improve




ineffective-assistance claims require evidence outside the record, and the seventy-five-day window
of time for resolving a motion for new trial is usually inadequate for that process. See Trevino v.
Thaler, 133 S. Ct. 1911, 1915 (2013) (observing that the “structure and design of the Texas system[,]
in actual operation, [ ] make it virtually impossible for an ineffective assistance claim to be presented
on direct review”) (citations omitted). And habeas-corpus review, when an indigent defendant has
no absolute right to appointed counsel, similarly fails to adequately protect the right to effective trial
counsel because counsel is usually needed to properly litigate ineffective-assistance claims. See
Martinez v. Ryan, 132 S. Ct. 1309, 1317-18 (2012) (observing that, to adequately present an
ineffective-assistance claim, a prisoner “likely needs an effective attorney”; without the assistance
of counsel on post-conviction review, a prisoner’s ability to present an ineffective-assistance claim
is “significantly diminishe[d]”). Thus, unless indigent applicants are afforded the assistance of
appointed habeas counsel to raise their substantial ineffectiveness claims, Texas essentially has no
adequate vehicle for defendants to litigate that issue. The characterization of the Legislature’s
authorization of appointed habeas counsel in the interests of justice as a mere act of legislative grace
fails to acknowledge the reality that, without some means of appointing habeas counsel in this
limited area of ineffective-assistance-of-counsel challenges, Texas’s system fails to ensure that
defendants’ Sixth Amendment rights are protected and thus raises the possibility of a constitutional
violation on that basis. See id. at 1315 (noting that it is an open question of constitutional law
“whether a prisoner has a right to effective counsel in collateral proceedings which provide the first
occasion to raise a claim of ineffective assistance at trial”; the Constitution “may require States to
provide counsel in initial-review collateral proceedings because ‘in these cases . . . state collateral
review is the first place a prisoner can present a[n ineffectiveness] challenge to his conviction,’” thus
making the collateral proceeding his “‘one and only appeal’ as to an ineffective-assistance claim”)
(quoting Coleman v. Thompson, 501 U.S. 722, 755-56 (1991)).
                                                                                 Pointer - 6

the integrity of the criminal-justice system by ensuring that defendants have received

effective counsel at trial and will reduce the number of wrongfully convicted people. Aside

from my disagreement with the language in this Court’s order, I concur in the Court’s order

that remands this case to the habeas court for further factual development.

Filed: June 8, 2016

Publish
