Particularly in the aftermath of Cooper and White I have observed a very large number of appeals being dismissed for want of jurisdiction. No doubt some of these dismissals involve cases where the defendant could have raised a valid claim, but his attorney simply neglected to file the proper notice. Perhaps these cases will be taken care of with the "substantial compliance" exception being carved into Rule 25.3. But there are also still a lot of appeals involving "not guilty" pleas that are being dismissed under Olivo, i.e. based solely on the timeliness of the notice. My question is: to what extent should the State raise an Olivo issue?

Most 11.07 cases granting out-of-time appeals are unpublished, but I get the impression there are a fairly large number of them. You hardly ever see a published CA opinion either which specifically says it is the result of an out-of-time application, but there must be quite a few unpublished ones. And, at least in San Antonio, when the court dismisses an appeal under Olivo, they also add a "see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991)(out-of-time appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure)" to their opinion, as though encouraging the defendant to try to bring the case back before them. My impression is that it is probably not too difficult to get an out-of-time appeal based on ineffective assistance of the appellate counsel.


So, if you think that sooner or later the appeal will be decided on the merits, how hard do you fight to keep it out the first time? Arguments for: if appeal may have merit, you force defendant to go through 11.07 process possibly without benefit of counsel and likely with a different attorney upon "re-appeal"; if he is in prison you have delayed unfavorable outcome thereby imposing some punishment and perhaps avoiding necessity for re-trial. Arguments against: you may embarass/alienate original appellate counsel unnecessarily (if you think conviction will be affirmed anyway why do that?); you are creating 3 steps (more work for everyone concerned) instead of 1; is it really ethical to seek a remedy just for delay, especially where someone may be wrongly imprisoned in the meantime. Cf. Discip.Rule 3.02.

In the appeal I am involved with, I think the CCA will find that appellant was deprived of review without any fault on his part (if case is dismissed). He is serving a life sentence. We deal with his appellate counsel often on many other cases. And most importantly, although the notice of appeal was filed one day late, the CA has granted the defendant's motion to extend time to file it.
Under those circumstances, I view raising the jurisdictional issue as my "ace in the hole", to be used only if the court were to reverse the case. But, maybe the state is bound by the extension order if it is not timely challenged. And maybe I have a duty to make the court aware of its lack of jurisdiction.

Is there a new wave of out-of-time appeals? Isn't closing the door to the court of appeals without locking it a pretty senseless way of handling the problem? In an out-of-time appeal (with a new lawyer) can additional issues be raised or just those in the original brief? (Maybe that's another reason not to challenge the jurisdiction before the court decides the case). I haven't seen a huge increase in lawyer discipline and don't know whether the court of criminal appeals refers its ineffective assistance cases directly to the state bar as some CAs do. One reason might be because almost all the appeals are being affirmed once they actually get to the court (out-of-time). Even so, there must be a lot of findings of ineffective assistance floating around.

[This message was edited by Martin Peterson on 05-12-02 at .]

If a court lacks jurisdiction, it lacks jurisdiction. It does not matter how meritorious the appeal might be. Even if the underlying conviction is VOID, a court of appeals without jurisdiction is powerless over the case. White v. State,61 S.W.3d 424 (Tex. Crim. App. 2001)(unanimous opinion).

A substantial majority of criminal appeals are patently frivolous. (Most defense counsel won't file an Anders brief because it is almost an automatic ticket to a grievance). Thus, if you zealously defend appellate jurisdiction, and thereby discourage some appeals, the fact of the matter is that your saving work you would otherwise spend on frivolous cases.

By quickly pointing out jurisdictional flaws, you will speed the efforts of those with the desire (if no arguable issues) to get an appeal via an 11.07 writ.

If indeed you see that the defendant is entitled to a new trial, then why not do justice and say so in your writ response, and skip the appeal.

Don't torture the law of appellate jurisdiction to achieve a result you can reach by permissible methods.

Shouldn't you be forwarding the finding of ineffective assistance of counsel to a grievance committee? Don't defense attorneys want the incompetent to be removed from the appellate process?

John Bradley
District Attorney
Williamson County, Texas

In California, any judicial finding of ineffective assistance is automatically forwarded to the grievance committee for action. While I probably wouldn't want anything else from California's criminal justice system, that rule sounds like a winner to me.

The realities probably differ greatly between the large and small counties. Here, appointed trial counsel or the defendants file notice of appeal. Appellate counsel are usually appointed to the case after any opportunity to file a timely and/or specific notice of appeal has expired. Thus, the appellate lawyers I know and respect who get poured out on jurisdiction aren't at fault; the fault may belong to a lawyer known and respected by the trial prosecutor, but we don't hold back on that account.

Finally, and speaking only to my county's data, there simply is no meaningful number of successful ineffective assistance claims raised in appeals or writs, whether for failure to timely perfect appeals or for blowing it at trial to the detriment of the defendant. The story that every defendant has a lousy lawyer who screws up the case is just another urban legend of our justice system, much like the one that said everybody in TDC was there on a technical revocation.

John R., how many out-of-time appeals do you see granted out of Dallas County. What percentage of 11.07 writs are granted on the ground that appellate counsel failed to get a timely or proper notice of appeal filed, and what test is being used to determine which ones get granted. With all those opinions being unpublished, I cannot really evaluate how likely it is that my appellant will get an out-of-time appeal (assuming his appeal were dismissed and he files a writ). In my case, I presume the court would hold the evidence to be sufficient (which is the only issue raised in his brief, frivolously or not). I still cannot see why I would want to raise the fact that the notice of appeal was filed on the 106th day after sentencing in open court, if I can get a quicker resolution of that issue by the court of appeals (pretending it has jurisdiction) the first time around. After all, the court itself granted the motion for extension, presumably with knowledge of Olivo and the ability to count. My only real fear is whether the scope of an out-of-time appeal can be broadened (not that there are any other errors in the record in my case), and my concern about having a lawyer adjudged not competent, when in fact I think he could offer a pretty good explanation for his delay in filing the notice (plus, as stated before, we deal with him on a regular basis).

Too, maybe my case would merely encourage the courts to create an exception to Olivo (not necessarily a good thing for the State). Of course, I guess the appellant could raise the jurisdictional issue too (if he gets an unfavorable opinion), in which case I guess the court gets embarassed along with the rest of us. I'm really having a tough time figuring out what is best under these facts.

If you know that an appellate court does not have jurisdiction and fail to bring it to the attention of the court, you risk violating the rules of ethical behavior. Just alert the appellate court and let the chips fall where they may.

John Bradley
District Attorney
Williamson County, Texas

For our FY01, the CCA considered 964 Art. 11.07 writs from Dallas County. They granted relief in 19 Art. 11.07 writs during that time, or in 1.97% of 11.07 writs. They granted out of time appeals in 5 cases, or 0.52%. During the same period, the courts of appeals disposed of 1178 of our appeals, 204 by dismissal, or 17.32%. A little government math indicates that a dismissed appeal has a 2.45% chance of being wrong or unfair, or stated another way, a 97.55% chance of being righteous.

Being agreeable with the people you work against as a great thing. But, you can't go "wink wink" with fundamental things like jurisdiction. Suppose the defendant realizes one day that his lawyer screwed up. He'll still file the writ (or grievance) and he might get another appeal since the first one was VOID and could not get him relief anyway. Wouldn't it be better for opposing counsel to tell the defendant "I messed up, we need to file this writ to get the appeal, the prosecutor is not going to oppose the writ, and your appeal will only be delayed a couple months . . ." That way everybody is honest and above board, instead of looking like part of a cover up.

A defendant that wants an appeal will get one, even when he has nothing to appeal. We took oaths to uphold the laws of this state. We operate under a duty of candor to the courts in which we litigate. Letting a court exercise jurisdiction when it has none is wrong, even if done for the noble purposes of ensuring the defendant receives the appeal and supporting a friend.

So, I say:

1. Scrupulously enforcing jurisdictional requirements is an efficient use of your resources and generally fair;

2. Even if scrupulously enforcing jurisdictional requirements might seem unfair in a given case, it is not because you are upholding the law and the defendant will obtain an appeal via 11.07 writ if he so desires.

OK, I'm convinced once again that I must file a motion to dismiss along with my brief. I just hope the court of appeals appreciates my efforts to see that everything was filed on time, since they didn't seem to care that much. Plus I hope the notice really was filed a day late (as the district clerk has assured me). Have none of you ever heard about the sleeping dog?

The Court of Appeals agreed it had no jurisdiction over the appeal. The would-be appellant filed an 11.07 writ. His previous counsel filed an affidavit that the notice of appeal (filed 6 days after the motion for extension of time)was filed on the 106th day after sentencing because of "a one day miscalculation of the due date". He stated such "was not a purposely done thing and was a mere mathematical inadvertance" (though the rule only required the attorney to calculate a 15-day time period). The affidavit failed to explain how the attorney could determine when to file the motion to extend but fail to correctly calculate the deadline for the notice of appeal.

Without specifically finding his counsel was constitutionally ineffective as a result of the "inadvertance", the trial court has now entered a finding that "counsel miscalculated the deadline for giving timely notice of appeal," and has concluded that the defendant "would have been afforded an appellate review but for the one day miscalculation of his attorney" and thus recommends to the CCA "that relief be granted in the form of an out of time appeal."

While this reasoning would no doubt support the granting of a motion for extension of time as a reasonable explanation of the need for additional time, is it a sufficient basis to entitle the defendant to an out-of-time appeal? One court has noted that the legal profession is harmed "in telling its members that deadlines are unimportant as long as they are negligent in complying with them."Kidd, 1 S.W.3d at 313. Anyone have some unpublished opinion from the CCA that answers this issue? I am familiar with Restrepo v. Kelly, 178 F.3d 634 and U.S. v. Nagib, 56 F.3d 798, but you guys got me in this mess, so you are obliged to help me deal with it.

[This message was edited by Martin Peterson on 11-24-02 at .]

The inefficiency of the system frustrates me at times. The CCA ruled my appellant was entitled to an out-of-time appeal. Lavender It made the finding only that "he was denied his right to a meaningful appeal". Nothing directly about whether counsel was constitutionally ineffective (not that I wanted to report anything to the Disciplinary Counsel anyway). But, three times the work as mentioned above and for what?

So now I again pose my original question. Since in my case the Appellant had already filed his brief at the time the appeal was dismissed, can he raise any new points of error in the out-of-time appeal?

I'd say, since the original was a nullity, he can raise anything he wants.

I've been watching the unpub opinions on the CCA site, and the majority of them seem to be out of time pdr's and appeals. Still, I think the overall small number supports the practice of making the defendants do it right. If a handful of defendants give up on their frivolous appeals, it will help us and the courts.

I wish we could resolve the tug of war over whether defendants actually have a restricted right of appeal from guilty please and what those restrictions are. Compare HB 1183 with New TRAP Rules. We need a system that actually allows summary disposition of crank appeals without formal briefing on our part.

John, certainly I fear you are exactly right. The scope of the out-of-time appeal will have nothing to do with the dismissed appeal. Still it seems a little unfair that but for my motion to dismiss the court would have heard and considered only the single point of error (issue) raised in the brief. Generally you cannot raise a new point in a late-filed brief, but I guess this is the exception to that rule.

Does anyone think the appellate counsel's admitted miscalculation of the due date constitutes ineffective assistance or a violation of the disciplinary rules? This seems to be a case where the negligence of the attorney deprives his client of a fundamental right, yet falls outside "a violation of applicable rules of professional conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer".