Ex Parte Steptoe
132 S.W.3d 434
Tex. Crim. App.
2004
Check Treatment

*1 But for object his failure to to the nullifica- seek discretionary pro review se. The tri trial, tion instructions at Smith would al court attorney’s found from the affidavit punishment entitled to a new hearing. counsel failed to and time

ly notify that he could file petitions discretionary review Appeals. Court of Criminal Ap The plicant parte is entitled to relief. See Ex Wilson, (Tex.Crim.App. S.W.2d 1997). We relief in the form parte Johnny STEPTOE,

Ex Applicant. of leave to petitions discretionary file review of the decisions of the Court Nos. Appeals. Court of Criminal Appeals Time Appellate limits under the Rules of Texas, En Banc. Procedure shall be calculated as if the April Appeals’ Court of decisions had been ren- day

dered on the mandate this Court issues. Should the applicant desire to seek he must take steps petitions affirmative to see that his Johnny Pro Steptoe, Se. Appeals are filed the Court of within Wilson, Roe Attorney, Assistant District thirty days day the mandate of this Houston, Paul, Attorney, Matthew State’s Court has issued. Austin, for State. applicant’s remaining The claims are Torres, parte dismissed. See Ex S.W.2d 469 PER CURIAM. PRICE, J., concurring opinion. filed a

These post-conviction applications are COCHRAN, J., for writs of habeas dissenting under Article filed J., 11.07 of the opinion, KEASLER, joined. Code Criminal Procedure. in which The applicant felony was convicted of the KELLER, P.J., HOLCOMB, J., aggravated offenses of sexual assault and opinion. dissented without kidnapping, punishment assessed imprisonment fifty years and five PRICE, J., concurring opinion. years, He respectively. appealed, and his majority I agree with the that we should Steptoe convictions were affirmed. See allow the to file an out-of-time State, Nos. and 14-94- 14-94-00200-CR review. I write 00201-CR, (Tex.App.- 1996 WL 87202 separately explain why I think that the pet.). Houston [14th Dist.] doctrine of laches should not claims that he was denied case. The facts of this case are distin- opportunity petitions to file for discre guishable from Ex Garrió1 because argue applicant’s attor did not that the because the State ney notify him did not that he could claims should barred the doctrine. 1999). (Tex.Crim.App. 1. 992 S.W.2d 486 *2 Carrio, petition to file a held doctrine of that he had

In we that the discretionary review. case. may apply appropriate an laches that, case, be- argued In the State that was assume that the State should We de- appellant’s fourteen-year cause of the it could of Carrio and knew that aware lay bringing his claims of ineffective if it was so of laches raise the doctrine counsel, should applicant assistance of the true In case particularly this it is inclined. having from merits of those be barred the ob- applicant’s the conviction was because that claimed county claims decided.2 State same County, in Harris the tained ability respond its to to claims the Carrio’s was ob- Carrio’s conviction from which But, that bring argued them the prejudiced was failure tained. State never that the claim so stale applicant’s amount of time.3 the was reasonable merits respond unable to to the State was 9(a) approval of the cited with Rule We clearly not claim. The State was ex- corpus rules.4 We federal habeas respond. in its prejudiced 9(a) the plained that Rule required And, argued the never because State (1) showing “a particularized State show case, this doctrine should that the (2) “that was prejudice,” the this findings made no the trial court late petitioner having the caused Carrio, the we that because issue. said petition,” has petitioner “that the had of our parties had not the benefit diligence acted with as a not reasonable insufficient to rule record opinion, the matter of law.”5 we did claims claim that on the State’s Carrio’s explicitly adopt these requirements, Carrio by the re- doctrine.7 We were barred 9(a) exclusively almost relies on Rule findings case for on that issue. manded the interpreting it.6 cases the findings regarding have no Here we doctrine, and possible application of the agree I with would the conclusion of our parties the did have the benefit applicant long bring waited too not, on in Carrio. opinion We if claims in this case State satisfied record, that the claim was applicant’s find 9(a). requirements the three of Rule To by the of laches. barred doctrine contrary, original re- State’s sponse application, to the State Also, I the fact believe quested the trial designate court to in his could raise one claim ineffective issue of assistance of counsel as is of no petition an issue. court unresolved After the trial Generally not look behind moment. we do coun- appellate received the affidavit from request out-of-time sel, findings of proposed the State made discretionary re- out-of-time fact, trial Those signed. which the court should to determine whether we view findings state that the asked applicant’s parties relief. The have not And, notified the that his con- in this the fact counsel us to do so case. may his conviction viction had been affirmed the Court not have for dis- successfully failed to reversed on Appeals notify but Carrio, Id., (citing S.W.2d Walters 2. 5. at 487. Scott, (5th Cir.1994)). 3. Ibid. Id., at 487-88. 6. Id., U.S.C. 2254. at 488.

cretionary bearing that, review has no on cant’s defense at trial was while he whether the ought doctrine of laches leaving “scuffled” his wife before her apply in this case. home, he never hit or threatened her after *3 they car, in were and she consented to

I do not think that the laches doctrine jury guilty the sex. A found him of both here, applies primarily because the State him fifty years offenses and sentenced to has not asked us to it and because in prison aggravated on the sexual assault the trial court findings made no on this charge prison and five in on the comments, issue. join With these I kidnapping charge. Applicant was sen- majority. February

tenced on 1994—over ten COCHRAN, J., dissenting years ago. opinion, KEASLER, J., joined. which attorney His a single raised issue on I respectfully dissent to granting appli- appeal: judge failing the trial erred cant relief to file an out-of- give jury a instruction on the lesser-includ- time review. ed offense of misdemeanor assault in the Applicant alleged has that his appellate aggravated sexual charge. Appli- assault counsel constitutionally ineffective be- challenge cant did not the kidnapping con- cause he failed to advise of his Appeals, viction. The Fourteenth Court of to file a unpublished opinion, that appli- held review when he notified cant was not entitled to an instruction on court appeals had affirmed his because, misdemeanor according assault deny convictions. I would relief based on testimony, his sworn he had not committed equitable doctrine laches-otherwise Steptoe offense all. “Because testi- “sleeping your

known as on rights.”1 fied that the sex was consensual and that placed complainant he never used force or I. life, in fear of her there was evidence to Applicant was indicted for the ag- support submission misdemeanor gravated sexual kidnapping assault and assault.”2 The of appeals’ opinion court estranged trial, wife. At his 1994 was filed on February eight 1996 over presented State evidence that applicant years ago. wife, car, abducted forced her into a her, her, 13,1996, struck kill applicant’s appointed threatened to On March sexually assaulted in a park. Appli- her appellate lawyer wrote a letter: Carrio, law, (Tex. gence, Ex 992 S.W.2d 486 to do what in should have been Crim.App.1999), quoted this Court the defini done.” tion of "laches” contained in Id. at 487 n. 2 Dictionary Black’s Law (quoting Black’s Law Dictionary: (6th ed.1990)). State, upon Steptoe "The doctrine of laches is based Nos. 14-94-0200-CR and (Tex. equity vigilant App.-Houston

maxim that aids the and not 14-94-201-CR [1st Dist.] 29, 1996) (not rights. February designated publi those who slumber on their It is cation). neglect defined as to assert a or did claim The court of note: "Al which, together lapse though leaving Steptoe prior taken of time testified house, causing prejudice complainant’s and other circumstances he and the com ‘scuffled,’ party, operates to an plainant may adverse as a bar in a this evidence Also, equity. neglect court kidnapping charge, jury it is the related to the unexplained length an unreasonable and was instructed on the lesser included offense n permitting time under circumstances dili- of assault for that offense.” Id. at 1. for- applicant sent his and routine. After copy of the Order please Enclosed find 1996 let- attorney copy of counsel’s judg- mer from the court. ter, supplemental affirmed, is, attorney wrote the convic- ments were alia: litiga- stating, affidavit inter will stand unless further tions that. As I am no tion/appeals change [applicant] notified letter which Said attempt I longer your attorney, will and deadlines there were timelines you give you advice to counsel he felt relief which applicable you attempt or not should to, but I did not elabo- himself entitled ADVISED, BE take this further. rate, letter, dead- in that on what those *4 HOWEVER, THAT THERE ARE were, I state nor did lines AND DEAD- VARIOUS TIMELINES file a Petition that he had a WHICH YOU MUST LINES WITHIN no Discretionary I have Review. ACT, CONVIC- OTHERWISE YOUR I or not he and recollection of whether BE AP- NO LONGER TION WILL any contemporaneous conversation had PEALABLE. had in con- regarding rights what he I you any questions, If or if can be any Petition for potential nection with assistance, of further do not hesitate Review, and as stated Discretionary on appealing write to me at the address I no files or docu- previously, possess this letterhead. my memo- to refresh ments with which ry. suggest nothing There is this record applicant responded ever to this letter add, however, that at compelled I feel any applicant nor as- questions, does Johnny interest no time was attempted

sert that he ever to communi- further relief Steptoe pursuing attorney during former cate with his 14, to me until October made known years. next six 2003, ... that Mr. I was notified when re- seeking corpus Steptoe was Instead, 30, 2002, September appli- view. cant, dead, rising like Lazarus from of habeas in the convict- writ in explicitly counsel’s failure to Based on ing alleged court. He that his proa se form that he could file attorney provided ineffective assistance petition for because, him when counsel notified counsel was con Court now finds appeal, did not of the result his direct stitutionally under the Sixth deficient tell that he could explicitly also and that Amendment re- file a performance. this deficient harmed

view. Therefore, grants the Court petition for leave to file an out-of-time November, 2003, appli- In October and Ex discretionary review under Wils separate cant’s former counsel filed two on3 The first one stated that he affidavits. independent memory of this client II. eight he had handled some appeal or the Furthermore, of habeas cor- com- the Great Writ both his earlier. a constitutional bulwark pus that era stands as

puter copy and hai’d files from and liberty provides and a “swift All he could individual were now “non-existent.” illegal remedy against practice imperative” testify to was his usual business 3. 956 S.W.2d

straint,4 it required through exacts enormous societal and to sift the more than 6,600 applications for writs of habeas cor- administrative One of costs. those costs is pus year.6 this Court receives each finality protracting the of criminal “ litigation, habeas review ‘underminefe] point, At some there must come a time integrity proce- confidence of our final, when a criminal conviction is when inevitably delay[s] impairfe] dures’ and and certainty the deterrent effects of im- orderly justice.”5 administration mediacy punishment outweigh an in- Another of those costs is the enormous endlessly mate’s litigate judicial time, effort, money amount of Routinely granting of his conviction.7 ha- See, Johnston, 266, 637, e.g., Teague Price v. Id. at 113 S.Ct. 1710. See also (1948) Lane, 288, 309, 68 S.Ct. 92 L.Ed. 1356 U.S. ("[t]he writ, (1989)("[w]ithout great usage finality, historic and L.Ed.2d 334 form, regardless particular produce deprived of its is to criminal law is of much of its deter Bustamonte, effect”); body person of a before a court for what- rent Schneckloth v. purpose might proper ever to the U.S. essential S.Ct. J., (Powell, disposition (“[n]o important concurring) of a cause. The most effective *5 usage judicial system result of such has been to afford a swift can to concede the con afford imperative remedy illegal tinuing possibility and in all cases of theoretical that there is er personal liberty”). upon every every restraint ror in trial and that incarceration point is unfounded. At some the law must States, convey wrong 485, 497, custody to those that a in' has 5. Custis v. United 511 U.S. committed, 1732, (1994) consequent punishment been (quot- 114 S.Ct. 128 L.Ed.2d 517 Addonizio, imposed, longer 178, has should been one ing United States v. 442 U.S. 11, resurrecting 2235, every with look back the view 184 n. 99 S.Ct. 60 L.Ed.2d 805 imaginable (1979)). Abrahamson, litigation basis for further but In Brecht v. 507 U.S. (1993), rather should look forward to rehabilitation S.Ct. 123 L.Ed.2d 353 citizen”); becoming and to a constructive Supreme Court elaborated on the social States, 667, 691, Mackeyv. United 401 U.S. corpus explained why costs of habeas as it it (1971) (Harlan, J., S.Ct. 28 L.Ed.2d 404 Chapman would not nia, its usual v. Califor- concurring part dissenting part) in in and ("[n]o one, deféndants, not criminal not the analysis constitutional error on habeas judicial system, society not as a whole is bene review: judgment providing that a fited man Overturning presumptively final and cor tentatively today, go jail shall but tomorrow rect convictions on collateral review ... every day and his continued thereafter incar finality undermines the States' interest in subject litigation”). ceration shall be to fresh infringes sovereignty upon and their over Retrying criminal matters.... defendants 6. See Annual Report Sys- of the Texas Judicial impos whose are set convictions aside also (2004) (noting Year tem: Fiscal costs,” significant including es "social applications writs "[t]he number of of expenditure of additional time and re filed, pending corpus disposed, and habeas involved, parties sources for all the relatively past has remained stable over the memory” "dispersion "erosion of and of years. were five fiscal In FY there accompany passage witnesses” that 6,660 6,611 applica- applications added and obtaining time and make convictions on disposed, leaving pending at tions 948 cases difficult, retrial more and the frustration of (FY year. five-year the end of the fiscal The "society's prompt interest in the adminis 6,913 2003) averages appli- were 1999 to FY justice.” ... tration And since there is filed, 7,004 applica- disposed, and 903 cations governing no statute of limitations federal (also per year”) at pending tions available habeas, recognized and the laches is w.courts.state.tx.us/publicin- http://ww ability that which affects the State’s to de cca-activity.pdf). fo/AR2003/cca/ habeas, against fend the claims raised on Bator, following grant and Federal Con- retrials of habeas relief See The State Courts ordinarily place Litigation, take much later than do stitutional Mary 22 Wm. & L.Rev. 605, 614(1981). following retrials reversal on direct review. corpus relief. How- requesting claims laches bar to habeas corpus beas out-of- ever, time filed previously has used that Court long is after a direct affirmed doctrine, referring to equitable appeals, the merits a court of under- 9(a), upon as a limitation Federal Rule mines the deterrent rehabilitative corpus appropriate relief in cases. habeas criminal law.8 functions of the Cardo,13 In Ex the inmate re- corpus equitable is an doctrine Habeas quested corpus relief fourteen habeas equally Laches an equitable relief. on a years into based com- his sentence times, may, preclude doctrine ha- which plaint of ineffective assistance counsel.14 beas laches doctrine relief. The is codified that, The because of the State countered 9(a) Rule in corpus as the federal habeas delay, respond time been its person rules9 “preclude profiting from agreed trial court prejudiced.15 The to the detriment of another his own the State and recommended relief be rights.”10 enforcing Of denied of laches.' under the doctrine We course, current because strict one- laches stated that “the doctrine of is a year Congress of limitations that statute should, theory may, employ we imposed upon petitioners filing state a writ our determination of whether courts,11 in federal Rule 9(a) system is much used in the 11.07 case.” We then given not federal lief now. remanded case to the trial court back we information because lacked sufficient Legislature Texas has enacted a *6 the upon which to evaluate either ineffec- fil- corpus statute-of-limitations habeas claim or the tive assistance of counsel lach- ings in as it non-capital cases has done remand, es claim.16 After we denied the penalty death writs filed under article corpus inmate’s relief request 11.071 for habeas of the Code of Criminal Proce- dure.12 it on of laches.17 In statutory Nor has enacted based the doctrine Tex- 722, Thompson, knowledge 8. See Coleman v. 501 of which could not have had U.S. 748, 2546, (1991): diligence 111 S.Ct. 115 L.Ed.2d 640 of reasonable be- exercise prejudicial fore the circumstances to the observed, "As once Justice Harlan 'both the state occurred. society individual criminal defendant and insuring have an interest in will there Smith, (6th v. 10. Moore 694 F.2d 117 certainty point at some be the that comes Cir.1982). litigation, with an end to and that attention ultimately will be focused not on whether 2244(d)(1) (1996 § 11. 28 Anti-Terror- U.S.C. conviction was free from error but rather Act, ("AED- Penalty ism and Death Effective prisoner on can be restored ” PA”)). place community.’ a useful (quoting Id. at S.Ct. 2546 Sanders 11.071, 4(a). § 12. See Crim. Proc. art. Tex.Code States, United 24 — (1963) (dissenting opin 13. 992 S.W.2d 486 ion) (internal omitted)). quotations 9(a) Governing 9. Rule the Rules Section 14. Id. reads: Cases 15. Id. (a) Delayed petitions. petition may A appears that dismissed if it the state of 16. Id. at 488. respondent is an been

which the officer has prejudiced respond its to the (Tex.Crim. Carrio, filing petition by delay 17. Ex Parte 9 S.W.3d in its unless petitioner App.1999). grounds that it is based shows on law, law, corpus as habeas as in portion Advisory federal Another Commit- Carrio, Notes, tee which we did not cite in “[e]quity is intended for those who states that: sleep rights.”18 on their If is more than five after Carrio, this Court conviction, judgment prejudice is Advisory ferred to the Committee Notes to presumed, although presumption 9(a) Federal Rule which state that “the Otherwise, petitioner. rebuttable grounds of error susceptible most to dis- the state has the burden of showing 9(a) missal under Rule are ineffective as- prejudice.21 such counsel, sistance of ap- denial of presumption this rebuttable peal, involuntary guilty plea, rule, use explicitly Congress written into the confession, illegally coerced deleted that portion constitut- when it enacted the 9(a) original Instead, Rule in 1976.22 Con- jury.”19 ed Advisory The Federal Com- gress twenty years waited and then enact- explained mittee that: one-year ed a harsh statute of limitations grounds latter four are often inter- petitions.23 allegation locked with the of ineffective I do not know whether the federal they counsel. When are asserted after 9(a) courts’ to apply failure Rule the passage many years, both the greater appreciation jurispruden- for the attorney for the defendant and the state stale, tial concerns over flood merit- difficulty in ascertaining what the less writs in partial- the federal courts was facts are. It often develops that ly responsible many for what think was the attorney defense has little or no recollec- draconian solution of an absolute statute- place.... tion as to what took surely But of-limitations bar.24 there is a Johnson, (5th impose heavy Fisher v. This does not too burden on Cir.1999) (declining apply equitable tolling petitioner.... petitioner Even if presumption to habeas claim filed after AEDPA should fail to overcome the state, one-year automatically expired) statute of limitations had to the he is not *7 Co., Covey (quoting asserting may v. Arkansas River barred from his claim.... [H]e (5th 1989)). nor, proceed by 662 Cir. if he neither knew the exer- diligence, cise of reasonable could have Canio, 19. Ex 992 S.W.2d at 487. known[,] relief”). grounds of the 9(a), § 20. advisory U.S.C.S. 2254 Cases Rule 94-426, (8), 2(7), § P.L. 90 Stat. committee notes. (as amended). Id. the State did not raise the 2244(d)(1). § 23. 28 case, U.S.C. pre- issue of laches in this a rebuttable sumption showing casts the burden of a lack Thus, prejudice upon applicant. Kappler, of the when 24. See Burke W. Criminal Law: application years a Chapter habeas is filed within five Small Favors: the Antiterror- of Act, States, judgment, required Penalty after the State would be ism and Death the Effective Counsel, prove applicant’s delay preju- Right that caused it and the J.Crim.L. & Conversely, application Criminology, (noting dice. when a habeas that years judgment procedural is filed more than five after bars contained in AEDPA (as here), "[cjondemned applicant may required legislation by many the be reform are prove delay that his did not the as draconian limitations on the abilities of that, (stating judgment State. prisoners guarantee constitutionality See id. if the of of the sentence, old, years they conviction is more than five their confinement or death are "[t]he prisoner going necessary has 'the burden of forward lauded as a and overdue others presump- step against duplicative litigation with evidence to rebut or meet the and abusive See, criminals”); e.g., prejudiced by tion' that state has the not been condemned Gonzalez States, passage period F.Supp.2d of a substantial of time. v. United 113-26 applicant filed his writ of the time cautionary By lesson here. As the number in- attorney writs his post-conviction corpus, of habeas former of habeas creases, jurisprudential will be price memory a any independent longer had paid. longer case. or his He no applicant hard of this case any computer copy or file statutory avoid the strict bars en-

To He representation applicant. AEDPA, po- acted which have State, know, trial nor can the does not baby to throw out the tential know, court, he had or ourselves bathwater, rigorously apply I would more applicant point at some explicitly informed doctrines, discretionary equitable such as of his to file a process laches, to those which applications stale justification which compelling contain neither review nor claim of a profession- discernible have sufficed fulfill his would justice. miscarriage fundamental obligation.25 al Furthermore, we have before us III. unpublished by the three-page, opinion application This is one such that should discussing disposing court of barred asserts Applicant laches. point sole applicant’s of error that he “was denied assis- the effective include the failure to the lesser-included tance of failed to Counsel where Counsel ag- of misdemeanor assault on the offense him of advise to file a Pro Se charge. That gravated sexual assault But Discretionary Petition Review.” only point of error that that asserted failure more than occurred raise in an out-of-time for discre- years before six ever mentioned review because it was Applicant’s attorney timely it. told him of ap- of error raised in court of point appeals’ the court of and sent him decision expressing any opinion on peals. Without copy opinion affirming his convic- claim, merits of that I cannot conclude attorney tion. That him the “con- told miscarriage it would be fundamental litiga- victions stand will unless further justice not to that claim some tion/appeals change attorney that.” That it rejected after on direct eight told there were timelines purpose appeal. The of our and deadlines to if he must adhere all, after is not to decide whether pursue litigation/ap- wished to further appeals “got right” it in each the court Finally, that peals. attorney told *8 case, rather every and individual but any questions that if he had or wanted by a court of assistance, particular a decision further whether should write counsel likely to effect is have an adverse Applicant appeals at his office address. did not do upon jurisprudence so. of the state.26 (D. 2001) (noting petitioners Mass that habeas that when a defendant is informed of prior petition discretionary that their used to a re had shown convictions to file for letter, present appointment enhance sentences were constitution- view in counsel's initial “kinder, gent- ally prior and that complied infirm under Wil appellate counsel has statute,” they ”). been ler habeas would have son relief, but, granted because of AEDPA’s "dra- upon conian” time subse- limitations and bar Tex.R.App. P. 66.3. That rule states: 26. See writs, quent granted). relief not be fully controlling measur- While neither nor Lozada-Mendoza, ing Appeals’ discre- parte S.W.3d the Court of Criminal 25. See Ex 45 tion, ("[w]e following by the (Tex.Crim.App.2001) 110 hold will be considered

442

A right Texas criminal defendant does not client that he has a pro file a se petition for independent, free-standing have an federal review was not constitutionally-required. But this is an or right state constitutional to a direct presented present issue that is not in the appeal in state court.27 The right ap- today. case and need not be resolved peal regulated by Legislature, is and provides Texas a statutory right for sufficient, however, It presume appeal direct of criminal convictions to the by applicant’s to the State unex- courts of For appeals. ap- such “initial plained six-year delay between the resolu- peals as of right,” obliged the State is to tion of his direct appeal and date he provide an pay indigent defen- corpus complaining filed a writ of habeas pursue appeal.28 dant’s counsel to explicitly of his counsel’s failure to inform However, Circuit, according to Fifth pro him of file se constitutionally “[t]he secured of discretionary review. Because counsel ends when the decision failed to assert this claim in a man- so, appellate court If is entered.”29 then ner, explain and he has failed either Wilson,30 requir- our decision in Ex or show fundamental miscar- ing appellate counsel to inform riage justice his former if this Court does not en- deciding upon jurisprudence Court in whether to discre- sion of the state in petitions. partially review: Perhaps their ac- (a) appeals’ very granting whether a court of decision counts for the rate of low dis- appeals' cretionary pro petitioners. conflicts with another court of de- review to I am issue; cision the same aware of one se inmate (b) appeals grant- whether a court of has decided that this Court has important question years, although, past an of state or federal ed and a half two been, be, course, may law that has not but should settled there been more of which have Appeals; the Court of Criminal I am unaware. (c) appeals whether a court of has decided State, (Tex.Crim. Phynes 27. v. 828 S.W.2d important question of state or federal Durston, App.1992) (citing McKane v. way applica- law in a that conflicts with the 684, 687-88, 913, 38 L.Ed. U.S. Ap- ble decisions of the Court of Criminal (1894)). peals Supreme or the Court of the United States; (d) Douglas California, v. 372 U.S. appeals whether a court of has declared statute, rule, (equal protec S.Ct. regulation, or ordinance un- constitutional, requires appointment tion clause of counsel appears to have miscon- rule, indigent their statute, state defendants on first regulation, strued a or ordi- Moffitt, right); compare Ross v. nance; as of 600, 619, 94 S.Ct. 41 L.Ed.2d (e) justices ap- of a court of (1974) (holding are not that states re peals disagreed question on material quired defendant to furnish counsel to assist decision; necessary of law to the court’s review). seeking discretionary appellate (f) whether a court of has so far Cockrell, (5th Moore departed accepted and from the usual *9 Moore, Cir.2002). held the Fifth Circuit judicial proceedings, far course of or so notify counsel’s failure departure by sanctioned such lower court, defendant of the outcome of his direct to call as exercise of Court not amount to a Texas court of Appeals’ power supervision. of Criminal Id. to ineffective assistance of counsel. It is of least some moment

petitioners rarely ad- appeals’ impact the court of 30. 956 S.W.2d 25 dress the deci- for discre- tertain his out-of-time deny I would relief. LONG, Appellant H.

Gwin

The STATE of Texas.

No. 1028-03. of Texas. Appeals of Criminal

Court

April