Revised July 16, 1999
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 96-40978
LARRY JOE WHITE,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,1
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of Texas July 9, 1999 Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Texas prisoner Larry Joe White appeals from the district
court’s judgment denying White’s 28 U.S.C. § 2254 petition for writ
of habeas corpus. White is before the Court pro se and in forma
pauperis. White claims that trial counsel failed to inform him of
his appellate rights, thereby depriving him of the right to appeal.
1 The Director has lawful custody of White pursuant to a judgment of conviction and sentence imposed by the 366th Judicial District of Collin County, Texas. White seeks permission to file an out-of-time appeal.
The district court relied upon state court fact findings that
counsel did not fully inform White with respect to his appellate
rights. The district court nonetheless denied relief because White
had not identified any meritorious issues to be raised on direct
appeal. Where counsel’s failure to advise a criminal defendant of
his appellate rights causes the defendant to lose the right to
appeal his conviction or sentence, prejudice is presumed, and
relief does not depend upon whether the defendant would have been
able to raise meritorious issues on appeal. See United States v.
Gipson, 985 F.2d 212, 215 (5th Cir. 1993); Childress v. Lynaugh,
842 F.2d 768, 772 (5th Cir. 1988); Thor v. United States, 574 F.2d
215, 221 (5th Cir. 1978); Lumpkin v. Smith, 439 F.2d 1084, 1085
(5th Cir. 1971). White has demonstrated that counsel’s deficient
performance deprived him of the right to appeal. We therefore
reverse the district court’s judgment denying relief and remand for
entry of an order providing that the writ of habeas corpus will
issue unless the State of Texas elects to cure the constitutional
violation by permitting White to file an out-of-time appeal.
BACKGROUND
In July 1989, White was indicted on charges that he sexually
assaulted his minor son. White was arrested in New York and
returned to Texas. Counsel was appointed to represent White, but
2 shortly thereafter permitted to withdraw. The trial court
appointed a second lawyer, who negotiated a plea bargain with the
state. In March 1990, White pleaded guilty pursuant to that plea
bargain in exchange for ten years deferred adjudication probation.
See TEX. CODE CRIM. P. art. 42.12 § 5(a). White was also ordered to
pay court costs, restitution and probation fees.
White thereafter failed to pay restitution and probation fees
as mandated in the trial court’s order deferring adjudication. In
September 1991, the state filed a motion for revocation of White’s
probation and a petition requesting that the trial court proceed to
a final adjudication of White’s guilt and the imposition of an
appropriate sentence. Shortly thereafter, White’s second lawyer
was replaced by a third appointed lawyer, Craig Barlow. In January
1992, White, counseled by Barlow, pleaded true to the allegations
in the state’s petition for adjudication of guilt. The trial court
then found White guilty, but delayed sentencing to allow time for
preparation of a presentence report. After consideration of the
presentence report, the trial court sentenced White to fifteen
years in prison. The trial court entered final judgment on
February 2, 1992.
On April 22, 1992, White filed a pro se notice of appeal by
mailing the same to the county clerk. The notice was received by
the Fifth District Court of Appeals in Dallas, Texas on May 4,
1992. The trial court ordered a transcript of the proceedings in
3 White’s case, and it was forwarded to the Texas Court of Appeals.
On July 13, 1992, the Texas Court of Appeals notified White that
his appeal would be dismissed as untimely because it was not filed
within thirty days, as required by Texas Rule of Appellate
Procedure 41(b)(1).
On June 21, 1994, White filed a state application for habeas
corpus with the Texas Court of Criminal Appeals, alleging that
counsel’s failure to inform him of his appellate rights, and
particularly the time frame in which an appeal must be filed,
caused him to lose the opportunity to appeal certain issues
relating to the trial court’s judgment. The Texas Court of
Criminal Appeals remanded the matter to the state trial court for
further exploration of White’s factual allegations. The trial
court ordered attorney Barlow to file an affidavit responding to
White’s allegations that he was not advised of his right to appeal.
Barlow testified by affidavit that he advised White that the
state’s allegations of non-payment would be difficult to oppose,
but that the trial court might be persuaded to continue the
deferred adjudication if White could provide an adequate
explanation for the non-payment. Barlow therefore advised White to
plead true to the state’s allegations. Barlow testified that he
explained to White that pleading true would limit those arguments
that might be successfully presented on appeal. Barlow counseled
White that any appeal following a plea of true would probably be
unsuccessful. These conversations apparently occurred in the
4 context of White’s decision to plead true to the state’s
allegations and before White was convicted and sentence was
imposed.
Barlow conceded that he did not specifically advise White that
he had a right to appeal, or that he had thirty days in which to
perfect an appeal. Barlow testified that he assumed White did not
want to appeal because White did not contact Barlow after sentence
was imposed. Based upon this evidence, the state trial court
entered findings: (1) that the trial court did not implicitly grant
White permission to appeal by transferring the statement of facts
to the Texas Court of Criminal Appeals, and (2) that trial counsel
failed to apprise White that he had thirty days in which to appeal.
These findings were referred to the Texas Court of Criminal
Appeals, which summarily denied relief without opinion.
White then filed this federal petition for habeas corpus
relief. The district court referred the matter to a magistrate
judge, who entered an order directing White to identify the issues
he desired to present on direct appeal in the Texas courts. After
White responded with a list of issues for consideration, the
magistrate judge recommended that relief be denied because White
failed to identify meritorious issues for appeal. The district
court agreed, granting judgment in favor of the Director and
denying White’s petition for habeas corpus relief. White moved for
a certificate of probable cause for appeal in the district court,
which was denied. This Court later granted CPC on the issue of
5 whether White’s trial counsel was ineffective for failing to fully
inform him of his appellate rights.
DISCUSSION
White maintains that he is entitled to an out-of-time appeal
because neither his appointed counsel nor the trial court informed
him of his appellate rights. Construed liberally, White’s
pleadings allege that he was denied the effective assistance of
counsel because counsel’s failure to inform him of his appellate
rights caused him to lose the opportunity to appeal. Ineffective
assistance of counsel claims are controlled by the familiar two-
pronged test defined in Strickland v. Washington, 104 S. Ct. 2052
(1984). Under that test, White must demonstrate that counsel’s
conduct was constitutionally deficient in that it fell below an
objective standard of reasonableness as measured by prevailing
professional norms. Id. at 2064; see also Gipson, 985 F.2d at 215.
White must also demonstrate that he was prejudiced by counsel’s
deficient performance. Strickland, 104 S. Ct. at 2064; Gipson, 985
F.2d at 215. A defendant is prejudiced by counsel’s failure to
fully inform him of his appellate rights when that failure actually
causes the defendant to lose the right to appeal. See Gipson, 985
F.2d at 215; United States v. Green, 882 F.2d 999, 1003 (5th Cir.
1989); Martin v. Texas, 737 F.2d 460, 462 (5th Cir. 1984); Norris
v. Wainwright, 558 F.2d 130, 135 (5th Cir. 1979) (all requiring
6 that counsel’s unprofessional errors, rather than some other
factor, actually cause the denial of defendant’s right to appeal).
The defendant is not required to demonstrate that he would present
merit worthy issues on appeal. See, e.g., Gipson, 985 F.2d at 215;
Childress, 842 F.2d at 772.
I. Deficient Performance
We begin by examining the scope of counsel’s constitutional
duty to inform a criminal defendant of his appellate rights.
Criminal defense counsel is not burdened by any general duty to
perfect an appeal of every criminal conviction. Childs v. Collins,
995 F.2d 67, 69 (5th Cir. 1993). The decision whether to appeal is
made by the defendant. See United States v. Faubion, 19 F.3d 226,
231 (5th Cir. 1994); Childs, 995 F.2d at 69 n.1; Norris, 588 F.2d
at 137. But counsel is constitutionally required to fully inform
the defendant as to his appellate rights. See Faubion, 19 F.3d at
231; Childs, 995 F.2d at 69; see also Gipson, 985 F.2d at 215;
Martin, 737 F.2d at 462; Lamb v. Estelle, 667 F.2d 492, 496 (5th
Cir. 1982); Norris, 588 F.2d at 135-37; Lumpkin, 439 F.2d at 1085.
Counsel’s duty to a criminal defendant in this context requires
more than simply notice that an appeal is available or advice that
an appeal may be unavailing. See Gipson, 985 F.2d 215; Martin, 737
F.2d at 461-62. “The Constitution requires that the client be
advised not only of his right to appeal, but also of the procedure
7 and time limits involved and of his right to appointed counsel on
appeal.” Faubion, 19 F.3d at 231 (internal quotes omitted); see
also Childs, 995 F.2d at 69; Norris, 588 F.2d at 134-35; Lumpkin,
439 F.2d at 1085. Counsel’s failure to so advise a defendant once
a conviction is entered falls below prevailing professional
standards and is constitutionally deficient performance within the
meaning of Strickland. See Gipson, 985 F.2d at 215 (citing
relevant ABA Standards); see also Martin, 737 F.2d at 462; Lamb,
667 F.2d at 496; Lumpkin, 439 F.2d at 1085.
White claims that neither counsel nor the trial court advised
him that he had only thirty days in which to appeal. The state
trial court entered a finding of fact to that effect, which is not
challenged by the Director. Moreover, White was never informed
concerning the procedures for perfecting an appeal or that he had
a right to appointed counsel for purposes of preparing an appeal.
The federal district court found that White’s counsel did not fully
inform White concerning his right to appeal. That finding is not
clearly erroneous. Although Barlow’s affidavit indicates that
White may have possessed some generalized knowledge that he had a
limited right to appeal, White was not fully apprised by either the
trial court or by counsel of his appellate rights. “It is well
established in this Circuit, as elsewhere, that an indigent accused
is denied effective assistance of counsel at a critical stage of
the criminal process when his court-appointed attorney fails to
8 advise him of his right to appeal, the procedure and time limits
involved, and of his right to appointed counsel on appeal.”
Lumpkin, 439 F.2d at 1085 (collecting citations); see also Martin,
737 F.2d at 462; Lamb, 667 F.2d at 496. We conclude that White’s
counsel provided constitutionally deficient performance by failing
to fully inform White of his appellate rights.
II. Prejudice
The district court acknowledged that White had not been fully
informed of his appellate rights, but denied relief because White
did not identify any meritorious claims for presentation on direct
appeal. A defendant who claims that counsel’s deficient
performance actually deprived him of the right to appeal, “need not
establish -- as a prerequisite to habeas relief -- that he had some
chance of success on appeal.” Gipson, 985 F.2d at 215; see also
Rodriguez v. United States, 89 S. Ct. 1715 (1969); Childress, 842
F.2d at 772; Thor, 574 F.2d at 221; Lumpkin, 439 F.2d at 1085. For
that reason, the district court’s disposition of White’s claim was
premised upon an incorrect view of the law. The Director concedes
that the district court’s reasoning was incorrect, but argues that
the result was appropriate, either because White possessed only a
limited right to appeal or because White affirmatively waived his
right to appeal.
To establish prejudice, White must show that counsel’s failure
9 to fully inform him of his appellate rights actually caused him to
lose the right to appeal. See Gipson, 985 F.2d at 215; Green, 882
F.2d at 1003; Martin, 737 F.2d at 462; Norris, 558 F.2d at 135.
The Director argues that White’s right to appeal was narrowly
circumscribed by his decision to plead guilty and by his decision
to plead true to the state’s petition for revocation of deferred
adjudication. Clearly, White cannot establish prejudice arising
from counsel’s failure to inform him of his appellate rights if he
had none to begin with. We must therefore consider the scope of
White’s right to appeal from the trial court’s 1992 judgment.
Under then-applicable Texas law, White had no right to appeal
the trial court’s decision to proceed with an adjudication of
guilt. See TEX. CODE CRIM. PROC. ANN. art.42.12 § 5(b), amended by,
Acts 1993, 73rd Leg., ch. 806. White did have a limited right to
appeal from his conviction and sentence. Id. (“after an
adjudication of guilt, all proceedings including assessment of
punishment, pronouncement of sentence, granting of community
supervision, and defendant’s appeal continue as if the adjudication
of guilty had not been deferred”).
White’s right to challenge his conviction and sentence was
limited by his guilty plea and the trial court’s decision to permit
deferred adjudication pursuant to White’s initial plea bargain.
The version of Texas Rule of Appellate Procedure 40(b) applicable
in 1992 provides in relevant part:
10 Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial.
See Tex. R. App. P. 40(b) (West 1992). Under that rule, White
could not appeal any defect or error occurring before his guilty
plea without the permission of the trial court, unless his appeal
raised issues presented and ruled upon in a pretrial motion or
challenged the jurisdiction of the trial court.
White’s right to appeal from the sentence imposed was likewise
limited by the same rule. Even though the record does not reflect
that White’s plea bargain included terms relating to the sentence
that could be imposed following any revocation of deferred
adjudication, and even though White’s plea of true to the state’s
allegations that he violated the terms of his deferred adjudication
was not conditioned upon any particular sentence, Texas courts have
held that plea agreements resulting in deferred adjudication
probation should be construed to permit the imposition of any
sentence within the permissible legal range in the event that
deferred adjudication is revoked and the defendant is adjudicated
11 guilty. See Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim.
App. 1996). In such a case, the defendant’s appeal from conviction
and sentence imposed after conviction is limited by Texas Rule of
Criminal Procedure 40(b) to the same extent that that rule would
have limited an immediate appeal from the imposition of deferred
adjudication. See id. Based upon our review of Texas law, we
conclude that White had a limited, but nonetheless existent, right
to appeal both his conviction and sentence following the revocation
proceedings.
The Director next urges the Court to scrutinize the claims
that White has identified in his pro se petition for habeas corpus
relief to determine whether the claims White would bring on appeal
fall within White’s narrowly defined right to appeal under state
law. We decline to engage in this exercise. White is not a
lawyer, and there is little doubt that certain of White’s claims,
as presently articulated, are without merit. But it is not our
role to either characterize White’s pro se claims or assess the
merits of those claims in this action. Indeed, to do so would
effectively deprive White of his right to appeal, even though he
has not had the assistance of counsel in preparing one. See
Rodriguez, 89 S. Ct. at 1717 (habeas petitioners claiming that they
were deprived of any appeal often proceed pro se and would “have
grave difficulty” presenting even a summary statement of the issues
to be presented on appeal; requiring such petitioners to make a
12 showing that they would likely prevail on appeal would thus deprive
them “of their only chance to take an appeal even though they have
never had the assistance of counsel in preparing one.”). White had
a right to appeal from the challenged decision. That right was
neither unfettered nor spectacularly broad. Nonetheless, the Texas
Court of Appeals is the proper forum for consideration of White’s
claims on appeal. We therefore reject the Director’s invitation to
hold that White has not alleged cognizable claims for appeal.
The Director also argues that White waived his right to
appeal. Clearly, White cannot be said to have been prejudiced by
counsel’s failure to inform him of his appellate rights if he never
intended to exercise those rights. See, e.g., Green, 882 F.2d at
1003. We have sometimes discussed this principle in terms of
whether the defendant “waived” his right to appeal. See, e.g.,
Childs, 995 F.2d at 69; Gipson, 985 F.2d at 216-17; Lumpkin, 439
F.2d at 1085. Waiver generally implies a knowing and voluntary
relinquishment of a known constitutional right. Childs, 995 F.2d
at 69. But the right to appeal is a “positive right that must be
affirmatively exercised,“ rather than “a negative right to be used
as a shield against government intrusion.” Childs, 995 F.2d at 69.
For that reason, the Court has recognized that “a defendant
properly informed of his appellate rights may not let the matter
rest, and then claim that he did not waive his right to appeal.”
Norris, 588 F.2d at 137 (citation omitted). “Consequently, a
13 defendant may be held to have waived the right to appeal upon a
showing that the defendant was fully informed of his appellate
rights and failed to make known his desire to exercise those
rights. See Norris, 588 F.2d at 136-37 (“no circuit has failed to
find waiver when the petitioner actually knew of his appellate
rights, and no circuit has inquired into the mental condition of
the petitioner at the time he was told of his appellate rights”);
see also Childs, 995 F.2d at 69 & n.1; Gipson, 985 F.2d at 216.;
Meeks v. Cabana, 845 F.2d 1319, 1321-22 (5th Cir. 1988).
Perhaps the clearest case of waiver is when the defendant
advises counsel that he does not wish to appeal. See, e.g., Meeks,
845 F.2d at 1321-22. In such a case it is the defendant’s own
decision rather than counsel’s conduct which deprives the defendant
of an appeal. There is no dispute in this case about the fact that
White desired an appeal. White demonstrated his intent by filing
a notice of appeal less than ninety days after judgment was
imposed. Thus, this is not a case in which counsel’s failure to
fully inform White of his appellate rights may be excused by
independent evidence that White did not intend to appeal.
Waiver may also occur when the defendant had actual knowledge
of his appellate rights from another source. In such a case, it is
the defendant’s own failure to act, rather than any failure on
counsel’s part, which deprives the defendant of an appeal. See
Norris, 588 F.2d at 136-37. We have applied that rule to find
14 waiver where the record establishes that the trial court, rather
than counsel, actually apprised the defendant of his right to
appeal, and the defendant thereafter failed to make his desire to
appeal known. See, e.g., Meeks, 845 F.2d at 1323; Martin, 737 F.2d
at 462 n.1; Childs, 995 F.2d at 68-69; Norris, 588 F.2d at 135;
Huff v. Wainwright, 583 F.2d 744 (5th Cir. 1978).
The Director argues that White was apprised of his right to
appeal. Specifically, the Director relies upon statements made by
the trial court to White during the 1990 hearing in which the trial
court placed White on deferred adjudication. During that hearing,
the trial court explained to White the consequences of his guilty
plea and the trial court’s decision to approve the plea bargain.
One of those consequences was that White would have only a limited
right to appeal. The trial court made certain remarks concerning
the availability of an appeal. The trial court did not, however,
at that or any other time apprise White that he would have only
thirty days to file an appeal, or that he was entitled to appointed
counsel on appeal. Even assuming the trial court’s 1990 advice
concerning White’s ability to appeal from the trial court’s order
placing him on deferred adjudication probation would be sufficient
to provide notice to White concerning his separate and differing
right to appeal from the revocation proceedings, the trial court
did not inform White that he had only thirty days to perfect an
appeal. We do not hold that the trial court was required to do so,
15 but merely that the Director may not, in the absence of such
advice, rely upon the trial court’s 1990 advice to establish a
waiver.
We have also found waiver where the state habeas court entered
binding findings of fact that the petitioner was aware of his
appellate rights and failed to utilize them, e.g., Childs v.
Collins, 995 F.2d 67, 68-69 (5th Cir. 1993), or when the federal
district court makes specific findings that a defendant was fully
informed of his appellate rights and waived those rights by failing
to make his desire to perfect an appeal known, e.g., Gipson, 985
F.2d at 216; see also Huff, 583 F.2d at 745. We are dealing in
this case with the opposite scenario. Both the state habeas court
and the federal district court entered findings of fact to the
effect that White was not fully informed of his appellate rights.
We have already concluded, and indeed the parties concede,
that White was not fully informed of his appellate rights. There
is, therefore, no basis for finding that White waived his right to
appeal.
White had a limited right to appeal from the 1992 proceedings.
Neither trial counsel nor the trial court fully informed him of his
appellate rights, and there is no evidence in the record that White
was otherwise aware of his appellate rights. White attempted to
exercise his right to appeal less than ninety days after the
judgment against him, and that appeal was dismissed as untimely
16 filed, a consequence that would have been avoided had counsel
informed White that he had only thirty days to appeal. We conclude
that White has demonstrated that counsel’s failure to inform him
that he had to file an appeal within thirty days deprived White of
his limited right to appeal from his conviction and sentence. He
has therefore demonstrated prejudice within the meaning of
Strickland and is entitled to habeas corpus relief.
CONCLUSION
White’s counsel provided constitutionally deficient
performance by failing to advise him that he had a limited right to
appeal from his conviction and sentence within thirty days after
the revocation of his deferred adjudication probation in 1992.
White was prejudiced by that deficient performance within the
meaning of Strickland because counsel’s failure to advise White
that an appeal had to be filed within thirty days caused the
dismissal of White’s untimely notice of appeal filed within a
reasonable time after the thirty day deadline expired. White is
therefore entitled to habeas corpus relief on his claim that
counsel provided ineffective assistance of counsel.
The district court’s judgment denying White’s petition for
habeas corpus relief is REVERSED. The cause is REMANDED to the
district court for entry of an order providing that the writ of
habeas corpus will issue unless the State of Texas permits White to
g:\opin\96-40978.opn 17 file an out-of-time appeal as permitted by the applicable state law
within a reasonable and definite period of time. See Lumpkin, 439
F.2d at 1086 (setting forth the appropriate relief where petitioner
has been denied an appeal by counsel’s deficient performance).
White’s appeal will be circumscribed by the applicable Texas Rules
of Criminal Procedure and statutory provisions. We note that White
will be entitled to appointed counsel for the purpose of addressing
the complexities involved in the out-of-time appeal.
REVERSED AND REMANDED.
g:\opin\96-40978.opn 18