Ex Parte Gary Griffin v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00198-CR

Ex parte Gary Griffin

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR-14-0432-A-WHC2, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Gary Lee Griffin appeals from the trial court’s denial of his application

for writ of habeas corpus, in which he sought an out-of-time appeal from the denial of a prior

application. See Tex. Code Crim. Proc. art. 11.072. We will affirm the trial court’s order.

BACKGROUND

Griffin was convicted by a jury of assault on a public servant and sentenced to

two years’ confinement and a $2,500 fine by the trial court, which suspended imposition of the

sentence and placed him on community supervision for four years. See Tex. Penal Code

§ 22.01(b)(1). His conviction was affirmed in a decision of this Court. See Griffin v. State,

No. 03-15-00398-CR, 2017 WL 2229869, at *9 (Tex. App.—Austin May 19, 2017, pet. ref’d)

(mem. op., not designated for publication).

On August 31, 2020, he filed an article 11.072 habeas application, claiming that

his trial counsel provided ineffective assistance. The application was denied by the trial court on

October 20, 2020. In sworn affidavits filed with the court, Griffin and his habeas counsel attested that they were not provided notice of the denial and only learned of the court’s ruling

when counsel called the trial court clerk’s office on December 14, 2020. An email from the

clerk’s office to the State, in which a deputy clerk stated that the trial court’s order was uploaded

to the clerk’s online case files but not sent out, appears to confirm the clerk’s office’s failure to

notify Griffin as required by statute. See Tex. Code Crim. Proc. art. 11.072, § 7(b) (providing

that trial court clerk must, at time order is entered, send copy of order to applicant and

State “immediately”).

Griffin filed a second 11.072 application on March 16, 2021—93 days after

receiving notice of the trial court’s denial of the first application. In the second application, he

reraised his ineffective-assistance claim and newly contended that his right to due process would

be violated unless the trial court allowed “an out-of-time appeal of [its] order on the first writ.”

The trial court denied the second application without a hearing, and this appeal followed.

We abated the appeal to allow the trial court to clarify the nature of its

order denying Griffin’s second application. See Ex parte Griffin, No. 03-21-00198-CR,

2023 WL 2837487, at *3 (Tex. App.—Austin Apr. 7, 2023, no pet.) (order & mem. op., not

designated for publication). A supplemental clerk’s record was filed in this Court containing an

amended order denying the application as frivolous and determining from its face that Griffin

was manifestly entitled to no relief. See Tex. Code Crim. Proc. art. 11.072, § 7(a).

2 DISCUSSION

In his remaining issue, Griffin contends that the trial court erred by denying his

request for an out-of-time appeal. 1 Citing a case from our sister court, Ex parte Salim, he argues

that because he did not receive notice of the trial court’s ruling until after the statutory deadline

for filing a notice of appeal, “Due Process is violated unless an out-of-time appeal is allowed.”

See 595 S.W.3d 844, 854 (Tex. App.—Fort Worth 2020, no pet.).

The writ of habeas corpus is an extraordinary remedy. See Ex parte Smith,

444 S.W.3d 661, 666 (Tex. Crim. App. 2014). Article 11.072 “establishes the procedures for an

application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant

seeks relief from an order or a judgment of conviction ordering community supervision.” Tex.

Code Crim. Proc. art. 11.072, § 1; see Ex parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim.

App. 2008). Under the statute, a person who is serving or who has completed a term of

community supervision may file a habeas application attacking the “legal validity” of (1) the

conviction for which or order in which community supervision was imposed or (2) the conditions

of community supervision. Tex. Code Crim. Proc. art. 11.072, § 2; Ex parte Villanueva,

252 S.W.3d at 395. An applicant for a post-conviction writ of habeas corpus bears the burden of

proving his claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex.

Crim. App. 2016); see Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d)

(observing that “the applicant bears the burden of proving, by a preponderance of the evidence,

the facts that would entitle him to relief”).

1 We disposed of Griffin’s other issue in a prior decision. See Ex parte Griffin, No. 03-21-00198-CR, 2023 WL 2837487, at *3 (Tex. App.—Austin Apr. 7, 2023, no pet.) (order & mem. op., not designated for publication). 3 In a post-conviction proceeding pursuant to article 11.072, we review de novo the

trial court’s resolution of pure questions of law and of mixed questions of law and fact that do

not turn on witness credibility or demeanor. Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim.

App. 2017) (citing Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015)); see Ex parte

Roberts, 409 S.W.3d 759, 762 (Tex. App.—San Antonio 2013, no pet.) (“[I]f the court’s

application of the law to the facts does not rest on factual findings, it is afforded no deference

and we review de novo.”). Because the facts in this case are undisputed, and Griffin’s issue

implicates a mixed question of law and fact that does not turn on witness credibility, we will

review the issue de novo. We will uphold the trial court’s ruling if it is correct under any theory

of applicable law. Ex parte Beck, 541 S.W.3d at 852; see Alford v. State, 400 S.W.3d 924, 929

(Tex. Crim. App. 2013); Ex parte Morales, No. 03-19-00523-CR, 2021 WL 3233862, at *2 (Tex.

App.—Austin July 30, 2021, no pet.) (mem. op., not designated for publication).

The Court of Criminal Appeals has held that a trial court that otherwise has

habeas authority may grant an out-of-time appeal from a judgment of conviction, Rodriguez

v. Court of Appeals, Eighth Supreme Jud. Dist., 769 S.W.2d 554, 558–59 (Tex. Crim. App.

1989); see also Ex parte Valdez, 489 S.W.3d 462, 465 (Tex. Crim. App. 2016) (observing “no

relevant distinction between a request for an out-of-time appeal and a request for an out-of-time

PDR [petition for discretionary review]”), and we have concluded that an article 11.072 habeas

application is an appropriate vehicle through which to seek such a remedy, Ex parte McCarty,

No. 03-14-00575-CR, 2015 WL 2089091, at *3–4 (Tex. App.—Austin Apr. 29, 2015, no pet.)

(mem. op., not designated for publication) (listing supporting cases). However, neither we nor

the Court of Criminal Appeals appears to have considered whether, or under what circumstances,

4 a habeas court can grant an out-of-time appeal from the denial of a prior habeas application,

including one filed pursuant to article 11.072.

We therefore analogize the present case to those from the direct-appeal context.

Decisions from the Court of Criminal Appeals and our sister courts reflect two means by which a

habeas applicant can show entitlement to an out-of-time appeal from a conviction. First, the

applicant may be entitled to an out-of-time appeal where he presents a meritorious claim that his

counsel’s ineffective assistance deprived him of meaningful appellate review. See, e.g., Ex parte

Florentino, 206 S.W.3d 124, 125 (Tex. Crim. App. 2006) (determining that applicant was

entitled to opportunity to file out-of-time PDR because appellate counsel rendered deficient

performance by failing to timely notify applicant of his right to petition for discretionary review

pro se); Ex parte Coy, 909 S.W.2d 927, 927 (Tex. Crim. App. 1995) (concluding that applicant

was entitled to out-of-time appeal because of appellate counsel’s ineffective assistance in failing

to file designation of record); Ex parte Axel, 757 S.W.2d 369, 374–75 (Tex. Crim. App. 1988)

(finding that applicant received ineffective assistance of counsel because trial counsel did not

assist him in giving notice of appeal and that, therefore, applicant was entitled to out-of-time

appeal); Ex parte McPherson, No. 06-20-00092-CR, 2022 WL 107108, at *18 (Tex. App.—

Texarkana Jan. 12, 2022, no pet.) (mem. op., not designated for publication) (stating that

“[b]ecause appellate counsel was ineffective, [applicant] is entitled to an out-of-time appeal of

his judgment of conviction”); Sterling v. State, 681 S.W.2d 680, 682 (Tex. App.—Houston [14th

Dist.] 1984, pet. ref’d) (noting that appellant was afforded out-of-time appeal because trial court

concluded that he had shown in habeas application that appellate counsel was ineffective).

Second, a habeas applicant may obtain an out-of-time appeal from a conviction

where his failure to file a timely notice of appeal was not caused by him or his attorney but

5 resulted from “a breakdown in the system.” Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim.

App. 2006). In Riley, the applicant’s attorney did not receive a copy of the memorandum

opinion affirming the applicant’s conviction, which had been mailed by the appellate court clerk.

Id. at 901. By the time the attorney learned of the court of appeals’ decision from the district

attorney, the deadline for filing a PDR had passed. Id. On learning of the decision, the attorney

notified the applicant, who filed an application for writ of habeas corpus requesting leave to file

an out-of-time PDR. Id. The attorney also filed an affidavit claiming that he was ineffective

through no fault of his own because he did not have notice of the court’s decision. Id. The Court

of Criminal Appeals held that because of the “unusual circumstances” of the case, it would allow

the applicant to file an out-of-time PDR without a determination that his attorney had rendered

ineffective assistance because “there was a breakdown in the system.” Id. at 902. However, the

Court stressed the narrowness of its ruling and emphasized that for an applicant to be entitled to

an out-of-time appeal, it was essential that his attorney not be dilatory:

[T]his is not an opening for careless attorneys to disregard deadlines and blame it on the U.S. Postal Service. There are now procedures available to attorneys to reduce the chances that this type of breakdown will occur. CaseMail and opinion tracking are online tools offered by the courts to alert an attorney by electronic mail immediately when a case is handed down, alleviating the delay resulting from regular mail. Thanks to technology, attorneys no longer have the excuse that they didn’t know when their client’s case was decided. While occasionally there may be situations similar to the one before us, the incidents are infrequent and can be handled on a case by case basis rather than requiring a modification of our procedures.

Just to make it clear, we are not removing from attorneys the responsibility of informing their clients about court decisions affecting their case. Normally, when an appellant is not informed of the decision of the court of appeals by his attorney in time for him to file a petition for discretionary review, it will be ineffective assistance of counsel.

Id.

6 Riley’s unpublished progeny 2 and decisions from our sister courts reinforce the

premise that Riley’s holding does not allow for out-of-time appeals when an applicant or his

counsel bears some responsibility for an untimely filing. See Ex parte Robledo, 592 S.W.3d 905,

905–06 (Tex. Crim. App. 2020) (Yeary, J., concurring) (“[T]he Riley decision does not stand for

the proposition that this Court may ignore counsel’s potentially deficient performance any time

something unusual happens.”); Ex parte Pope, No. 14-15-00740-CR, 2016 WL 3461604, at *2

(Tex. App.—Houston [14th Dist.] June 23, 2016, no pet.) (mem. op., not designated for

publication) (noting that applicant’s reliance on Riley and one of its descendants was misplaced

because “[i]n those cases, . . . the failure to file a timely notice of appeal was not caused by the

applicant or counsel, but by a breakdown in the system”); but see Ex parte Pena,

No. 08-12-00188-CR, 2014 WL 3408423, at *2 (Tex. App.—El Paso July 11, 2014, no pet.)

(mem. op., not designated for publication) (“When an applicant has passed the deadline for filing

an appeal through no fault of his own but because of a breakdown in the system, such as failure

of counsel to file a notice of appeal, he may be entitled to an out-of-time appeal.”).

Griffin is not entitled to habeas relief under either basis for obtaining an

out-of-time appeal. See Ex parte Ali, 368 S.W.3d at 830. He does not allege that his habeas

counsel was ineffective for waiting 93 days after receiving notice of the trial court’s decision to

file a second application requesting an out-of-time appeal. See Ex parte Axel, 757 S.W.2d at

374. Thus, we may not grant him relief on that basis. See Ex parte Pope, 2016 WL 3461604, at

*3 (“Because [applicant] did not raise a claim of ineffective assistance of counsel in the trial

court, we may not grant him relief on that basis.”).

2 Unpublished opinions from the Court of Criminal Appeals have no precedential value and must not be cited as authority by a court. Tex. R. App. P. 77.3. 7 Moreover, he is not entitled to relief under Riley because, although there was a

breakdown in the system, counsel waited over three months after receiving notice of the trial

court’s ruling to request an out-of-time appeal. 3 As the Court explained in Riley, a breakdown in

the system does not relieve an attorney of the responsibility of informing his client about a

decision in the client’s case. See 193 S.W.3d at 902. Accordingly, because habeas counsel

contributed significantly to Griffin’s delay in seeking to appeal the denial of his original article

11.072 application, Riley does not entitle him to an out-of-time appeal. See Ex parte Robledo,

592 S.W.3d at 905–06; Ex parte Pope, 2016 WL 3461604, at *2.

The sole authority to which Griffin cites in support of his claim, Ex parte Salim, is

readily distinguishable. Salim’s initial habeas attorney filed an article 11.07 application for writ

of habeas corpus—which the trial court treated as an article 11.072 application—arguing that

Salim’s guilty plea had been involuntary and unknowing and that his trial counsel had been

ineffective. Ex parte Salim, 595 S.W.3d at 846. The trial court denied the application, but

counsel failed to notify Salim about the appealable order and instead erroneously informed him

that the application would be sent to the Court of Criminal Appeals for disposition. Id. at 850.

In a second article 11.072 application, filed by a different attorney, Salim argued that the later

application was not barred by article 11.072’s subsequent-writ rule and that he had been deprived

of his right to appeal the original application because of his first habeas counsel’s error. Id. at

851. The trial court found that Salim had failed to overcome the subsequent-writ bar

with respect to the second application but granted him an out-of-time appeal of the first. Id. at

852–53.

3 The record is silent as to when habeas counsel informed Griffin of the denial. Griffin’s affidavit, in which he avers that counsel informed him of the trial court’s decision, was sworn to on January 11, 2021, 65 days before the second application was filed. 8 On appeal, Salim contended that the trial court abused its discretion by barring the

second application as a subsequent writ; that it should have considered the second application on

its merits instead of granting an out-of-time appeal on the first; and alternatively, that it abused

its discretion by denying relief on the first application. Id. at 853. The court of appeals

emphasized the trial court’s timely consideration and denial of the first application and stated

that the “only arguable gap in due process . . . was the absence of an appeal of that denial,”

which, the court found, was “permissibly closed” by the trial court’s granting an out-of-time

appeal in the interest of justice. Id. (citing Ex parte Riley, 193 S.W.3d at 902; Ex parte Axel,

757 S.W.2d at 374).

Conversely, in Griffin’s second application—which was filed by the same

attorney who filed the first—he expressly requested an out-of-time appeal, the very relief

opposed by Salim, and did not assert that his right to appeal had been denied by deficient

representation. Moreover, instead of allowing Griffin an out-of-time appeal, the trial court in its

initial order denying his second application pointed to counsel’s long delay after learning of the

court’s ruling:

The Court finds that there are not any controverted, previously unresolved facts material to the legality of the Applicant’s confinement, or that due process was violated by not receiving a certified copy or encrypted email of the order in CR-14-0432-WHC1 since Applicant had notice of the decision on December 14, 2020 and failed to file a motion for an out-of-time appeal within thirty days of having notice.

Consequently, Salim does not support Griffin’s claim that “Due Process is

violated unless an out-of-time appeal is allowed.” We overrule his only issue.

9 CONCLUSION

Having overruled Griffin’s sole issue, we affirm the trial court’s order.

__________________________________________ Edward Smith, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Affirmed

Filed: December 8, 2023

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