Ortiz, Charles Daniel

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-87,218-01 and -02

EX PARTE CHARLES DANIEL ORTIZ, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. F1522016-A & F1522016-B IN THE 420 TH DISTRICT COURT FROM NACOGDOCHES COUNTY

A LCALA, J., filed a dissenting opinion.

DISSENTING OPINION

This is another claim of ineffective assistance of counsel addressed by this Court based on pleadings that have been presented by a pro se litigant. I respectfully dissent from this Court’s judgment that denies post-conviction habeas relief in this case. As I have previously expressed in my dissenting opinions in Ex parte Garcia and Ex parte Honish, in my view, an indigent pro se habeas applicant is entitled to the assistance of appointed post-conviction counsel in the interests of justice whenever either the pleadings or the face of the record gives rise to a colorable ineffective-assistance claim. See Ex parte Garcia, 486

Ortiz - 2 S.W.3d 565, 575 (Tex. Crim. App. 2016) (mem. op.) (Alcala, J., dissenting); Ex parte Honish, 492 S.W.3d 305, 306 (Tex. Crim. App. 2016) (mem. op.) (Alcala, J., dissenting). And, as I have observed in my prior opinions, the statutory basis for appointing counsel to an indigent pro se habeas applicant in the interests of justice already exists in Texas, but that statutory basis is seldom used by this Court in order to mandate the appointment of counsel in these situations. See T EX. C ODE C RIM. P ROC. art. 1.051(d)(3) (“An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in . . . a habeas corpus proceeding if the court concludes that the interests of justice require representation.”). Applying these principles here, and having liberally construed applicant’s pro se pleadings to examine them for substantive merit rather than for technical procedural compliance, I conclude that these pleadings are adequate to give rise to a colorable ineffective-assistance claim that would justify the appointment of counsel in the interests of justice under the current Texas statutory scheme. In order to afford applicant his one full bite at the apple in this initial habeas proceeding, and in order to ensure that applicant has been fully afforded his Sixth Amendment rights, I would remand this case to the habeas court for the appointment of post-conviction counsel and further proceedings as to applicant’s ineffectiveness claims. Because the Court instead declines to do so and denies relief, I respectfully dissent. Filed: September 27, 2017 Do Not Publish