1 The Director has lawful custody of White pursuan t to a

judgment of conviction and sentence imposed by the 366th Judicial

District of Collin County, Texas. 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.2

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 m inor son. White was arrested in New York and

returned to Texas. Counsel was appointed to represent White, but3

s hortly 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 T EX

. C ODE C RIM

. 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 sentenc e. 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 a ppeal by

mailing the same to the county clerk. The notice was received by

t he Fifth District Court of Appeals in Dallas, Texas on May 4,

1992. The trial court ordered a transcript of the proceedings in4

White’s case, and it was forwarded to the Texas Court of Appeals.

On July 13, 1992, the Texas Court of Appe als notified White that

his appeal would be dismissed as untimely because it was not filed

within thirty days, as requir ed 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

c ounsel’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 te stified by affidavit that he advised White that the

state’s allegations of non-paym ent would be difficult to oppose,

but that the trial court might be persuaded to continue the

deferred adjudication if Wh ite 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

unsuccessfu l

. These conversations apparently occurred in the5

context of White’s decision to plead true to the state’s

allegations and before White was conv icted and sentence was

imposed.

Barlow conceded that he did not specifically advise White that

he had a right to appeal, or that he ha d 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 t he 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 of6

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

pleadin gs allege that he was denied the effective assistance of

counsel because counsel’s f ailure 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 twopronged test defined in Strickland v. Washington , 104 S. Ct. 2052

(1984). Under that test, White must demonstrate that counsel’s

conduct was constitut ionally deficient in that it fell below an

objective standard of reasonablenes s as measured by prevailing

professional norms. I d

. at 2064; see also Gipson

, 985 F.2d at 215.

White must also demonstrate that he was prejudiced by counsel’s

deficient performance. S trickland

, 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. S ee 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 requiring7

that counsel’s unprofessional errors, r ather 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. S ee

, e.g.

, Gipson

, 985 F.2d at 215;

Childress , 842 F.2d at 772.

I. Deficient Performance

We begin by examining the scope of couns el’s constitutional

dut y 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. C hilds v. Collins

,

995 F.2d 67, 69 (5th Cir. 1993). The decision whether to appeal is

made by the defendant. S ee 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. S ee Faubion

, 19 F.3d at

231; Childs

, 995 F.2d at 69; s ee also Gipson

, 985 F.2d at 215;

Mart in , 737 F.2d at 462; L amb 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 t o a criminal defendant in this context requires

more than simply notice that an appeal is available or advice that

an appeal may be unavailing. S ee 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 procedure8

and time limits involved and of his right to appointed counsel on

appeal.” F aubion

, 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 e ntered falls below prevailing professional

standards and is constitutionally deficient performance within the

meaning of Strickland

. S ee 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 wh ich 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

c learly 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 to9

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.” G ipso n , 985 F.2d at 215; s ee 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 failure10

to fully inform him of his appellate rights actually caused him to

lose the right to appeal. S ee Gipson

, 985 F.2d at 215; Green

, 882

F.2d at 1003; Martin

, 737 F.2d at 462; Norris

, 558 F.2d at 135.

T he Director argues that White’s right to appeal was narro wly

circumscribed by his decision to plead guilty and by his decision

to plead true to the state’s petition for revocation of deferred

adjudicatio n. 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 adjudi cation of

guilt. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. 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. I d

. (“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 t o 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:11 Notice of appea l shall be given in writing filed

with the clerk of the trial court. Such notice

shall be suffici ent 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 Articl e 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 ord er 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

p ermission to appeal or shall specify that t hose

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 im posed 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 ran ge in the event that

deferred adjudication is revoked and the defendant is adjudicated12

gu ilty. S ee 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 impos ition of deferred

ad judication. 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 scruti nize 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 wi thin White’s narrowly defined right to appeal under state

l aw. 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 me rit. 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 co unsel in preparing one. S ee

Rodriguez

, 89 S. Ct. at 1717 (habeas petitioners claiming that they

were deprived o f 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 a13

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 a ppeal 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.

Th e 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. S ee

, e.g.

,

Childs

, 995 F.2d at 69; Gips on , 985 F.2d at 216-17; L umpkin

, 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.” C hilds

, 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

r est, and then claim that he did not waive his right to appeal.”

Norris

, 588 F.2d at 137 (citation omitted). “Consequently, a14

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. S ee 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

, 9 85 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. S ee

, 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. S ee

Norris

, 588 F.2d a t 136-37. We have applied that rule to find15

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. S ee

, 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 conc erning 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,16

but merely that the Director may not, i n 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 u tilize them, e .g.

, Childs v.

Collin s , 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 Huf f , 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 a lready 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 untimely17 g:\opin\96-40978.opn filed, a consequence that wou ld have been avoided had counsel

informed White that he had only thirty days to appeal. We conclude

that White has demo nstrated 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 constit utionally deficient

performance by failing to advise him that he had a limited right to

appeal from his conviction and se ntence within thirty days after

the revoc ation of his deferred adjudication probation in 1992.

White was prejudiced by that deficient performance within the

mean ing of S trickland 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 appea l 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

h abeas corpus relief is REVERSED. The cause is REMANDED to the

district court for entry of an order p roviding that the writ of

habeas corpus will issue unless the State of Texas permits White to18

g:\opin\96-40978.opn file an out-of-time appeal as permitted by the applicable state law

within a reasonable and definite period of time. S ee Lumpkin

, 439

F.2d at 1086 (setting forth the appropriate relief where petitioner

has been denied an appeal by counse l’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

.