IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-31,799-10

EX PARTE ROBERT RAY ROBERTS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

CAUSE NO. 2021CR5177-W2 CR-IN THE 226TH DISTRICT COURT 

FROM BEXAR 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 petition for discretionary review. I write separately so that I may 

continue to emphasize the importance of appellate counsel’s duty to provide timely and 

accurate information to clients regarding the right to file a pro se PDR following resolution 

of a direct appeal. In this case, appellate counsel failed to timely inform Applicant of this 

right, thereby depriving Applicant of his ability to pursue review in this Court. This 
Roberts - 2

situation happens far too frequently and is a troubling sign that many appellate attorneys 

are routinely failing to carry out their duties in this regard, resulting in unfairness to clients 

and excessive post-conviction litigation to correct such errors.

I. Background

On November 28, 2022, Applicant pleaded nolo contendere to three counts of sexual 

assault of a child, and the trial court sentenced him to concurrent nine-year terms of 

imprisonment. Applicant reserved his right to appeal matters that were preserved by pretrial 

motions. On direct appeal, the court of appeals upheld the trial court’s judgments. See 

Roberts v. State, No. 08-23-00011-CR, 2023 WL 4994530, at *2 (Tex. App.—El Paso Aug. 

4, 2023, no pet.) (mem. op., not designated for publication). Because no motion for 

rehearing was filed in the court of appeals, the deadline to file a petition for discretionary 

review was 30 days after issuance of the court of appeals’ opinion.

1 However, no petition 

was filed.

In the instant post-conviction habeas application, Applicant alleges, inter alia, that 

appellate counsel failed to timely inform him of the court of appeals’ decision and of his 

right to file a pro se PDR, causing him to miss the filing deadline. Specifically, Applicant 

contends that appellate counsel did not mail him the required notice until August 16, 2023, 

which was around a week later than required under Rule of Appellate Procedure 48.4. See

TEX. R. APP. P. 48.4 (providing that appellate counsel “shall, within five days after the 

1 See TEX. R. APP. P. 68.2(a) (“The petition must be filed within 30 days after either the day the 

court of appeals’ judgment was rendered or the day the last timely motion for rehearing or timely 

motion for en banc reconsideration was overruled by the court of appeals.”). 
Roberts - 3

opinion is handed down, send his client a copy of the opinion and judgment, along with 

notification of the defendant’s right to file a pro se petition for discretionary review under 

Rule 68”). As a result of the delay, Applicant contends that he was denied a meaningful 

opportunity to prepare and file his pro se PDR.

In response to the allegations, appellate counsel filed an affidavit conceding that he 

did not comply with Rule of Appellate Procedure 48.4’s five-day notification requirement. 

However, appellate counsel contended that Applicant still “had sufficient time to file a 

PDR,” given that Applicant “would have had 30 days from the date of the judgment to file 

a PDR.” Appellate counsel also suggested that if Applicant needed more time to file his 

PDR, he could have sought an extension of time from this Court, which he did not do.2

The habeas court found that appellate counsel failed to comply with Rule 48.4 and 

that but for appellate counsel’s error, Applicant would have timely filed a pro se PDR. 

Thus, the habeas court recommends that this Court grant Applicant an out-of-time PDR.

II. Appellate Counsel’s Duties Under the Appellate Rules

Criminal defendants have a constitutional right to the effective assistance of 

counsel. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 

2052, 80 L.Ed.2d 674 (1984). This right to effective assistance extends to the first direct 

appeal. Evitts v. Lucey, 469 U.S. 387, 395–96, 105 S. Ct. 830, 83 L.Ed.2d 821 (1985); 

Ward v. State, 740 S.W.2d 794, 799 (Tex. Crim. App. 1987). Although a criminal 

2 See TEX.R. APP. P. 68.2(c) (“The Court of Criminal Appeals may extend the time to file a petition 

for discretionary review if a party files a motion complying with Rule 10.5(b) no later than 15 days 

after the last day for filing the petition.”).
Roberts - 4

defendant has no right to the assistance of counsel for purposes of actually pursuing 

discretionary review, appellate counsel still has a duty to timely notify the defendant of his 

right to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim. App. 2008) 

(detailing appellate counsel’s duties to clients upon denial of relief on appeal). This 

obligation is expressly codified in the Texas Rules of Appellate Procedure:

In criminal cases, the attorney representing the defendant on appeal shall, 

within five days after the opinion is handed down, send his client a copy 

of the opinion and judgment, along with notification of the defendant’s 

right to file a pro se petition for discretionary review under Rule 68. This 

notification shall be sent certified mail, return receipt requested, to the 

defendant at his last known address. The attorney shall also send the court of 

appeals a letter certifying his compliance with this rule and attaching a copy 

of the return receipt within the time for filing a motion for rehearing. The 

court of appeals shall file this letter in its record of the appeal.

TEX. R. APP. P. 48.4 (emphasis added). Thus, as Rule 48.4 clearly states, appellate counsel 

must “within five days after the opinion is handed down” (1) send a copy of the court of 

appeals’ opinion and written notification of the defendant’s right to pursue a pro se PDR; 

(2) send that notification via certified mail, with a return receipt requested; and (3) send a 

letter to the court of appeals certifying compliance with the requirements of Rule 48.4.

In this case, it is readily apparent that appellate counsel failed to comply with the 

dictates of Rule 48.4. Here, the court of appeals issued its opinion affirming Applicant’s 

convictions on August 4, 2023, so appellate counsel should have sent his notification letter 

no later than August 9. Instead, appellate counsel waited until August 16 to mail the letter, 

which Applicant received in prison two days later, on August 18. Because Applicant’s PDR 

was due 30 days after the date of the court of appeals’ opinion, Applicant had only around 
Roberts - 5

two weeks remaining in which to prepare and file his pro se PDR after receiving counsel’s 

untimely notification.

In his affidavit, counsel seems to suggest that Applicant is not entitled to relief, 

despite counsel’s failure to comply with Rule 48.4. Counsel’s position lacks merit, and the 

Court properly rejects it. First, while it is true that Applicant still had two weeks in which 

to file his PDR by the time he received counsel’s late notification letter, it is unreasonable 

to assume that an incarcerated, pro se litigant would not need the entire period allowed by 

the rules to prepare and submit his PDR. Given that the Rules of Appellate Procedure 

provide for a narrow 30-day window of time in which to file a PDR, a delay of even a week

in sending the required Rule 48.4 notification constitutes a significant infringement on the 

total amount of time allotted to prepare and file a PDR.

Second, regarding counsel’s suggestion that Applicant could have sought an 

extension from this Court, while that is true in theory, it is beside the point. The focus of 

our inquiry here is on counsel’s conduct and whether that conduct prejudiced Applicant’s 

ability to file a PDR. If counsel wanted to cure the effects of his mistake so that it would 

not be deemed prejudicial, he could have assisted Applicant with filing an extension 

request with this Court. At the very least, counsel could have provided Applicant with 

information on how to request an extension. Instead, the record suggests that counsel took 

no steps whatsoever to mitigate the effects of his error. Given the circumstances, Applicant 

should not be faulted for failing to request an extension when nothing in the record suggests 

he was even aware of the possibility of an extension, and counsel took no steps to educate 

him in that regard. Accordingly, I agree with the Court that appellate counsel was deficient 
Roberts - 6

and that his error prejudiced Applicant’s ability to pursue a pro se PDR, such that Applicant 

is entitled to an out-of-time PDR. See Ex parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim. 

App. 1997) (“If appellate counsel’s action or inaction denies a defendant his opportunity 

to prepare and file a petition for discretionary review, that defendant has been denied his 

sixth amendment right to effective assistance of counsel.”); see also Ex parte Riley, 193 

S.W.3d 900, 902 (Tex. Crim. App. 2006) (“Normally, when an appellant is not informed 

of the decision of the court of appeals by his attorney in time for him to file a petition for 

discretionary review, it will be ineffective assistance of counsel.”).

III. Appellate Counsel’s Duties Under the Rules of Professional Conduct

More generally, I also note that the Texas Disciplinary Rules of Professional 

Conduct require lawyers to keep clients reasonably informed of any case developments 

and to effectively communicate with their clients in a manner that permits the clients to 

make informed decisions related to their cases. Tex. Disciplinary Rules Prof’l Conduct R. 

1.03(a)–(b). Further, in representing a client, a lawyer “shall not neglect a legal matter 

entrusted to the lawyer.” Id. R. 1.01(b)(1). Ultimately, appellate counsel’s failure to timely 

communicate with Applicant about the status of his case fell short of the standards of 

professionalism set forth in the disciplinary rules and resulted in harm to Applicant by 

depriving him of a due process right. Such failure also places unnecessary burdens on the 

courts and causes judicial inefficiency that wastes taxpayer dollars. I certainly understand 

and acknowledge that we are all human beings who make mistakes. But based on the sheer 

volume of cases in which this or similar problems arise, it is my ethical obligation to bring 

attention to this issue so that attorneys may be reminded of the effect of failing to stay 
Roberts - 7

abreast of case developments and timely communicate with their clients. See Tex. Jud. 

Code 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.”). It is my hope that by highlighting this all-toofrequent problem, attorneys will be motivated to take steps to ensure that such situations 

do not occur in the future.

IV. Conclusion

With these comments, I join the Court’s opinion granting Applicant an out-of-time 

PDR.

Filed: September 11, 2024

Publish