Prine v. State, 537 S.W.3d 113

Background

Appellant (age 54) was convicted by a jury of sexual assault of a 19‑year‑old and sentenced to 20 years’ imprisonment and an $8,000 fine.
At punishment the State rested after the complainant’s testimony; over the weekend the prosecutor disclosed intent to show Appellant had fathered a child with a 15‑year‑old babysitter ~27 years earlier.
On Monday defense counsel called three witnesses in punishment: a probation officer, Appellant’s aunt, and his sister. Each gave some favorable testimony but, on cross, the officer opined Appellant did not deserve probation and both relatives acknowledged the prior sexual relationship with a minor.
The court of appeals held defense counsel was ineffective for (a) calling the probation officer and not properly objecting to his opinion, and (b) calling the aunt and sister after the State announced the extraneous‑offense evidence, and remanded for a new punishment hearing.
The Texas Court of Criminal Appeals granted review and reversed the court of appeals, holding the record is silent about counsel’s reasons and does not affirmatively show the challenged decisions were objectively unreasonable; thus no ineffective‑assistance showing on direct appeal.

Issues

Issue	Prine's Argument	State / Majority Argument	Held
Whether the presumption that counsel’s choices are reasonable is rebutted when the record is silent about counsel’s reasons	Silence should not bar relief where counsel’s choices (calling witnesses who elicited highly prejudicial testimony) were objectively unreasonable	A silent record does not rebut the presumption; appellate courts should not find ineffectiveness on speculation without counsel’s explanation	Presumption not rebutted; silence alone insufficient to show deficiency on direct appeal (majority)
Whether calling the probation officer and failing to renew objection was deficient	Calling him (and not preserving an objection) allowed opinion testimony that probation was inappropriate and was unreasonable	The record does not show what counsel knew or why he did not renew the objection; calling him could be strategic because he established eligibility and conditions of probation	Not deficient as a matter of law on this record; decision to call and tactical choices require more development
Whether calling aunt and sister after State’s disclosure was deficient because they opened the door to extraneous‑offense evidence	Counsel should have foreseen the risk and avoided calling relatives who would confirm prior sexual conduct with a minor	The State might have introduced the evidence anyway; calling them produced mitigating evidence that could be better than leaving the record open to a worse State witness	Not deficient on this record; reasonable strategic alternatives are speculative without more evidence
Whether Appellant was prejudiced by counsel’s conduct (reasonable probability of different punishment)	Their testimony created a substantial risk jury imposed near‑maximum sentence; prejudice established	Prejudice cannot be assumed; without proof counsel’s decisions were objectively unreasonable there is no Strickland prejudice shown on direct appeal	Prejudice not established because deficiency not shown; thus no relief on direct appeal (majority)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) (record must affirmatively demonstrate alleged ineffectiveness)
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) (allegations of ineffectiveness must be firmly founded in the record)
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) (in an undeveloped record, counsel is ineffective only when conduct is "so outrageous" no competent lawyer would engage in it)
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) (direct‑appeal record generally insufficient to show ineffectiveness; counsel should be given chance to explain)
Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) (failure to object will not support ineffectiveness unless the objection would have been sustained)
Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) (trial court may not err in overruling certain objections about probation suitability)
Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009) (new punishment hearing granted where prejudicial testimony should have been excluded)
Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012) (reasonable probability of different punishment can establish prejudice)
Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013) (focus on objective reasonableness of counsel’s conduct)