Ex parte Garcia

486 S.W.3d 565, 2016 WL 1358947

Opinions

Keller, P.J.,

filed a concurring opinion

in which Keasler and Hervey, JJ., joined.

Texas seems to be firmly in the mainstream in its procedures for appointment of counsel in post-conviction habeas cases. Our statutes, like the provision in the federal system, require appointment of counsel on habeas when the trial judge determines that the .interests of justice require it.¹ The initial decision is left up to the trial court — which appears to be the most common practice among states — but this Court may also require that counsel be appointed. We do so on remand if there is to be a hearing and counsel is requested.

A concern has been raised that on habe-as review, a pro se ineffective-assistance claim will almost always fail because a pro se applicant is unaware of the legal standard and evidentiary requirements necessary to establish his claim. I disagree with this assessment. Except when there are jurisdictional deficiencies, we construe pro se habeas applications liberally. We do not reject a claim just because it is inartfully worded or imperfectly pled. Moreover, in fiscal year 2015, we remanded 388 habeas cases to the trial court for hearings or affidavits addressing the claims. Most remanded applications are remanded on ineffective assistance claims and most, by far, are filed-pro se. We granted relief in 184 eases in FY 2015.² Although this is a small percentage of cases filed, we should not expect most post-conviction habeas eases to result in relief. After all, they are challenges to final convictions, and most convictions result from guilty ..pleas.³ Most habeas claims fail, but not because of pleading deficiencies. They fail because they have no merit.

Moreover, any consideration of whether our habeas procedures protect a defendant’s Sixth Amendment right to-trial counsel should take into account the. bigger picture regarding ineffectiveness of counsel at trial and on appeal. Advances over the past fifteen y’ears in the manner in which trial and appellate counsel are appointed in Texas have resulted in better-qualified attorneys for indigents. Starting with the Fair Defense Act in 2001, Texas has transformed the way in which counsel is appointed in criminal cases. Counties must have objective standards for appointing counsel, attorneys must obtain continuing legal education in criminal law each year, and attorneys must be on a list approved by a majority of the judges in order to receive appointments.⁴ When a defendant requests counsel, an attorney must be appointed promptly.⁵ Counsel must be appointed in a fair, neutral, and nondiscriminatory manner.⁶

Texas has expanded' the number of public defender offices, instituted private defender offices, established mental-health public defender offices and appellate public-defender offices, created regional public defender offices for rural areas, instituted an innovative “client choice” project that includes a mentoring program for young lawyers, and published attorney caseload guidelines.⁷ Spending on indigent defense statewide has risen from $91 million in 2001 to $238 million in 20l5.⁸ No system is perfect, but because Texas is addressing effective assistance of counsel at the’ front end of the process, the fundamental right to counsel at trial is not left unprotected.⁹

The applicant in this case was represented by counsel at trial, on the motion for new trial, on appeal, and on his petition for discretionary review. He lost at trial, lost at the motion for new trial, lost bn appeal, and lost again in this'Court, but that does not mean that he received ineffective assistance of counsel. It suggests the opposite, in fact, because he raised an ineffective-assistance claim in his motion for new trial, obtained a hearing on the motion, and lost, and he raised an ineffective-assistance claim on appeal and lost. The system is not perfect, and improvements can and should be made, but the system did not fail the applicant in this case.

I join the opinion of the Court.

1 . TexCode Crim. Proc. art. 1.051(c), art. 26.04(c).

2 . We granted relief in 170 cases in 2014; 180 in 2013;'and 221 in 2012.

3 . A plea of guilty is not a bar to habeas relief, but relief is less likely to be warranted when a defendant admits guilt and waives various constitutional protections.

4 . Tex.Code Crim. Proc. art. 26.04,

5 . In counties with a population of greater than 250,000, counsel must be appointed within one working day of the request. In counties of less than 250,000, counsel must be appointed within three working days. Tex. Code Crim. Proc. árt. 1.051(c).

6 . Tex.Code Crim- Proc. art 26.04(b)(6).

7 . Texas Indigent Defense Commission, http:// www.tidc.texas.gov/ (last visited Apr. 4, 2016).

8 . Furthermore, last year, the Indigent Defense Commission requested an additional $196.8 million for the biennium in state’funding for indigent defense. Sharon Keller, 84th Leg., Senate Committee on Finance (Part I), S.B. 2 (February 2, 2015),

9 . The record is not entirely clear, but it appears that the attorneys who represented applicant during the entire trial/new trial/appeal process were sometimes appointed and sometimes retained.