Hampton, David

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-95,500-01

EX PARTE DAVID HAMPTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. DC-2022-CR-0919-A IN THE 137TH DISTRICT COURT
OF LUBBOCK COUNTY

SLAUGHTER, J., filed a concurring opinion.

CONCURRING OPINION

I join in the Court’s decision to grant Applicant post-conviction habeas corpus relief

in the form of an out-of-time appeal, but I feel compelled to write separately to once again

emphasize that trial attorneys have an obligation to file a written notice of appeal when

their clients express a desire to appeal. This issue underlies far too many ineffective-

assistance-of-counsel cases before us and is a troubling sign that many trial attorneys are

either unaware of, or are neglecting, their responsibilities in this regard.

I. Background
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In September 2023, Applicant entered an open plea to the trial court for the offense

of murder, 1 and the trial court sentenced him to 50 years’ imprisonment. The trial court

certified Applicant’s right to appeal, but no notice of appeal was filed.

In his writ application, Applicant alleges that he timely informed trial counsel of his

desire to appeal, 2 but because trial counsel failed to file a notice of appeal, he lost his right

to a direct appeal. In support, Applicant attaches an affidavit from his second-chair trial

counsel, which confirms that at least two of the trial attorneys were aware of Applicant’s

desire to appeal, and that no notice of appeal was filed.

In response to the allegations, the habeas court ordered first-chair trial counsel,

Phillip A. Johnson to provide an affidavit. Johnson chose to ignore the court’s order. With

no response from first-chair trial counsel, the habeas court had to resolve Applicant’s claim

based solely on the allegations in the application and second-chair trial counsel’s affidavit.

Accordingly, the habeas court recommended that this Court grant Applicant habeas relief

in the form of an out-of-time appeal based on ineffective assistance of trial counsel.

II. Discussion

These circumstances highlight two unfortunate, recurring themes in our post-

conviction habeas review of ineffective-assistance claims. First, it appears that some

attorneys are struggling to stay on top of their obligations at the conclusion of their

representation, resulting in harm to clients who are prevented from pursuing the next stage

1
See TEX. PENAL CODE § 19.02.
2
The trial court appointed three attorneys to jointly represent Applicant. The record shows that Applicant
informed all three attorneys that he wanted to appeal. However, the record contains insufficient information
to determine which of those attorneys was primarily responsible for filing the notice of appeal, and the
habeas court did not make a specific finding on that issue.
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of appellate review. And second, a subset of those attorneys apparently believe it is

acceptable to ignore a habeas court’s order to provide an affidavit, thereby hindering the

judicial system’s ability to resolve ineffective-assistance claims.

A. Trial Counsel’s Obligation to file a Written Notice of Appeal

As this Court indicated more than 30 years ago, in Ex parte Axel, a trial attorney’s

obligations to a defendant do not terminate at the end of trial; rather, trial attorneys have

various duties that they must fulfill at the conclusion of trial proceedings:

[T]rial counsel, retained or appointed, has the duty, obligation and
responsibility to consult with and fully to advise his client concerning
meaning and effect of the judgment rendered by the court, his right to appeal
from that judgment, the necessity of giving notice of appeal and taking other
steps to pursue an appeal, as well as expressing his professional judgment as
to possible grounds for appeal and their merit, and delineating advantages
and disadvantages of appeal.

Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (emphasis added). 3 The

rationale for this rule is that trial attorneys are in the best position to ensure that the

defendant’s appellate rights are immediately protected following conviction. Id. at 373

(“Indeed, we are convinced that trial counsel is not only the best source of such advice but

also that it is his duty as an attorney to give it, to the end that his client gains a full

3
See also American Bar Association, Criminal Justice Standards, Defense Function, Standard 4.9-1(a)–(d),
“Preparing to Appeal” (“If a client is convicted, defense counsel should explain to the client the meaning
and consequences of the court’s judgment and the client’s rights regarding appeal . . . . Defense counsel
should take whatever steps are necessary to protect the client’s rights of appeal, including filing a timely
notice of appeal in the trial court, even if counsel does not expect to continue as counsel on appeal. Defense
counsel should explain to the client that the client has a right to counsel on appeal (appointed, if the client
is indigent), and that there are lawyers who specialize in criminal appeals. Defense counsel should candidly
explore with the client whether trial counsel is the appropriate lawyer to represent the client on appeal, or
whether a lawyer specializing in appellate work should be consulted, added or substituted.”).
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understanding of relevant considerations in determining whether to pursue an appeal, as

well as procedural requisites for giving notice of appeal and the like.”).

Specifically emphasizing the importance of a trial attorney’s role in filing the

written notice of appeal, we have stated, “If the defendant decides to appeal, the [trial]

attorney must ensure that written notice of appeal is filed with the trial court.” Jones v.

State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (emphasis added). This is true even if,

as is often the case, the trial attorney will not be representing the defendant on appeal. In

those situations, the defendant should sign a pro se notice of appeal, which the trial attorney

should then file alongside the motion to withdraw. Id. (stating that, if the trial attorney will

not be representing the defendant on appeal, “the defendant may file the notice pro se,

which serves as an indication that trial counsel does not wish to pursue his client’s appeal”)

(internal citation and quotation marks omitted). This places the trial court on actual notice

of the defendant’s desire to appeal and of his potential need for appointed appellate counsel.

Id. (“A ‘contemporaneous’ presentation of the pro se notice with a motion to withdraw by

trial counsel serves as actual notice to the trial court of the defendant’s desire to appeal.”). 4

Despite the unambiguous Rules of Appellate Procedure and our clear and consistent

instructions on this matter over the years, many trial attorneys continue to fail to fulfill their

duties at the post-trial stage—particularly by failing to timely file a written notice of appeal,

which then results in the loss of the defendant’s appellate rights. In this case, it is readily

apparent that at least two of Applicant’s trial attorneys were aware that Applicant desired

4
Of course, if trial counsel will be representing the defendant on appeal, “[h]e may sign the notice himself,
in which case, he effectively ‘volunteers’ to serve as appellate counsel.” Jones, 98 S.W.3d at 703.
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to appeal because Applicant’s second-chair trial counsel provided an affidavit confirming

that allegation. Nevertheless, none of Applicant’s trial attorneys filed a notice of appeal as

the Rules of Appellate Procedure require. See TEX. R. APP. P. 25.2(b), (c)(1); see also

Jones, 98 S.W.3d at 703 n.2.

While there is no evidence in the habeas record addressing why no notice of appeal

was filed in this case, I agree with the habeas court’s determination that no further

development of the record is required under the circumstances. It is apparent that Applicant

expressed his desire to appeal and that his trial attorneys, for whatever reason, failed to

comply with the Rules and the requirements of Axel and Jones described above, resulting

in a failure to protect Applicant’s appellate rights. Because Applicant was deprived of his

opportunity to appeal through no fault of his own, the habeas court and this Court correctly

conclude that he is entitled to an out-of-time appeal based on the existing record.

As a final observation on this issue, I would note that while trial counsel’s mistake

in this case can be “fixed” by allowing Applicant to file an out-of-time appeal, this “fix” is

not without consequences. In addition to significantly delaying resolution of Applicant’s

direct appeal, trial counsel’s error has also now resulted in the State, the habeas court, and

this Court having to expend resources to undo the effects of their mistake. While I

recognize that we are all human beings who make mistakes, this type of error is not a simple

mistake given the number of times this Court has addressed this very issue—it is borderline

willful ignorance of an attorney’s necessary obligations to his clients. 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
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continue to be reminded of their duties at the conclusion of trial proceedings and the effects

of failing to stay on top of their responsibilities. It is my hope that attorneys will implement

practices going forward to help ensure that their clients’ appellate rights are preserved,

thereby reducing the need for such corrective post-conviction litigation in the future. 5

B. Trial Counsel’s Obligation to Provide an Affidavit upon Court
Order

Concerning first-chair trial counsel’s complete failure to comply with the habeas

court’s order to provide an affidavit, I have previously noted that when an attorney is

ordered to provide an affidavit in response to an Applicant’s habeas allegations and wholly

fails to do so, he violates his obligations under the Texas Rules of Professional Conduct,

as well as his oath and the Texas Lawyer’s Creed. Thus, it would be appropriate for the

trial court or this Court to take action and require an explanation from first-chair trial

counsel. See Ex parte Touchet, 615 S.W.3d 160, 161 (Tex. Crim. App. 2021) (Slaughter,

J., concurring) (“When lawyers (of any kind) or judges (of any kind) behave in a way that

shows a clear dereliction of duty, especially that which results in some kind of harm, every

member of the bar who becomes aware of it has an obligation to take action.”). 6

Though I agree wholeheartedly with the habeas court’s recommendations to grant

relief under the circumstances of this case, it concerns me that first-chair trial counsel will

5
See Tex. Code Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly establishing that
a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take
appropriate action.”).
6
Mistakes and misunderstandings are part of human nature, so I am not suggesting that every infraction
deserves punishment. Attorneys and judges should usually be given the benefit of the doubt because no one
is perfect. But where there is an intentional violation, egregious violation, repeated violations, or a
collection of several violations, there should, at the very least, be an investigation into such conduct.
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not be required to answer either for the underlying failure to file a notice of appeal or for

his later failure to respond to the habeas court’s order for an affidavit. Perhaps there is some

justification for first-chair trial counsel’s conduct, but in the absence of any response from

him, this Court will never know. I continue to believe that to ensure the integrity of judicial

proceedings and the accuracy of our determinations on post-conviction habeas review, trial

courts and this Court should at least consider issuing a show-cause order in such situations.

Allowing such non-responsiveness from attorneys to go unaddressed sends a negative

message about the importance of post-conviction habeas litigation, undermines the trial

court’s authority, and ultimately impedes our ability to fairly decide habeas claims. Though

a show-cause order is not warranted in every case, it should be considered on a case-by-

case basis and particularly for intentional, egregious, or repetitive infractions.

III. Conclusion

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

Filed: May 15, 2024

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