Joshua, Marcus Dewayne

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-94,922-02

EX PARTE MARCUS DEWAYNE JOSHUA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 21-0005CR IN THE 87TH DISTRICT COURT
FROM LEON COUNTY

SLAUGHTER, J., filed a concurring opinion.

CONCURRING OPINION

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

corpus relief in the form of an out-of-time appeal, I feel compelled to write separately, yet

again, to emphasize the importance of counsel’s duty to file a timely notice of appeal when

the defendant expresses a desire to appeal. This issue underlies far too many ineffective-

assistance-of-counsel cases before us and is a troubling sign that many attorneys are either
Joshua - 2

unaware of the proper procedures for filing a notice of appeal, or are aware of such

requirements but are failing to stay on top of their responsibilities to clients.

I. Background

On November 15, 2022, a jury convicted Applicant of capital murder and sentenced

him to life imprisonment without the possibility of parole. After entering the judgment, the

trial court certified Applicant’s right to appeal. The original deadline for filing a notice of

appeal was December 15, 2022—30 days after the sentence was imposed. See TEX. R. APP.

P. 26.2(a)(1). However, trial counsel never filed a notice of appeal before withdrawing

from the case.

Following trial counsel’s withdrawal, the trial court appointed initial appellate

counsel to handle Applicant’s direct appeal. On December 5, 2022, initial appellate counsel

filed a timely motion for new trial. This extended the deadline for filing a notice of appeal

in the trial court by 60 days. See TEX. R. APP. P. 26.2(a)(2). Thus, the deadline for filing a

notice of appeal became February 13, 2023—90 days after Applicant’s sentence was

imposed.

Two weeks after filing the motion for new trial, initial appellate counsel withdrew,

and the trial court appointed new appellate counsel to take over Applicant’s direct appeal.

New appellate counsel was aware that neither of the two preceding attorneys had filed a

notice of appeal, and she intended to file such notice herself. However, she failed to do so

until February 21, 2023—98 days after Applicant’s sentence was imposed.

On March 6, 2023, the court of appeals notified Applicant that his appeal was

subject to dismissal because the notice of appeal appeared to be untimely. Joshua v. State,
Joshua - 3

No. 10-23-00054-CR, 2023 WL 2528599, at *1 (Tex. App.—Waco Mar. 15, 2023, no pet.)

(mem. op., not designated for publication). The court gave applicant 14 days to file a

response showing grounds for continuing the appeal. Id. In response, on March 9, 2023,

new appellate counsel filed with the trial court a “Request to Accept Late Filing of

Defendant’s Notice of Appeal.” Id. In this document, counsel explained that her failure to

file a timely notice of appeal was the result of a “regrettable clerical error” that caused her

to mis-calendar Applicant’s case upon being appointed. 1 The court of appeals treated the

filing as a motion to extend the time to file a notice of appeal. Id. However, because the

motion was not filed within 15 days of the deadline for filing the notice of appeal, the court

of appeals determined that it was untimely, such that the court had no choice but to dismiss

Applicant’s appeal for want of jurisdiction. Id. Applicant then filed the instant application

for a writ of habeas corpus, seeking the ability to pursue an out-of-time appeal.

II. Trial and Appellate Counsel’s Post-Judgment Duties

While it is regrettable that appellate counsel failed to timely file the notice of appeal

based on her mistaken calculation of the applicable deadline, this situation could have been

avoided altogether if trial counsel had simply ensured that the notice of appeal was filed at

the conclusion of his representation. Indeed, as this Court has repeatedly indicated, and as

I have emphasized in numerous recent opinions, it is principally the duty of trial counsel

(not appellate counsel) to ensure that the notice of appeal is timely filed upon the

1
Specifically, appellate counsel explained that this mistake was the result of having inherited
multiple cases, in various stages of the appellate process, from Applicant’s initial appellate counsel
after he was appointed as a trial judge by the governor.
Joshua - 4

conclusion of the trial proceedings if the defendant expresses a desire to appeal. See, e.g.,

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.”) (emphasis added). 2 In Jones, we recognized that in many instances the

trial attorney will not be representing the defendant on appeal, and in those situations, trial

counsel should present to the court the defendant’s signed pro se notice of appeal alongside

counsel’s motion to withdraw. See id. (“A ‘contemporaneous’ presentation of the pro se

notice with a motion to withdraw by trial counsel serves as actual notice to the trial court

of the defendant’s desire to appeal.”). 3 There is no valid reason to delay the filing of the

notice of appeal until appellate counsel becomes the official attorney of record. Countless

times we have seen miscommunication between trial and appellate counsel, or a delay in

retaining or appointing appellate counsel, which then results in the defendant missing the

deadline for filing his notice of appeal. Because of this risk, trial counsel should take the

simple step of ensuring that the defendant’s appellate rights are immediately protected by

2
See also 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).
3
In Jones, we further explained that to satisfy his duties, trial counsel may either “sign the notice
himself, in which case, he effectively ‘volunteers’ to serve as appellate counsel,” or, “the defendant
may file the notice pro se, which serves as an indication that trial counsel does not wish to pursue
his client’s appeal.” Jones, 98 S.W.3d at 703 (citation and internal quotation marks omitted).
Joshua - 5

presenting the notice of appeal alongside counsel’s motion to withdraw. Had trial counsel

done so here, Applicant’s right of appeal would have been protected long before his second

appellate attorney was even appointed to the case, thereby preventing the error that

ultimately occurred.

In spite of the foregoing, I do not mean to suggest that appellate counsel is blameless

here; a prudent appellate attorney should always ensure that the notice of appeal has, in

fact, been timely filed. If counsel is unsure whether the notice has been filed, she should

check with trial counsel and/or the trial court. And if, as here, appellate counsel knows for

certain that trial counsel did not file a notice of appeal, and she takes on the responsibility

of doing so herself, she should verify the applicable filing deadlines and comply with them.

Thus, although as a policy matter, I urge trial attorneys to fulfill their obligation of filing

notices of appeal to avoid these types of problems, I recognize that, under the

circumstances, appellate counsel bears the ultimate responsibility for the mistake that

occurred here.

As a final note, while counsel’s mistake here can be “fixed” by allowing Applicant

to file an out-of-time appeal, this “fix” is not without consequences. In addition to

significantly delaying resolution of Applicant’s direct appeal, counsel’s error has also now

resulted in the habeas court, the court of appeals, and this Court having to expend resources

to undo the effects of counsel’s error. While we are all human beings who make mistakes,

based on the sheer 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
Joshua - 6

responsibilities. 4 It is my hope that both trial and appellate attorneys will implement

practices to help reduce the need for such corrective post-conviction litigation in the future.

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

Filed: October 25, 2023

Publish

4
See Tex. Code Judicial 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.”).