Rodriguez, Fred

• Court: Court of Appeals of Texas
• Decided: September 14, 2016
• Docket: WR-85,374-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-85,374-01, WR-85,374-02, WR-85,374-03 & WR-85,374-04

EX PARTE FRED RODRIGUEZ, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. D-42,913-A, D-42,914-A, D-42,915-A & D-42,916-A IN THE 358 TH DISTRICT COURT FROM ECTOR COUNTY

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

CONCURRING OPINION

I agree with the Court’s order that remands this pro se habeas application to the

convicting court for further development of the record, but I would expand the scope of the

topics to be addressed on remand. In addition to the matters discussed in this Court’s remand

order, I would also instruct the habeas court to consider applicant’s contention that his trial

counsel was ineffective during applicant’s guilty-plea proceedings. I, therefore, respectfully

concur in this Court’s order, as written.

This Court’s remand order does not expressly state why it declines to remand

applicant’s ineffective-assistance claim, but, given the conclusory nature of applicant’s pro Rodriguez - 2

se pleadings, it appears likely that the Court has determined that applicant’s allegations in

this regard are inadequate to give rise to any colorable basis for relief. I disagree with this

approach that denies applicant the opportunity to factually develop his ineffective-assistance

claim based solely on the unsophisticated state of his pro se pleadings. As I have previously

indicated, in my view, an indigent pro se habeas applicant is entitled to the benefit of liberal

construction when this Court reviews his pleadings to determine whether they warrant further

development in the habeas court. See Ex parte Honish, __S.W.3d__, No. WR-79,976-05,

2016 WL 3193384, at *3 (Tex. Crim. App. June 8, 2016) (Alcala, J., dissenting).

Furthermore, I have suggested that, whenever a pro se habeas applicant’s pleadings or the

face of the record gives rise to a colorable ineffective-assistance claim, then the proper

course is for this Court to remand the case to the habeas court for appointment of counsel in

the interests of justice so that counsel may then amend the ineffectiveness pleadings to

comply with this Court’s pleading standards. See Ex parte Garcia, 486 S.W.3d 565, 577-78

(Tex. Crim. App. 2016) (mem. op.) (Alcala, J., dissenting); Honish, 2016 WL 3193384, at

*2-3. In support of this assertion, I have observed that the Code of Criminal Procedure

mandates the appointment of counsel for a pro se habeas applicant whenever “the court

concludes that the interests of justice require representation,” which, in my view, applies to

any situation in which this Court determines that a colorable claim exists for which legal

expertise is needed in order to ensure that the claim is properly litigated. See Garcia, 486

S.W.3d at 578 (citing T EX. C ODE C RIM . P ROC. art. 1.051(d)(3)). Without the appointment Rodriguez - 3

of counsel in such 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 id. at 574-75; Honish, 2016 WL 3193384, at *2.

Applying these principles here, I conclude that applicant’s pleadings are adequate to

give rise to a colorable ineffective-assistance claim that would justify the appointment of

counsel in the interests of justice and further development in the habeas court. I, therefore,

would instruct the habeas court on remand to appoint counsel, permit counsel to amend the

instant ineffectiveness-claim pleadings, and make findings of fact and conclusions of law on

the issue of ineffective assistance of counsel in addition to the other matters included in this

Court’s remand order. Because the Court declines to remand this case for consideration of

the issue of ineffective assistance of counsel and instead limits the scope of the matters to be

addressed on remand to the issue of whether applicant’s guilty plea was voluntary, I

respectfully concur in this Court’s remand order.

Filed: September 14, 2016

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