550 S.W.3d 238
Tex. App.2018Background
- Deshawn Jackson pleaded guilty to aggravated robbery with an allegation of firearm use; at a PSI hearing the State introduced evidence of extraneous alleged robberies and other arrests; Jackson requested deferred adjudication but was sentenced to 20 years' imprisonment.
- Trial counsel did not object to admission of the extraneous-offense evidence at the PSI hearing; both counsel and Jackson requested deferred adjudication at sentencing.
- First appointed appellate counsel timely filed a motion for new trial alleging trial-counsel ineffectiveness (failure to object to extraneous-offense evidence, inadequate preparation, and promise of probation), but failed to secure a hearing or ruling before the trial court’s plenary power expired; the motion was overruled by operation of law.
- First appellate counsel later moved to withdraw, admitting a calendaring mistake; second appellate counsel filed an Anders brief and the appellate court abated to appoint new counsel; current counsel raised ineffective-assistance claims against both trial and first appellate counsel.
- The court assumed, for argument, appellate counsel’s performance was deficient but required actual prejudice tied to the merits of the trial-counsel claims; it rejected Jackson’s claims on the merits and affirmed.
Issues
| Issue | Plaintiff's Argument (Jackson) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether first appellate counsel was ineffective for failing to obtain a timely hearing/ruling on the motion for new trial | Counsel’s calendaring error deprived Jackson of a timely ruling; this equates to ineffective assistance requiring reversal or remand | Any deficiency must be shown to have caused actual prejudice (but-for the error the result would differ); presumption of prejudice is inappropriate here | Court assumed deficiency but found no actual prejudice because the underlying motion for new trial lacked merit; overruled issue |
| Whether trial counsel was ineffective for failing to object to extraneous-offense evidence at the PSI hearing | Failure to object was unreasonable and prejudiced sentencing | Counsel’s failure is not shown to be deficient because the evidence may have been admissible and counsel could have had strategic reasons; appellant must show the judge would have erred in overruling an objection | Appellant failed to rebut presumption of reasonable strategy; no deficient performance shown; claim rejected |
| Whether trial counsel was ineffective for allegedly promising Jackson he would receive probation if he pleaded guilty | Jackson (and his mother) averred counsel promised probation, and Sanchez supports reversal when counsel erroneously assures eligibility for judge-ordered probation | Jackson remained eligible for deferred-adjudication (a form of judge-ordered relief requested at PSI); counsel requested deferred adjudication, so advice was not erroneous as in Sanchez | Counsel’s advice was not deficient here because Jackson was eligible for deferred adjudication; claim fails |
| Whether appellate relief by abatement/remand is appropriate instead of denial | Jackson seeks abatement to allow a new-motion-for-new-trial hearing | Abatement applies where deprivation of counsel during the motion-for-new-trial period occurred (Cooks line); here counsel was appointed and the claim is one of ineffective assistance after filing, so Strickland analysis controls | Abatement denied; Strickland prejudice analysis controls and Jackson failed to show prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
- Cronic, 466 U.S. 648 (U.S. 1984) (circumstances where prejudice may be presumed when counsel entirely fails to subject prosecution to meaningful adversarial testing)
- Belcher v. State, 93 S.W.3d 593 (Tex. App.-Houston [14th Dist.] 2002) (plurality opinion presuming prejudice for failure to secure timely ruling on motion for new trial; not binding precedent)
- Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) (abatement/remand may be required when defendant was deprived of counsel during the motion-for-new-trial period)
- Ex parte Sanchez, 475 S.W.3d 287 (Tex. Crim. App. 2015) (counsel deficient for incorrectly advising client he was eligible for judge-ordered community supervision when statute forbids it)
- Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) (applying Strickland standard; prejudice requires a reasonable probability of a different outcome)