Patrick Kelly Palmer v. State
04-16-00573-CR
| Tex. App. | Jul 26, 2017Background
- Patrick Kelly Palmer convicted by jury of possession of <1 gram methamphetamine; sentenced to two years in state jail and $1,500 fine, confinement suspended, placed on two years community supervision.
- Palmer contends trial counsel was ineffective for not objecting during closing to the State’s reference to the defendant’s booking photo as one of the “faces of meth.”
- During voir dire the State displayed photographs it called “faces of meth”; counsel objected then and the objection was sustained. Counsel did not object when the prosecutor repeated the argument in closing.
- No motion for new trial was filed, so the appellate record lacks trial counsel’s explanations for strategic choices.
- Evidence against Palmer: officer’s testimony about nervous behavior, consent search and discovery of a plastic baggy on driver’s side floorboard, defendant’s statement calling the substance “rock salt,” patrol dashcam video, and forensic testimony identifying the substance as methamphetamine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to object to the State’s “faces of meth” jury argument | Palmer: counsel deficient for not objecting during closing to improper argument, violating Strickland | State: counsel may have had strategic reasons (avoiding emphasis); record undeveloped; any error not prejudicial given evidence | Court: No ineffective assistance. Failure to object not shown to be outrageously deficient and no reasonable probability of different outcome given strong evidence of guilt |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two-prong test for ineffective assistance of counsel)
- Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.) (applying Strickland in Texas)
- Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App.) (presumption counsel’s conduct reasonable; totality of representation review)
- Bone v. State, 77 S.W.3d 828 (Tex. Crim. App.) (direct appeal records often inadequate to show ineffectiveness)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.) (ineffectiveness allegations must be firmly founded in record)
- Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App.) (trial counsel should be allowed to explain actions; absent that, only outrageous conduct will suffice)
- Harrington v. Richter, 562 U.S. 86 (clarifying Strickland prejudice standard)