Cantu v. State

594 years. clearly proposition accept This would violate the Ex difficult to that our See, e.g., founding adopted

Post Facto Clause. Miller v. Flori- fathers and the voters who da, 428, 433-35, 482 U.S. 107 S.Ct. intending did so the Ex Post Facto Clause (1987); 96 L.Ed.2d 351 v. Weaver Gra- sentences for criminals to serve concurrent ham, 24, 24-28, 962- S.Ct. multiple they crimes commit. Lan- Cf. (1981); Lindsey 67 L.Ed.2d 17 v. Wash- Appeals, 847 v. Fourteenth Court ford 397, 400-02, ington, 301 U.S. 57 S.Ct. (Tex.Cr.App.1993) (primary S.W.2d (1937). 799, 81 L.Ed. 1182 No one claims the interpretation goal in the of a constitutional appellant actual sentences received for his provision give is to ascertain and effect to the multiple crimes violate the Ex Post Facto it). adopted apparent intent of the voters who Appellant’s Legis- Clause. claim is that the I would hold the Ex Post Facto Clause does legal him require lature cannot to serve these speak presented the circumstances consecutively. sentences Lee, this case. See also McDonald Cir.1954), vacated, F.2d But, the issue this case is whether the 99 L.Ed. 1274 42.08(a) S.Ct. “changes 1987 amendment to Article punishment greater punish and inflicts a respectfully I dissent. ment than the law attached to a criminal (Emphasis Sup when committed.” offense WHITE, KELLER, MANSFIELD and plied). Youngblood, See Collins JJ., join this dissent. 37, 41-43, 111 L.Ed.2d The 1987 amendment to Article 42.08(a) changed punishment has not greater punishment

inflicted a

multiple crimes than what the law “attached appellant

to” them when committed them. Legislature only required appellant

The consecutively. legal

to serve his sentences appellant being harshly”2 pun That “more CANTU, Appellant, Oscar ished, because he has to serve his sentences is, consecutively concurrently, rather than therefore, post irrelevant to the ex anal facto Texas, Appellee. STATE ysis. Dept. See Corrections v. California Morales, U.S.-,-fn. 598-95, Nos. 599-95. 1602 fn. Texas, Appeals Court of Criminal (focus post inquiry is not on of the ex facto En Banc. prisoner’s affects a whether amendment opportunity advantage provi to take Sept. ” early any on whether sions release’ but change such alters the definition of criminal penalty

conduct or increases the which a (Emphasis Original). punishable).

crime is is, effect, breaking majority opinion ground adding another element

new here 200-year-old, well-settled definition of post law contained Collins. ex facto 41-13, Collins, 497 U.S. at See Bull, 386, 390-92,

2719; Dall. Colder v. J.). And, (Chase, I it

L.Ed. find (Tex.Cr. any punishment for offense or would not receive 2. See Basden v. 897 S.W.2d 319 offense, Basden, upon prison depending the se- App.1995). the first the defendant invited Basden, 42.08(b), V.A.C.C.P., verity prison of the second offense. Article Court to construe invitation prisoner at 322. We declined the that a would either not such a manner 42.08(b) committing prison to construe Article in this manner. a second be deterred Ramos, Villeseas, Pharr,

Juan Dorina McAllen, appellant. Paul, Austin, Atty.,

Matthew Asst. State’s for State.

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW KELLER, Judge. two

Appellant was convicted of murder and peace aggravated counts of assault on a offi- appellant open appeals, Longoria cer. Before the court of did not mail because he argued deprived trial; that he was of his constitu- un- preparing for he remained right to the person- tional assistance of counsel aware of the until he was attorney, two reasons: Dan Lon- ally Appellant’s trial served on June 15. goria, resulting committed in actual errors place from took June 7 to June prejudice appellant v. under Strickland judgment provided Committee that the sus- 2052, 668, Washington, 466 U.S. 104 80 days S.Ct. pension begin would 1—six on June (2) (1984), L.Ed.2d 674 that the attor- grievance before trial. aWhile ney’s suspension from the of law stay suspension, pending committee a of before trial constituted a se denial appeal, respondent if it finds attor- that the appellant’s right court of counsel. The ney pose continuing “does not threat to the on appeals reversed the latter basis. The Respondent’s or to welfare clients formulated a di- court 2.21, public,” finding Tex.R.Disc.P. no such substantive/teehnical chotomy: a per it held that se violation of the present made in the was case. Amendment exists where the Sixth question in The the case before us is suspended or was disbarred for substantive Longoria’s appel- suspension caused whether disciplinary infractions but not where complete lant a denial of the to counsel. was for mere technical so, appellant If relieved of Holding Longoria’s suspen- violations. requirements showing specific Strickland reasons, sion was for the court substantive prejudice. 466 U.S. errors at appeals found a of the violation (where 692, 104 S.Ct. at 2067 a defendant petitioned The for discre- to counsel. State the “actual or denial of suffers constructive tionary review. We will reverse. altogether” pre- prejudice then sumed). question Because we of first face surrounding appellant’s The facts impression, jurisdictions we look to other presented hearing appel claims were guidance. for new lant’s motion trial. Several wit nesses, including Longoria, testified at uniformly recognized that It has been hearing. in a Because trial court was layman masquerading as an —that credibility position to evaluate is, has never a licensed attor one who

witnesses, light we view the evidence any jurisdiction never be consid —can ruling. most favorable trial court’s under ered “counsel” the Sixth Amendment (Tex. State, 929, Vuong v. 830 S.W.2d 938 lay regardless of the skill exercised 997, denied, Crim.App.), 113 cert. States, v. F.2d man. Solina United 709 160 (1992). 595, 121 Harris v. L.Ed.2d 533 S.Ct. Cir.1983). (2nd Lehman, 64 Vance v. F.3d 949, State, (Tex.Crim.App.), 955 (3rd Cir.1995) 119, cases), (citing 122 cert. denied, 381, 942, 121 cert. — nom., Horn, denied sub. Vance v. U.S. (1992). 292 L.Ed.2d (1996). 736, -, 116 L.Ed.2d 686 133 (7th States, 631, light most trial 1 637

In the favorable to the Bond v. United F.3d Cir.1993). ruling, Hoffman, 733 the evidence the follow- United States v. court’s shows Cir.1984) 596, (citing Longoria prac- 599-600 ing: from F.2d denied, 1039, cases), 105 failing respond to demands cert. 469 tice of law Allen, 521, People 409 Bar 83 L.Ed.2d State Grievance Committee 772, 879, him, 872, Ill.App.3d 580 suspending the Com- 220 162 Ill.Dec. information. denied, (1991), respond appeal 147 pattern 1298 mittee found of failure N.E.2d 1229 suspension 180 606 N.E.2d did not relate Ill.2d Ill.Dec. or react. performance 28 Longoria’s in the courtroom. Commonwealth Mass.App.Ct. certi- 405 was sent Notice cases). Smith, May 476 N.W.2d (citing mail on and was received State v. fied (Minn.1991).1 However, hand, Longoria’s address 513 On the other at on June 3. Novak, 883 jurisdictions expressly have held that license. United States 1. Some Cir.1990). Thibeault, (2nd 406 fraudulently license 556 N.E.2d at n. with obtained cases). procured (citing having should be treated never suspended because he uniformly attorney had been jurisdictions American have receiving is not denied counsel of the crime held that a defendant had been convicted merely was under sus favorably because cited Com- property), stolen pension McGuire, or viola for a mere technical defect 421 Mass. monwealth v. State, (also tion. Hunnicutt v. S.W.2d citing Water- N.E.2d (Tex.Crim.App.1976), overruled on 628-624 Mouzin). Allen, at 162 Ill.Dec. house and grounds, Hurley v. other S.W.2d (no 879-81, N.E.2d at 1298-1300 Sixth Vance, (Tex.Crim.App.1980). despite fact that Amendment violation cases). (citing n. 1 State v. F.3d failing to suspended for had been Green, N.J.Super. 643 A.2d appellate brief on behalf of defen- file an cases), (citing N.J. case). certif. in an unrelated criminal dant (1994).2 question A.2d 141 confronted (no at 512-517 Sixth Amendment case, however, classify present is how to the despite the fact that had violation in and evaluate situations which fall between suspended misappropriating for client these two extremes. funds, failing to maintain trust account rec- Supreme Michigan Court of has re- ords, matters, failing to re- neglect of client cently rejected a dis- substantive/technical failing promptly, documents and turn client espoused by Michigan’s tinction intermediate clients). adequately with to communicate Pubrat, appellate People 451 Mich. court. v. accurately the effect of To determine (1996), 598-599 revers- for attorney’s suspension or disbarment sub- ing, Mich.App. 206 520 724 N.W.2d (1994). on his client’s Amend- stantive reasons Sixth Likewise, confronting other courts helpful rights, ment it to examine apply the issue have refused to such a dis- denying “counsel” status to one Rodriguez, reasons for tinction. v. 848 F.2d Waterhouse (2nd Cir.1988) (no explore and to 375 Sixth Amendment vio- who has never been licensed despite lation the fact that had been reasons in how courts have addressed these misappropriating disbarred for client funds or disbarred attor- the context failing and for to clients after ac- neys. given have four different rea- Courts fees). cepting United 785 States finding per violation of the sons for Sixth (9th Cir.) (no F.2d 682 Sixth Amendment represented a defendant is Amendment when despite violation the fact that had (one layman li- by a who has never been failing been disbarred to meet deadlines (1) censed): jurisdictional con- to validate pending appeals, failing prosecute in to (3) (2) interest, cerns, prevent conflicts of appeal, giving an insufficient check judicial system, maintain confidence in the cert, services), payment reporter for court safeguard against incompetent rep- nom., States, Carvajal denied sub. v. United resentation. 479 107 U.S. with a concerns associated Jurisdictional (1986). Stevens, United States v. 978 F.2d individual were first enunciated non-licensed (disbarred Cir.1992) attorney posed 565 The court the Second Circuit Solina. problem no Amendment where he was Sixth Court decision trial). discussed unaware of disbarment until after Zerbst, 304 (Cal. Johnson v. U.S. Johnson, People Cal.Rptr. advancing (no 82 L.Ed. App.1990) Sixth Amendment violation de- absence of surprising thesis that “somewhat spite the fact that had been sus- jurisdictional defect.” counsel constituted pended committing upon a child a forcible Solina, F.2d at 169. The Circuit act, Second turpitude), lewd a crime of moral rev’d jurisdictional nature of nom., 1 concluded that grounds In re on other sub. required application right to counsel Cal.Rptr.2d P.2d Cal.4th (no (1992). Thibeault, reversal whenever per of a se rule of N.E.2d at 404-407 represented someone despite Amendment violation the fact defendant Sixth se, apparent- per regardless for the appellate of the reasons 2. One intermediate court has Newcome, held, discussion, suspension status. State v. ly unlicensed with little App.3d complete constitutes a denial of 62 Ohio disbarment status). retroactively never been licensed law in If restore continued any jurisdiction. Id. at jurisdictional status were prerequi- licensed requirement counsel, site to the then sus- Although “jurisdictional” rationale re pension for technical violations could not ra- use, have apply mains courts it refused tionally exempted from a se rule initially validly li who were finding complete denial of counsel. But censed but were later or dis recognized even Solina that technical viola- applied barred. Second Circuit has its tions should be included se rule. per se rule in limited circumstances Hence, at 167 & 709 F.2d 167 n. 9. Bellamy Cogdell, “without enthusiasm.” “jurisdictional” only applies to rationale nev- (2nd Cir.1992), cert. laymen. er-been-licensed Once 960, 113 L.Ed.2d requirements has fulfilled the “threshold” 556 N.E.2d at justi- legal practice, a rule cannot be Solina, 406. Subsequent Cir Second jurisdictional regardless fied on a basis cuit “jurisdic has distanced itself attorney’s subsequent change status. argument considering tional” when the ef The second to preventing rationale relates fects and has disbarment n “alterna conflicts of interest and has been referred to upon it relied what termed Solina (conflict as the “alternative rationale” in Solina. See tive rationale” of interest —see be Waterhouse, low). lay- Waterhouse, F.2d at 382-383. 848 F.2d at 382-383. See masquerading attorney man as an suffers also Cal.Rptr. at 454. from an inherent conflict of interest because explained court has also is that “disbarment “engaging in a he is crime”: necessarily equivalent not the nonadmis Novak, person wholly sion.” 903 F.2d at courts a free 889. Other Such cannot be emphasized might vigorous have if a happen the never-been-li fear of what provide cannot prosecutor censed the effective defense should lead the the judge inquire background assistance of counsel “never because he has trial to into his acquired qualification repre the threshold to his and discover lack of credentials. Yet a Mouzin, repre- sent a client.” 785 F.2d at 697. criminal to be defendant is entitled Allen, by 162 Ill.Dec. at at 1298. 580 N.E.2d sented someone free from such con- layman, attorney “acquired Unlike the has straints. qualification the threshold to Solina, F.2d at 164. See although may ineligi client” he later become Stevens, 785 F.2d at 699. 978 F.2d at 567. suspension

ble to do so because of or disbar Allen, at 162 Ill.Dec. 580 N.E.2d ment. réspect making all due to the courts With argument, we “fear of believe the discov- “jurisdictional” To the rationale be- extend likely ery” is more the to cause reverse yond persons never-been-licensed would also layman masquerading effect: a attor- holding the conflict with cases that technical poor be more would afraid that defense run violations do not afoul of the Sixth inquiries background would lead to about his may Amendment. While law some- state by judge, prosecutor, trial and permit technical cured times violations to be By contrast, good client. own defense removed, retroactively after the see defect is likely layman enable to would maintain (Tex.Crim. Hill v. layman the facade. One would think that the (failure dues), App.1965) pay to bar technical client, wary be most of his own would not of coun- violations do constitute a denial greatest trial’s stake outcome. removing sel not even when the defect would likely appeals is The client more to file retroactively standing good restore counsel’s alleging postconviction writs ineffective assis- Peters, status. Reese v. 669- layman’s performance if tance of counsel Cir.1991) (no Sixth Amendment vio- perceived lacking. to be though representation during tri- lation even argument suspended pay Perhaps al while dues could be made that failure mistakenly perceive layman constituted the of law a that a unauthorized payment likely subsequent vigorous of dues would defense would be more lead clearly the Minnesota Su- investigation. Perhaps layman would be ulated most preme claims Court: of the threat of Strickland unaware But an nonlawyer from his own client. a law- Conceivably, might do —even justice one with his license or revoked— enough job, if the criminal yerly but probably integri- would most understand system maintain its structural is to trust, not from exposure threat of would come ty, public’s then an if it is to have disgrun- prosecutors judges but from a represented by counsel must be accused sitting prison necessary tled client with time on training who has received who, hands. as a for admission to the bar bar, subject lawyer admitted to the Moreover, the conflict of interest rationale supervision. the court’s who, clearly application has no to an layman 476 N.W.2d at 513. While although pending disciplinary pro- aware of bar, subject supervision is not ceedings, suspension remains unaware of his subject further is still or disbarment the criminal defen- at 407 sanctions. bar Waterhouse, dant’s trial. 848 F.2d at 383. may & 407 n. 13. Even a disbarred Stevens, F.2d at The mere 567-668. subject to to the extent that he be sanctions possibility might that an distract- may apply later for readmission. See Tex. by pending disciplinary proceedings ed is not 11.02, 11.03, 11.01, & 11.05. He R.Disc.P. sufficient to rise to the level of a subject or disbar- also be Allen, conflict of interest. 162 Ill.Dec. at jurisdictions. To some extent ment other fact, N.E.2d at then, suspended or dis- past likely “under fire for misconduct is to be pub- involves less erosion of barred highly give professional motivated to the best representation by lic confidence than a com- Vance, representation possible.” F.3d at plete imposter. Waterhouse, 125. See also 848 F.2d at 383. Moreover, promoting the interest in confi- Where an is unaware of system integrity of the must dence trial, or disbarment he is in a similar preserve against also be balanced the need to attorneys position suspend- who not were fairly guilt has been es- convictions “where ed or until trial. disbarred the latter after proceedings tablished the evidence in con- situation, courts have also found no inherent competence by coun- ducted with reasonable Bellamy, conflict of interest. 974 F.2d at Smith, Further, sel.” 476 N.W.2d at 514. Vance, 308. 64 F.3d at 125. unnecessary just preventing the reversal of course, particular Of the circumstances important only convictions not an interest surrounding attorney’s suspension or dis itself, important maintaining in it is also may give barment rise to an actual conflict of Hence, public system. confidence the DeFalco, interest. See United States v. suspended or disbarred are where (3rd Cir.1980) (counsel F.2d 132 who commit involved, just preserving the interest con- plea bargain a ted crime entered into a with outweighs possible victions erosion judge the same U.S. office and might that public confidence result from trial). participated in counsel’s client’s rule, per especially of a se where the absence However, may generally such cases be ad offending empowered bar is to sanction the dressed under the standards formulated Smith, attorneys. at 514. See Supreme conflicts of interest Court in 556 N.E.2d at 407. Sullivan, Cuyler v. imposing per a The final rationale for L.Ed.2d United States laymen safeguard against against rule —to Costanzo, (3rd Cir.1984), 740 F.2d representation goes incompetent — cert. U.S. to the assistance of coun- heart (1985). Vance, at 124- L.Ed.2d 613 64 F.3d essence, per imposed sel. In se rule is Mouzin, 785 F.2d 699. protect a defen- prophylactic measure to maintaining effective assistance of The third confi- dant’s rationale — recog- judicial system possible artic- counsel. This rationale was dence —has compe briefly by cited While nized the Second Circuit Solina: infra. hand, ease-by-case something support is to “Perhaps, on the other tence rationale can rule that relieves incompetence be said for an automatic as matter determination making harm- law, courts of the difficult task can that the rationale we do believe determinations lack of counsel less error per that support a se rule near- cases is more where an automatic counsel constitutes disbarred ly suggestive prejudice_” 709 F.2d at violation. Sixth Amendment Likewise, Third has ex- Circuit explained that has plained are some “circumstances that there only they apply when will se rules should likely prejudice accused that so are empiri- usually the correct result as reach in a litigating their effect the cost of cal matter: Vance, unjustified.” particular case is designed to avoid the are] se rules [Per Cronic, 122, quoting States v. F.3d at United inquiry excessive where costs of result in al- rule achieve the correct will (1984). These circumstances L.Ed.2d 657 explained in a dif- most all cases. As we very in the list is the “are rare” but included require ... “Per se rules ferent context: represent- “where the defendant is situation generaliza- to make broad the Court training legal little or no ed someone with _ gener- that do not fit the tions Cases attorney.” masquerading as an who is arise, se rule re- alization but Vance, at 122. Other courts have judgment such cases are not flects the permits explained to the bar that admission justify sufficiently important to common or competence: “Admission to presumption of identify necessary to expense the time has allows us to assume that counsel the bar Per se rules omitted]. [Citation them.” ability repre- training, knowledge, however, in applied, situa- not be should has chosen him.” sent a client who generalization is incorrect tions where the Allen, 162 Ill.Dec. at 785 F.2d at 698. matter; justification empirical as an if at 1299. But has disappears presumption conclusive for a bar, admitted to the the courts never been will application of the when presumption competent prac- presume cannot that he is most of the not reach the correct result tice law. time. competence produced rationale has occasion, Thompson, results. Coleman v. mixed On incompetent as a matter of law found Bond, surrounding upon Bellamy, circumstances 974 F.2d at 308. based See also nonlicensure. States considerations underlie disbarment or United F.3d at 636. Similar Cir.1976) (attor Merritt, rules such as those prophylactic the use of Arizona, who failed bar ex licensed Iowa but 384 U.S. announced Miranda Indiana, (1966): repre times in amination three 16 L.Ed.2d 86 S.Ct. client, trial for senting first and left after recognizing that the Miranda Although job having represent non-legal without ever of some result in the exclusion rules would as a mat ineffective ed another client—found statements, voluntary reliable questionable light of several' ter of law “prophylactic stan- imposed these incidents, though in iso even such incidents to omitted] [citation dards” on the States lation, an inference of not lead to would privilege Amendment safeguard the Fifth ineffectiveness). Hinkley, 193 Cal. People v. against self-incrimination. (1987) (attor Cal.Rptr. 272 App.3d 344, 350, 110 Michigan Harvey, for reasons ney placed on “inactive status” 1176, 1180, 108 L.Ed.2d 293 have al incompetence). But we relating to rationale, competence Under the re ready cases in which courts cited other for the never-been-li- appropriate rule Amendment find an automatic Sixth fused to that the we can infer layman because censed suspension or disbar upon violation based most of the the correct result rule reaches reasons. See Water- ment for substantive passed the Thibeault, Allen, not Mouzin, Johnson, who have house, time. Persons Moreover, membership in a conclusion that an requirements threshold moral has committed an offense of expected provide compe- the bar cannot be to practice law is not turpitude is unfit to surely that representation, and it is true tent judgment necessarily a on the laymen most could not in fact do so. While competence. pre- do not professional We laymen may requisite some fact have the pro- lacks skill, sume that knowledge that such the chance “Merely competence. because fessional may significant persons commit errors is in- disciplined has been for some great enough that the courts should not risk the rules which he must fraction of possibility layman might that a commit assuming that he is abide is no reason prejudicial escape ap- errors qualified lawyer. Err- not a and efficient pellate court’s notice under a traditional morally professional ing breach of analysis. against se rule Strickland necessarily a lack ethics does not indicate laymen is essential never-been-lieensed knowledge law.” omit- [Citations safeguarding Sixth Amendment only competence is one ted]. Professional the effective assistance of counsel. determining element in whether an individ- reasoning This does not hold for practice “fit” to law. Professional ual is who were or disbarred for sub good are competence and moral character stantive reasons. reasons in Substantive required practice. [Cita- admission only incompetence clude not also ethical but tion of acts mani- omitted]. Commission showing misconduct and other conduct bad festing turpitude moral establish un- moral character. The latter two reasons do attorney’s professional if an fitness even necessarily preclude competent rep not disputed. not competence is resentation of criminal defendants. The Su Pubrat, 548 at 595. Id. See also N.W.2d preme recognized Court has that “breach of Moreover, for sus- even where reasons necessarily an ethical standard does not pension competence disbarment relate out make a denial of the Sixth Amendment law, generally courts have refused guarantee of assistance of Nix v. counsel.” Mouzin, Allen, impose per rule. See Whiteside, Hinkley. and Smith. But see While Bond, appellate court intermediate California F.3d at 636. In the intermediate Hinkley imposed being se rule for appellate California court held that commit (i.e. disbarment) placed “inactive status” ting turpitude a crime of moral did neces competence, for reasons related Cal. sarily incompetence establish as a matter of 274-276, holding open Rptr. at leaves Cal.Rptr. law. 273 at 453-454. court question of whether a for a (Hink distinguished prior California case competence-related reason would automati- ) ley prior on the basis that the case involved cally finding incompetence in a as a result discipline upon finding based “a of incom Likewise, Merritt has been matter of law. petence.” Id. 453. While the California providing merely that non-li- interpreted as ground Supreme Court reversed on the may ineffectiveness as a censure constitute guaranteed the the California constitution ease-by-case matter of law on basis. Hoff- right to an who is a member of the (“We man, 733 F.2d at 601 read the Seventh bar,3 agreed state that court that the com per opinion refusing apply Circuit’s of a crime did not incom mission establish rule.”). Mouzin, also 785 F.2d at 697- petence as a matter of law. In re 689, Cal.Rptr.2d 822 P.2d Cal.4th expressly adopted explained The court that Three courts have conduct, determining suspension case-by-case criminal unethical be rule for whether for havior, showing acts bad character the loss of licensure renders other Mouzin, necessarily compe incompetent as a matter of law. does not reflect a lack of (9th Cir.). Allen, 162 Ill.Dec. 785 F.2d at 698 tence: California, (disbarred) placed suspended attorney “inactive status” is In is stiE con- who is bar,” longer but an no a member. sidered “member Smith, predicate in state ney has lost his license (Ill.App.). at 1299 (Minn.). relating competence. at 514 The Ninth Cir bar for reasons 476 N.W.2d McKinney, 53 F.3d explained: United States v. cuit (5th Cir.1995) (failure complete MCLE normally gives a reli- licensure Continued — -, requirements), cert. is signal public to the that the licensee able 261, 133 L.Ed.2d 184 attorney quali- purports what he to be—an represent a client. But fied to advise and to sev The above discussion leads experience that it an undeniable fact of is First, a never-been-li eral conclusions. unhappily ranging lawyers incur sanctions layman (imposter) can never be censed disbarment; that some- from censure “counsel” under the Sixth considered discipline that flows from revealed times representation such a Amendment and tur- incompetence or untrustworthiness or complete always constitute a will pitude as to deserve no client’s confidence. A rule obtains denial of counsel.5 different lawyer’s All hold here is that a we need validly li once who were case, on a not a services were ineffective subsequently been sus censed but have se, basis. that the pended or disbarred. We believe Allen, 785 F.2d at 698. See satisfied Amendment’s concerns are Sixth N.E.2d at 1299. The Ill.Dec. at approach. case-by-case has also ex- Minnesota incompetent attorney is as a or disbarred plained: disci if the reasons for the matter of law conceive, too, may be a can that there We poorly upon the pline imposed reflect so reasons for rare case when the substantive attorney’s competence that it reason egregious, so noto- of licensure are so loss in ably was inferred that bad, might riously that it be said that these the defendant in competent proceedings un- alone render the reasons possible It is proceeding question.6 fair and unreliable. discipline could be so that the reasons Smith, at 514.4 not be egregious that represent any criminal defen competent to adopt se rule is The reluctance to Or, might discipline the reasons for an isolated mistake dant. understandable because attorney’s way incompetence. in some be relevant necessarily indicate does not ques proceedings lawyers, responsibilities taught us that “[E]xperience has give rise to an inference beings, occasionally fall tion so as to human like other Vance, incompetent participate “[T]he 64 F.3d at 123. grace.” particular proceedings. either in those for loss of licensure can be so varied reasons event, determining factors imposition of a relevant degree kind incompetent as a at whether inappropriate.” N.W.2d rule include, but are not neces perhaps by matter of law recognition is reflected 513. This to, severity following: sarily to refuse limited general policy of federal courts disbarm (suspension of the sanction incompetence as a matter of law to find versus ent;7 rea- length suspension), attor despite the fact that the federal trials status, defendant, imposter's knowing con- surrounding the circumstances 4. Even where representation. automatically sents to disbarment do not incompetence, held that some cotuts have show reviewing attorney whether an knowl- 6. We do not decide those circumstances warrant during repre- edge with more his own unlicensed status conduct could ever result in a scrutiny. N.E.2d at 407 of a defendant sentation careful (Minn.). (Mass.). of complete as a matter law at 514 denial of counsel upon conflict of interest rationale. based a case, ignorant Longoria of his present was lay mean to include within 5. We do not unlicensed status. defects category an with mere technical Solina, licensing. 709 F.2d at 167 & 167 in See Erdelyan part upon attorneys Relying opinion in express about n. 9. We no licenses, (Tex.Crim.App.1972), the recent S.W.2d 843 fraudulently nor do we obtain their Pubrat, Supreme in and Michigan Court decision express any opinion the situation in which about (3) committee, pattern of grievance even a discipline, whether the dis- a sons for the not indicate an inabil- upon failing respond, incident does cipline was based an isolated (4) ity capably. defendants criminal pattern of conduct similarities be- a affirmatively did not in the committee type proceeding resulting While tween the of represent a threat Longoria did not in find that type proceeding of discipline and public, the failure to (5) clients or the question, kinds of similarities between for two finding is not conclusive make such a resulting in the disci- conduct First, find- the “failure to make a reasons. any responsibilities pline and duties or cannot, “finding” a and ing” is not itself pro- had in connection with the therefore, incompetence. finding a of be ceeding question temporal proximity in Second, “finding,” if it it could even were between the conduct for which the finding incompetence. unrelated to be proceeding ques- in disciplined was and the engages barratry may lawyer who tion, and of the and the nature extent though compe- public even he is threat attorney’s professional experience and ac- Moreover, Longoria tent law. complishments. underlying facts While the disbarred, suspended, prac- from the not light favor- should be viewed most pre- tice of law. Under the circumstances ruling, trial court’s able to the whether sented,9 has failed to establish a appellant incompetence of facts establish as a matter complete denial of the to counsel. question de law is a of law be reviewed — Keohane, Thompson novo. Appeals Court of found a Because the -,-, 465- counsel, appel- of it did not address denial (1995); Miller v. judgment claim. The lant’s Strickland Fenton, reversed, is Appeals is and the case Court of (1985).8 453, 88 L.Ed.2d 405 remanded to that court to address Washington. claim under Strickland Reviewing light present case standards, Longoria’s the above we hold that OVERSTREET, J., concurs the result. incompetent did not render him CLINTON, J., respond as a matter of law. The failure to dissents. Judge the California in John- As for Baird’s concern that this Court's decision

son, contends, Judge concurring opin- credibility permitting Baird in a will be undermined dis- ion, disbarment, itself, results in an auto- practicing to continue criminal barred law, matic Sixth Amendment violation rather than permit opinion today the unau- our does not being case-by-case factor to mere consider on practice of law. The disbarred thorized support basis. These cases do not conclu- sanctions, may subject to both criminal well be Erdelyan merely possibility sion. held that the practicing disciplinary, law without a later disbarment did not as- establish ineffective public license. Concerns about confidence sistance as a matter of law. S.W.2d at 845. implicated only judicial system when are Such a statement does not mean that actual lawyers practice disbarred but also when sus- necessarily deprive person disbarment would suspension. pended lawyers practice their Amendment, of "counsel” status under the Sixth body We address those concerns in the Erdelyan opine and nowhere in did we that dis- they weigh opinion in favor of the and find that would barred counsel result automatic case-by-case approach today. announced Likewise, Sixth Amendment violation. no such language appears in Pubrat. While Pubrat ex- concerning analysis multi-factored wheth- This pressly distinguished suspended attorneys from incompetent of law as a matter er persons attorneys, 548 who never became surrounding to the circumstances loss due ("it possible we would N.W.2d at 598 separate inquiry totally is a licensure reach a different result if defendant's counsel Obviously, analysis. Strickland if traditional [emphasis had never been admitted to the bar" incompetent as a of law is found matter ), Michigan added] court did not discuss dis- up today, there under the standards we have set attorneys. As the California barred inquire errors be no need to into solely upon court relied state constitutional law prejudice. holding. Cal.Rptr.2d at for its disbarment 176-177, 822 P.2d at 1323-1324. As the discus- mounting shows-, an ineffective 9. We note that body opinion sion in the of this most access to all claim has a confronting assistance the disbarment issue federal circuits relating attorney’s discipline information have refused to in the Sixth Amendment context "Waterhouse, provid- access via court order as apply per obtain se rule. See ed in Tex.R.Disc.P. 2.15. Stevens. Bar. 56 Tex.B.J. BAIRD, attorneys’ fees to the State Judge, concurring. (Nov. 1993). issue, presents very narrow This case se denied namely whether a defendant 2.19, notice of Pursuant to Tex.R.Dise.P. repre- of counsel when effective assistance mail to suspension was sent certified this by counsel who has been sented home, arriving June Longoria’s practice though Even from the law. opened the letter Longoria he never stated attorneys who have been case is limited to tri- preparing he was because majority needlessly expands suspended, the al, place from June which took scope of this ease to include 11, 1993, and did not become aware June majority have been disbarred. who personally served until he was by counsel holds that 15,1993. on June not a se denial of been disbarred is 18,1994, imposed Bar the State On March I re- under the Sixth Amendment. year year suspension, with the first a three following rea- spectfully disagree. For the finding Longoria actively after to be served sons, attorneys who have been dis- I believe non- suspended for practiced had law while ineffective. barred are dues,1 failing and for to com- payment of bar Legal Continuing Edu- ply Minimum with I. (MCLE) in violation of requirements cation necessary briefly recite the facts It is 8.04(a)(10). He was also ordered Tex.R.Disc. action taken regarding disciplinary $1,000 and pay fees $100 counsel, Quirino against appellant’s Daniel a former client. 57 restitution to Tex.B.J. Longoria. 1994).2 18, 1994, (Oct. Also on March Hidalgo County the 332nd District Court May the District 12-B Griev- On years, with the suspended Longoria for three Bar of Texas ance of the State Committee actively year served. year suspension first to be imposed Longoria a three Longoria was hired Longoria ac- found practice of law. from the Longoria proceeding. in a divorce 12 months be- client tively suspended for the first and failed petition for divorce suspension was failed to file ginning 1993. The June fees which had for the use of the remaining 24 months. The to account probated for the Tex. client in violation of Longoria paid know- been found grievance committee 1.03(a). See, 1.01(b)(1) n. su- and grievance com- R.Disc. ingly respond failed to $1,870 pay in attor- information, ordered to pra. He was demand for mittee’s lawful Bar and respond neys’ $313 fees to State pattern failing followed suspen- client. This to his former grievance committee. restitution cooperate with the suspen- $1,430 concurrently with the other sion ran Longoria pay ordered to was also OF 8.04(a)(ll) OBJECTIVES provides: 1.02 SCOPE AND Disciplinary "A law- RULE Rule engage practice yer of law ... shall REPRESENTATION lawyer’s has been (a) when the lawyer a client's deci- shall abide ... suspended or terminated.” sions: (1) general concerning objectives incident, another Bar Journal states: "In 2. The representation; methods of [Longoria] have violated DRs was found to COMMUNICATION RULE 1.03 1.03(b) 1.01(b)(1) (2), 1.02(a), and Rule (a) reasonably lawyer keep shall a client A Disciplinary of Conduct.” Al- Rules Texas a matter and the status of informed about clear, inci- though I assume this other it is not requests comply promptly with reasonable May suspension. is the dent information. Disciplinary pro- Conduct Rules of The Texas (b) ex- lawyer explain a matter to the shall pertinent part: vide in necessary permit client reasonably AND DILIGENT RULE 1.01 COMPETENT tent regarding repre- REPRESENTATION decisions to make informed client, (b) lawyer representing a shall not: sentation. legal to the law- neglect matter entrusted G, A, Ann., App. Art. subtit. Code tit. Tex.Gov’t yer; or 10, § 9. carry completely the frequently fail to out lawyer client or obligations owes to a clients. period suspen- practice of 18,1994. imposed sion on March 57 Tex.B.J. sion_ (citation omitted) suspen- (Dec. 1994). attorney is not sion or disbarment of an Disciplinary the Board of 12,1995, On Dec. punishment, is intended intended as a but revoking Longo- Appeals entered an order public protection to the as a measure of twenty-four probation imposing ria’s protection of in certain sense for the Longo- suspension. month The Board found profession. May of his ria violated a material condition probation that he had not submit- 27,1993 Id. at 694. psychological or executed

ted to a evaluation attorney is still a suspended Because a information. required releases medical bar, necessarily member of the he does (Feb. 1996). Tex.B.J. effectively competence to lose the reasonable See, Pubrat, People v. represent his clients. II. (1996). 595, 597 451 Mich. The Sixth Amendment of the United therefore, of apply, cannot se rule We crimi States Constitution “all guarantees suspended attorneys be- ineffectiveness for prosecutions, enjoy nal the accused shall justification [per rule] cause “the for a right ... to have the Assistance of Counsel disappears application of the will [rule] when right for his defence.” The to counsel is not reach the correct result most of the binding upon felony prosecu in all State Thompson, 501 time.” Coleman v. U.S. by operation tions of the Fourteenth Amend 2546, 2558, 111 S.Ct. 115 L.Ed.2d State, ment. Narvaiz v. S.W.2d (1991). Instead, the effectiveness of a sus- (citing Gideon v. Wainw (Tex.Cr.App.1992) pended should be determined under right, 372 U.S. 9 L.Ed.2d prong the two standard of Strickland. (1963)), cert. 507 U.S. prong representa- first is whether counsel’s S.Ct. L.Ed.2d 791 Further objective tion of rea- fell below standard more, right right to counsel is the prevailing under social norms. sonableness effective of assistance counsel. Strickland v. objec- performance If counsel’s fell below the Washington, 466 U.S. standard, inquiry tive is whether there is Effective probability” a “reasonable the result represents counsel is an a de trial would have been different but for coun- necessary just fendant’s interests to achieve proba- A sel’s deficient conduct. reasonable Id., system. results in the adversarial 466 bility “probability is a sufficient to undermine 685-686,104 at at 2063. Actual or parte the confidence in the outcome.” Ex presumed constructive denial of Menchaca, 128,131 (Tex.Cr.App. Id., prejudice the defendant. at 1993) Strickland, (citing 466 U.S. at 692, 104 S.Ct. at 2067. 2068). view, my In fact that S.Ct. at presumed pos member the bar is prima counsel was would make necessary sess the skills to “fulfill the role showing prong. of the first facie adversary process the [Sixth] Thus, majority agree I with the that a Strickland, Amendment envisions.” ineffective; suspended attorney is not McBrayer 104 S.Ct. at 2065. In of a instead the determination Cravens, Roberts, Dargan, & 265 S.W. 694 be made on a effectiveness should (Com.App.1924) (adopted and entered as the However, explained case-by-case basis. Court, judgment Cure- below, my disagreement springs from the ton, C.J.), the Court held the majority making holding the same for attor- attorney merely temporary depriva neys who have been disbarred. right practice tion of the law: Suspension deprive ... does not an attor- III. office, operates deprive of his but (Tex. temporarily Erdelyan him S.W.2d that, profession Cr.App.1972), ... the defendant contended He remains a member profession, engage plea, of his but has no at the time Pubrat, neys. In People he had been convicted of v. 548 N.W.2d at ineffective because 598, felony Michigan Supreme court. Court deter- federal We held: attorney “[a] mined who becomes pled guilty [defendant] At the time attorney formally remains until disbarred attorney not disbarred he was nor was separated from permanently or otherwise subject compulsory or now to disbar- then bar. not alter the formal does ment since his conviction federal court is attorney.” as an status appeal and is not a final conviction. His attorney duly qualified was licensed and at Similarly, that an California holds plea poten- of and the the time practice formally resigned who has from the ground of disbarment not render tial does incompetent of is a matter of law. In law ineffective as his assistance a matter of 689, 170, Cal.Rptr.2d 4 re 1 Cal.4th law. 822 P.2d to Implicit holding Id. in this that at 845. is counsel is the to an admitted had the been disbarred we would Supreme practice to the California before found counsel se ineffective counsel. have Id., Cal.Rptr.2d 4 at 822 P.2d at Court. holding implicit is consistent with This Sanchez, Furthermore, People v. 12 1323. interpretations Erdelyan. courts In other 47 906 Cal.Rptr.2d Cal.4th P.2d (Tex. Williams, Ex 870 parte S.W.2d (1995), Supreme 1155 the California 1994), App. the Court Worth held: — Fort its assertion Court reiterated earlier First, Texas, lawyer a disbarred is pro subject disciplinary held incompetent represent crimi deemed ceedings defen Curry a matter of - nal defendant as law. dant was not se ineffective. attor (S.D.Tex. Estelle, F.Supp. trial, was disbarred until after 1975), (1976); aff'd, 531 F.2d 1260 see also practice competent until time was State, Erdelyan S.W.2d Id., Cal.Rptr.2d 906 P.2d at law. attorney] (Tex.Cr.App.1972) [the ... As trial, prior disbarred he was not the attorney, a disbarred Unlike by our anticipated federal and expelled legal from the Representation by ... state constitutions qualified profession, longer no deemed and is lawyer legal is tantamount to disbarred no Therefore, representation practice law. representation at all. se denial of a disbarred Similarly, judge Id. at 347-348. trial counsel.3 Estelle, (S.D.Tex. F.Supp. Curry v. 1975), (1976), aff'd, held: comments, join only judg- I With these Texas, lawyer incompe ... deemed ment Court. criminal as a tent defendant finally of law when he has been

matter MANSFIELD, J., joins opinion. and disbarred convicted the State upon authorization Texas time, Texas. Until such the law

Court of

yer attorney” capable “practicing is a

rendering assistance. Erde effective (Tex.Cr. State,

lyan v.

App.1972).

Id. at 200.

Moreover, jurisdictions support per other ineffectiveness for disbarred attor- rule of State, (Tex.Cr.App.1996). supported by past opin- S.W.2d conclusion is our This credibility only our It would to undermine we have stated the State Bar is the serve ions where statements, if, allegations making the State Bar after these appropriate forum for of unethical See, permitted Armstrong and we S.W.2d disbarred an attorney conduct. 361, 366, and, (Tex.Cr.App.1995); criminal law. continue to Brown v. n.

Case Details

Case Name: Cantu v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 18, 1996

Citation: 930 S.W.2d 594

Docket Number: 598-95, 599-95

Court Abbreviation: Tex. Crim. App.