Barrera-Magana, Juan Carlos

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,099-01

EX PARTE JUAN CARLOS BARRERA-MAGANA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1338054-A IN THE 338TH DISTRICT COURT
FROM HARRIS COUNTY

Per curiam. Slaughter, J., filed a concurring opinion.

OPINION

Applicant was convicted of murder and sentenced to life in prison. The First Court of

Appeals affirmed the conviction. Barrera-Magana v. State, No. 01-14-00982-CR (Tex.

App.—Houston [1st Dist.] Dec. 17, 2015) (not designated for publication). Applicant, acting pro

se, filed this application for a writ of habeas corpus in the county of conviction, and the district clerk

forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.

In his application, Applicant contends that appellate counsel told him she would file a

petition for discretionary review (PDR) regarding the judgment of the appellate court affirming the

conviction, but she failed to do so. He complains that appellate counsel failed to timely inform him

of his right to file a pro se PDR, which he says he would have pursued. This Court remanded the
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habeas application to the trial court for a response from appellate counsel and findings. On remand,

the trial court appointed habeas counsel, supplemented the habeas record with appellate counsel’s

affidavit, and entered findings recommending that this Court deny Applicant a late PDR. Habeas

counsel filed objections.

This Court has made an independent review of the record. It shows that appellate counsel

mailed Applicant a letter with the appellate opinion enclosed. In the letter, appellate counsel told

Applicant, “I will file this petition for you.” Appellate counsel did not file a PDR, and the deadline

to do so expired. In Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997), this Court held, “If

appellate counsel’s action or inaction denies defendant his opportunity to prepare and file petition

for discretionary review, defendant has been denied his Sixth Amendment right to effective

assistance of counsel.” Appellate counsel was deficient as alleged.

Applicant says, “Had [appellate counsel] informed Applicant that she was not going to

prepare and file a PDR [and] inform Applicant of his legal rights to prepare and file a pro-se PDR,

Applicant would have timely filed a pro se PDR.” The record supports Applicant’s assertion that

he would have pursued a pro se PDR. In Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005),

this Court explained that a habeas applicant seeking a late PDR “is not required to show that the

proceeding would have resulted in a favorable outcome.” Appellate counsel’s deficient performance

harmed Applicant.

Relief is granted. Applicant may file an out-of-time petition for discretionary review of the

judgment of the First Court of Appeals in cause number 01-14-00982-CR. Should Applicant decide

to file a petition for discretionary review, he must file it with this Court within thirty days from the

date of this Court’s mandate.
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Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: November 22, 2023
Do not publish