445 S.W.3d 408
Tex. App.2013Background
- Thompson was convicted of the second-degree felony offense of aggravated assault with a deadly weapon; punishment set at five years’ imprisonment.
- Thompson appeals arguing ineffective assistance of counsel.
- On August 4, 2011, Bittner attempted to repossess a Ford F-150 registered to Thompson’s business partner Coffman, parked in front of Thompson’s nightclub.
- Bittner was blocked by Thompson’s actions; Thompson cocked a gun and ordered Bittner to leave; Bittner reported the incident to police.
- Police investigation followed; Bittner identified Thompson in a photo spread; no gun or video of the incident was recovered.
- At trial, Thompson denied brandishing a weapon and claimed defense of property could apply; defense of property was not requested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was trial counsel ineffective under Strickland? | Thompson claiming deficient performance | State contends no deficiency or strategic basis | No reversible error |
| Entitlement to a defense of property instruction? | Thompson owned a truck; defense of property should have been given | Evidence did not support defense elements; not applicable | Not warranted; no evidence Thompson used unlawful force or that repossession was unlawful |
| Failure to challenge State’s evidence on 911/ Coffman conversation? | Counsel should have elicited testimony to cast doubt | Counsel’s choices were strategic or lack of material harm | Record insufficient to show ineffective assistance |
| Did counsel’s other trial decisions constitute deficient performance? | Various investigative gaps and omissions | Decisions were reasonable strategic choices | No Strickland violation; trial strategy supported the result |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005) (reiterates Strickland standard in Texas)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (standard for evaluating counsel performance in Texas)
- Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) (requires showing prejudice for ineffective assistance)
- Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) (applicant must prove counsel’s conduct fell below professional standards)
- Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) (applies Strickland to Texas prosecutions)
- East v. State, 76 S.W.3d 736 (Tex. App.—Waco 2002) (availability of defense of property requires elements be met)
- Gonzales v. State, 855 S.W.2d 692 (Tex. Crim. App. 1993) (abuse of discretion standard for new trial rulings)
- Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992) (witness credibility and strategic decisions discussed)
- Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) (trial court credibility determinations)