IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-94,158-01

EX PARTE CHARLES GARTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

CAUSE NO. 18F0532-102-A IN THE 102ND DISTRICT COURT 

BOWIE COUNTY 

SLAUGHTER, J., filed a concurring opinion. 

CONCURRING OPINION

I join in the Court’s decision to grant Applicant post-conviction habeas relief in the 

form of an out-of-time appeal based on ineffective assistance of trial counsel. After 

Applicant was convicted of two counts of aggravated sexual assault of a child and 

sentenced to eighty years’ imprisonment on each count, he expressed to trial counsel his 

desire to appeal the convictions. According to Applicant’s allegations, counsel informed 

Applicant that he did not intend to represent Applicant on appeal but would provide him 

the necessary paperwork for perfecting an appeal. Counsel had Applicant sign some 

paperwork but never advised Applicant on how to perfect his appeal. In support of his 
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claim, Applicant provided purported text messages between his sister and counsel. Those 

messages show that Applicant’s sister texted counsel asking about Applicant’s appeal and 

counsel replied by stating that he would not “forget [Applicant’s] appeal,” that he had filed 

a motion for new trial thereby extending the window for filing a notice of appeal, and that 

he intended to file a notice of appeal on Applicant’s behalf. The record reflects that counsel 

did indeed file a motion for new trial, but, in spite of his assurances, he never filed a notice 

of appeal. It also appears that counsel never withdrew as counsel of record.

In response to Applicant’s habeas allegations, the habeas court ordered trial counsel 

to provide an affidavit. When counsel did not initially respond within 30 days as ordered, 

the habeas court entered a second order requiring an affidavit within 7 days. Counsel again 

failed to respond. Thus, having received no response from counsel, the habeas court had 

no choice but to resolve Applicant’s claim based solely on the allegations in the application 

and the text messages from Applicant’s sister.

These circumstances highlight two unfortunate recurring themes in our postconviction habeas review of ineffective-assistance claims. First, it appears that some 

attorneys are struggling to stay on top of their obligations at the conclusion of their 

representation, resulting in harm to clients who are then prevented from pursuing the next 

stage of appellate review of their convictions. Here, counsel clearly failed to carry out his 

duties at the end of his representation, including failing to file a notice of appeal on 

Applicant’s behalf. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988)

(“[T]rial counsel, retained or appointed, has the duty, obligation and responsibility to 

consult with and fully to advise his client concerning [the] meaning and effect of the 
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judgment rendered by the court, his right to appeal from that judgment, the necessity of 

giving notice of appeal and taking other steps to pursue an appeal, as well as expressing 

his professional judgment as to possible grounds for appeal and their merit, and delineating 

advantages and disadvantages of appeal.”); see also Jones v. State, 98 S.W.3d 700, 703 

(Tex. Crim. App. 2003) (stating that “[i]f the defendant decides to appeal, the [trial] 

attorney must ensure that written notice of appeal is filed with the trial court”). In addition 

to depriving Applicant of his statutory right to pursue a direct appeal, counsel’s error has 

also now resulted in both the habeas court and this Court having to expend resources to 

undo the effects of counsel’s error. Thus, this case serves as a reminder that trial counsel’s

role at the post-conviction stage—including filing a motion for new trial, if any; filing a 

timely notice of appeal; filing a motion to withdraw if counsel will not be completing the 

appeal; and advising the client on the next steps to pursue an appeal if desired—is critical 

for ensuring that a defendant’s right to appeal is properly preserved.1 Failure to fulfill these 

obligations is not only unprofessional and unfair to clients, but it also wastes judicial 

resources by spawning the type of corrective post-conviction litigation before us here.

Though I recognize that we are all human beings who make mistakes, based on the sheer 

1 See American Bar Association, Criminal Justice Standards, Defense Function, Standard 4.9-1(a)-

(d), “Preparing to Appeal” (“If a client is convicted, defense counsel should explain to the client 

the meaning and consequences of the court’s judgment and the client’s rights regarding appeal . . . . 

Defense counsel should take whatever steps are necessary to protect the client’s rights of appeal, 

including filing a timely notice of appeal in the trial court, even if counsel does not expect to 

continue as counsel on appeal. Defense counsel should explain to the client that the client has a 

right to counsel on appeal (appointed, if the client is indigent), and that there are lawyers who 

specialize in criminal appeals. Defense counsel should candidly explore with the client whether 

trial counsel is the appropriate lawyer to represent the client on appeal, or whether a lawyer 

specializing in appellate work should be consulted, added or substituted.”) (emphasis added).
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volume of writ applications this Court sees annually in which this or similar problems arise, 

I feel that it is my ethical obligation to bring attention to this issue so that attorneys may be 

reminded of the effect of failing to stay on top of their responsibilities.2

Second, I have previously noted that, when an attorney is ordered to provide an 

affidavit in response to an Applicant’s habeas allegations and wholly fails to do so, that 

attorney violates his obligations under the Texas Rules of Professional Conduct, as well as 

his oath and the Texas Lawyer’s Creed; thus, it may be appropriate for this Court to take 

action and require an explanation from counsel. See Ex parte Touchet, 615 S.W.3d 160, 

161 (Tex. Crim. App. 2021) (Slaughter, J., concurring) (“An attorney’s complete failure to 

respond to claims raised against him not only hinders judicial economy, but in some 

instances may result in the Court’s inability to fully and fairly decide a claim. Such a 

serious infraction warrants action by the habeas court. If the habeas court fails to take 

appropriate action, then this Court should do so or at least require habeas counsel to 

respond.”).

3 Though I agree wholeheartedly with the habeas court’s recommendation to 

grant relief under these circumstances, it concerns me that counsel will not be required to 

2 See Tex. Code Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly 

establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of 

Professional Conduct should take appropriate action.”). My hope is that attorneys will implement 

practices that spur them to regularly check on the status of their cases so they may fulfill their duty 

to meet important filing deadlines for their clients.

3 See also Tex. Disciplinary Rules Prof’l Conduct R. 8.04 (“A lawyer shall not violate these rules 

[or] . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation [or] . . . violate 

any other laws of this state relating to the professional conduct of lawyers and to the practice of 

law.”). Lawyers who violate the Rules may be subject to discipline. Id. R. 1.01(b) & cmts 6-7 

(“[A]n incompetent lawyer is subject to discipline,” as is one who neglects “a particular legal 

matter” or who “frequent[ly] fail[s] to carry out fully the obligations owed to one or more clients.”).
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answer either for the underlying failure to file a notice of appeal or his later failure to 

respond to the habeas court’s order for an affidavit. Perhaps there is some justification for 

counsel’s conduct, but in the absence of any response from counsel, this Court will never 

know. I continue to believe that, to ensure the integrity of judicial proceedings and the

accuracy of our determinations on post-conviction habeas review, this Court should at least 

consider issuing a show-cause order in such situations. Allowing such non-responsiveness 

by counsel to go unaddressed sends a negative message about the importance of postconviction habeas litigation, undermines this Court’s authority, and ultimately impedes our 

ability to fairly decide habeas claims. Though a show-cause order is undoubtedly not 

warranted in all cases, it should be an option for this Court to consider in extreme situations, 

particularly for repeated infractions.

With these comments, I join the Court’s opinion granting Applicant relief.

Filed: November 2, 2022

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