             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                 NOS. WR-82,096-01, WR-82,096-02, & WR-82,096-03



                  EX PARTE KENTRAIL RAY MCCUIN, Applicant

             ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
             CAUSE NOS. F-12-51308-L, F-12-51309-L, & F-12-51310-L
                   IN CRIMINAL DISTRICT COURT NO. 5
                         FROM DALLAS COUNTY

       A LCALA, J., filed a dissenting opinion.

                                 DISSENTING OPINION

       On the basis of procedural default, this Court’s order results in Kentrail Ray McCuin,

applicant, having to spend two additional years in prison. I disagree with this resolution of

applicant’s claims. Although his pro se pleadings fail to raise a colorable ineffective-

assistance-of-trial-counsel claim, it is apparent to me, based on the pleadings and the face of

the record, that applicant has a colorable claim of ineffective assistance of appellate counsel

due to counsel’s failure to challenge the improper cumulation order on direct appeal. For the

reasons explained in my dissenting opinion in Ex parte Garcia, I would remand this case to

the habeas court for that court to appoint habeas counsel in the interests of justice, permit
                                                                                      McCuin - 2

counsel to amend the instant pleadings, and decide the ultimate merits of the application after

those events. See Ex parte Garcia, No. WR-83,681-01, 2016 WL 1358947, slip op. at 8, 21

(Tex. Crim. App. Apr. 6, 2016) (Alcala, J., dissenting) (observing that appointment of habeas

counsel for pro se applicants may be necessary in order to ensure that defendants’ substantial

claims of ineffectiveness “are afforded meaningful consideration on post-conviction review”;

need for appointed counsel may arise in “any case in which either the pleadings or the face

of the record gives rise to a colorable, nonfrivolous claim”). This is another opportunity that

has arisen since Garcia for this Court to remand an application to the habeas court for it to

appoint counsel to a pro se, indigent habeas applicant in the interests of justice. See T EX.

C ODE C RIM. P ROC. art. 1.051(c), (d)(3) (permitting trial court to appoint attorney in a habeas

corpus proceeding if the court concludes “that the interests of justice require representation”).

As explained further below, I conclude that the interests of justice weigh in favor of

appointing post-conviction counsel in this case in order to ensure that applicant does not

forfeit his likely meritorious ineffective-assistance-of-appellate-counsel claim due to his

failure to properly raise that claim at this juncture.

                                        I. Background

       Applicant was tried and convicted in one criminal action of three offenses arising

from a single transaction: evading arrest, felon in possession of a firearm, and possession of

a controlled substance with the intent to deliver while in a drug-free zone. Applicant was

sentenced to two, five, and twenty years’ imprisonment, respectively, on those charges. The
                                                                                         McCuin - 3

trial court’s judgments for the three offenses stacked the three sentences.1

       The trial court’s cumulation of all three sentences was not permitted by the relevant

statutes because those statutes allowed the stacking of only one of the three sentences.

Specifically, Section 3.03 of the Texas Penal Code requires that applicant’s sentences for

evading arrest and felon in possession of a firearm be served concurrently. See T EX. P ENAL

C ODE § 3.03(a) (when “the accused is found guilty of more than one offense arising out of

the same criminal episode prosecuted in a single criminal action,” sentences imposed for

those offenses “shall run concurrently”). In contrast, applicant’s sentence for the controlled-

substance offense must be served consecutively to the other two. See T EX. H EALTH &

S AFETY C ODE § 481.134(h) (providing that a sentence for the offense of possession of a

controlled substance in a drug-free zone “may not run concurrently with punishment for a

conviction under any other criminal statute”). The trial court’s order cumulating all three

sentences, therefore, was in error. The habeas court acknowledged this error in its findings

of fact and conclusions of law, in which it stated, “The unlawful possession of a firearm by

a felon case and the evading arrest case are not an ‘offense listed under this section’ as

required by [the consecutive-sentencing provision in] Section 481.134(h). Thus, the evading



1
        The judgment for the controlled-substance offense indicates that the sentence for that offense
would run concurrently. The judgment for the unlawful-possession-of-a-firearm offense indicates
that the sentence for that offense would run consecutively, with that sentence to commence “only
when the judgment and sentence [in the controlled-substance case] has ceased to operate.” The
judgment on the evading-arrest conviction indicates that the sentence for that offense would run
consecutively, with that sentence to commence “only when the judgment and sentence in [the
unlawful-possession-of-a-firearm case] has ceased to operate.”
                                                                                     McCuin - 4

arrest sentence and the unlawful possession of a firearm by a felon sentence should run

concurrently.” The habeas court further stated, “The trial court should have ordered the

sentence in the drug case to be served after Applicant completed the concurrent sentences in

the evading arrest case and the unlawful possession of a firearm by a felon case.

Alternatively, the trial court should have ordered the sentences in the evading arrest case and

the unlawful possession of a firearm by a felon case to begin after Applicant completes the

sentence in the drug case.”

       Applicant filed this pro se application for a post-conviction writ of habeas corpus,

claiming, among other matters, that his trial counsel was ineffective for failing to object to

the improper cumulation order. That particular claim, however, is refuted by the trial record,

which shows that trial counsel did in fact object to the stacking order, but counsel’s objection

was overruled by the trial court.

       Because trial counsel had objected to the imposition of consecutive sentences in all

three cases, the habeas court determined that applicant’s ineffective-assistance claim lacked

merit. The habeas court’s findings and conclusions stated,

       Counsel objected to the trial court stacking the sentences for the unlawful
       possession of a firearm by a felon case and the evading arrest case. . . . The
       trial court clearly understood defense counsel’s argument and objection
       regarding the stacking of sentences. The trial court, by pronouncing sentence
       as he did, overruled counsel’s objection. . . . Applicant has failed to prove that
       he received ineffective assistance of counsel. The record reflects that counsel
       objected to the trial court stacking the sentences. Therefore, Applicant did not
       prove that counsel’s representation fell below an objective standard of
       reasonableness.
                                                                                   McCuin - 5

The habeas court thus rejected applicant’s ineffective-assistance-of-trial-counsel claim.

       Although it found that applicant did not prove ineffective assistance of trial counsel,

the habeas court recommended that relief be granted as to the improper stacking order.

Specifically, the habeas court determined that the trial court “misunderstood the sentencing

requirements of Section 481.134(h)” and that this misunderstanding resulted in the court

“incorrectly stack[ing] the sentence in the evading arrest case on the sentence in the unlawful

possession of a firearm by a felon case.” On this basis, the habeas court recommended that

applicant’s case “be remanded for a new sentencing hearing to determine the sentence in

each case and the proper cumulation order(s).” I agree with the habeas court. This Court,

however, denies relief. The basis for this Court’s conclusion is that the improper stacking

issue could have been raised on direct appeal and, therefore, it may not be considered on its

merits at this stage. See Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004).

                                        II. Analysis

       I agree with the habeas court and with this Court that, because trial counsel preserved

his complaint about the impropriety of the stacking order, applicant has failed to prove

ineffective assistance of trial counsel. The issue here, however, is the ineffectiveness of

applicant’s appellate counsel, who failed to present this properly preserved complaint on

direct appeal. As explained further below, I conclude that, given the existence of a colorable

ineffective-assistance-of-appellate-counsel claim that is apparent from the face of the habeas

record, and given that applicant is proceeding pro se at this stage and his pleadings are thus
                                                                                      McCuin - 6

entitled to a liberal construction, the proper course is for this Court to remand this case for

appointment of counsel in the interests of justice so that the instant pleadings may be

amended to properly address that claim.

       Here, the record clearly shows the existence of an error that was preserved at trial, but

that error was not addressed by appellate counsel on direct appeal. On direct appeal,

appellate counsel raised only two points of error, neither of which pertained to applicant’s

sentences. McCuin v. State, Nos. 05–12–01148–CR, 05–12–01149–CR, 05–12–01150–CR,

2013 WL 3929215 (Tex. App.—Dallas July 26, 2013) (mem. op., not designated for

publication). This omission by appellate counsel, viewed in conjunction with the habeas

court’s factual finding that trial counsel objected to the improper stacking order during the

trial proceedings, gives rise to a colorable claim of ineffective assistance of appellate

counsel. See Ex parte Flores, 387 S.W.3d 626, 639 (Tex. Crim. App. 2012) (“To obtain

relief in the form of a new direct appeal on a claim of ineffective assistance of appellate

counsel, applicant must show that (1) counsel’s decision not to raise a particular point of

error was objectively unreasonable, and (2) there is a reasonable probability that, but for

counsel’s failure to raise that particular issue, he would have prevailed on appeal.”). Our

cases are clear in providing that, if “appellate counsel fails to raise a claim that has

indisputable merit under well-settled law and would necessarily result in reversible error,

appellate counsel is ineffective for failing to raise it.” Id. (citations omitted). This principle

would seem to apply squarely to appellate counsel’s conduct in failing to raise the improper-
                                                                                     McCuin - 7

stacking claim on direct appeal.

       Despite the apparent existence of a likely meritorious ineffective-assistance-of-

appellate-counsel claim, applicant’s pro se pleadings fail to expressly present that legal

theory as a basis for granting relief, instead focusing on complaints regarding trial counsel’s

performance. Applicant contends that trial counsel was “ineffective for failing to move to

sever the multiple indictments.” Although applicant’s pleadings are focused on alleging that

trial counsel was ineffective, as opposed to focusing on appellate counsel’s performance, this

oversight is perhaps understandable, given that a claim of ineffective assistance of appellate

counsel is complex and involves an understanding of trial error, concepts of preservation of

error, and appellate strategy. It should go without saying that such concepts are not likely

to come intuitively to a pro se litigant untrained in the law. In the analogous context of claims

of ineffective assistance of trial counsel, the Supreme Court has recognized that, in many

situations, pro se petitioners lack the necessary legal knowledge and resources that would

enable them to properly present their claims. It stated,

       Without the help of an adequate attorney, a prisoner will have [ ] difficulties
       vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims
       of ineffective assistance at trial often require investigative work and an
       understanding of trial strategy. When the issue cannot be raised on direct
       review, moreover, a prisoner asserting [such a] claim in an initial-review
       collateral proceeding cannot rely on a court opinion or the prior work of an
       attorney addressing that claim. To present a claim of ineffective assistance at
       trial in accordance with the State’s procedures, then, a prisoner likely needs an
       effective attorney.

Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012). The Court further reasoned that prisoners
                                                                                       McCuin - 8

“unlearned in the law” may not “comply with the State’s procedural rules or may

misapprehend the substantive details of federal constitutional law.” Id. Based on these

considerations, the Supreme Court concluded that, without the effective assistance of counsel

in an initial-review collateral proceeding, a prisoner’s ability to litigate his ineffectiveness

claims would be significantly diminished. See id. at 1318 (acknowledging, “as an equitable

matter, that the initial-review collateral proceeding, if undertaken without counsel or with

ineffective counsel, may not have been sufficient to ensure that proper consideration was

given to a substantial claim”). It was this recognition that prompted the Supreme Court to

permit substantial state ineffective-assistance-of-trial-counsel claims forfeited as a result of

a lack of counsel or ineffective counsel in the state post-conviction proceedings to be raised

for the first time in a federal habeas proceeding. See id. at 1320.

       Although the Supreme Court in Martinez was addressing ineffective-assistance-of-

trial-counsel claims in particular, much of the reasoning in that case also applies to claims

of ineffectiveness on direct appeal: the claims are generally intricate and require access to

the complete trial record and a mastery of complex legal concepts, such as preservation of

error and trial and appellate strategy. Further, a post-conviction writ of habeas corpus

presents the first opportunity for a defendant to challenge appellate counsel’s performance

on direct appeal, but this opportunity arises at a stage of the proceedings when an indigent

defendant has no established constitutional right to appointed counsel, thereby posing a

substantial risk that his claim, even if it is meritorious, will be forfeited due to his failure to
                                                                                      McCuin - 9

properly raise it. Thus, many of the same considerations that the Supreme Court was

persuaded by in reaching its conclusion in Martinez lead me to conclude that a lack of

counsel in a post-conviction proceeding for the purpose of assisting an applicant in raising

his ineffective-assistance-of-appellate-counsel claim will “significantly diminish[ ]” his

ability to raise that claim and may deprive him of any meaningful review of that claim at all.

See id. at 1318. Where, as here, the pleadings and the face of the record reveal a likely

meritorious ineffective-assistance-of-appellate-counsel claim, and, particularly, where the

granting of relief as to that claim may ultimately lead to applicant spending two fewer years

in prison, I conclude that the appointment of counsel is necessary in the interests of justice

in order to ensure that the pro se applicant’s constitutional rights are adequately protected.

See T EX . C ODE C RIM. P ROC. art. 1.051(d)(3); Evitts v. Lucey, 469 U.S. 387, 396 (1985)

(holding that a “first appeal as of right [ ] is not adjudicated in accord with due process of law

if the appellant does not have the effective assistance of an attorney”); Ex parte Axel, 757

S.W.2d 369, 374-75 (Tex. Crim. App. 1988).

       Here, in making my determination that applicant has a colorable ineffective-

assistance-of-appellate-counsel claim that would necessitate the appointment of counsel in

the interests of justice, I have (1) liberally construed the pleadings by reviewing applicant’s

complaints for substantive merit rather than for technical procedural compliance, and (2)

examined the face of the record to ascertain whether a colorable claim exists that was not

expressly presented by applicant but which nevertheless bears some general relation to his
                                                                                    McCuin - 10

complaints. This practice of liberally construing pro se pleadings in light of the available

record is widely recognized as appropriate. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)

(pro se complaint “is to be liberally construed”); Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (per curiam) (a pro se inmate’s petition should be viewed liberally and is not held to

the stringent standards applied to formal pleadings drafted by attorneys); see also Hernandez

v. Thaler, 630 F.3d 420, 426-27 (5th Cir. 2011) (filings by habeas petitioners are “entitled

to the benefit of liberal construction”); Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002)

(“Pro se habeas petitioners are to be afforded the benefit of any doubt.”) (citations omitted).

Although applicant improperly framed the issue in this case as one of ineffective assistance

of trial counsel, as opposed to one of ineffective assistance of appellate counsel, he should

not be faulted for failing to correctly identify the precise legal theory upon which his claim

rests. As the United States Tenth Circuit Court of Appeals has recognized, the “mandated

liberal construction” afforded to pro se pleadings means that “if the court can reasonably read

the pleadings to state a valid claim on which the [petitioner] could prevail, it should do so

despite the [petitioner’s] failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (quoting Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

       In light of these principles, my review for whether an applicant may have a colorable

claim that would warrant the appointment of counsel in the interests of justice does not call
                                                                                    McCuin - 11

upon this Court or the habeas court to make legal arguments for an applicant, nor does it

require any court to become an advocate for him. Rather, by liberally reading the pro se

pleadings and examining the face of the record to determine whether appointed counsel is

required under the circumstances in order to ensure that an applicant’s claims are given

meaningful consideration, I am merely adhering to my judicial duties to afford pro se

litigants wide latitude in pleading their claims and to uphold the requirements of the Code

of Criminal Procedure that entitle applicants to appointed counsel when the interests of

justice require it. It is well established that this practice of liberally construing pro se

pleadings is a proper judicial function that does not transform a judge into an advocate for

a habeas applicant. See Barnett, 174 F.3d at 1133 (explaining that, although a court “should

not assume the role of [an] advocate for the pro se litigant and may not rewrite a petition to

include claims that were never presented,” a court acts properly when it “look[s] carefully

at the facts and the pleadings in an effort to ascertain what occurred in prior state proceedings

and the true nature of petitioner’s claims”). Moreover, I am not proposing that applicant be

granted relief on the basis of his current pleadings, but am instead merely suggesting that he

be permitted the opportunity to amend his instant pleadings with the assistance of appointed

counsel, rather than having his improperly pleaded claims denied outright. See Hall, 935

F.2d at 1110 (explaining that, in construing pro se pleadings, “the plaintiff whose factual

allegations are close to stating a claim but are missing some important element that may not
                                                                                       McCuin - 12

have occurred to him[ ] should be allowed to amend his complaint”).2

       I further note that my proposed approach that liberally examines the pleadings and

independently reviews the available record is a mild house-cat when compared to the lion’s

share of the much more burdensome independent judicial review of the record that has been

approved of and conducted in Texas state courts for almost five decades in Anders cases. See

Anders v. California, 386 U.S. 738, 744-45 (1967) (requiring appellate courts to conduct “a

full examination of all the proceedings[ ] to decide whether the case is wholly frivolous,” and

stating that an appellate court must “pursue all the more vigorously its own review”); Stafford

v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991). In Anders cases, this Court requires

appellate judges to independently review the record for any arguable grounds for appeal

when an appointed attorney has filed a brief asserting that there are no arguable grounds, and

if the judges’ independent review of the record reveals that there are arguable grounds for

appeal, then the appellate court must remand the case to the trial court for the appointment

of new appellate counsel. See Stafford, 813 S.W.2d at 511 (under Anders, “after receiving

a brief claiming that there are no arguable grounds for appeal, the reviewing court must

review the record to make an independent determination”). A judge’s vigorous independent

review for any arguable grounds of appeal in an Anders case is required to ensure that an



2
        I note here that this Court has recently held that habeas applicants pursuing post-conviction
relief under Article 11.07 of the Code of Criminal Procedure may freely amend their pleadings by
adding supplemental claims prior to the final disposition of the application. 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 at any time prior to disposition of pending application).
                                                                                   McCuin - 13

appointed attorney has not erroneously asserted that there are no arguable grounds for appeal.

See id. By requiring that judges vigorously and independently review the record for any

arguable grounds of appeal in an Anders case, this Court has essentially already held that this

type of review does not transform a judge into an advocate for a party, and that instead this

is a review that honors a judge’s oath to preserve, protect, and defend the Constitution and

laws of the United States and of this state. And, although in Anders cases an appellate judge

carries a heavy burden to examine the entire record for any arguable grounds for appeal on

any of the numerous possible subjects that could be a basis for appeal, in contrast, in my

proposed approach to post-conviction habeas cases, an appellate judge bears a much lighter

burden to liberally examine the substance of the complaints in a pro se applicant’s pleadings

and to review the available record to determine whether those complaints are arguably

meritorious, and then only as to claims of ineffective assistance of counsel. I have never

suggested that, in conducting this review, a judge should be an advocate for an applicant or

that a judge must exhaustively scour the record for any possible claims, and such an

aspersion would unfairly oversimplify and mischaracterize my position.

       In light of the foregoing considerations, I would hold that the pleadings and the record

in this case give rise to a colorable ineffective-assistance-of-appellate-counsel claim and,

therefore, that applicant is entitled to the assistance of appointed counsel in the interests of

justice for the purpose of pursuing that claim. See T EX. C ODE C RIM. P ROC. art. 1.051(d)(3).

I note that, if applicant is deprived of the opportunity to develop his claim in the instant
                                                                                     McCuin - 14

proceeding, then it is likely that he will be unable to do so in any future proceeding as a result

of the statutory bar on subsequent writs. See id. art. 11.07, § 4. In order to afford applicant

his one full bite at the apple in this initial habeas proceeding, and in order to ensure that

applicant’s constitutional right to the effective assistance of appellate counsel is fully

protected, I conclude that the interests of justice require appointed counsel and further

proceedings under these circumstances. I, therefore, would not deny applicant relief at this

stage but would instead remand this case to the habeas court for appointment of counsel and

further proceedings. Because the Court declines to do so and instead denies relief, I

respectfully dissent.

Filed: June 22, 2016

Publish
