Mabe, Christopher Lee

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NOS. WR-95,069-01 & WR-95,069-02

EX PARTE CHRISTOPHER LEE MABE, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 42608CR/A & 42609CR/A IN THE 40TH DISTRICT COURT
FROM ELLIS 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

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

accurate information to clients regarding their right to file a pro se PDR following the

resolution of their direct appeals. Here, appellate counsel failed to adequately inform

Applicant of this right, thereby depriving Applicant of his ability to pursue review in this
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Court. This situation happens far too frequently and is a troubling sign that some appellate

attorneys are routinely failing to carry out their duties in this regard, thereby resulting in

unfairness to clients and excessive post-conviction litigation to correct such errors.

I. Background

On October 5, 2018, Applicant pleaded guilty to two charges of aggravated sexual

assault of a child. Pursuant to a plea agreement, the trial court placed Applicant on deferred

adjudication community supervision for a period of 10 years and imposed a $2,000 fine for

each offense. Less than a year later, the State filed a motion to adjudicate Applicant’s guilt,

alleging a litany of probation violations. The court found the State’s allegations true,

adjudicated Applicant guilty on both charges, and imposed two consecutive life sentences.

Applicant timely appealed. On July 27, 2022, the court of appeals affirmed the trial court’s

judgments. See Mabe v. State, Nos. 10-21-00282-CR, 10-21-00283-CR, 2022 WL 2977476

(Tex. App.—Waco July 27, 2022, no pet.). The deadline to file a petition for discretionary

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

(providing that petition must be filed within 30 days after either the day the court of

appeals’ judgment was rendered or the day the last timely motion for rehearing or timely

motion for en banc reconsideration was overruled by the court of appeals).

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

counsel failed to properly advise him regarding his right to file a pro se PDR in this Court.

The record reflects that, on July 29, 2022, appellate counsel sent Applicant a letter notifying

him of the court of appeals’ decision along with a copy of the court’s opinion and

judgments. The letter indicated that there were “quite a few discrepancies” in the court’s
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opinion and that there were viable “grounds to appeal.” But counsel seemed to suggest that

he would be assisting Applicant with filing the PDR by stating, “We have 30 days to put

in a petition for discretionary review of the Order denying the appeal . . . . The fee for the

petition is $7500.00. We believe that the petition to the Texas Court of Criminal Appeals

is the proper remedy at this point.” Applicant alleges in his application that this language

caused him to incorrectly believe that appellate counsel would handle filing the PDR on

Applicant’s behalf and that the $7,500 was a filing fee to be paid to this Court, rather than

attorney’s fees.

Appellate counsel filed an affidavit responding to Applicant’s allegations. Counsel

explained that after sending the aforementioned letter, he had a telephone conversation

with Applicant to discuss next steps, which could include filing either a PDR or an Article

11.07 writ application. According to counsel, Applicant stated that he would need to speak

to his mother before moving forward because he was concerned about whether she would

be able to afford the fees. Counsel stated that he did not use the term “pro se” during this

conversation, but he did tell Applicant that if he were unable to hire appellate counsel to

file a PDR, “he could file on his own.”

The habeas court ultimately found that, while appellate counsel’s letter informed

Applicant of his right to file a PDR, it violated Rule of Appellate Procedure 48.4 by failing

to inform Applicant in writing that he could do so pro se. Accordingly, the habeas court

recommended granting Applicant an out-of-time PDR on that basis.

II. Appellate Counsel’s Duties Under the Appellate Rules
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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 (1984). This

right to effective assistance extends to the first direct appeal. Evitts v. Lucey, 469 U.S. 387,

395–96 (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 a duty to advise the defendant

regarding his right to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim.

App. 2008) (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: (1) send the defendant a copy

of the court of appeals’ opinion and notify the defendant, in writing, of his right to pursue

a pro se PDR “within five days after the opinion is handed down;” (2) send that notification

via certified mail, with a return receipt requested; and (3) send the court of appeals a letter

certifying compliance with Rule 48.4. As the record here reflects, counsel’s letter to

Applicant referenced the possibility of filing a PDR, but the letter made no mention of

Applicant’s right to do so pro se. Thus, the letter failed to strictly comply with the
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requirements of Rule 48.4. Further, although counsel claims to have advised Applicant of

his ability to file a pro se PDR during a subsequent phone conversation, it is unclear

whether Applicant understood counsel’s statements. It is precisely because of the

possibility of miscommunication or misunderstanding that Rule 48.4 requires that this

information be put into writing. Counsel’s letter here was misleading and suggested that

counsel would handle the filing of the PDR for a fee. It is apparent from the record that

Applicant decided not to pursue a PDR because of financial considerations. Given the

circumstances, I agree with the habeas court’s assessment that counsel’s conduct in failing

to properly advise Applicant in writing that he could pursue a pro se PDR 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) (per curiam) (“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 Owens, 206 S.W.3d 670, 675 (Tex. Crim. App.

2006) (noting that counsel’s failure to inform a client of his right to pursue a petition for

discretionary review “deprive[d] him of an 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 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
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counsel’s failure to properly communicate with Applicant regarding his right to pursue a

pro se PDR fell short of the standards for 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, given the sheer volume of cases in which this or similar

problems arise, it is my ethical obligation to bring attention to this issue so that all attorneys

may be reminded of the effect of failing to properly communicate with their clients. 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.”). By bringing attention to this issue,

perhaps this attorney and other appellate attorneys will be motivated to implement

procedures to ensure that similar situations do not occur in the future.

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

Filed: November 1, 2023

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