Ayala v. State

longer viable to progeny is no State accept he should policy

the new as well. judgment

Accordingly, I concur

the Court.

ROBERTS, J., joins. AYALA, Appellant, Robleto

Albert Texas, Appellee. STATE

No. 235-82. of Criminal

En Banc. 2, 1982.

June Alan Ander- Enriquez, Richard

Paul V. Dallas, son, appellant. appeal only, Wade, Atty. Henry G. Henry Dist. & Ludwick, Asst. Greg Mary Davis Whitley, & Huttash, Dallas, Robert State’s Attys., Dist. Austin, Atty., for the State.

527 knowledge that after notice by certified Appellant mail from counsel did re- quest to view the record or pro file a se OPINION ON APPELLANT'S PETITION However, Appellant brief. has demanded FOR DISCRETIONARY REVIEW that counsel file this Motion for discre- ROBERTS, Judge. appeal review of his tionary by the Court of burglary After he was convicted on a Appeals.” Petition for Dis- plea guilty, Ayala gave appeal. notice of cretionary Review 3. (who joined His was grounds This lacks even colorable

the brief another filed a brief attorney) for we but write because it reflects appeal which certified that “with was misconception duty appellate about the frivolous”; . .. attorney out merit and counsel which others share. copy certified that delivered a The United States Constitution brief him that advised require does not to provide appellate a state he could examine the record and file a brief right courts or a appellate review of pro California, generally se. Anders v. Durston, criminal convictions. McKane v. 738, 1396, 386 U.S. 87 S.Ct. 18 L.Ed.2d 493 684, 687-688, 14 913, 914-915, 153 U.S. S.Ct. State, (1967); High (Tex. v. 573 S.W.2d 807 But, (1894). 38 867 L.Ed. if state chooses Cr.App.1978); State, Currie v. 516 S.W.2d them, provide the Fourteenth Amend State, (Tex.Cr.App.1974); 684 v. Jackson poor ment forbids it to deny defendants an 485 (Tex.Cr.App.1972); S.W.2d 553 Gainous adequate Illinois, review. Griffin v. 351 State, (Tex.Cr.App.1969). v. 436 S.W.2d 137 12, 585, 76 (1956). U.S. S.Ct. 100 L.Ed. 891 The did not pro file a brief se. Specifically, may deny indigent de affirmed, The appeals agreeing court of fendants the services of counsel on the first appeal “wholly frivolous and level of appeal conviction, from a criminal without merit.”1 grants which it as a right. Doug matter of counsel has filed a California, 353, las v. 372 U.S. 83 S.Ct. only ground review. The (1963). 9 L.Ed.2d 811 the merits “[W]here 2 “request” is a review we examine the one and has the record for error. The reasons for re- right as of are decided without benefit of toto, view,3 in are: counsel, we think an unconstitutional line REQUESTS “APPELLANT THAT has been drawn between poor.” rich and THIS HONORABLE COURT EXAM- Id. at (emphasis 83 S.Ct. at 816 INE THE RECORD AND TRAN- original). But the Fourteenth Amendment OF THE SCRIPT CASE FOR ERROR require does not to provide state indigents TRIAL, AND TO GRANT A NEW with the services of in seeking dis [sic] cretionary beyond step review the first “Appellant acknowledge Moffitt, wishes appeal. Ross v. 94 U.S. the Court he brings motion S.Ct. 41 L.Ed.2d 341 Since an specifing without to the Court error. appellant has no constitutional [sic] Further, brings that he with- motion counsel in seeking such discretionary re view, pointing important out out to the Court deprived he could not be of the effec questions of state law in conflict with the tive assistance counsel by his counsel’s applicable decisions of the United States failure to a timely application file for re Appellant wishes to ac- view of an intermediate court’s decision. Ayala 05-81-00818-CR, 1. slip op. No. 3.A review “shall in- (Tex.App. Dallas, January 1982) (un at 2 reported). Tex.Cr.App.R. clude” reasons 304(d)(5). — 2. A in- review “shall grounds questions present- clude” 304(d)(4). Tex.Cr.App.R. ed for review. -, Torna, - “(2)

Wainwright appeals Where a court of (1982) (per cur L.Ed.2d decided an important question of state iam).4 or federal not been, law which has but be, should settled Court of Crim- any crimi defendant Appeals; inal appeal. V.A.C. nal action has of “(3) appeals Where a court of has C.P., Except 44.02. for cases in Article question decided an of important state assessed, penalty death has been which the federal ap- or law in conflict with the right a matter is to a court of plicable of decisionsof Court Crimi- Constitution, 5, Texas Article appeals. of Appeals Supreme nal or the Court of The of the courts of Section 5. decisions States; the United court, by be reviewed but appeals “(4) appeals Where a court has right no such a review. appellant has to unconstitutional, appears declared or to “Discretionary review misconstrued, statute, rule, have a reg- right, is not a matter ulation, ordinance; or judicial discretion.” Id. but of sound “(5) justices Where the the court Therefore, the Amendment does Fourteenth a appeals disagreed upon have mate- indigent pro be appellants require necessary question rial of law to its seeking with the services of counsel vided decision; and Ross discretionary review in this court. v. “(6) appeals Where a court has so 2437, 600, Moffit, 41 417 U.S. 94 S.Ct. departed accepted far from the (1974). Indigent appellants are L.Ed.2d 341 judicial proceedings, usual course of or assistance of deprived of the effective departure a so far sanctioned such a file fail to a appointed if court, call for an exercise of lower as to a court discretionary review of for Appeals’ power the Court of Criminal Wainwright v. appeals’ decision. See - supervision.” 1300, -, Torna, 102 71 U.S. S.Ct. (1982) curiam). The (per 475 Unit L.Ed.2d Tex.Cr.App.R. 302(c). impose does not a ed Constitution States appellant right This had no to “de file a appointed counsel to

duty on appointed that his counsel file a mand” this court. discretionary review for review, discretionary for coun duty, imposes no such either. law State duty no file it. It is without sel had V.A.C.C.P., 26.05. 26.04and In Articles merit, and it is refused. 302(c)indicates that fil- Tex.Cr.App.R. review discretionary ing McCORMICK,J., concurs result. far from a matter routine: should be CLINTON, concurring. Judge, grant “(c) determining whether follow- deny discretionary fraught very with controlling fully neither nor ing, while potential much low mischief. high Appeals’ measuring the Court of Criminal indigent pity now one feels Even discretion, indicates character rea- whose counsel achieved will be sons that considered: appeals and reversal court of appellate affray retired from the “(1) appeals proudly Where victory, leaving his erstwhile client in conflict the with rendered decision seeks when State appeals on to fend himself of another court of decision this Court. matter; from the same timely application say indigent appellants re make a is not to 4. This so, example failing ap- do view and from misfeasances have no recourse —then process might violation. See there be a due pointed of an inter- counsel after the decision Torna, - U.S. -, -, Wainwright n. an counsel de- court. If mediate 1300, 1301, se, pro n. 71 L.Ed.2d 475 apply, 102 S.Ct. prived the client of his volunteering review —

529 Douglas California, 2446-2447, 83 U.S. still the Supreme Court was de 814,9 (1963), Supreme S.Ct. L.Ed.2d 811 claring just what it concluded is the “duty Court of the United States held that cases,” of the State under our and even “where the merits of the one and only Supreme up then the wound find peal indigent has of are decided ing duty “only to assure the without benefit of we think an adequate opportunity defendant an unconstitutional line has been drawn be- present his fairly claims in the context of id., poor,” tween rich and U.S. at 616, 94 appellant process,” State’s id., (emphasis original). S.Ct. at 816 That again, then, S.Ct. at 2447 — back per Court later turned that hold- ception of that which is “fair.”1 ing upside down to come to its conclusion in Though in a cause has the Moffitt, Ross v. “right” to grant have this Court discretion (1974) oblige L.Ed.2d 341 does not ary certainly has the Court to our stand own Constitution on its petition the Court “for review head. of the deci sion of a appeals case,” court of in that aIn context of the constitutional caution 44.45(b)(1), Yet, Article V.A.C.C.P. in find that discretionary by review this Court “is ing appointed that an appellate attorney anot matter right, judicial but of sound duty has no petition to file a for discretion discretion,” V, Article it is easy § review ary by though may it not conclude that denial of discretionary review so, actually say by fundamentally this Court is not leaves unfair perforce process impression violation of due one with the firm that an indi requirements. But it ais mistake to con- gent appellant is not entitled to assistance centrate on mandates of “the due course preparing counsel in and filing land,” V, the law of the Article such § petition for discretionary review. That ignores that one the constitutional insis- view perilously comes to approving close tence that equal free men... have “[a]ll unequal treatment upon “founded unrea I, rights,” Article 3. Granted that § sonable and unsubstantial classification of Opinion Moffitt, of the Court in Ross v. persons” paupers. who are See Rucker v. supra, 611-616, U.S. at 94 S.Ct. at 2444- State, Tex.Cr.R. 342 S.W.2d “equal protection resolved notions” of It presages also trouble in against Fourteenth Amendment Moffitt store who is converted on its theory own of relativeness: “But respondent into a on the State’s opportunity both the pre- to have counsel petition discretionary review. All of pare an initial brief in the just which is some of the mischief alluded discretionary nature of review in to at the outset. Supreme Court North Carolina make However, Judge like Teague, this relative because the handicap far less than the petition handicap indigent pre- borne review defendant pared denied counsel on his initial as of and has been filed id., Douglas,” in appellate counsel, 94 S.Ct. at I would beyond not reach majori- general 1. principles equal As envisioned rights constitutional ty, framing request in equal protection, for review an viz: satisfactorily could make do with the repugnant state law is “[A] to either prepared by appellate brief and filed counsel in provision long unequal constitutional so as appeals. the intermediate court of persons upon treatment of a reason- based routinely this Court refuses a for re- persons. able and substantial classification merely grounds view which error since that does restates failed Unequal persons treatment of under a state give why us reasons upon law which is founded unreasonable and granted. Tex.Cr.App. review should be unsubstantial classification constitutes dis- 302(c). Rule criminatory state action and violates both the state federal constitutions.” Though addressing problem 2. different Rucker, supra, the Court solved it resort to petition, and since or support the merit of substantiate this statement of Nevertheless, refusing it. counsel. I will none I concur assume it is true. J.,

ONION, joins. P. appellant’s petition The for discretionary summarily should review have been refused TEAGUE, Judge, concurring and dissent- it fails comply because with this Court’s ing. 304(d)(4), Tex.Cr.App.R., Rule pro- which major- only in the result that the I concur vides as follows: in this cause —that ity of this Court reaches (d) A discretionary re- appellant’s petition for possible. shall be as brief as shall be view should be refused. addressed ‘the Court of Criminal Ap- also confess the reader I must peals of state the Texas’ and shall name anyone yet figure why out would have party parties applying of the for re- alarm, this, as case such sound view. The shall include the fol- majority. has been done this cause lowing: appellant’s petition summarily have been refus- review should (4) Review. A Grounds for statement ed, and the members of this Court should grounds upon which the wasting their and limited not be valuable predicated shall be stated in short case, reasons herein- on this because of time argument form without and the after stated. grounds separately shall be numbered. therefore, the I, only filing in result the party concur Where the However, record, (after in do- to he shall majority. the access the reached ground) page each to the so, disagree I must refer ing strongly I find law, complained record where matter of which the majority’s new is the rule review, grounds is found. is, lieu of opinion, that that implicitly stated the questions the contain represent- where a is in all cases defendant review, expressed presented for in the appeal, it by court counsel ed and terms circumstances the case counsel to necessary never be for such shall unnecessary but without detail. The and file a prepare questions statement of the should be majori- My reading literal and should short concise and not be leads me to conclude that ty’s opinion argumentative repetitious. today perhaps acting Legislatively I further judicially, it should. and anyone should be It obvious to that is filled majority’s opinion find that statement, “Appellant has that demanded predict booby-traps, which with sand and file this discre- Motion [sic] unnecessarily cause this in the future will tionary appeal review of his this [sic] many headaches many, members Court’s Appeals,” is Court of Criminal not a [sic] problems. review, ground of a nor is it a statement by this question presented for review apparent anyone who should be to than a nothing it is more concise opinion that carefully majority’s reads the counsel, which could have statement writing provoked the apparently what easily in a short been more stated letter appellant’s is the fact that court, the trial the Clerk of Court of counsel, in his court Court, or the of this with the Appeals, Clerk he was stated that question, do I do additional “What now?” “Appellant has same because however, me, Motion apparent that counsel file this It is that be- demanded [sic] appeal Legislature of his of this State has nev- cause Ap- pass legislation explicitly gov- seen fit to this Court of Criminal er by [sic] [sic] counsel, appointment of this Added). erning the peals.” (Emphasis has not to outline in its rules record to Court seen fit absolutely nothing in the there is

531 ap- responsibilities anatomy. the duties and of court area The jury, of her and under- so, pointed rejected appellant’s filed a standably appli- after counsel has probation and appeal pun- brief” cation for assessed “frivolous with the Court his range punish- ishment within lawful Appeals, prompted is what imprisonment. though Even pointed counsel to ment at life do what he did plead provided Texas law guilty, he at that cause. appellant appeal time had the Although I cannot fault for what 44.02, his conviction this Court. Cf. Art. Sullivan, cause, Cuyler he did in this see V.A.C.C.P., plea bargain which concerns 335, 100 L.Ed.2d 333 type pleas guilty or nolo contendere. (1980); parte Ex Duffy, 607 S.W.2d 507 jurisdiction appellant’s appeal Because (Tex.Cr.App.1980), I sincerely believe that Court, in this at that time time, time, his and this Court’s would have gave appeal to notice of this Court. How- spent better been had he used the addition ever, Tex.Gen.Laws, because ch. Sec. spent al that he drafting page time his Septem- which became effective petition for on his discretionary review 1,1981, appellant’s appeal ber was thereaft- Appeals, he filed with the brief Court of processed er the 5th Appeals Court of absolutely I find because V.A.C.C.P., 40.09(8), Dallas. also Art. totally insufficient under this Court’s deci as amended. High State, (Tex. sion of 573 S.W.2d Because the was still Cr.App.1978). Cf. Gainous v. gave when he notice of appeal to this 137 (Tex.Cr.App.1969). S.W.2d Neverthe “appointed the trial court same attor- [the less, as the contents of the did not brief ney] represent [appellant] on appeal concern members of the Court of 5th However, appellant, herein.” in his affida- Appeals, apparently do concern the vit of indigency, specifically stated other members of this I will there wanted “to said conviction to the fore defer the decision of Appeals Texas.” In- satisfactory that it was under our terestingly, appellant placed after law, appears if for no other reason than this Court, appeal cause on to this another attor- to a appel be “non-contested” case-because ney on appeared his behalf in his cause. plead guilty lant to his accusation. new attorney Whether this is a “free” at- brings up question, Which the how did torney, attorney, retained or a volunteer get this case to this I anyway? Court find attorney seeking appellate experience is not past history that a short review of the of Nevertheless, shown the record. he this be of case interest to reader of the signed appeal “frivolous of certificate opinion. this Gainous, supra, High, counsel.” See and Appellant, a married two man with chil- supra. that, The certificate evidences dren, charged was by indictment with com- appeal counsel’s opinion, was frivolous. mitting felony criminal offense bur- California, See Anders v. neighbor’s of a habitation glary former [his 18 L.Ed.2d 493 As rape with intent to and commit residence] present signature appears counsel’s also on neighbor]. and from his theft former brief,” [of I “frivolous must assume he appellant indigent, was the trial Because concurred new with counsel’s conclusion present judge appointed rep- to By that was frivolous. appeal the rec- plea a jury him. A trial before a on resent Appellant appeal, ord on has never stated occurred, with the guilty facts displeasure writing any with the conclusion showing into case broke his appeal of counsel that was frivolous. and entered the his former petition discretionary residence of even in knew, who he there- neighbor, hardly nothing and is to there stated therein her, up, her, raped tied her any by appellant after sodomized reflect dissatisfaction appears counsel, the statement of facts to nor has the ever dem- attempted vaginal any pro desire to file a brief se. have mutilate onstrated appel Appeals affirmed an appellate having juris-

The Court court criminal January 1982. No year, lant’s conviction diction since 1840. in Re- Smith, Dallam, 407, rehearing by appellant public was motion for filed Republic or On March Texas defined his counsel. Blackstone) (quoting an com- appeal the assistance of the as ‘a without plaint superior injustice a court Ap other filed with the Court of attorney, gives done inferior one.’ Mr. Black denominated, by an For peals he “A Petition what a Black's Law Dic- similar definition. appel This Discretionary Review.” act (Citations supra, at 124. tionary, immediately appointed attorney lant’s court Omitted). Footnote triggered of events which has a chain guidelines, By Following cause to this these definitional it brought appellant’s petition certiorari, seems Tex.Cr.App.R. 304(b), (f), (g), clear that terms Texas practice, like a writ of error in is file the Clerk of the Court shall (Ci- ‘appeal,’ discretionary an albeit one in that Omitted). say To that review by tations processing after administrative appeal certiorari does not constitute an is will record to this Court. then send the substance, without a distinction make like the Appeals, of the Court Clerk necessarily since a review involves such choice about Clerk of this superior attempt persuade an or file the to whether matter as error of a lower court. correct Neither petition for the contents of the are concerned about Hill, See also Faulder S.W.2d If instrument. it is labeled denominated J., (Onion, (Tex.Cr.App.1981) P. Dis Re entitled, Discretionary “Petition senting Opinion). view,” filed as such. Once the it will be alone, By the mere fact of definition it is Court, it is administra record reaches this is no substantive dif- submitted that there tively As noted this processed. certiorari,” ference between “a opinion, unanimous and “a review.” of the Court that the members Law Dictionary, See 1443 Black’s 5th Edi- refused. should be tion. believe, That, should have ended the Review intermediate However, because counsel in his matter. appellate Court’s decision either with or same “petition” stated that latter, petition. without a In the the Court solely his client “demanded because order a empowered itself is record on discre- file this Motion [sic] Appeals. Tex. from a Court appeal by of his tionary review [sic] instance, Cr.App.R. former re 303. In the Appeals,” great of Criminal [sic] at the by view occurs this Court instance expend- unnecessarily deal has been of time State, if moving of the Court on this cause. by ed members petition a party timely files discretion Nevertheless, implicitly by stated as particular Court of ary review with V.A.C.C.P., 26.05(e), terms of Art. State Appeals. Tex.Cr.App.R. 304. Texas, through Legislature, has indi- petition of a by Review this Court provide legal assist- policy cated a State a “is not discretionary review matter course criminal throughout ance of a judicial right, of sound discretion.” but filing “appeal,” I which believe includes 5, 5, That Art. Texas Constitution. Sec. a however, alone, statement, standing ignores State, S.W.2d White peti- the filing between of a differences Roberts, J., who wrote (Tex.Cr.App.1976), tion and the stated plurality opinion petition. previous- As ruling Court’s part: noted, enti- ly every instrument labeled or tled, ‘ap- Discretionary by Review reveals that the word “Petition for

Our research Appeals,” is automat- peal’ by been construed in Texas Court of Criminal has not ically upon receipt by filed the Clerk of the Appeals cause, has affirmed his client’s and Thereafter, Appeals. upon receipt evil, evil, Court of can thereafter see no hear no evil, speak of this it is then filed the Clerk no then he has legal satisfied his obligation indigent with this Court. toward his court pointed wholeheartedly disagree client. I Thus, now, up September and since this should become the law. se, long pro as a de- defendant a opinion represented attorney, it is an like fendant an or the this which can controversy” “get the blood of timely judge’s State filed an instrument labeled or in a parte Ex Williams, Mc neck. See entitled, 632 S. W.2d “Petition for Review Discretionary Clinton, J., (Tex.Cr.App., dissenting). by the Court of Appeals,” after it administratively been processed, had this admit, And I unashamedly this opinion granted Court has either or refused same. “get does the blood of controversy my Everyone has been equally. treated We neck.” depart should not from un- procedure, less, course, it should later be determined But, reader, do misinterpret or misun- change the Court that a is substantive my feelings derstand pe- beliefs. This necessary. tition for review does not even come close to satisfying this however, Court’s

Today, I a fear that 304(d)(4), Rule and the should have this Court has wrongfully unnecessarily refused, been summarily after singled indigent administra- special out defendants for processing tive treatment, holding by this person a if —without Court. indigent he has no absolute to the assistance court counsel in the The State of Texas has long way come a preparation of a for dis- in providing indigent defendants with the cretionary review with this Court from the assistance of counsel. Before Gideon v. Appeals. Wainwright, 372 U.S. 83 S.Ct. believe, however, I that Texas’ law to (1963), L.Ed.2d 799 provided this State contrary. I further find that the ma- assistance of counsel to those persons who jority’s opinion effectively closes this wanted counsel and were poor too to em indigent Court’s “courthouse door” to de- ploy counsel. in recognizing this fendants who are any not endowed with great moment of past, urge our I all not to legal But, time, skills. the same chapter history overlook darker in the open pow- “courthouse door” remains to the jurisprudence, our criminal where an indi erful State as well as those de- gent defendant who had ‘been assessed the fendants who financially employ are able to penalty by jury death provid neither choice, counsel of their to file ed nor afforded the assistance of counsel in This, me, discretionary review. is dis- appeal. fear, Today, we have reverted sort, crimination of the rankest and should Savage days 155 Tex. countenanced, neither be or per- tolerated (1951), Cr.R. 237 S.W.2d 315 when the reader, mitted But dear legal duty of a appointed attorney majority opin- make mistake about the penalty a death case terminated after his ion: does discriminate: All de- client penalty by jury received the death fendants on who been repre- have Jur., in the trial court. See also 4 Tex sented counsel are not Cases, 3, Appeal and Error — Criminal Sec. entitled to the assistance of 17; counsel the Pennington State, p. v. Tex.App. 13 44 filing State, preparation petition and of a for dis- (1882); (Tex.Cr. v. Mass 81 S.W. 45 cretionary review. Court appointed attor- times, App.1904). Interestingly, in former also, neys, should not misunderstand the when an defendant was not enti opinion. If court appointed coun- ap tled to the assistance of counsel in his sel morally ethically peal can make like the to this this Court that if stated proverbial monkeys, three after a Court of it were established to the satisfaction of

534 procedure insuffi- nal law that the evidence was establish this Court minimum guilt, or the defendant’s cient to establish Constitutional standards. The States of the Union, Texas, which he had a meritorious defense which includes are that free to the court in its instruction establish stricter standards than ignored by those re- was incompetent preju- quired by 3, Vol. Supreme to or that the No. jury, 10, objec- Report, his Law evidence was admitted over Search and Seizure dicial Octo- ber, tion, 1976. appoint the trial court should then Spalding counsel. indigent defendant See I acknowledge that the United States Su- 329, 457 v. 127 137 Tex.Cr.R. S.W.2d preme Court has held that there is Fed- no However, has (1939). to date my research right eral to counsel Constitutional in seek- rule of that beneficiary revealed a yet ing discretionary appellate review of an de- law, left me to conclude that which has Moffitt, 600, cision. Ross v. 417 U.S. 94 to its own was directed to this Court make 2437, (1974). S.Ct. 41 L.Ed.2d 341 I also whether or not fundamental determination failure of acknowledge that counsel to existed, indigent’s cause in an error petition for review does not to include the trial courts was never meant counsel, constitute ineffective assistance 44.24, Art. V.A.C.C.P. of this State. - Wainwright Torna, -, v. U.S. 102 1300, (1982), L.Ed.2d 475 that the State of Texas S.Ct. 71 unless be true is a for statutory requirement to there required by the Federal Constitution his appel- right or a to to inform the defendant of to provide appellate courts petition petition file the if say at all. But that is not to and to the de- late review Texas, S., grant requests. fendant so Wilkins v. U. 441 which does State 1829, review, way do so that U.S. 60 L.Ed.2d 365 can in a S.Ct. appellate (1979). against a convicted defendant discriminates re- poverty. Appellate on account of However, I also do not overlook what view, including the Rehnquist Supreme Justice of the Court discretionary review Moffitt, supra. stated in do Ross “We integral part system our become an now any way not mean justice finally adjudicating of criminal have, discourage which those as a States innocence a defendant. guilt choice, matter made legislative stages proceed- “Consequently, at all available convicted defendants all at Equal Protection

ings, Due Process stages of judicial review.” 94 S.Ct. 2447. persons [appellant] like protect Clauses The Legislature of State invidious discrimination.” Griffin from tell, fit far as has never seen can enact Illinois, 76 S.Ct. 100 L.Ed. 351 U.S. legislation which could be construed to limit justice be equal There can of the assistance of counsel in enjoys a man where the kind appeals, criminal direct appeals to which money amount of he has.” “depends on the include a Griffin, Id., 591. 351 U.S. 76 S.Ct. supra, right. see taken as a matter California, Douglas v. session, Legislature, very last (1963), Supreme 9 L.Ed.2d 26.05, 1(e), provide amended Art. Sec. held that an of the United States Court payment “For to court as- was entitled to the indigent defendant prosecution a final conclusion of a appeal. of counsel sistance appeals bona fide a court of or the appeal to decided, Appeals, a reasonable fee Douglas by Court Criminal since but in no event to be set Supreme Court of the Unit- decisions of [trial] Added). (Emphasis be States, rights guaranteed less than $350.” minimum ed Implicit Legisla- the intent of therein is citizenry under Federal Constitu- our to apply was meant Never- ture the statute sorely diminished. tion have been discretionary review. An theless, forgotten be it should never peal, unquestionably, crimi- includes the decisions of State, su- discretionary review. White v. by Supreme been lauded the Court of the Hill, supra. pra; Faulder v. It therefore States, put United rather than by down the apparent anyone Leg- be should that Court, Supreme D(2) because of Rule VII of islature of this State has made counsel the Rules of the Fifth Circuit Court convicted defendants available provides: Appeals, which judicial of the stages process. at all review appeal If the Fifth Circuit affirms the noted, previously As the trial court otherwise decides the cause adversely pointed present represent [ap- counsel “to [defendant], appoint- the interests pellant] appeal herein.” his affidavit ed promptly notify counsel must de- [the indigency, stated: “I now writing in of his to seek fendant] appeal desire to said conviction to Court further review a writ of certio- Appeals My Texas.” re- rari with Supreme the United States search reveals that the affidavit and order requests If the this in [defendant] in very form used this cause is much like writing, appointed proceed counsel shall parts those in used other of the in the petition to file for writ of certiorari. particular Thus, County. Harris when the ****** appointment judge trial made his of coun- Thus, appointed always counsel should be sel, order, very terms his he meant apprised duty to inform the pursue appeal that counsel would to the [de- of his for writ Appeals Court of Criminal of Texas. fendant] in Supreme certiorari Court after quite apparent It is that this cause me judgment. Fifth Circuit’s “got has also of controversy blood in the majority S., neck” of the appar- this See also La Caze v. U. 457 F.2d 1075 ently appellant’s because the when (5th 1972).* Cir.

he filed his brief with the Appeals, Court of salutary contradistinction to the above stated therein the fact opinion that in his Circuit, rule of the Fifth today’s I fear that appellant’s frivolous, appeal was and he opinion of Court this will become veritable had filed the re- ground further, breeding enduring, view because his client “demanded” litigation uncalled for in criminal cases. However, that it be filed. I do not find this can, This when it should seek its sufficiently compelling reason litigation, decisionsthe termination of rath- Court to close its “courthouse door” to indi- fostering er I than same. find that gent defendants, deny them the assist- cause, opinion in this it fails to do that ance of seeking counsel in relief from this today. by way Court of a making This Court has rule authority. 44.33(a), See Art. V.A.C.C.P. If it be the interesting I find it rather if this majority’s desire enact a rule which defendant had been convicted in a United appeal would terminate a frivolous at the Texas, District in States and there- level, Appeals Court of then I wholeheart- placed after conviction on to the join edly enacting will such rule. If United States however, majority, believes that Circuit, Fifth and that Court had affirmed Legislature, should be done I will conviction, and thereafter the join majority also seeking had “demanded” that court coun- legislation. type sel file for writ of certiorari join with the the United cannot in the States, so, stated, and he had done would have primarily reasons be- * many (C.M.A.1982), I note with interest the be- where United States Court of similarities judicial process Military Appeals equivalent tween the established the military Appeals’ that found For a establishment. identical the Fifth Circuit Court of Rule VII D(2), supra. discussion almost situation see bar, Grostefon, see U. S. v. M.J. 431 principle counter to that

cause it runs Joseph HOWARD, Appellant, Lee law, justice where equal “there can be no enjoys depends kind of an a man has,” money on the amount of Griffin Texas, Appellee. The STATE of Illinois, supra, majority 19. The No. 6-81-080-CR. not exclude the rich opinion implicitly does defendant, files a “frivo- attorney whose Texarkana.

lous” defendant, poor should not also exclude Feb. 1982. of court who needs the assistance and file a prepare counsel to I find that

discretionary review. Because statutory

there is a review, discrimina- vio-

tory right by denial of such this Court Protection and Due Process Equal

lates the Amendment, the of the Fourteenth

clauses the Texas Constitu-

Equal Rights Clause of Constitution,

tion, I, Art. Texas Sec. the Texas

the Due of Law clause of Course

Constitution, I, Texas Art. Consti- Sec.

tution. will comment and then add one last anyone that “to

quit. If it is the fear urged such action I have

require above] [as with meritless innudate [this Court]

[will] from attention and distract matters [its] review,” see C. really calling cases for their Marshall, “A View From Other

Chris Brief,” Appellant’s Coping With

Side— Defense, 1982, please May, Voice For The fear is unfounded—if

rest assured that this simply summarily refuse

this Court will petitions as this one.

such reasons, I foregoing

For the above result the

respectfully concur reaches, appellant’s petition merit, review “is without Otherwise, I dissent. it is refused.”

Case Details

Case Name: Ayala v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 2, 1982

Citation: 633 S.W.2d 526

Docket Number: 235-82

Court Abbreviation: Tex. Crim. App.