Johnson, Kendrick

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-95,512-01

EX PARTE KENDRICK JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1623904-A IN THE 183RD DISTRICT COURT
OF HARRIS 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 petition for discretionary review. I write separately to, yet

again, emphasize the importance of appellate counsel’s duty to provide timely and accurate

information to clients regarding the right to file a pro se PDR following resolution of a

direct appeal. In this case, appellate counsel failed to timely inform Applicant of this right,

thereby depriving Applicant of his ability to pursue review in this Court. This situation

happens far too frequently and is a troubling sign that far too many appellate attorneys are

routinely failing to carry out their duties in this regard, resulting in unfairness to clients and
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excessive post-conviction litigation to correct such errors. In this case, Appellate counsel

claims his failure resulted from a clerical mistake in his office. This is a very common

reason given by attorneys that is wholly unacceptable because such mistakes are readily

and easily avoidable. As I have said before on multiple occasions, attorneys need to

implement safeguards to avoid these simple mistakes that result in a waste of time and

resources and deprive applicants of a due process right.

I. Background

On November 8, 2021, a jury convicted Applicant of murder and sentenced him to

life imprisonment. 1 On direct appeal, Applicant challenged the trial court’s ruling on a

motion to suppress evidence from a cell phone found near Applicant when he was arrested.

On October 19, 2023, the First Court of Appeals issued its opinion holding that Applicant

lacked standing to challenge the constitutionality of the search and seizure of the cell

phone, thereby resulting in affirmance of the trial court’s judgment. Johnson v. State, No.

01-21-00636-CR, 2023 WL 6884173, at *1 (Tex. App.—Houston [1st Dist.] Oct. 19, 2023,

no pet.) (mem. op., not designated for publication). Because no motion for rehearing was

filed in the court of appeals, the deadline to file a petition for discretionary review occurred

30 days later. See TEX. R. APP. P. 68.2(a). However, no petition was filed.

In the instant post-conviction habeas application, Applicant alleges that appellate

counsel did not inform him of the court of appeals’s decision, or of his right to file a pro

se PDR, until sometime after the mandate issued on December 29, 2023—more than a

1
See TEX. PENAL CODE § 19.02.
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month after the deadline to file a PDR had passed. Applicant now seeks relief in the form

of an out-of-time PDR, contending that, but for appellate counsel’s failure to timely notify

him of the court of appeals’s decision, he would have timely filed a pro se PDR with this

Court.

In response to the allegations, appellate counsel provided an affidavit stating that

due to a clerical error in his office, he did not know that Applicant’s conviction had been

affirmed until after the mandate was issued. Nonetheless, appellate counsel acknowledges

that as a result of the error, he “failed to comply with TRAP Rule 48.4’s requirements to,

inter alia, timely send a copy of the direct appeal opinion and judgment to [Applicant] and

to notify him of his right to file a pro se petition for discretionary review.”

The habeas court found that appellate counsel failed to comply with Rule 48.4 and

that but for counsel’s error, Applicant would have timely filed a pro se PDR. Accordingly,

the habeas court recommends that this Court grant Applicant an out-of-time PDR.

II. Appellate Counsel’s Duties Under the Appellate Rules

Criminal defendants have a constitutional right to the effective assistance of

counsel. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L.Ed.2d 674 (1984). This right to effective assistance extends to the first direct

appeal. Evitts v. Lucey, 469 U.S. 387, 395–96, 105 S. Ct. 830, 83 L.Ed.2d 821 (1985);

Ward v. State, 740 S.W.2d 794, 799 (Tex. Crim. App. 1987). Although a criminal

defendant has no right to the assistance of counsel for purposes of actually pursuing

discretionary review, appellate counsel still has the duty to timely notify him of his right

to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim. App. 2008)
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(detailing appellate counsel’s duties to clients upon denial of relief on appeal). This

obligation is codified in the Texas Rules of Appellate Procedure:

In criminal cases, the attorney representing the defendant on appeal shall,
within five days after the opinion is handed down, send his client a copy
of the opinion and judgment, along with notification of the defendant’s
right to file a pro se petition for discretionary review under Rule 68. This
notification shall be sent certified mail, return receipt requested, to the
defendant at his last known address. The attorney shall also send the court of
appeals a letter certifying his compliance with this rule and attaching a copy
of the return receipt within the time for filing a motion for rehearing. The
court of appeals shall file this letter in its record of the appeal.

TEX. R. APP. P. 48.4 (emphasis added). As Rule 48.4 clearly states, appellate counsel must

“within five days after the opinion is handed down”: (1) send a copy of the court of

appeals’s opinion and written notification of the defendant’s right to pursue a pro se PDR;

and (2) send that notification via certified mail, with a return receipt requested. Further,

counsel must also send the court of appeals a letter certifying compliance with Rule 48.4.

In this case, it is apparent that appellate counsel failed to comply with Rule 48.4 by

failing to send Applicant timely notification of the court of appeals’s decision. This, by

itself, justifies granting Applicant an out-of-time PDR. See Ex parte Riley, 193 S.W.3d

900, 902 (Tex. Crim. App. 2006) (“Normally, when an appellant is not informed of the

decision of the court of appeals by his attorney in time for him to file a petition for

discretionary review, it will be ineffective assistance of counsel.”). Moreover, the record

indicates that appellate counsel did not inform Applicant of his right to file a pro se PDR

until more than a month after the deadline to file had passed. But as the language of Rule

48.4 makes clear, appellate counsel must inform his client of that right within five days of

the court of appeals’s decision being issued. See TEX. R. APP. P. 48.4. Thus, appellate
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counsel’s failure to timely inform Applicant of his right to file a pro se PDR constitutes an

independent basis for finding appellate counsel ineffective in this case. See Ex parte

Owens, 206 S.W.3d 670, 675 (Tex. Crim. App. 2006). Accordingly, appellate counsel’s

failure to comply with Rule 48.4 deprived Applicant of an entire proceeding, such that he

is entitled to an out-of-time PDR. See Ex parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim.

App. 1997) (“If appellate counsel’s action or inaction denies a defendant his opportunity

to prepare and file a petition for discretionary review, that defendant has been denied his

sixth amendment right to effective assistance of counsel.”); Ex parte Crow, 180 S.W.3d

135, 138 (Tex. Crim. App. 2005) (“Losing the right to file a PDR constitutes the

deprivation of that entire proceeding.”).

III. Appellate Counsel’s Duties Under the Rules of Professional Conduct

More generally, I also note that the Texas Disciplinary Rules of Professional

Conduct require lawyers to keep clients reasonably informed of any case developments

and to effectively communicate with their clients in a manner that permits the clients to

make informed decisions related to their cases. Tex. Disciplinary Rules Prof’l Conduct R.

1.03(a)–(b). Further, in representing a client, a lawyer “shall not neglect a legal matter

entrusted to the lawyer.” Id. R. 1.01(b)(1).

Ultimately, appellate counsel’s failure to timely communicate with Applicant about

the status of his case fell short of the standards of professionalism set forth in the

disciplinary rules. Such failure also places unnecessary burdens on the courts and causes

judicial inefficiency that wastes taxpayer dollars. I certainly understand and acknowledge

that we are all human beings who make mistakes. But based on the sheer volume of cases
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in which this or similar problems arise, it is my ethical obligation to bring attention to this

issue so that attorneys may be reminded of the effect of failing to stay abreast of case

developments and timely communicate with their clients. See Tex. Jud. Code 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.”). It is my hope that by bringing attention to this issue, attorneys will

be motivated to take steps to ensure that such situations do not occur in the future.

IV. Conclusion

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

Filed: June 12, 2024

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