Richard Turner v. State
528 S.W.3d 569
| Tex. App. | 2016Background
- Richard Turner forcibly entered his estranged wife Amy’s apartment, beat her, chased and rammed her car, then abducted and continued to assault her before police intervened.
- Turner was tried and convicted by a jury of burglary of a habitation with intent to commit aggravated assault and separately convicted of aggravated assault with a deadly weapon in a companion appeal.
- The trial court entered three written judgments: one convicting Turner (matching the jury verdict) and two later judgments purporting to acquit him of alternative burglary counts that the jury was never asked to decide.
- During punishment the State introduced an uncounseled 1988 misdemeanor DWI probation order without objection; Turner argues counsel was ineffective for not objecting and for failing to voir dire on punishment after changing the sentencing authority from judge to jury.
- Turner also claimed he lacked sufficient notice that the State sought a deadly-weapon finding; the jury recommended 25 years’ imprisonment and the appellate court modified the written judgment to correctly name the convicted offense and affirmed.
Issues
| Issue | Turner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether post-conviction judgments of acquittal (on counts the jury never decided) bar the earlier jury conviction under Double Jeopardy | The acquittal judgments negate the burglary elements and thus bar conviction for greater offense | The acquittals did not resolve factual elements because the jury never was asked about those counts; conviction preceded the judgments | No double-jeopardy violation; acquittal judgments were improper/clerical and do not nullify the jury verdict |
| Whether separate convictions for burglary-with-intent (greater) and aggravated assault (lesser) violate multiple-punishment double jeopardy | Two punishments for same conduct against same victim | Aggravated assault is not a lesser-included offense of burglary-with-intent; different elements and proof; also separate acts occurred | No multiple-punishment violation on face of record |
| Whether counsel was ineffective for failing to object to admission of an uncounseled misdemeanor probation order at punishment | Admission of an uncounseled conviction violated Sixth Amendment and counsel’s failure to object was deficient and prejudicial | Even if deficient, no Strickland prejudice given strong evidence, sentence within low end, and Turner’s own testimony | No ineffective-assistance relief—no reasonable probability of different punishment outcome |
| Whether counsel was ineffective for failing to voir dire jury on punishment after Turner changed election from judge to jury | Counsel should have voir dired once Turner elected jury punishment | Initially Turner had elected judge; counsel reasonably did not voir dire; trial strategy supports conduct | No ineffective-assistance relief; decision consistent with reasonable strategy |
| Whether Turner received constitutionally adequate notice that State would seek a deadly-weapon finding | Indictment lacked explicit weapon allegation or separate notice so defendant lacked notice | Charging burglary with attempted/commission of aggravated assault put Turner on notice because aggravated assault necessarily raises deadly-weapon or serious-injury issues | Adequate notice from the aggravated-assault allegation; deadly-weapon finding proper |
Key Cases Cited
- United States v. Martin Linen Supply Co., 430 U.S. 564 (describing when judicial action constitutes an acquittal)
- Ball v. United States, 163 U.S. 662 (acquittal protections preclude retrial)
- Fong Foo v. United States, 369 U.S. 141 (per curiam) (court-directed acquittal bars retrial even if erroneous)
- Illinois v. Vitale, 447 U.S. 410 (three guarantees of double jeopardy explained)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Burgett v. Texas, 389 U.S. 109 (prior uncounseled convictions presumptively void)
- Blount v. State, 257 S.W.3d 712 (Tex.) (allegation of aggravated assault gives notice of deadly-weapon issue)
- Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App.) (aggravated assault not a lesser-included of burglary-with-intent)
- Wiggins v. Smith, 539 U.S. 510 (prejudice inquiry in ineffective-assistance context)