Rodriguez, Emilio
PD-0406-15
| Tex. App. | Apr 29, 2015Background
- Emilio Rodriguez was convicted of robbery by jury and sentenced to 99 years' imprisonment based on enhancement; he appealed claiming ineffective assistance of counsel among other issues.
- At trial the lead investigating officer (Officer Cruce) testified and the State played an MVR (motor vehicle recording); Rodriguez’s trial counsel left the courtroom twice while the MVR was being played and during direct examination of Cruce (absences totaling ~three minutes).
- While defense counsel had been made aware pretrial of a grievance/disciplinary matter involving Cruce, counsel chose not to pursue it at trial after review and the court treated the topic as covered by a motion in limine.
- Other alleged counsel deficiencies included: not viewing the surveillance video in real time, stipulating to most prior convictions, failing to call certain witnesses/experts, and failing to object to certain prosecutorial arguments and admission of extraneous-offense evidence (for which notice had been filed).
- The Amarillo Court of Appeals affirmed: it found counsel’s absence fell below objective reasonableness but concluded Rodriguez failed to show prejudice under Strickland and that the Cronic presumption of prejudice did not apply; other ineffectiveness claims and Eighth Amendment/cruel-and-unusual and extraneous-evidence points were rejected or held forfeited.
Issues
| Issue | Plaintiff's Argument (Rodriguez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether counsel’s brief absence during direct examination denied the right to counsel (Cronic) | Counsel’s leaving the courtroom during direct examination of the lead investigator denied Rodriguez counsel at a critical stage, so prejudice should be presumed under Cronic | Absence was momentary; testimony during absence was background/non-inculpatory and any deficiency did not cause prejudice — Strickland analysis applies | Court: counsel’s absence was professionally unreasonable but the evidence elicited while absent was not sufficiently inculpatory; no presumed prejudice under Cronic and Rodriguez failed to show Strickland prejudice; claim denied |
| Failure to investigate/use impeachment material re: officer’s grievance and not viewing surveillance video in real time | Counsel should have pursued the officer’s disciplinary/grievance matter and viewed video in real time to better impeach or exploit inconsistencies | Counsel reviewed grievance material and reasonably concluded it had no "mileage"; record gives no indication what, if any, impeachment existed; no demonstrated prejudice from not watching video live | Court: counsel’s choices were within reasonable strategic judgment; no prejudice shown; claim denied |
| Failure to object/preserve for appeal to prosecutorial argument and admission of extraneous-offense evidence | Counsel’s failure to object to inflammatory argument and allegedly untimely extraneous-offense evidence was ineffective and prejudicial | Prosecutorial remarks were fair comment on the evidence; State had timely notice of extraneous-offense use; objections likely would have been overruled; strategic reasons possible | Court: objections would likely have been overruled or record silent as to strategy; notice for extraneous offense was given; claim denied |
| Cruel and unusual punishment from 99-year sentence | Sentence grossly disproportionate given mitigation (depression, anxiety) | No contemporaneous objection preserving the constitutional complaint; sentencing within statutory range | Court: complaint forfeited for lack of timely objection; issue not preserved; claim denied |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
- United States v. Cronic, 466 U.S. 648 (1984) (circumstances where prejudice is presumed, e.g., total absence of counsel at a critical stage)
- Wiggins v. Smith, 539 U.S. 510 (2003) (counsel’s duty to investigate; reasonableness of investigation judged with deference)
- Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel is fundamental)
- United States v. Wade, 388 U.S. 218 (1967) (trial is a critical stage requiring presence of counsel)
- White v. Maryland, 373 U.S. 59 (1963) (preliminary hearings can be critical stages justifying right to counsel)