BAIRD, Judge.
This is an application for writ of habeas corpus filed pursuant to Tex. Code Crim.Proc.Ann. art. 11.07. Applicant was convicted of possession of a controlled substance and sentenced to forty-four years confinement. The Court of Appeals affirmed. Jarrett v. State, 818 S.W.2d 847 (Tex.App. — Houston [1st] 1991, no pet.). Applicant contends he was denied effective assistance of counsel. Specifically, applicant alleges he was not notified by appellate counsel of the Court of Appeals' affirmance of the judgment of the trial court, thus depriving applicant of the opportunity to prepare and file a petition for discretionary review.
I. THE FACTS
In an unpublished order, we originally remanded this case and ordered the habeas judge to make findings of fact as to whether applicant was informed that the trial court's judgment had been affirmed by the Court of Appeals and that applicant had the right to seek discretionary review from this Court. The habeas judge was permitted to gather these facts by either affidavit or evidentiary hearing whereby appellate counsel could address applicant's factual allegations and applicant would have an opportunity to respond. The habeas judge, relying solely upon appellate counsel's affidavit, determined applicant's claim of ineffective assistance of counsel lacked merit. Appellate counsel's affidavit stated that applicant was notified by mail of the resolution of his appeal and advised of his right to file a petition for discretionary review pro se. Applicant was not given an opportunity to respond to counsel's affidavit.
II. THE STANDARD
The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution. This right of representation is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980); and, Lisenba v. California, 314 U.S. 219, 236-237, 62 S.Ct. 280, 289-290, 86 L.Ed. 166 (1941). Generally, in determining the effectiveness of counsel we utilize the two prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Cr.App. 1993); and, Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Cr.App. 1993). The first prong is a determination of whether counsel's performance failed to constitute "reasonably effective assistance." Menchaca, 854 S.W.2d at 131. Stated another way, we determine whether counsel's performance was deficient. Strickland, 466 U.S. at 685, 104 S.Ct. at 2063. If counsel's performance was deficient we then determine whether there is a reasonable probability the results would have been different but for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine the confidence in the outcome of the proceeding. Menchaca, 854 S.W.2d at 131.
However, the Supreme Court observed in Strickland, "In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. For example, in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), appellate counsel failed to file a statement of appeal as required by state law, resulting in the dismissal of the appeal. The Supreme Court noted, "In a situation like that here, counsel's failure was particularly egregious in that it essentially waived respondent's opportunity to make a case on the merits; in this sense it is difficult to distinguish respondent's situation from that of someone who had no counsel at all." Evitts, 469 U.S. at 394 n. 6, 105 S.Ct. at 835 n. 6. This Court has followed the rationale of Evitts when a defendant has been deprived of his right to appeal due to counsel's inaction. Ward v. State, 740 S.W.2d 794, 800 (Tex.Cr.App. 1987).
In Ex parte Axel, 757 S.W.2d 369 (Tex.Cr.App. 1988), we were confronted with the issue of who must advise the defendant of his right to appeal. Axel, 757 S.W.2d at 373. Axel had not been notified of his right to appeal by the court or his attorney, nor had counsel withdrawn or been dismissed pursuant to Tex. Code Crim.Proc.Ann. art. 26.04. This Court was faced with an ineffective assistance of counsel claim based upon counsel's actions not at a proceeding but during the procedural gap between trial and appeal. We determined that a "lawyer should take whatever steps are necessary to protect the defendant's right of appeal." Axel, 757 S.W.2d at 373. To that end we held that trial counsel, retained or appointed,
. . . has the duty, obligation and responsibility to consult with and fully advise the client concerning the meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal. . . . .
Axel, 757 S.W.2d at 374. Consequently, this Court granted an out-of-time appeal to Axel.
Id., 757 S.W.2d at 375.
Similarly, the instant case involves a claim of ineffective assistance of counsel in failing to advise a defendant of another criminal procedure. Specifically, this case provides the opportunity to determine the duties of appellate counsel following the affirmance of the judgment of the trial court by the court of appeals.
III. A. Tex. Code Crim.Proc.Ann. art. 26.04
Tex. Code Crim.Proc.Ann. art. 26.04(a) provides:
Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice require representation of a defendant in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him.
An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.
In Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App. 1982), counsel filed an Anders brief on direct appeal. The Court of Appeals affirmed the conviction. Although counsel advised Ayala there were no grounds for review, Ayala demanded that counsel file a petition for discretionary review. We held appointed counsel has no duty in such circumstances to file a petition for discretionary review. Ayala, 633 S.W.2d at 528.
See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also, High v. State, 573 S.W.2d 807 (Tex.Cr.App. 1978).
Ayala was decided before the 1987 amendment to art. 26.04(a), which added the language italicized above. The statute requires an appointed attorney to represent the defendant until "appeals are exhausted." In Ayala this Court emphasized the difference between an appeal and discretionary review. Except for cases in which the death penalty has been assessed, a defendant in Texas has the right of appeal to a court of appeals. Ayala, 633 S.W.2d at 528. This Court may review decisions of courts of appeals, but an appellant has no right to discretionary review. Id. Thus, our holding in Ayala retained its vitality after the 1987 amendment to art. 26.04(a).
Nevertheless, we observed in Ayala:
This is not to say that indigent appellants have no recourse from the misfeasances of appointed counsel after the decision of an intermediate court. If an appointed
counsel deprived the client of his right to apply, pro se, for discretionary review — by volunteering to make a timely application for discretionary review and failing to do so, for example — then there might be a due process violation.
See, Wainwright v. Torna, 455 U.S. 586, 588 n. 4,
102 S.Ct. 1300, 1301 n. 4,
71 L.Ed.2d 475 (1982).
Ayala, 633 S.W.2d at 528, n. 4.
See also, Ayala, 633 S.W.2d at 529 (Concurring opinion, Clinton, J.). Appellant's right to file a petition for discretionary review may not be abridged by the actions of counsel.
Id. Accordingly, failure to notify the appellant of the right to file a petition for discretionary review prejudices the rights of the appellant and constitutes a violation of the constitutional right to effective assistance of counsel. Appellant has no right to review, but Tex.R.App.P. 200 presumes appellant has a
right to prepare and file a petition for discretionary review.
In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Supreme Court held there was no constitutional right to appointed counsel to pursue discretionary review. Counsel's failure to pursue discretionary review does not represent a denial of effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). Though there is no right to have discretionary review granted by this Court, we have held that due to the very fact that the provision exists there is a right to make a request to this Court. Ayala, 633 S.W.2d at 528. Therefore, if this right is abridged or denied through the misfeasance or nonfeasance of counsel there is an abridgment of the Sixth and Fourteenth Amendments through which the State benefits and the individual's rights are constitutionally curtailed. See, Cuyler, 446 U.S. at 344, 100 S.Ct. at 1715. See also, Ayala, 633 S.W.2d at 528.
B. Tex.R.App.P. 91
Tex.R.App.P. 91 provides for post-appeal notification of the appellant of the appellate proceedings:
On the date an opinion of an appellate court is handed down, the clerk of the appellate court shall mail or deliver to the clerk of the trial court, to the trial judge who tried the case, and to the State and
each of the defendants in a criminal case . . . a copy of the opinion handed down by the appellate court and a copy of the judgment rendered by the appellate court as entered in the minutes.
Delivery to a party having counsel indicated of record shall be made to counsel.
Rule 91 requires notice to all parties of the appellate court opinion. A pro se appellant is entitled to a copy of the opinion sent to him by the clerk of the court. At that time, the pro se appellant may choose to file a motion for rehearing or a petition for discretionary review. However, when represented by counsel, an appellant must rely upon counsel to relay all information related to the appeal, most importantly the result in the court of appeals and a copy of the court's opinion. Without such information, the appellant is unaware that further action may be called for much less what course of action to pursue.
C. Summary
Pursuant to Rule 91 appellate counsel has a duty to notify the appellant of the actions of the appellate court and to consult with and fully advise the appellant of the meaning and effect of the opinion of the appellate court. Finally, although appellate counsel has no duty to file a petition for discretionary review, Ayala, 633 S.W.2d. at 528, appellate counsel does have the duty, under art. 26.04, to advise the appellant of the possibility of review by this Court as well as expressing his professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review.
IV. APPLICATION
We are not bound by the habeas judge's findings of fact. Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App. 1989). Our duty is to determine whether the record supports those findings. See, Ex parte Watkins, 770 S.W.2d 816 (Tex.Cr.App. 1989); and, Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App. 1989). Generally, if the trial judge's findings are supported by the record, they should be accepted by this Court. Ex parte Castellano, 863 S.W.2d 476, 486 (Tex.Cr.App. 1993).
In the instant case, there remains a question of whether appellate counsel discharged the aforementioned duties. The original order from this Court instructed the habeas judge to enter findings of fact as to whether applicant was informed of the affirmance and that he had the right to seek discretionary review from this Court. The habeas judge determined appellate counsel sent notification by mail to applicant of the affirmance. However, the letter that counsel claims to have sent is not attached, nor the address to which counsel claims to have sent said letter, nor the manner in which said letter was sent to applicant, all of which may be germane to the habeas judge's findings of fact. Further, there is no indication the habeas judge determined whether applicant received said notification, pursuant to our original order.
As there remain unresolved issues of fact we cannot reach the merits of applicant's claim of ineffective assistance of counsel. See, Ex parte Campos, 613 S.W.2d 745 (Tex.Cr.App. 1981). Consequently, this case is remanded to the habeas court for an evidentiary hearing to determine whether 1) appellate counsel notified applicant of the affirmance by the court of appeals; 2) appellate counsel consulted with and advised applicant of the meaning and effect of the opinion of the court of appeals; 3) appellate counsel advised applicant of the possibility of review by this Court; and, 4) appellate counsel expressed his professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review. The habeas judge shall decide whether applicant is indigent. If the habeas judge finds that applicant is indigent, and applicant desires to be represented by counsel, the habeas court will then, pursuant to Tex. Code Crim.Proc.Ann. art. 1.051(d)(3), appoint an attorney to represent him at the hearing. The habeas judge's findings of fact, conclusions of law, the transcription of the court reporter's notes, and any other supplementation of the record shall be returned to this Court within 120 days of the date of this order.
Any extensions of this time period should be obtained from this Court.
IT IS SO ORDERED.
WHITE, J., concurs in the result.
CAMPBELL, J., not participating.
MEYERS, Judge.
On original submission, we remanded this cause for a further evidentiary hearing before the convicting court. The issue is whether applicant's counsel on appeal rendered him reasonably effective assistance after the Court of Appeals affirmed his conviction. We held that an attorney on appeal has the duty, not only to advise his client of any disposition by the appellate court, but also to counsel his client thoroughly concerning the availability and desirability of further discretionary review by this Court. Our remand of the instant cause was to afford applicant a chance to prove his appellate counsel deficient in this respect.
The State Prosecuting Attorney urges us to reconsider the scope o a defense attorney's duty after his client's conviction is affirmed on direct appeal. He insists that our opinion on original submission mistakenly implies "that a defendant has a constitutional right to effective assistance of counsel for purposes of preparing a petition for discretionary review," contrary to Ayala v. State, 633 S.W.2d 526 (Tex.Crim.App. 1992). State's Motion for Rehearing at 2. While he agrees that appellate attorneys should inform their clients of an appellate court's disposition and of their right to pursue further discretionary remedies, he argues that the duty of an appellate attorney does not extend farther than this.
At the outset we emphasize that nothing in our original opinion was intended to compromise the holding of Ayala. We adhere to our settled position that indigent defendants are not entitled by the Constitution or laws of Texas or of the United States to the assistance of counsel for purposes of pursuing discretionary post-conviction remedies. See Coleman v. Thompson, 501 U.S. 722, 755-57, 111 S.Ct. 2546, 2568, 115 L.Ed.2d 640, 673 (1991). Accordingly, an indigent defendant may not compel the appointment of counsel at state expense to seek such remedies on his behalf.
But that is not the case here. As we understand his petition, applicant does not maintain that the State must afford him an attorney to petition for discretionary review. Rather, he contends only that the attorney who does represent him on appeal is obliged to afford reasonably effective legal assistance until his representation is concluded. Our analysis of the problem therefore begins, as it did on original submission, with an examination of the Code of Criminal Procedure, article 26.04, which provides, among other things, that "[a]n attorney appointed under this subsection shall represent the defendant until . . . appeals are exhausted[.]"
According to statutory law and the rules of this Court, the judgment of an intermediate appellate court in a criminal case does not become final at once. See Tex. Code Crim.Proc. arts. 42.045, 44.45(a); Tex.R.App.Proc. 86(a). Consequently, the rendition of a judgment does not immediately exhaust the appellate process. During the entire period of time between the rendition of an opinion by the appellate court and the date upon which it becomes final, therefore, the appellate lawyer still represents his client and remains under a duty to provide him with satisfactory legal counsel. According to the Constitution of the United States, such counsel is not satisfactory unless it meets an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Hence, the central question in the instant cause is what minimal advice must an objectively reasonable attorney provide to a client whose only remaining concern in the case is whether he should seek further discretionary review of his criminal conviction. We think the question practically answers itself. As we held on original submission, it is the professional duty of an appellate lawyer to explain the meaning and effect of an appellate court decision in his client's case, to acquaint his client with available options for further review of the case, and to assist his client with the decision whether to seek such review.
We do not mean to hold, of course, that appellate attorneys must continue as advocates for their clients through the discretionary review process itself. But it is, after all, a critical part of an attorney's job to help his client make decisions of substantial legal significance. And, at the moment a client learns his criminal conviction has been affirmed, there can be no decision of greater legal significance or of more pressing importance than whether to seek further review. It is not enough just to know that such review may be available. Before making a decision whether to follow this course one must also know the mechanics of discretionary review, appreciate the legal issues involved, and possess an ability to assess the likelihood of success. These skills are the professional tools of lawyers, and it is entirely appropriate that a person who is actually represented by legal counsel look to his attorney for professional advice on this subject.
Accordingly, we are of the opinion that an attorney who still represents a criminal defendant at the moment his conviction is affirmed on direct appeal does not provide reasonably effective assistance merely by communicating to his client that the latter's conviction was affirmed or by informing his client that further review may be possible within certain time limits. He must also stand ready to assist his client until the appellate process is exhausted and the attorney/client relationship concluded with the decision whether to seek discretionary review, and he must make it clear to his client that he is ready to do so.
Given the time limitations applicable to the discretionary review process and the distance over which communication between lawyer and client must often take place, it may be necessary as a practical matter in many instances for the attorney to furnish his client with much of this information before further consultation. But it is not the place of this Court to prescribe the minutiae of a satisfactory lawyer/client relationship, and we do not purport to do so here. The point is only that criminal defendants must not be made to forfeit substantial legal rights because lawyers have failed adequately to perform their professional responsibilities. In each case such as this, therefore, the question is whether a criminal defendant actually lost the opportunity to petition this Court for discretionary review because of deficient performance by his attorney. If the facts show that he did, he is entitled to appropriate relief in a habeas corpus proceeding.
The State's motion for rehearing is, accordingly, denied.
February 8, 1995.
McCORMICK, P.J., and WHITE, MANSFIELD and KELLER, JJ., dissent.