Martinez, Rogelio Cortez

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,882-01

EX PARTE ROGELIO CORTEZ MARTINEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2011-DCR-02120-C IN THE 197 TH DISTRICT COURT FROM CAMERON COUNTY

A LCALA, J., filed a dissenting opinion in which J OHNSON, J., joined.

DISSENTING OPINION

This is another claim of ineffective assistance of counsel addressed by this Court

based on pleadings that have been presented by a pro se litigant. I respectfully dissent from

this Court’s judgment that denies post-conviction habeas relief in this case. Instead, I would

remand this case to the habeas court for the appointment of counsel in the interests of justice,

permit counsel to amend applicant’s ineffectiveness-claim pleadings, and decide the ultimate

merits of applicant’s claim after those events.

As I have previously expressed in my dissenting opinions in Ex parte Garcia and Ex

parte Honish, in my view, an indigent pro se habeas applicant is entitled to the assistance of Martinez - 2

appointed post-conviction counsel in the interests of justice whenever either the pleadings

or the face of the record gives rise to a colorable ineffective-assistance claim. See Ex parte

Garcia, No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr. 6, 2016) (Alcala, J.,

dissenting); Ex parte Honish, No. WR-79,976-05, 2016 WL 3193384 (Tex. Crim. App. June

8, 2016) (Alcala, J., dissenting). Without the appointment of counsel in those situations, I

have observed that it is unlikely that most pro se applicants will be able to properly present

their substantial ineffective-assistance claims, thereby increasing the likelihood that such

claims will be deprived of meaningful consideration on post-conviction review and, as a

result, that violations of defendants’ fundamental Sixth Amendment rights will go

unremedied. See Garcia, 2016 WL 1358947, slip op. at 2, 16; Honish, 2016 WL 3193384,

at *2. And, as I have observed in my prior opinions, the statutory basis for appointing

counsel to an indigent pro se habeas applicant in the interests of justice already exists in

Texas, but that statutory basis is seldom used by this Court in order to mandate the

appointment of counsel in these situations. See T EX. C ODE C RIM. P ROC. art. 1.051(d)(3) (“An

eligible indigent defendant is entitled to have the trial court appoint an attorney to represent

him in . . . a habeas corpus proceeding if the court concludes that the interests of justice

require representation.”).

Applying these principles here, and having liberally construed applicant’s pro se

pleadings to examine them for substantive merit rather than for technical procedural

compliance, I conclude that these pleadings are adequate to give rise to a colorable Martinez - 3

ineffective-assistance claim that would justify the appointment of counsel in the interests of

justice under the current Texas statutory scheme. In order to afford applicant his one full bite

at the apple in this initial habeas proceeding, and in order to ensure that applicant has been

fully afforded his Sixth Amendment rights, I would remand this case to the habeas court for

the appointment of post-conviction counsel and further proceedings as to applicant’s

ineffectiveness claims. Because the Court instead declines to do so and denies relief, I

respectfully dissent.

Filed: June 29, 2016

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