*1 225 time, them, law notion promotes Texas also not belong to and that other- they right control, interests should not be de wise party’s had no the Ross affording opportu without them the children no input cided had in the whatsoever some outcome. nity say to have of their release claims. out- Although this Co., See, v. e.g., Benson Wanda Petrol. 468 come is dictated Su- established Texas 361, (Tex.1971) (discussing 364 re preme precedent, S.W.2d contrary Court it is apply plain collateral estoppel public policy fusal to and should be revisited. Therefore,
tiff no voice in the reluctantly “who had conduct concur. suit, with prior right no to examine wit protect to take other nesses or action to interests”) (citations omitted); Ash Brzoska, 324, worth v. 274 333 S.W.3d 2008, (Tex.App.-Houston no [14th Dist.] pet.) (overturning judgment default
against who did not notice party receive ALDRICH, Allen Appellant, John setting); Bellino v. Comm’n Law (Tex. 380, yer Discipline, S.W.3d v. 2003, denied) App.-Dallas pet. (upholding Texas, STATE State. attorney disbarment of who settled clients’ No. 2-05-303-CR. consent); claims without obtaining their Disciplinary Tex. R. Conduct Profl Texas, Appeals Court 1.02(a)(2), reprinted in Tex. Gov’t Code Fort Worth. 2005) Ann., 2, (Vernon tit. subtit. G. Aapp.
(Tex. 9) 25, X, (“[A] Aug. § Bar R. art. 2009. lawyer State shall ... abide client’s decisions Discretionary Review Refused accept whether to an offer of settlement of 27, Jan. 2010. ”); (ensur a matter .... Tex.R. Civ. P. 173 minor, ing party that interests of a if a suit, represented by are friend or next litem).
guardian ad court, in If a order to protect integ- rity legal process of as it deals children, required
minor is to approve the procedure and amount when settlement child, given
monies are to a see Tex.R. Civ. P. approve also procedure should right legal pursue money when a such is away Pluto, from taken the child. See (“[A interests, at 268 minor’s] must, faith, good fully be protected; juris
is altogether non sui under the (italics added). court’s In protection.”) case, present no such made effort was protect rights. those
Instead, Marjorie because Homer and permitted were to settle claims did
I. Introduction issue primary address appeal is appellant whether Allen John Aldrich was denied constitutional right to effective assistance of counsel. Because we hold that the record us before demon- was, strates that he we reverse the trial judgment court’s and remand for a new trial.
II. Background Factual charged with intoxication manslaughter. The evidence showed that 8, 2004, at around 8:30 p.m. April at the intersection of North Colony Ragan *5 The Colony, by a truck driven pickup Aid- Hudson, Kimberly rich struck who was crossing the intersection crosswalk in a wheelchair, motorized accompanied by her Kimberly husband. taken to Park- land Hospital, where she later died. Shortly after Officer Springer Chad and Moore, Moore, P.C., Dawn A. Boswell & Sergeant Bill Hall at the arrived accident Denton, TX, Appellant. scene, for wife, Danielle, Aldrich’s told Ser- geant Hall she and Aldrich were in Isaacks, Bruce Criminal District Attor- the vehicle that had struck the woman ney, Orbison, Charles E. Angelino, James first, the wheelchair. At Aldrich denied Kelly LaFave, Assistant Criminal District that he driving pickup, had been but Paul, Attorneys, Matthew State Prosecut- Sergeant he later admitted to Hall that in Denton, TX, ing Attorney, Appellee. for he, Danielle, fact driving. had been
Sergeant odor of Hall detected the alco- breath, on hol so he asked Officer Aldrich’s ON OPINION REHEARING sobriety James Slack to conduct field tests. WALKER, SUE Justice. Officer Slack also noticed the smell alco- Following breath, original although the issuance of our hol on Aldrich’s Aldrich opinion, appellant Allen any John Aldrich filed denied consumed alcohol. The having motion rehearing requesting a for sobriety approx- we field tests were conducted reinstate the original plea bargain imately thirty forty-five State’s minutes after deny offer. We Aldrich’s performance motion re- the accident. Aldrich’s hearing, opinion but we withdraw gaze nystagmus our the horizontal and walk- 26, intoxication; judgment issued November 2008 and and-turn tests indicated his following place substitute the in their performance one-legged-stand on the test explain clarify why per- reinstatement not. observing did After Aldrich’s plea bargain tests, State’s offer not proper. sobriety is formance on the field Offi- 230 if he jury asked Aldrich had A again convicted Aldrich intoxication
cer Slack Slack, According manslaughter, to Officer court drinking. and the trial assessed been punishment, by prior Aldrich admitted that had his enhanced a felony time intoxicated, twelve-ounce beers be- conviction for driving three while at consumed p.m. evening years’ 7:00 but sixty-two 6:30 and confinement. This appeal tween scared.1 earlier because he was had lied followed. reported the Slack results Officer Legal Sufficiency III. of the Evidence Hall, sobriety Sergeant tests who field point, In his seventh Aldrich if he give Aldrich would blood asked legally claims that the is evidence insuffi yes. Aldrich said Once sample. support cient to conviction. In his review however, retracted hospital, ing legal sufficiency evidence to Sergeant Hall then ordered that consent. conviction, support a view all the evi sample be taken because Aldrich blood light in the dence most favorable to the breath, on his had failed two of had alcohol prosecution order to determine whether tests, sobriety initially had the field any rational trier of fact could found driving alcohol lied about because crime beyond essential elements of the morn- would not be there his blood a reasonable v. Virginia, doubt. Jackson drew be- ing. sample A nurse a blood 307, 2781, 2789, 443 U.S. 99 S.Ct. 61 and 11:00 more than p.m., tween 10:30 two State, (1979); v. Clayton L.Ed.2d the accident. The blood sam- hours after 772, 778 (Tex.Crim.App.2007). A grams ple per 0.07 of alcohol contained legal sufficiency challenge successful will ret- milliliters of blood. The State elicited acquittal result in the an rendition of *6 extrapolation expert testimony rograde Florida, reviewing the v. court. Tibbs 457 result at meant p.m. that a 0.07 11:00 that 41-42, 2211, 31, 2218, U.S. 102 S.Ct. 72 p.m. at Aldrich’s blood alcohol level 8:30 (1982). Accordingly, L.Ed.2d 652 we ad have been between 0.1 and 0.12. A
would legal sufficiency points dress rendition be performed on Aldrich’s drug screen blood points. fore we address remand See Nick any not reveal of sample presence did the State, (Tex. 661, v. 668 erson 69 S.W.3d drugs. 'd). 2002, App.-Waco ref pet. Aldrich, According to he drank three statutory of elements intoxication played golf he between beers while frisbee manslaughter, by particu- the as modified p.m. day and 6:30 the of p.m. 2:30 the issue, lar allegations in the indictment individuals, Four Ald- accident. who were are as follows: friends, neighbors and testified rich’s that (1) Aldrich spoken they had seen or with Aldrich at (2) operated a vehicle motor throughout day various times the and eve- (3) public place in a ning p.m. to the 8:30 accident and prior (4) by while intoxicated not having opinions their that Aldrich expressed did use physical normal of his mental and appear intoxicated or to have lost the by faculties of the reason introduction of physical of his or facul- normal use mental alcohol into body his Sergeant ties. Aldrich told Hall at the (5) intoxication, a
scene that he did not see the Hudsons and as of the result individual, headlights he by because was blinded caused death of an name- oncoming ly: Kimberly of traffic. Sue Hudson making 1. on de- Aldrich testified his own behalf and nied this statement to Officer Slack.
(6) mistake, or to-wit: through tioning deprived accident of adversarial process, way, by trial, fair by failing yield right of him of a prejudiced and and lookout, a failing proper to maintain harmed him. Aldrich presents raises and by failing categories to avoid collision between his thirteen alleged ineffective Hudson, Kimberly vehicle and Sue his acts counsel during including pedestrian. that he “failed to interview properly wit- nesses, evidence, review investigate”; (Vernon §Ann. Tex. Penal 49.08 See Code request “failed to ap- court State, 2008); Supp. Auldridge v. see point necessary experts despite Appel- (Tex.App.-Fort Worth indigency”; proper lant’s failed to file 'd) 2007, pet. (setting ref forth elements of motions; timely and misap- misunderstood manslaughter). intoxication law; plied general exhibited incom- driving that he was testified petence stemming from problems associat- place, in a struck public truck ed with either mental or physical infirmity; Kimberly Sue Hudson she maneuvered incomprehensible made inaccurate and crosswalk, in a her motorized wheelchair statements; judge alienated the and the and that he had consumed three twelve- prosecutor to the detriment his client day. ounce beers earlier that Based and violated the rules of professional re- acci- Aldrich’s blood alcohol level after the sponsibility; adequately failed to convey dent, retrograde extrapolation State’s offer; the plea presented harmful evidence experts alco- testified that Aldrich’s blood strategic purpose; presented no de- hol level at the of the time accident would fensive theories unsupported the evi- have been 0.1 and 0.12. Numer- between dence; objections failed to make proper acci- ous witnesses testified when the witnesses; questions ask proper failed occurred, dark; dent it was dusk but not object improper reading street where the accident oc- impact victim punish- statements before lit; curred was well and that the crosswalk assessed; ment was and failed to offer Thus, clearly ap- marked visible. argument evidence or at punishment at all. plying legal sufficiency standard Within each of these categories, thirteen *7 review, is, viewing all of the evidence specific Aldrich points numerous in- the light in most favorable to prosecu- the specific stances of conduct and omissions tion, we that a rational hold trier of fact by his trial counsel. have could found the essential of elements A. of Standard Review beyond the crime a reasonable doubt.
Jackson, 319, 2789; 443 at 99 U.S. S.Ct. at To establish ineffective assistance of Clayton, at 235 S.W.3d 778. overrule We counsel, appellant by pre an show a must Aldrich’s seventh point. ponderance of the that his coun evidence representation sel’s fell the below standard IV. Ineffective Assistance of Counsel prevailing professional of norms and that In his point, that, first complains there is a reasonable probability but he was denied right his constitutional to for counsel’s result of deficiency, the the effective assistance of counsel re- because trial would have been different. Strick 668, 687,104 performance tained counsel’s defi- Washington, was so land v. 466 U.S. 2052, 2064,
cient strategy (1984); no reasonable trial S.Ct. 80 674 L.Ed.2d justify State, 808, could it and because Thompson his retained v. 9 S.W.3d 812 attorney’s outrageous conduct (Tex.Crim.App.1999). was so seri- No distinction ex ous undermined the proper func- ists the between standards of effectiveness
232 appellate proeedurally prohibit appointed counsel. does retained for (Tex. counsel). 458, 469 claim of ineffective assistance of Briggs, 187 parte Ex Sullivan, v. (citing Cuyler Crim.App.2005) Strickland, Concerning the second 1708, 1716, 344, 335, 100 S.Ct. 446 U.S. giving meaning to the Sixth prong, (1980)). L.Ed.2d 333 an requirement that accused Amendment’s of coun the effectiveness evaluating In coun- access effective assistance of the we look to prong, first under the sel sel, purpose take its ensure “we must —to par the representation totality of the Strickland, guide.” the a fair trial —as each case. circumstances ticular 686, at 2064. The at 104 S.Ct. United U.S. The is at 813. issue 9 S.W.3d
Thompson, explained the Supreme Court has States was reason assistance counsel’s whether meaning of a fair trial: pre circumstances and all the able under fair trial is one which evidence [A] time of norms at the vailing professional testing present- is subject to adversarial Strickland, 466 See alleged error. the impartial to an tribunal resolution ed 688-89, at 2065. Our 104 S.Ct. at U.S. pro- defined advance issues be must performance review of plays to counsel a ceeding. right The strong Id. There is highly deferential. system in the adversarial crucial role conduct falls that counsel’s presumption Amendment, in the Sixth since embodied profes of reasonable range a wide
within knowledge to counsel’s skill and access assistance, must defendant sional to accord defendants the necessary is And, un Id. presumption. overcome opportunity to meet case “ample circumstances, the record on normal der they to which are enti- prosecution” to show will not be sufficient appeal direct happens .... who person tled That a was so defi representation that counsel’s alongside trial lawyer present is be lacking as to overcome cient and so accused, however, enough is not representation that counsel’s presumption the constitutional command. satisfy Bone v. professional. reasonable recognizes right Amendment Sixth State, (Tex.Crim.App. 77 S.W.3d because it to the assistance of counsel case, 2002). occasional, rare But in a role that is playing envisions counsel’s may appeal alone on direct trial record ability critical to the adversarial with sufficient appellate court present the An ac- just results. system produce no reasonable to conclude that information an to be assisted cused is entitled con justify counsel’s strategy could appointed, attorney, whether retained or falls performance because counsel’s duct necessary role to ensure plays who of reasonable objective an standard below *8 the trial is fair. law, of regardless matter of ness as a (citations 685, 104 at 2063 Id. at S.Ct. adequately reflects tri record whether the omitted). judging benchmark for “The acting subjective reasons for al counsel’s must be any claim of ineffectiveness State, v. 252 S.W.3d he did. Cannon as conduct so undermined whether counsél’s (revers 342, (Tex.Crim.App.2008) 349-50 functioning of the adversarial proper ineffective assis ing conviction based on be relied on that the trial cannot process appeal in raised on direct tance counsel at just a result.” Id. having produced trial); as Andrews of motion for new absence (Tex.Crim. 686, Prejudice to the 104 at 2064. 98, S.Ct. State, S.W.3d 102 v. 159 State, perform counsel’s deficient applicant from (same); v. 16 Robinson App.2005) counsel’s con judged by ance is whether 808, (Tex.Crim.App.2000) S.W.3d 809-11 functioning proper trial duct so undermined motion for new (holding failure to file
233 process that trial errors, of the adversarial these thirteen categories of making produced be relied on as a having cannot specific numerous and citations to the rec- just parte Amezquita, result. Ex 223 ord detailing challenged conduct and 363, (Tex.Crim.App.2006). S.W.3d 366 “As explaining how the challenged conduct not Supreme explained, the purpose Court only fell below the prevailing standard of requirement of the constitutional of effec professional outrageous norms but was so tive counsel is to ensure fair trial.” Id. that no competent attorney would have (granting habeas relief on ineffective assis engaged in it. Consequently, begin tance trial grounds because counsel failed record, with a detailed review of the focus- investigate evidence involving com ing on the portions of the record cited plainant’s phone cell and trial counsel’s Aldrich in connection with the thirteen cat- performance deficient so undermined the egories alleged ineffectiveness.
proper functioning pro of the adversarial 1. Concerning The Record Alleged
cess that the trial could not be relied on as In- result); effective Pretrial having produced parte Ex Conduct: Misun- derstanding Law, Briggs, 187 at of the Failure (granting S.W.3d 466-67 Adequately Convey Offer, habeas relief on ineffective Plea assistance of Fail- Investigate, ure to grounds counsel because trial and Failure Timely Obtain and investigate experts failed to or obtain Disclose Defense reasons, Experts economic trial strategy); Weber, 523, accord v. 639 N.W.2d Hofman Many alleged of counsel’s pretrial, as (S.D.2002) 529 (remanding case for new well as errors and omissions are trial after holding that trial fail counsel’s based on legally incorrect inter- suppress
ure to move to confessions was pretation of the Supreme United States not within the realm of re competence Kyles Court case of v. Whitley, 514 U.S. quired profession); of the members Pee 419, 1555, 131 S.Ct. L.Ed.2d 490 State, 188, 533, v. bles 331 Ark. 958 S.W.2d (1995). pretrial phase From the (1998) (remanding case for new through case, case the trial of the despite after holding that trial counsel’s failure to repeated prosecutor correction both the present victim’s inconsistent state court, and the trial per- Aldrich’s counsel jury deprived ments to the the defendant sisted in legally incorrect assertion that trial). fair of a any investigation, did not have to do A showing failure to make a under ei any interviews, witness make at- prong ther of the Strickland test defeats a tempt discovery to obtain because the claim of ineffective assistance of counsel. Kyles basically required case the State to Andrews, 101; v. Rylander investigation do all of the in the case and State, (Tex.Crim. 101 S.W.3d 110-11 to turn over to Aldrich all reports, state- App.2003). ments, and in- evidence discovered in its vestigation. Prong
B. First the Strickland Analysis issue, Kyles which permeated case, entire first arose when Aldrich’s case,
In alleged Aldrich has thirteen *9 titled, counsel filed a motion that he “Mo- categories of ineffective acts and omissions Discovery/Production.” tion For The mo- stage his counsel at each of pro- states, pertinent part, tion that ceedings, pretrial from punishment. to In sixty pages ninety-two-page appel- K[yl]es Whitley, Sup.Ct. v. [i]n brief, late presents and although majority opinion discusses the final was
5/4, propo- it was for the I apparently want an order from this court that 9/0 says has a non-dele- that he must do—he sition that must talk to prosecutor witnesses, these he must ask them duty, early prosecutions gable questions kind of Supreme that personally per- to interview all process, them, says Court he has to ask he than minimal infor- and sons who have more case, has to reveal to us that anything could concerning the and to ask mation evidence, exculpatory even lead to be- type questions such person saying cause he’s he’s it. going not to do information that reveal an attor- could recognize could be ney exculpato- would (as
ry, opposed, say, police- let’s what a said, well, I police at least call the and consider might exculpatory), men and us, them talk to ask to because we have prosecutor even if the doubts the credi- them they say they talked to and won’t information, bility of such to immediate- you say okay. talk to us unless it’s He ly give information to the such no, says, he wouldn’t do that.
for, reasons, among other the defense THE I COURT: don’t think that may such need when decid- information any authority says that he [the ing explore whether or to possi- prosecutor] police has to tell the officers bility trial as opposed plea to bar- talk you.
gaining. DEFENSE COUNSEL: That’s true. obligation Kyles He under has ver- requested The relief Aldrich’s Whitley sus to do it and himself the conclusion of this motion “that was report anything back to us if there’s Attorney District be ORDERED to com- exculpatory. ply with the Supreme U.S. Court mandate Kyles,
set out in and that a deadline be set Finally, prosecutor responded fol- compliance.” for such lows: the Kyles What case holds is that there reporter’s September of the record ais distinction between the non- State’s
9, 2004 pretrial hearing on Aldrich’s mo- Brady disclosure of known material ver- tion discovery/production begins going sus out investigating to un- stating, Aldrich’s counsel Brady cover material. And the State I have forget talked Jim’s last to—I acknowledges duty does have a name, guy it’s the going but who is information, exculpatory obtain mitigat- attorney going who is be—the to be ing, impeachment evidence that prosecuting this case—at one time be- would otherwise be unavailable fore the hearing first on the case and defense, case, but the case—that and on asked him if intended to follow the facts, upon its turned the bad-faith non- Supreme Court mandates Brady disclosure of material. Kyles States in Whitley. versus United case, In as we would in other And he said he busy up tied case, Honor, Your we intend to comply he’d talk to me about it. later with the rules of evidence and the case law any exculpatory, to turn over miti- want a court gives order that him a gating, impeachment as well as evidence. deadline, ready because I can never be Now, may not be on coun- [defense in this case he does what until he’s time ordering sel’s] frame terms of supposed to do. go the State to out interview wit-
officers, police
nesses or but it will be *10 just this him to come timely appropriately you into
done know the— got subpoenaed he’s to be to case. trial. waiting COUNSEL: I’m
DEFENSE THE You subpoena COURT: can rec- be, Your say might him to when that ords, though. Honor, going need at because I’m to DEFENSE COUNSEL: Just tell them dags infor- after I have this least 90 to here up any day come on I choose and get readg to for trial. mation hand to them him?. The subpoenas I that he has THE COURT: don’t know say[ they right have a produce ] to them say they’re it. going to when to do They in court. don’t have to show me Well, the Su- DEFENSE COUNSEL: diddly squat. have says they Court should
preme No, THE sir. COURT: You can sub- it already. [Emphasis added.] done poena records without that. You don’t signed a hearing, After the the trial court have a person present to have pro- to the September requiring 2004 order you. duce them to timely to at the earliest State disclose evi- opportunity the existence of feasible DEFENSE COUNSEL: And the sub- tending negate guilt to dence poena usually says you’re to be at—with charged or mitigate accused offense those records on such and such a date. punishment of the accused. reduce They give don’t have to them at to me subsequent pretrial hearing, Ald- At a all. They required are to be there. argued again defense counsel rich’s No, THE you’re COURT: sir. I think Despite violating Kyles. the State mistaken. completely get You can those the State prosecutor’s representation that then file them records and as a business through be proving
would intoxication those people record and don’t even have (as to opposed introduction alcohol to be order here for them to be into counsel drugs) body, Aldrich’s into admissible evidence. argued prosecutor should have court, Despite instruction this from the per- drug obtained results of a screen hearing thirty when the some concluded formed Aldrich’s blood and should record, pages in the later the trial court Finally, forwarded to defense counsel. counsel, “Sir, can again you told defense lengthy attempt explain after to de- get you that. All have to do is file that, fense counsel because the State was subpoena at DPS will they down lab and of intoxi- proceeding theory under you.” send that Defense re- alcohol, any drug cation results of sponded, right. I “All shall call them and performed screen on Aldrich’s blood sam- report you, back Your Honor.” ple exculpatory would not be and would Finally, pretrial the third hearing subject production under the be case, when the trial court called court, signed by order the trial the trial be- hearing, immediately explicitly court told defense counsel that gan again that the arguing State had failed that, yet was not set for trial case Kyles: to comply with he the drug if in fact wanted the results of records, he them. subpoena
screen could attorney A simply district cannot wait responded, Counsel Well, year say, nine months out of a Well, time, guess when I I it’s set for then haven’t talked —last remem- ber, said, use a where I subpoena, could but haven’t talked going subpoena going began. am I to—we’re witness in this case since it And *11 236 good thing. But he comply
so that was cannot on the State to legally use the interpretation let the State evidence and incorrect of Kyles. develop experi- theories of the case and yetAt another pretrial hearing, defense ten ments for nine months or months or counsel still focused on Kyles. Defense months, long to going 11 however it’s be counsel claimed he wanted to call himself them, until he talks to and then when he testify to the stand to because information, gets exculpatory all this [w]ell, only person really that’s in a going thinks that I’m to be able to position testify to to these facts about up days play something. catch the lack of the court enforcing prior [the before, always my problem That’s been order requiring timely pro- State to Ias said. duce exculpatory about that he evidence]
way year
was ordered back last to give information, exculpatory and the fact him, prosecutor] I told [the on [A]nd you ordered him give to it on the you numerous —I want that —I want to of January 21st have the tran- —I obey Kyles v. Whitley. scripts lawyer. be the only The —would
Again, attempted explain the trial court to one who knows about a conversation to counsel that there were defense motions prosecutor]. with [the ways he could file and he could obtain permitted The trial court nonexculpatory evidence. The following bill, to offer his own testimony as a exchange occurred: - again focused on the THE And all that COURT: [defense purported State’s lack of compliance with prior motion for discovery/pro- Kyles. He testified: exculpatory asks for is informa- duction] you Court will remember that after tion. You have not anything asked for it, told him to do pages two later in the tests, else. You haven’t asked for transcript you ordered him to turn over know, any, you tested, things how were exculpatory And, information then. tested, under they what conditions were course, the only way that the D.A.’s find Now, things you of that nature. said exculpatory out about information is to your client passed blood test? ask the Supreme witnesses as the Court Yes, DEFENSE COUNSEL: he cer- began in Brady and later in something tainly did. Kyles and later in the case that I’ve to, already given that cite but he would THE right. COURT: All Again, don’t have to talk to these people. you think a motion for discovery might Also that hearing the Court said proper be what get you need? matter, let’s get the heart of the [the Well, DEFENSE COUNSEL: I think prosecutor], you’re not going go on get exculpatory after I informa- the, se, per sign of intoxication. tion, certainly is something— going 07; You’re only go on the am I But, if, THE COURT: in fact—let’s said, correct? To which prosecutor] [the suppose that there’s no exculpatory in- Honor, Absolutely, only Your the 07. So
formation. you get How can that? that was an indication to us that we [Emphasis added.] going were not worry have to about concluded, The hearing and defense coun- drawing money down more my out of sel again performed still had not any in- get retirement an expert witness vestigation or discovery; he was waiting what he has now done. So we were told *12 21, questions, direct your saying September [the that at order. You 2004] we to absolutely going just that weren’t have can in culpable ignorance, remain as 08, an at an se. Now—(cid:127) attempt per long ask, don’t you they’re then not No, going you to make find out and tell THE I remember it me. COURT: don’t that, So I guess rather way. right that than it, way always that I’ve done find out the exculpatory stuff first look at and I prosecutor] think what meant [the file, just D.A.’s I I’m guess going to have they going when he said were on the .07 to your look at file first I’m because not were to they going any- is that not do going get anything to exculpatory. [De- thing any or regarding drugs anything, said, now, fense so I’m startled counsel] it; part is that alcohol of not answer, about really this but this is not a correct? quote, doggone but it is [Defense near. Yes,
THE Your PROSECUTOR: Hon- counsel], you’ve my feelings hurt in this or. me, by saying case bad things about so On the day originally Aldrich’s case was you only, your for going client is to called for defense counsel testified on suffer. I’m to going open-file close the in a spanning record narrative form policy Attorney that the District estab- eight pages reporter’s in the record. Por- county, you’re lished in this and not testimony tions of defense counsel’s in- going it.... get to We that feel that following: clude the given should have been by the—DWI they I warned the Court would videotape that we should been giv- resources, exhaust our our exhaust mon- en a copy, days. I believe I it’s ey up and at the last minute come says believe the to they got give law us a Now, say do I’m going this.... he didn’t copy days of it 20 before trial. said, Everybody’s the alcohol. He they’re THE If going COURT: to use it. saying throughout transcript I I have. So didn’t draw out more DEFENSE COUNSEL: No. Give it to money my get out retirement to days us 20 trial. before somebody oppose to show—to the ex- THE they’re going If to it COURT: use trapolation part of it.... I called the it exculpatory contains information. said, Look,
police Captain and I Chris If it show then anything, they doesn’t telling police Chandler is us the are give you. don’t have it to going give nothing, us but Court And, also, you did file a motion for dis- Attorney ordered District tell the covery? people okay that it was to us talk DEFENSE COUNSEL: Well— said, up appointment. They we set Gee, counsel], yes [defense that’s THE Is that a no? COURT: said, Well, message I I got. And Mr. DEFENSE COUNSEL: To discover Chandler, message you got? what is the information, exculpatory yes, did. got lady He said that he from D.A. him,
who said You don’t have to talk you THE Did file a motion for COURT: to them.... So then I back [the called tests, discovery any scientific said, Well, prosecutor] I you’ve etcetera, type videotapes, etcetera? proven to me there is no—I’ll be Well, you honest with since it no court DEFENSE COUNSEL: —there’s County Tuesday Denton that’s wasn’t going enforce until last week— talking is, sir, Okay. THE You’re did COURT: My question THE COURT: you filed a mo- discovery? about witnesses? Have file a motion you mean, I for trial tion for a witness list? I think Yes. COUNSEL: DEFENSE you Have done that? hearing. my motion filed consider would September 2004] [on and ruled on Have done DEFENSE COUNSEL: *13 discovery, yes. for motion it? in I don’t see it THE COURT: Yes. Well, looking I’m at this THE COURT: the file. discovery was ruled on [that
motion for I know DEFENSE didn’t COUNSEL: 2004], September on required do that. the defense was Yeah. COUNSEL: DEFENSE pros- You think that the THE COURT: only thing that And the THE COURT: a list ecution has to turn over witness you’re asking for in here is that I see motion? proper without You’re not exculpatory information. just any- anything specific, for asking No. It’s truth- DEFENSE COUNSEL: ful, exculpatory. that’s thing familiar I’m not sure. I’m not with all the local rules. Right. DEFENSE COUNSEL: think it’s a local
THE don’t COURT: Judge, Now DEFENSE COUNSEL: [Emphasis added.] rule. clear, there’s no
just my position so is his narra- After defense counsel concluded ever said that appellate court that’s permitted the trial court testimony, tive exculpatory is what the D.A. has. to cross-examine defense prosecutor say exculpatory they is is that What that prosecutor counsel. The established by para- any possessed information had not filed a motion for medics, by police department, all notice, any not filed kind of rule 404b had the witnesses are considered (other discovery motion than the one for their knowl- State witnesses because Septem- on exculpatory evidence ruled on edye imputed to the D.A. So is 21, 2004), not over to the ber had turned exculpatory, order to be includes any experts the defense State the names exculpatory, things that would lead to call, did not know the law con- might gets But they have to ask. what to amend an in- cerning right the State’s saying changed you keep here is dictment. is, they your vision is what have. hearing, At conclusion of this no They don’t have to ask. So wonder stated, prosecutor that, hearing doesn’t prosecutor] [the Now, they say ask. can’t that we admit- State, the record that the put Just to say good we made a ted—State can’t today from based on what we heard dig exculpatory faith out all this effort Counsel, seriously is worried Defense so we could turn it over. information claim. ineffective assistance about [an] Kyles. exactly happened That’s what trying this going And we’re afraid of out, we have to If we don’t find don’t case because of what Defense Counsel it, that’s re-enforced disclose done, never filed a has not where he’s saying they only have to turn over Court 404(b), it to him. And and I had to send That’s what the they what have. did, the State of when I he accused at all. appellate say courts him. He has never trying to intimidate motions, didn’t even know
filed probability, the witness list has to be turned that in all if when this case was over, didn’t even know when we had an appealed on ineffective assistance right and, to turn mean to course, absolute over—I I don’t know counsel— State, the indictment. And the amend Appeals say, what the Court of would very testimony, on his has serious based just thinking but about what they might on trying again, this whole case concerns say, that in all probability your case conviction, getting a and then possibly overturned, would be would it overturned of ineffec- getting because again have to tried be this matter. assistance, tive when he didn’t even file Based on concerns for rights, Aldrich’s telling expert. a motion us about an though jury panel even waiting had been we’re appeal, And afraid that on commence, all morning happen be—whatever this would would *14 State for and granted moved was a contin- today, would be overturned because of setting. uance of the trial Defense counsel we just ineffective assistance. And specifically was told that the of granting to put
wanted that on the record. the continuance reset the for timetables stated, later prosecutor The him to timely any to be able file motions quick I one on the thing put have to he desired. just I want record to
record. for the later, five tri- Approximately months the a plea state the State had made al court status set a conference in the case. offer, they’ve to the Defense and conference, Prior to the status defense responded. So I to never wanted letter prosecutor counsel sent a to the and put that the record. the claiming trial court the following: DEFENSE COUNSEL: That’s ac- Our hold that courts no matter what curate, Your Honor. He told us the my client tells me about the facts in his maximum, of 20 years, offer would case, compelled I am to make a thor- up by to be taken or he have 16th ough investigation of all law facets and take reply would our to be that re- I his case discuss the idea before it. I jected your believe what that’s expending possibly Mr. Aldrich’s entire said. letter wealth a trial or if we upon should con- Honor, THE PROSECUTOR: Your plea. lawyer sider a No com- should be even know what sentence doesn’t pelled enter into the or plea to [Twenty years] is not the maxi- is. discussion with his client until he obtains The maximum mum. here is life. And from all the prosecutor exculpatory get that he get that shows did did required Kyles as he is —he information offer. plea produce. prosecutor to is forbid- Likewise, den, judge bragged the trial later has doing commented as he about Aldrich, case, talking this to refrain from even to for over a year witnesses after about, I’m I
And what worried and know occurrence, long after memories have counsel], might offend [defense faded. jury panel present. or no one is are people present There some in the Especially when clients have little (Mr. [se], per court. That almost I money bankruptcy), what see Aldrich is in right now is ineffective meager pre- assistance of resources should be I experts, necessary. counsel. And would be that if hire if worried served to found, you way, were I I try tried —and don’t want to The best to prepare twice, convicted, get this case from the were for trial is to District Attor- clerk’s record. The trial court Kyles says give he must immediate- that which ney Then, an knowing ly signed granting request. order early process. in the counsel, upon being the Defense informed that witnesses and what facts the State’s him, ready for sample to concentrate to was failed agrees upon, witnesses, a week expert pick up prose- for over until the develop additional fact, favorable to cutor called defense counsel and asked produce testimony attorney why picked up sample. he had not Only then is the the defense. with a client whether allowed discuss hearing ap- was pretrial Another held trial. attempt plea proceed or proximately one month later. Defense
counsel, time, by this had filed three mo- evi- explained prosecutor] production tions: one motion for [the
When accused, me to commit favorable to the one motion attempting to force dence by forcing reproduction of witness statements or malpractice what I considered (20) my twenty years writings client to choose used to refresh recollection thoroughly witnesses, regular discovery and then a trial before the case was investigated by they copied the defense did motion. These three motions are book, replete The threat of from a form surprised.... not seem blanks *15 prosecutor] [attorney withdraw twen- for [caption], signature to brackets [the (20) year block], ty case-specific on 06 2005 if I other items. offer June malpractice has been do not commit hearing, At this defense counsel indicat- conveyed am to Mr. Aldrich whom I ed that he had obtained his client’s blood say rejects attempt proud to this latest and had it tested and that the sample [Emphasis at added.] blackmail. a blood alcohol level of results showed .04;2 later, the focus of defense con- A few the trial court held weeks admissibility inter- cern at was the Despite hearing the conference. the status interlude, what time of his test results because of defense vening four- to five-month custody to be chain of perceived still had not filed dis- counsel defense counsel motions, prosecutor explained The covery had not filed a motion that issues. that de- worry a be fense counsel did not need to about specimen sample from Aldrich’s blood him, establishing custody, not the State’s chain of physically turned over to and had requested only a from the State nor he had to establish his own chain of witness list he with the custody turned over his witness list to the State. did blood sam- —what picked up from when he it until he ple Defense counsel fell back to his standard “Well, stated, it. “If he position, then the status is that we returned Defense is, law I’m given exculpatory says willing haven’t mat- that’s what the still been accept got [prove] that. All I’ve to do is by point, ters the State.” At this my custody court to sit one-hour and that be instructed defense counsel would most, if request granted and to that a fine.” The trial court not down handwrite all, specimen sought of be turned over of the relief defense counsel’s Aldrich’s blood motions; prosecutor to him. indicated that complied; Defense counsel sought information request handwritten is contained in the most of the items and trial, by Angela 2. Springfield At Dr. testified for and when it was tested the defense because samples when surprised the State learn blood lose their alcohol content that she was not refrigerated sample sample and when the that the alcohol level in the had is not blood during containing sample opened and dropped vial is from .07 to .04 the fourteen retesting. sample for months between when the was taken closed already gratuitously provided ing been one thirty years had short course ago, qualified testify counsel. was not defense as an accident expert; reconstructionist he did testify as was pretrial A final conference held on a fact witness. 25, 2005, of morning July day first trial, previously trial. The trial court had On the morning the defense to filed a “Supplement ordered disclose names to Defendant’s List all experts Expert and addresses of defense Witnesses.” The supplement twenty days trial.3 sought least before The week designate “Richard E. Sulli- trial, days twenty before van” an expert before as illumination and at- counsel faxed to the State a docu- tached a report from Sullivan that had titled, “In to the State Response prepared ment of been the weekend before trial Request Expert Texas Information started on Monday. report The docu- listed a response Witnesses.” “David ments the illuminance the crosswalk at issue, an Taylor” expert testify who would specifically, the limited illuminance roadway headlights.4 No regarding provided ad- near crosswalk the center dress, number, phone curriculum vitae of the four-lane street. Defense counsel Taylor.” provided was for “David None- claimed that he had decided to call theless, an State conducted internet Sullivan expert as an because the State and contacted the had person tardily provided search believed the defense exculpa- expert, tory the defense an accident recon- information'—the fact that Sergeant from structionist the Carrollton Police De- Bill Hall was the officer whom Aldrich partment. particular Taylor That David had stated at the scene he had been that he had never said been contacted blinded lights oncoming traffic. case, *16 about the
anyone and defense coun- But the that prosecutor record reflects sel on the trial that in- day stated of had gratuitously provided the names of all to call a Taylor.5 tended different David to involved officers defense counsel on 21, 2005, trial court Taylor January The ruled that David a hearing at that had not be testify would allowed to because occurred six months before trial com- provide defense counsel had to prop- failed menced. The court trial ruled that Sulli- timely er or notice to the State regarding testify van could not because this notice Taylor. response given also listed Don In- was The trial too late.6 court ex- an accident gle expert. your time, as reconstructionist bide plained, “You can sir. ruled, subsequently
The trial court a year howev- You’ve had a half to prepare er, case, that because Ingle’s you’ve ample accident recon- this so had opportunity. what, experience try case,
structionist
included
we
only
ready
tak- And
were
to
this
original
setting,
During
3. At Aldrich’s
Stale
5.
the on-the-record discussion of
objected
having any
experts
Taylor
permitted
Aldrich’s
whether
of
David
should be
court,
testifying
testify,
had
because the State
not "received
asked
defense counsel
the trial
any
any expert being
say
Taylor
notice at all of
called.”
"What did I
was?” The trial
“Sorry?”
responded,
court
And defense
asked,
you
counsel
tell
"Would
me what
Taylor
[kind
4. Defense counsel
stated
would
expert]
Taylor
my
testify
of
I said
was and
expert
"interpret
an
refresh
the Texas
memory?” The trial court did so.
preferred
as to the
law
directions of head-
lights
traveling
on
public
motor
vehicles
roadways in
up
Texas and
far
how
the road-
6. Defense
failed to make an
offer of
headlights
way
proof regarding
will
when in
Taylor’s
shine
the ‘down’
either Sullivan's or
'bright'
proposed
not
testimony.
mode.”
you’ve
misinterpretation
had six months
of
ago;
months
six
it.”
for
prepare
more to
Kyles,7
understanding
his lack of
of basic
discovery procedures, and his misunder
rule, however,
court
that it
The trial
did
standing
legally
what
constitutes excul
Courtney
testify
permit Max
would
patory
amply
evidence are
reflected
provid-
counsel had
the defense. Defense
record,
objective
fall
Courtney’s curriculum vitae to the
and all
below
ed
awith motion for con-
in connection
a
of reasonableness as matter of
State
standard
a month
that he had filed about
Andrews,
tinuance
Accord
that Misunderstanding of the Law a. on the record that he peatedly claimed
Constituted Deficient ninety days to sixty prepare would need to
Performance investigation its completed the State after over the results of its investi and turned Looking great deference to with time, gation plausible at to him.8 There is no basis perspective defense the counsel’s get agrees I will need about four months after I all 7. The State that defense counsel's in- terpretation Kyles expan- exculpatory play of is "somewhat the information to catch of sive,” argues but it of Aldrich’s "[n]one asking They've year. I'm up. had a appeal in this about his al- claims counsel’s the will months and so State know for four leged misunderstanding of the law had they get exculpatory the the sooner effect outcome of the trial that the on the there, me—which is out I assure the stuff to discern.” State can it, they say they don't have it's Court. If stated, point, At one 8.
243 misun whom I strategy proud say rejects or tactics am to this latest attempt at derstanding Kyles, discovery proce of of blackmail.” dures, exculpatory or of what constitutes There is no doubt that an ac Thompson, evidence. See 9 S.W.3d 814. cused is entitled to effective assistance satisfies the first
We hold this conduct counsel the during plea bargaining pro of the Strickland prong test. Wilson, parte 72, cess. Ex 724 S.W.2d 73
(Tex.Crim.App.1987). Failure of defense Adequately Convey b. Failure to Plea counsel to inform a criminal defendant of Deficient plea Offer Constituted offers by made the State anis omis Performance sion that falls objective below an standard professional See, e.g., reasonableness. argues Lemke, Ex parte 791, 13 S.W.3d 796-97 adequately convey twenty- failed (Tex.Crim.App.2000) (citing numerous year plea bargain to him. The record same). holding cases As parte noted in Ex before us contains defense counsel’s letter Wilson, rejecting plea bargain, supports It is important that the accused be in- The letter position. specifically Aldrich’s proposals formed of prose- made sets forth defense counsel’s belief that it cutor; accused, lawyer, has would be unethical and would constitute right to decide on prosecution pro- him malpractice for to even discuss the posals, proposal even when a is one that proposed plea bargain with Aldrich: the lawyer would not approve. If found, Iway, prepare The best accused’s choice on question get for trial is to from the District Attor- one, guilty plea an is be informed ney Kyles says give that which he must accused act must awareness full Then, early process. knowing in the alternatives, including any that arise what facts the State’s witnesses and the from proposals made the prosecutor. agrees upon, to concentrate to 724 (quoting S.W.2d at 74 v. Hanzelka witnesses, develop expert and additional State, 385, (Tex.App.-Aus
fact, produce testimony favorable to 1984, added). tin pet.)) (emphasis no A Only attorney the defense. then is the right defendant’s reasonably effective allowed to with a client whether discuss during assistance of counsel the plea bar attempt plea proceed to trial. gaining process encompasses likewise requirement that defense counsel commu plea letter characterizes the offer as accepted nicate an plea bargain to the (20) “forcing my twenty client to choose State, State. See Randle v. 847 S.W.2d years or trial before the case was (Tex.Crim.App.1993). th[o]roughly investigated by the de- *18 ” fense and is dated a mere two months Here, right Aldrich’s to effective assis- actually [Emphasis before trial started. during plea tance of counsel bargaining Finally, rejects the letter plea added.] process encompasses the requirement that offer, stating, “The prosecu- threat of [the objectively adequately defense counsel (20) twenty year to withdraw his offer convey plea tor] a offer in enabling a fashion a on 06 June 2005 if I do not commit mal- defendant to make an informed decision practice conveyed has been to Mr. Aldrich concerning parte offer. See Ex Wil-
only they place explained, because haven’t bothered to fol- At another defense counsel ready "I can be in he low the mandates. never this case until supposed does what he’s to do.” son, at 74. The record affir- judgments support sional limitations reject- Strickland, reflects that when Aldrich matively investigation. 466 U.S. at approximately two plea ed 690-91, words, at In S.Ct. 2066. other offer— trial —-defense by months before duty counsel has a to make reasonable not thoroughly his own admission still had investigations or to make a de reasonable and, fact, in investigated the case believed particular investigations cision makes legally ethically prohibited unnecessary. Id. discussing from even with Aldrich whether Here, acutely defense counsel was aware attempt plea proceed he should investigate he needed to Aldrich’s belief, trial. Given this defense counsel case; he informed the trial court on multi- offer an improper characterized the as at- ple occasions that he sixty would need tempt by the State at blackmail days, days, ninety get or four months to to commit malprac- force defense counsel ready after the State turned over the “ex- by his own tice. Defense counsel words culpatory required that he did not function as information as is [it] established during plea process by Kyles.” effective counsel do And defense counsel ex- ethically because he believed he was plained repeatedly exculpatory he discussing plea prohibited from offer “any possessed par- meant information his client. We hold that amedics, by police department, by all the objectively adequate- counsel failed to witnesses that are considered State wit- ly convey twenty-year plea the State’s of- nesses because their knowledge imputed is fer to Aldrich because defense counsel the D.A.” purposefully Defense counsel convey the plea failed to offer a fashion decided, (about however, year little do enabling Aldrich to make an informed de- accident, after the go defense did to the concerning the offer and that cision de- pictures) scene and take investiga- or no regard fense counsel’s conduct in this fell completed tion until after the State had its objective below an standard of reasonable- investigation and had “turned over excul- Consequently, ness. we hold that this con- patory per information” defense counsel’s prong duct satisfies the first of the Strick- interpretation Kyles. Based on this land test. entrenched, legally interpretation incorrect Kyles, admitted writ- Investigate c. The Failure to (in offer) ing the letter rejecting plea Deficient Constitutes that, only on a date two months before Performance trial, actually Aldrich’s case went to he had In judging defense’s investi thoroughly investigated Aldrich’s case. gation, applying generally, Strickland further record reflects that defense hindsight by pegging is discounted adequa request per- counsel failed and refused to cy to perspective “counsel’s the time” independently mission to test Aldrich’s investigative decisions are made. Rompil blood sample, arguing again that the State Beard, 374, 381, la v. 545 U.S. 125 S.Ct. duty per had to turn it over to him (2005).
2456, 2462,
complete sample he could have investigation pre are reasonable tested. The hand- cisely profes request appears to the extent that reasonable written in the clerk’s rec- immediately signed by and was tive ord standard of reasonableness. There is plausible trial court. no strategy basis in or tactics for perform defense counsel’s failure to an that The record also reflects Aldrich told investigation that he acknowledged was headlights counsel that from an defense needed and indicated would sixty take (cid:127) oncoming car him. had blinded days, ninety days, or four months. See that an officer at claimed he had told Strickland, 690-91,104 466 U.S. at S.Ct. at blinding headlights. about scene 2066; parte Amezquita, Ex 223 S.W.3d at Nonetheless, on his relying again interpre- 363, 368; parte Briggs, Ex 187 S.W.3d at Kyles despite tation of the fact that the — Consequently, 467. we hold that this con- had prosecutor disclosed names of all prong duct satisfies the first of the Strick- involved officers defense counsel9—de- land test. fense counsel failed to undertake in- fact
vestigation verify or to ascer- this particular the identity tain officer. Timely d. Failure to Obtain and Dis- Defense counsel claimed the record that Experts close Defense Constitut- trial, days a few until before was unable ed Deficient Performance officer, learn the this identity Ser- affirmatively The record reflects Bill Hall. geant although that defense counsel repeatedly The record before us establishes that recognized for the need defense experts, performed defense counsel neither a rea- timely he did not designate experts for two investigation sonable made a nor reason- (1) reasons: on Aldrich’s based dire finan particular investigation able decision that a situation, (2) cial on his misinterpreta Instead, unnecessary. was even after re- Kyles. tion of Aldrich testified via a bill of ceiving the multiple benefit of continu- exceptions about current financial situ ances, defense counsel undertook little or Specifically, ation and bankruptcy. Aid- investigation no just few weeks —until rich testified that he his wife were in July setting— before the 2005 trial bankruptcy about the time the accident on the based unreasonable decision that bankruptcy occurred. His was discharged Kyles required perform the State an fewa months before trial. Aldrich testi investigation for him and to turn over all enough fied that he never money had matters, “exculpatory” which defense enough money could not borrow to hire broadly anything counsel defined known lighting experts. Immediately following anyone might lead to information trial, finding the trial court entered a helpful to Aldrich. And record reflects indigence appellate appointed coun repeated assertions that for sel Aldrich. sixty days, ninety days, he needed or four get months to ready Defense counsel testified that the Aid- few weeks. money riches “don’t to investigate have the he, likewise, this” and said We hold that defense counsel’s did not failure to conduct a investigation money investigate reasonable have the it. Defense amake reasonable repeatedly decision no investi- told the trial court gation necessary situation, was below an objee- fell Aldrich was in a financial dire following: given 9. record reflects the of all of the names officers. on, Honor, Page 17 22 and starts at line continues [THE Your PROSECUTOR]: for the record, names, spelling through their I'd like us even January it to note that on hearing, 21st of page 2005 at a line 20 of Defense Counsel 18. *20 Sullivan—until broke;” lighting expert that Aldrich had are
stating, “We —Richard month; Ultimately, the trial morning of trial. that per him paying $100 been (some testimony expert court excluded the “drawing down” had been counsel defense witnesses) experts of all as fact account to fund testified retirement own from his counsel, Max except defense defense; already “I’ve listed and that Aldrich’s Courtney. grand couple a my pocket put out get to going never case. I’m hearings, At defense counsel pretrial any money.” doesn’t have he back because timely his intent to repeatedly indicated counsel hearing, defense pretrial At one counsel’s fail- experts. retain But defense a trial months before needed four said he as timely experts, explained ure to retain why asked the court setting. When addition during in his own words trial —in months, ex- four needed based a lack of financial resources —was “[Financially, carrying my I’m plained, hire counsel’s decision to not on defense three financially I’ll need about .... client until after the State had experts my income from client or four months’ “exculpatory” turned over information ready.... I’ll need get myself from counsel believed the State was defense days prosecutor] after he [the at least 90 it be- required Kyles. to do under When exculpatory all the stuff.” says there’s bankrupt came clear that Aldrich was day fifth In fact on the money pay pay could not for or borrow the record his rea- explained on for and when it became clear experts hiring experts: for not sons the trial court did not share defense coun- my trip since first out have known We legally sel’s incorrect view of the State’s location of the accident] there [to reasonably com- obligations Kyles, under a going problem, to be a lights were op- petent attorney would have several money, shepherding were but. we case, tions, including to withdraw from the hear- throughout it is the—all the explaining to the court that Aldrich was that I judge.... Angelino says Mr. ings, indigent; prove indigency; now evidence, my but we’re ought get or request appointment and to of counsel stuff waiting exculpatory to find out the with the of a payment to remain as counsel things spend what so we’ll know request investigatory reduced fee but money Nobody on. our—our little witness fees from the trial court for expert doubts that the Defendant is broke now-indigent parte a client. See Ex said, [g]ive I me the this trial and so Here, at 468-69. de- Briggs, 187 S.W.3d exculpatory suff and then —and even timely designate failure to fense counsel’s shep- said and then we’ll know how to decision, strategic it was experts was not money experts our and see what herd an economic decision and a decision based could afford. interpretation of a legally on a incorrect Supreme States decision.
Although April the accident occurred United Court (recognizing record reflected the trial court had ordered the See id. at 467 2004 and defense counsel’s failure to consult expert defense to file its list of witnesses July experts strategic trial was not a decision but an twenty days before the one). hold that defense the record reflects that Aldrich did economic We setting, timely designate failure to ex- designate any experts days until a few to make a reasoned decision that (except Courtney perts Max whom before necessary were coun- agreed they experts knew of via a motion no State —defense continuance) evidently experts believed were neces- designate and did not sel *21 attempt designate up did sary you because he That’s to determine from the experts, designation you but his was untime- evidence that hear. objective rea-
ly below an standard of —fell Consequently, See id sonableness. know, you But will and I will suggest to hold that this conduct satisfies first end, you at the that people have been test. prong of Strickland tried for murder with a lot less motives than Mr. Hudson [the decedent’s hus- During 2. Conduct Guilt- band, walking who was slightly behind Innocence Phase of Trial her motorized wheel chair when she was had, people hit] sui- committed complains that his trial counsel cide for a lot less motives than this provide continued to ineffective assistance woman had. going That’s to be the guilt-innocence throughout phase facts. argues trial. He that pre- supported by
sented theories not the evi- Counsel’s bizarre defensive theories of the dence, physical had or mental infirmities case permeated the entire trial of the case. prevented representation, effective Defense counsel repeatedly attempted, prosecutor alienated the and the trial unsuccessfully, testimony elicit from court, misapplied misunderstood and the witnesses to support these theories. For law, properly question failed to witnesses example, Sergeant Bill Hall testified that objections, or make and made inaccu- patrol sergeant he was a Colony The throughout
rate trial. statements Fur- when this accident occurred. Defense thermore, Aldrich claims Sergeant counsel asked Hall following: present- counsel was ineffective because he Q. thing riding that she in was had jury through ed harmful evidence to the four wheels? testimony. Aldrich’s own Yes, sir, A. I believe it would have. Q. She was not afoot. riding She was
a. Presentation of Defensive Theories and it propelled by an electric mo- Supported by Not the Evidence Con- tor, itwas not? stituted Deficient Performance Yes, A. sir. Defense counsel’s defensive theo Q. you And is that —do know that ry of the case was that Mrs. Hudson com that’s the of a motor vehicle? definition suicide, mitted alone or assisted Mr. A. A motor vehicle—
Hudson; that Mr. Hudson murdered Mrs. Hudson; or that Mrs. Hudson was at fault (de failing yield right-of-way Q. Well, you let me you ask this. Did argued fense counsel that because Mrs. your initial investigation believe wheelchair, Hudson was a motorized the —Mr. Hudson and Mrs. Hudson foot, she was considered a vehicle in had made a left turn and started walk- pedestrian stead of a and should have crosswalk, ing they across yielded right-of-way). He explained oncoming would have seen the on- —this statements, opening traffic, coming the one that before and Now, I know at this you time must be during my and after client was—that wow, thinking, her, ultimately this sounds like a suicide that they deliberately hit or an maybe assisted suicide or even a made a left-hand turn to walk across homicide on the part of Mr. Hudson. place they where knew that these cars going to come? Did realize Ms. Hudson is not
were here is her fault and continued, nobody out there? night you that the were else’s.” He Mrs. Hudson and Mr. Hudson came they deliberately A. Do I believe down the night; street that that this your in front of client? stepped long-suffering woman who nothing had Q. jury to I’m That’s for the decide. but a more miserable existence —she you, your it—in investi- just asking did might happy way, have been in a but she there, as the senior officer out gation getting was worse. She had been bound long debilitating injuries, people with for, in a wheel chair I they think said suicide, they commit don’t sometimes years; three that she couldn’t even walk they? us, any more. And all of in our common Texas, in people A. In the cross- knowledge, know that people say some right-of-way. have the walk why good stick around. I’ve had a life. law, Well, Q. wrong that’s the but if good I’ve marriage. just go- had It’s believe, you you’re that’s what incorrect. ing drag, to be a I’m going to cause
burden and heart break to those love. Now, Q. right. you, taking All did Objection, Your Hon- [PROSECUTOR]: scene, lighting, ability to see or, arguing outside the facts of the case. that person coming was as the Hud- I’ll objec- [THE COURT]: sustain the were, traffic, oncoming sons to see tion. they that right realization walked During closing argu- defense counsel’s car, oncoming you of this front did make ment, the trial court eight objec- sustained say, Hey, question sure and be sure to counsel, tions the State that defense why about Mr. Hudson he did such a defenses, bringing up arguing these mention, thing? you gosh, Did suggest, outside the record. had the guy opportunity, looks like The prosecutor up summed it in his he walked her out there in front of rebuttal: anything the cars. like that hap- Did Now, let’s also talk about what Defense pen? because, remember, Counsel said what- honor, Your that’s an [PROSECUTOR]: ever he said is not evidence. It doesn’t improper question. There’s no evidence matter what he thinks. It mat- doesn’t at all that Mr. anything by Hudson did facts, ter at all. go Let’s to the the facts somebody out walking into cross- case, simple of this. This is a even going object walk. I’m an improp- you’ve though heard a bunch of stuff er question assuming facts not in typically nothing has to do with evidence. a very, very simple this. This is case. merely questions large These are two of a intoxicated, got His client ran over a questions number of at- defense counsel wheelchair, lady in a crosswalk in a tempted concerning to ask witnesses her, never killed hit his brakes before he strange posited. defensive theories he her, hit never hit his brakes after he hit routinely The trial court sustained the her, did not stop. That’s the facts of assuming-facts-not-in-evidence State’s ob- you this case. Now whatever want —is jections type questions. to these preposterous that he’s trying say
During arguments, final pedestrian? she wasn’t a Is that what urge continued to these they’re defenses. He ar- their hanging whole case on?
gued, “But we submit that the reason that Does that make sick? Or that she look committed suicide. You operate aids ceased to two ago.” weeks who The trial helped granted man. Is someone court a continuance. murder, later, Approximately commit suicide or a month
wife began Is opening statement? that not his voir dire with the said state- ment, you’re “Now crazy? sickening? going Is that hear the other end of the spectrum. vim, I’m not full of record none of supports the three vigor vitality prosecutor] like [the is. *23 mentioned defenses: Mrs. Hudson com- my birthday. I’ll be 73 next only I’ve got suicide, mitted either or assisted alone lung. one So the I’m standing reason back Hudson; Hudson Mr. Mr. murdered here, back, in my the if drops voice be- Hudson; Mrs. or that Mrs. Hudson was at air, cause I am you’ll just out of if raise failing yield right-of-way— fault for to the day your hand.” One after she was in a wheelchair. because motorized court, frequently counsel, asking the and persistence raising Defense counsel’s themselves, witnesses to repeat defense defenses opening these from statement court, counsel told “If the the in- Court’s through closing over argument the State’s terested, I my hearing left my aids in repeatedly sustained outside-the-evidence ashtray of the car that I rode down here objective objections fell below an standard I forgot in. to them bring upstairs.” At Consequently, reasonableness. hold another point, still defense counsel ac- this conduct the prong satisfies first knowledged that might a witness be hav- of the Strickland test. ing a hard hearing time defense counsel’s questions might “I run because out of Record Does Not Establish that b. De- breath.” Physical fense Counsel’s and Men-
tal Infirmities Themselves Consti- The record is peppered instances in tuted Deficient Performance which jury, reporter, the court the trial court, and the witnesses could not hear
During pretrial hearing, a defense defense counsel and instances in which asked if counsel the trial court he could sit defense not hear person counsel could court, and “I down told the have an emer speaking.10 closing During argument, ap- supply of will gency oxygen try and not to parently recognition deteriorating that in jury.” days do front of the Seven state, physical defense counsel told setting, before the second trial defense know, jury, probably this is “[Y]ou last counsel filed motion for continuance al big case I’ll ever try.” leging year lawyer “this 72 old has failing hearing ability year, had for over a The record also reflects that defense for no apparent hearing confused, reason both counsel repeatedly became even said, following examples: points during 10. are some the trial various trial "I didn't hear told that a court you,” having witness hearing,” "I am a hard time "I could not hear him and that he needed to just hearing,” got am hearing hard of “I've speak microphone; into the the trial court me,” they’re playing aids tricks on “Your counsel, having asked defense “Are still Honor, hear,” just I "I cannot didn’t hear hearing?”; jury trouble told the bailiff said,” hearing things?” what she "Am I "I’m counsel; they could hear not defense deaf, up?” you speak "I could can’t hear said, speak trial court later need "YouTl to you,” my hearing, you, prom- "It's its not jurors up, you”; can't hear the trial court ise,” hearing.” and “I am hard of The back- asked defense counsel least three times to ground by the air noise caused conditioner up speak him; because the court could not hear apparently exacerbated defense counsel's dif- reporter said court that she could being hearing ficulties in heard. counsel; hear not defense defense counsel at eally court to remind him the witnesses or the trial court asking trial asked once repeat if he was particular sup- witness was themselves unable to what a hear; witnesses, court, in his bill that the testify exceptions. jury, posed to why could not remember court asked defense reporter counsel counsel Defense him; court could not permission speak they the trial when hear up he asked had exceptions and that the trial court reoriented a bill of and when defense make back, said, expressed counsel when confusion. witness brought circumstances, remember what I “I’m was do- we cannot Under these trying conference, charge de- During physical hold that infir ing,” 1958 civil case to the fense counsel cited a mities or of mental episodes confusion explained may that he trial court and per and of themselves constitute deficient “my it because Shepardized partner challenged formance. This conduct does baby. She went out. I’ve done had prong not meet the first Strickland. *24 I can since best the 17th of very the Not Establish c. Record Does that De-
December, I work Saturdays and and Sun- fense Alienation of the Counsel’s me days keep up, it’s for and difficult to the Trial Prosecutor and Court you might imagine.” well Deficient Constituted Performance supports the record Although the con that The record reflects defense that defense counsel was hard of clusions prosecutor the counsel alienated and speech that was hearing, defense counsel’s trial, usually throughout trial court ar hear, difficult to defense counsel guing that was not prosecutor comply trial, during became confused at points with, ing the trial court and that was not of in and themselves do not these facts enforcing, Kyles. of the mandates De performance. constitute Com deficient (hold repeatedly fense made Cannon, counsel sidebar pare 252 S.W.3d 349-50 comments, prosecu oftentimes about the ing counsel’s behavior as a defense tor, with frequently argued the trial doing because he un nothing whole— no authority court. But we have found for go inef prepared to forward —constituted counsel), proposition that defense acer fective assistance of counsel’s Moore (Tex. State, 421, 422, style trial bic and audacious rendered his v. ref'd)
App.-Texarkana pet. (holding performance Although deficient. behavior in allegedly affirmatively counsel’s is correct the record defense asleep during prosecutor’s counsel’s falling repeated cross-ex demonstrates defense did not alienation prosecutor amination of constitute the trial defendant counsel). court, assistance of hold that this ineffective cannot conduct that defense typi- prong record reflects counsel meets first of Strickland.11 commenced, day example, 11. Judge For Court case had issued an order attacking a exculpatory counsel filed motion for the release to me in- D.A.’sto prosecutor’s credibility nothing requesting forthcoming had been relief formation and point “the defense could not have antici- when At another because we talked?” trial, pated ignore began objection your that the would an State Or- defense counsel trial, during point telling judge, ders.” At one the trial court "You know said, Honor, you Angeli- prosecutor that —I think that Mr. frustrated "Your I'm know that fellow, object, going but....” again, Defense Counsel no is wonderful The trial all, basically lying again.” part, "First of responded the Court At an- court Mr. trial, during point Angelino question [it other defense counsel did not ask was the And, Chandler, two, prosecutor].... Captain you number asked Chris "Did I tell other me, Angelí- good all the it did I think about Mr. for that a District do know what Misunderstanding trial, At one point during d. defense counsel Continued Deficient urged the Law Constituted the trial court to admit letters to Performance testimony by rebut some a State’s witness based on the rule optional completeness. statement, defense opening In his the trial When court asked whether the Kyles posi defaulted to his again rule optional completeness referred only tion; jury he told the documents, to written defense counsel re- look at obligation State has an [t]he “No, sponded, it does not.” See Tex.R. whole, to discover what’s the case as Evid. At point during 107. another us, to good good for them and what’s attempted impeach one good let us know what’s for us because report generated by witness with a a dif- you’re going the case at the end of ferent witness. See Tex.R. Evid. 613. At billion dol they realize that had several still another point, per- trial counsel asked and facilities equipment lars’ worth of mission to take Officer Morton on voir dire fully investigate them to allowed “Daubert-Kelly” under but proceeded then find out that you’ll this case. ’And also to ask the factual questions having witness in bankruptcy, the Defendant was so nothing to qualifications do with his or his even playing playing we’re not on an expert testimony. See Tex.R. 702. Evid. that, they have to field. And because things help that will us and tell find out We hold that defense contin- *25 us about it. That’s the law. ued misunderstanding Kyles of and his misinterpretation of the rules of the trial evidence Finally, day on the third of fell objective below an standard of that he did not want reason- court indicated giving heavy ableness. Even Kyles. But de- measure of anything hear else about conduct, bring up, deference to fense counsel continued to defense counsel’s no discovery stating, my plausible strategy “I don’t have to have for con- exists counsel’s or the you you misunderstanding like would do it or like wish tinued of the law and of See, rely Supreme I can on the e.g., parte Prosecutor. rules of evidence. Ex decisions, do, Welch, I pretty Court which did Consequently, 185. all
carefully, Judge.... And that’s that’s we hold that this conduct satisfies the first required that I’m not supposed case prong of the Strickland test. you Kyles
to mention in front of [i.e. ].” Question Properly e. Failure to Thus, persisted in his mis- Witnesses Constituted Deficient interpretation Kyles, even after the trial Performance repeatedly explained court had his misun- him
derstanding and had asked not The record reflects that defense Kyles again. mention great counsel difficulty questioning had Other instances demonstrated counsel’s He repeatedly witnesses. made sidebar misunderstanding of the rules of evidence. The tri- during questioning. comments point, going no.” At another defense one at a I'm still time. not to let this trial began question get any sniping a cross-examination of a out of I want hand. don't witness, "Officer, you anymore. State’s that under said back and forth I don't want leading questions bad-mouthing.” closing arguments, In de- .Prosecutor prosecutor lodged argued many, that” —to which the a side- fense counsel are “[tlhere objection. many types
bar-comment At still another Mr. different of Crimes which comments, point, response DiAngelo, to both sides’ [sic] who described himself as the stated, "Okay. you prosecution the trial court I'll tell one DWI all and be all of the this, everybody you County....” what. I'll tell and I'll tell in Denton cases warned defense repeatedly al court counsel moved so that question he could various to make sidebar comments. Finally, jury’s witnesses outside the presence. trial, the trial day on the fourth court patient typically granted trial court objections another of the State’s sustained request. example, For to defense counsel’s sidebar remarks and witness, during testimony of a fact counsel, time, more “[0]ne then warned no following occurred: sustaining After sidebar comments.” still I object [DEFENSE COUNSEL]: by the objections more State to defense jury ask that the be removed. If I’m comments, counsel’s sidebar court hearing right, you did have a conversa- counsel, what, you “I’ll tell
warned defense tion with me before. you time make a sidebar the next com- Okay. Verney, [THE COURT]: take ment, you going contempt I am to hold jury out. Court, out; do you over and understand [THE All rise for the jury. BAILIFF]: sustaining yet objec- that?” After another out) (Jury by the State to tion defense counsel’s side- Let the [THE COURT]: 'record reflect comments, the trial explained, bar court jury that the is not present. now I that I’ve you believe indicated to sev- State, present ready? past days eral times over the six now Yes, Your Honor. [PROSECUTOR]: you verge were on the of contempt, Defense, present [THE COURT]: but continue to make sidebar com- ments, ready? very and I find offensive. morning you
And I think this went well [DEFENSE COUNSEL]: would like beyond you should have. I what believe to— object the State had to at least twice present [THE COURT]: Is Defense your sidebar comments. And what I’m ready? *26 going going you to do is I’m to hold [DEFENSE COUNSEL]: Excuse me. court, contempt going and I’m to sen- Yes, I something, and would like to do if you days tence to three in the Denton I may, since the appellate court teaches County jail you and fíne But the $500. us when something sight happens, — will place sentence not take until after record, that’s not reflected the this trial is over. could read it into the record. I would record,
At point one in the earlier during like the record to reflect that the Dis- the argued defense counsel with the trict Attorney pointed finger her down exactly court over what constituted a loop in the at the end of the drive and comment, sidebar the record could be says, you Do you remember when were demonstrating construed as that defense before, said, talking you to me not did understand what constitut- pointed finger her object down there. I aed sidebar comment. to says that. If the D.A. that she wasn’t Additionally, during his ques- doing efforts to that then certainly give I want to witnesses, tion it, defense counsel repeatedly her an opportunity deny but in the interjected testimony denial, his own into his object absence of I to what’s questioning. The trial court sustained occurring. thirty objections by
over prosecutors I legal don’t hear a [PROSECUTOR]: that defense testifying. counsel was objection, your Honor. repeatedly
Defense counsel also asked— I legal [THE don’t hear a COURT]: over eighteen jury times—that the objection. be re- object That’s I COUNSEL]: [THE she’s correct. don’t
[DEFENSE COURT]: leading suggestive impeaching to the witness think were him proper- ly. way to what said. That’s There’s a to do it contrary way she and a not it. You my objection. doing correctly. do weren’t Okay. We didn’t need [THE COURT]: In addition to generally challenging de- jury objec- a leading take the out for fense competency in questioning tion. witnesses, Aldrich also claims that defense But I did properly [DEFENSE COUNSEL]: counsel failed to attack the rele- jury admissibility need the to be it’s vance absent because ex- retrograde required trapolation I can the record read and failed cross-examine the —so happening. says what I saw The Court retrograde extrap- State’s witnesses about State, supposed pres- agree that’s to be outside the olation. We howev- er, jury. ence record does not establish the of any plausible absence strategy tactic right. All Don’t lead [THE COURT]: exists for this claim particular alleged the witness. performance. deficient pointed As out Honor, im- Your I’m [PROSECUTOR]: State, could rea- I’m peaching witness. allowed question soned that a to the State’s retro- impeach my own witness as the state- grade extrapolation witness based ment she’s made before. defense’s contention that con- Okay. [THE COURT]: three sumed beers between 2:30 and 6:00 [DEFENSE But the Dis- COUNSEL]: p.m. produced damaging could have an- Attorney trict has made herself a wit- i.e., swer, that a test showing blood .07 at my ness in the case now. That’s opin- p.m. 11:00 could be achieved if Aldrich ion. only had consumed three between beers Well, may, [THE COURT]: be as it p.m. 2:30 and 6:00 opinion. my Bring jury it’s not back successfully And defense counsel elicited in. testimony Courtney from Max At point, one defense counsel improperly degradation of the alcohol in Aldrich’s attempted to impeach witness—Mr. .04, blood from a .07 to a which State what Hudson —with defense counsel be- posited during occurred between time *27 a prior lieved to be inconsistent statement. when the blood was drawn and the time
At the testimony conclusion of the Aldrich, by when it was tested would not day, following the colloquy occurred: whole, a typical. be The record as howev- [THE COURT]: What other do matters er, experi- establishes that defense counsel you have? great difficulty questioning in enced I Judge, [DEFENSE COUNSEL]: making witness without sidebar comments here statement from Donald interjecting testimony through or his own I Hudson that believe contains in- prior questions he asked. Defense counsel’s testimony. consistent statements to his continuing in conduct to make sidebar Okay. [THE COURT]: held in point comments he was [DEFENSE in contempt continuing COUNSEL]: And that’s and his conduct about, what I asking interject testimony was him have you his into the case ever so prosecu- questioning said and so. She his fell an ob- through [the below object jective tor] would and the Court sus- standard of reasonableness. No objection. tained the plausible reasonable or exists strategy continued, rebuttal, wide-ranging prosecutor, again side- The counsel’s brought into repeated improp- for his defense conduct comments or bar testimony into focus: interjection of his own clear er hold Consequently, we questions. know, You I almost wanted to start prong conduct satisfies first something Danny said DeVito test.
Strickland “My Vinney,” was talk- Cousin when he statement,
ing opening about his but Because, say obviously, it can’t that. Factual Inaccurate Statements f. memory like is seems Defense Counsel’s Deficient Constituted good try not as it be. Let me as should Performance to tell were. really what the facts points next that de out Aldrich all, Vaughn First of Officer wasn’t made inaccurate statements fense counsel sobriety who did field test. It was arguments; Aldrich concedes that the Slack, right Officer there. Officer not in and of themselves statements were female, Vaughn, so it wasn’t Mr. who’s argues but that when ineffective assistance Vaughn. by way, I’m not Mr. And of counsel’s other deficien light viewed DiAngelo. Angelino. I’m Mr. cies, these show defense counsel’s errors We hold that defense counsel’s misstate- ineffec faltering memory and wholesale during ments of and names Aldrich’s facts tiveness. objective trial fell below an standard can- reasonableness. Such misstatements The record reflects numerous inaccurate part be trial strategy. not Conse- by defense counsel. Counsel statements quently, we that this satisfies hold conduct mistakenly that Aldrich’s blood test recited prong the first of the Strickland test. rather than a .07. Anoth- result a .17 time, hypo- in a counsel stated er defense Testimony Damaging g. Adducing blood that the retest of Aldrich’s thetical from Aldrich Did Mr. Not Consti- a .40 alcohol level sample revealed blood tute Deficient Performance fre- than a .04. Defense counsel rather finally that de Aldrich contends name prosecutor’s or quently forgot by permitting fense counsel was ineffective by wrong name. prosecutor called testify during guilt-inno by referred Defense counsel to Aldrich phase eliciting damaging cence times, referring several wrong name testimony from prejudicial Aldrich. Hudson; de- Ingle as Mr. Aldrich Mr. exceptions record reflects —in the bill of Terri
fense counsel referred to witness in made Aldrich—that Aldrich did referred to Terri Webster and Wester approximately one testify tend until and Bill Bill Hall as Bill White Sergeant trial when defense counsel week before closing During argument, Clark. *28 time claimed that he learned for the first a fe- Vaughn, referred to Officer
counsel identity to whom police of the officer officer, argued Vaughn male as Mr. had at the and told spoken scene Vaughn who adminis- was officer oncom by lights that he was blinded sobriety
tered field tests when was traffic. ing examples in fact Officer Slack. These are lawyers Q. your In with merely sampling but conference
not exhaustive until found out by your up you made spouse the inaccurate factual statements you made that on the record and that are about —was the decision you testify not so that going forth in brief. were set Aldrich’s have to give up your wouldn’t the fact of part be of a reasonable strategy, trial getting—and getting record into required are give great deference to the— situation, a he said unless we defense counsel’s said/she decisions. As the State exculpatory could find that we points out, the trial court admonished Aid- —unless was, knew who it that it was not worth rich before he testified that the final deci sacrificing jury to the to not know about sion on testify whether to belonged to him your telling record return for least alone. And the record reflects that Aid- it; your story about is that correct? rich testified, understood that if he his A. Yes. prior criminal revealed; record would be thus, he initially had Q. testify. decided not to you When at last learned from Mr. Apparently informational, Aldrich’s “team”
Angelino weighed all his I believe the negatives and, of Aldrich’s days testifying it was a fax a few before as this record, set forth in began thought a days. few It determined that —I might have admission of been a week. About who it Aldrich’s testimony that was, he could not see and he was at one time even along sub- Hudsons poenaed; you Sei’geant even mentioned in the Hall’s corroborating testimony record, but not what on this point he knew. There outweighed negatives. Thus, making
was a team a different under the decision. deferential standard of Now you going were to testify? review that required we are to apply, we say cannot A. Yes. counsel’s conduct in permitting testify Aldrich to ad Thus, the record reflects the reasoning ducing damaging testimony from him was underlying Aldrich’s decision to testify; without any plausible basis. See Ex parte defense counsel determined that Aldrich’s Burns, (Tex.Crim. 601 S.W.2d testimony at the scene he told a —that App.1980) (holding error in trial strategy police officer that he did see the Hud- will be considered ineffective assistance of sons because of the glare of oncoming only counsel if counsel’s actions are with headlights be corroborated Ser- —would basis). any plausible out Consequently, geant Hall. we hold that particular conduct chal During Aldrich’s testimony, defense lenged by Aldrich fails satisfy the first testimony counsel elicited from him that prong of the analysis. Strickland prior convictions;
he had three DWI was charged with a fourth which resulted During 3. Conduct the Punishment
in the revocation of parole for the third Phase of Trial did, one. Defense pointed out Aldrich, ask Aldrich some strange and issue, Also in his first Aldrich claims seemingly prejudicial questions, like on the that defense counsel was ineffective at the day accident, “Did ever take— punishment phase by failing of trial any smoke pot?” And no factual informa- object on Confrontation grounds Clause tion garnered by Aldrich’s testimony improper reading impact of the victim already that was not before the jury, ex- statements punishment before was as- cept his statement that he could not see by failing sessed and to offer argu- the Hudsons. punishment not, ment at at all. We need nature, While in a case however, of this based on portion reach this of Aldrich’s *29 us, the cold record before below, stretches cre first issue because as discussed we dulity to seriously believe that a will “team sustain claiming his second issue decision” that Aldrich should testify could the trial court erred permitting victim
256 specific the “whether those deficient to be read before consider
impact statements omissions, totality, preju in them acts punishment.12 had assessed trial court Nailor, parte the Ex 149 diced defense.” Prong of the Strickland C. Second 125, (Tex.Crim.App.2004). 130 Analysis Thus, briefly we examine the overall rec we have held de Because totality ord with the of defense juxtaposed conduct in misun pretrial counsel’s fense omis specific counsel’s deficient acts or law, failing adequately the derstanding sions. offer, failing to conduct plea convey the witnesses, The State called seventeen failing investigation, reasonable eight. and the called We have defense experts defense obtain and disclose timely the rec- carefully repeatedly reviewed performance deficient constituted allegations of and place ord to Aldrich’s present trial conduct defense counsel’s our of ineffectiveness determinations supported by theories ing defensive the the context of the entire record and evidence, continuing to misunderstand totality representa- of defense counsel’s law, wit failing properly question tion. bulk of defense counsel’s cross- nesses, factual making inaccurate and his of the State’s witnesses fo- examination perform deficient constituted statements testimony concerning eliciting cused on guilt-innocence, trial on we during the ance defense counsel’s defensive theories the re prong the second address now suicide, suicide, the accident was a assisted is, we exam test. That quired Strickland failing yield fault for or Mrs. Hudson’s probabil there is a reasonable ine whether right-of-way. example, For that, deficiency, the but for counsel’s ity Hall, Sergeant your counsel in- “[I]n asked different. the trial would been result of there, vestigation as senior officer out 687, rickland, 104 at S.Ct. St U.S. people long debilitating injuries, or “benchmark” of question at 2064. The suicide, they sometimes commit don’t Aldrich has shown analysis is whether our answered, they?” Sergeant And Hall “In of the evidence that preponderance Texas, people in the crosswalk have deficiency compro so his defense example, As another right-of-way.” the adver proper functioning mised repeatedly asked whether that the trial court cannot be process sarial Mr. questioned officers had Hudson about a reliable result. produced said to have oncoming wife in of an pushing front 2064; 686, parte at Ex Id. at 104 S.Ct. instances, the trial court car. In most analyz In at 368. Amezquita, 223 S.W.3d assuming-facts-not- the State’s sustained prong, we ex ing prejudice Strickland’s objections. in-evidence inci errors not as isolated amine counsel’s dents, Defense did make some effective in the context of the overall but Menchaca, Kenneth points in his cross-examination of parte Ex 854 S.W.2d record. Evans,
128,
is,
Depart-
drug supervisor
(Tex.Crim.App.1993).
That
leged
punishment
holding
ineffec
counsel’s ineffectiveness at
12. A
that defense counsel was
trial).
non-capital
during
punishment phase
phase
Because all mem
tive
of trial
agree that
only
punish
of the en banc court
Aldrich is
entitle Aldrich
to a new
bers
would
hearing
punishment
based
hearing,
relief
he is
entitled to a new
ment
the same
he claims
because,
point
forth
point.
on his second
as set
entitled to in his second
See Tex.Code
herein,
44.29(b) (Vernon
point, we
Supp.
we sustain Aldrich's second
Proc. Ann. art.
Crim.
State,
2008);
punishment phase
inef
988 S.W.2d
need not address
v.
Hernandez
point.
(holding
portion
claim
of his first
(Tex.Crim.App.1999)
the two-
fectiveness
Tex.R.App. P. 47.1.
pronged
applies
al
See
Strickland standard
*30
Garland,
Safety
trial
recognized early
located in
court—who
on that
ment of Public
study
State
by
per
and excluded a
offered
the
defense counsel was “almost
ren-
[se]”
of
blood
evaporation
to show
alcohol from
dering
of
ineffective assistance
counsel—
ground
over time
that
the
on the
blood
attempted
impact
to minimize the
of de-
study
differently than Adrich’s
was stored
voluntarily
fense counsel’s failings by
turn-
And, likewise,
blood was stored.
defense
ing over materials to him
that
did not
testify
Courtney
counsel called Max
to
as
for, by
ask
instructing him on how to
storage
an
on
expert
blood
and established
obtain
sample, by
Adrich’s blood
dictating
typical
that it
be
would not
for Adrich’s
the
of the
police
names
involved
officers to
.07
degrade
blood alcohol level to
from a
to him
hearing
on the record at a
six months
.04, suggesting
perhaps
that
the initial
by
before
and
him in
assisting
other
.07
level was
De-
blood alcohol
incorrect.
ways throughout
proceedings.
the
Ad-
fense
that the
at
lights
counsel established
rich, however, was
to be repre-
entitled
globe
ornamental-type
the scene were
counsel,
by competent,
sented
effective
not
lights
on
positioned
poles
fifteen-foot
and
rely
to be
to
upon
goodwill
forced
the
and
that
De-
lighting
improve.”
the
“could
good
graces
prosecutor
the fair-minded
the
testimony
fense counsel elicited
and
trial
patient
the
court. The fact that
Hudsons did not have on
reflective
prosecutor
the
and the trial court—as evi-
clothing
carrying
and neither was
a flash-
throughout
denced
the record —felt com-
And,
light.
finally, defense
called
counsel
pelled
assist
to
defense counsel based on
with,
four fact
who were
or
witnesses
perceived
the
per
almost
se ineffectiveness
with,
spoke
at
times
Adrich
various
counsel
defense
establishes
defense
throughout
day
early evening pri-
and
counsel “was not
as the
functioning
‘coun-
accident;
or to the
all
p.m.
8:80
testified
guaranteed
sel’
the defendant
the Sixth
appear
that he did not
or to
intoxicated
Strickland,
687,
Amendment.”
466 U.S. at
have lost the normal use of
or
his mental
without a result. The rec- reliable overall cess that trial cannot be relied on as ord reflects that defense counsel’s deficient having produced just result.” Id. at above, performance, set forth 2064; at parte Briggs, Ex S.Ct. an of de- totality isolated incident. at 466-67 habeas relief (granting pervaded preju-
fense counsel’s errors on ineffective counsel assistance defense, diced the from con- pretrial entire grounds to because counsel failed law, duct in misunderstanding failing investigate experts obtain economic convey offer, adequately plea failing Menchaca, reasons, not as trial strategy); investigation, conduct a reasonable (holding that when 854 S.W.2d 132-33 failing obtain timely and disclose de- guilt or defendant’s innocence turned experts fense conduct in presenting witnesses, credibility not supported defensive theories evidence, by failing ineffective continuing to rendered assistance misunderstand law, witnesses, regarding inad failing properly question to file a motion limine repeatedly making by failing missible convictions and prior inaccurate factual prosecutor object statements. Both when evidence of the convictions *31 258 State, After both sides punishment. Fuller v. sess his also see presented);
was and after 823, punishment and closed on (Tex.App.-Texarkana rested 837 224 S.W.3d the State closing argument, counsel’s failure to the State’s 2007, (holding pet.) no people was, have some unidentified testimony in asked to to inadmissible object ineffective); statements to the trial court. essence, and was read unsworn strategy no (Tex. 250, State, timing questioned 264 Defense counsel v. S.W.3d 195 Walker statements, 2006, stating, “I pet.) (holding reading no Antonio App.-San by wrong, thought but I acts or omissions could be deficient numerous invoked, counsel, supposed to be totality, prejudiced in their sentence was State, 142, prosecutor re- defense); then the statements.” Hall v. 161 S.W.3d 2005, sup- were pet. the statements (Tex.App.-Texarkana sponded 153-54 'd) pro- before sentence was posed was ineffective to be read (holding ref an permitted The trial court to admission of extrane nounced. failing object State, matters); people of unidentified v. S.W.3d unknown number Stone ous the record. 348, statements off (Tex.App.-Corpus Christi read unsworn 353-54 ref'd) (holding that defendant 2000, pet. by the follow- Apparently, as evidenced fair trial with a reliable of a deprived was state- at least some of the ing exchange, evidence of an when counsel elicited result of, discussed the were critical or ments conviction, thus prior inadmissible murder of, counsel’s bi- impact emotional diminishing credibility defendant’s After theories of the case. zarre defensive testimony of State’s substance giving court open were read the statements had threatened that defendant witnesses record, exchange following and off them). kill occurred: that Aldrich has established holdWe Judge, be- COUNSEL]: [DEFENSE of the evidence that a preponderance may con- have heard this and you cause constitutionally defi- of counsel’s totality mis- assessing punishment, sider it defense, his prejudiced performance cient believing that the suicide takenly belief errors were seri- so that defense us, opportu- I’d like the originated with functioning he not ous that family so nity to address by the guaranteed the defendant ‘counsel’ did not know that those ideas they will Amendment, defense counsel’s Sixth originate with this defense. proper func- so conduct undermined rest- object. He’s [PROSECUTOR]: process that the tioning of the adversarial already. It’s everything done ed. He’s having pro- be relied on as trial cannot over. result, and that but for de- duced a But— COUNSEL]: [DEFENSE the result performance, fense counsel’s over, Anybody It’s sir. THE COURT: We sustain have been different.
would else? point. Aldrich’s first May it Impact COUNSEL]: [DEFENSE Statements V. Victim please the court? Aldrich claims that point, In second THE Yes. COURT: punishment hearing to a new entitled is I have What COUNSEL]: by admitting the trial court erred [DEFENSE
because attacks would say personal before he as- impact victim statements —those admissible, have been relevant or sentenced Aldrich. sessed punishment into evi- [gotten] them elected to have the trial court as- couldn’t 2000, rulings. (Tex.App.-El Paso because of Court’s denee *32 ref'd) Nicholson, pet. (citing Keith D. not admissible. like that were Things Like Would You Moré Salt That With that before explain like a chance to I’d Wound? Post-Sentence Victim Allocu so, then, that’s no. you say and if (cid:127)you Texas, 1103, tion in 26 Mary’s St. L.J. I said no. It’s done. [THE COURT]: (1995)); 1114-15 Aguilera^ see State v. 165 [Emphasis added.] (Kel 695, (Tex.Crim.App.2005) S.W.3d 706 1(b) 42.03, provides Article section ler, same). P.J., dissenting) (noting We follows: hold that the trial by allowing court erred (b) victim, close permit court shall The such statements to be made before sen victim, guard- or relative of a deceased tence in pronounced was violation of article victim, as defined Article ian of a 42.03, 1(b). § Proc. Ann. Tex.Code Crim. code, in appear person of this 56.01 42.03, 1(b); State, § art. see v. 980 Gifford the court and to the defen- present 791, S.W.2d 792-93 (Tex.App.-Houston person’s of the views dant statement 1998, ref'd) pet. (holding [14th Dist.] defendant, offense, about the trial court should not have allowed the the offense on the victim. the effect of complainant’s father to make a statement victim, relative, guardian may or The to the court regarding father’s views of questions not direct to the defendant proper punishment the offense and the The court making while the statement. assessed). punishment before the state- reporter may not transcribe The argues State nonetheless ment. The must be made: statement trial court properly allowed the victim (1) punishment has been as- impact after to be prior statements read to the sessed and the court has determined punishment assessment of under article grant community or not to whether 56.03(e) proce- of the code of criminal case; in the supervision 56.03(e) dure. Article authorizes the trial (2) consider, has announced the sentencing, the court court to before after sentence; terms and conditions of the provided impact information unitten statements, made on a form authorized 56.03, al- article the court has (3) pronounced. sentence is after ready received.13 Tex.Code Crim. Proc. 42.03, Proc. Ann. art. Tex.Code Crim. 56.03(e) (Vernon 2006). Ann. art. No evi- (Vernon 2008) 1(b) § Supp. (emphasis add the trial dence exists that court ed). for these legislature provided The impact case received written victim state- only be after sentenc statements to made 56,03. complied ments that with article ing to alleviate risk that the state 56.03(e) Therefore, article applica- is not partiality ments would affect the ble. during punishment phase court of trial. State, 346, Having
Johnson v. 286 S.W.3d 349 concluded that the trial State, (Tex.Crim.App.2009); improperly permitted Garcia v. 16 court unidentified Clearinghouse properly impact 13. The Texas Crime Victim court admitted written victim form is sent to victims to collect certain infor punishment hearing statements at under arti regarding impact mation of crimes on 56.03). personal cle views about victim's victims. See Tex.Code Crim. Proc. Ann. art. and the are admissi offense defendant State, 628, 56.03(b); Fryer v. 68 S.W.3d 632 punishment Compare ble before is assessed. (Tex.Crim.App.2002); v. see also Truehitt 42.03, 1(b), § Tex.Code Crim. Proc. Ann. art. State, 721, (Tex.App. 722-23 916 S.W.2d 56.03(b). with id. art. 1996, pet.) (holding Beaumont no that trial 260 State, (Tex.Crim.App.2005), 871, read their own statements to v.
persons to
seau
171 S.W.3d
880
denied,
926,
prior
the court off the record
t.
548 U.S.
cer
2982,
(2006);
punishment
pro-
S.Ct.
whether the defendant had “a to that Aldrich’s rights. substantial sustain We which the error denied.” Id. point. Aldrich’s second Because various unidentified witnesses VI. Conclusion their
stood and read
own statements to the
prior
trial court
to the trial court’s assess
Having overruled Aldrich’s
punishment
pronouncement
ment of
point
seventh
having
sustained his dis-
i.e., during the punishment
positive
points,
first and
we
second
reverse
sentence —
phase
right
of trial —Aldrich had the
to the trial
judgment
court’s
and remand this
confront and cross-examine them. Rus
for
case
a new trial.14 Because we have
2002,
14. Aldrich asserts that because we have held
(Tex.App.-Corpus
pet.);
Christi
no
see
State,
that he received ineffective
461,
(Tex.
assistance of coun
also Turner v.
49 S.W.3d
471
prong
under
sel
the first Strickland
in connec
2001,
dism'd) (reinstat
App.-Fort
pet.
Worth
offer,
twenty-year plea
tion with the
ing offer when counsel failed to communicate
plea
should order the
offer reinstated. When
offer's deadline to defendant and defendant
a defendant
ineffective
receives
assistance of
attempted
accept
offer after deadline had
offer,
plea
connection with a
State,
674,
passed);
v.
28 S.W.3d
676
Paz
satisfy
prong,
order to
the second Strickland
2000,
(rein
(Tex.App.-Corpus
pet.)
Christi
no
the defendant must
establish
but for the
stating offer when counsel failed to inform
accepted
ineffective conduct he would have
defendant of offer and
defendant said
State,
plea
offer. See Dickerson v.
87
State,
offer);
accepted
would have
Atkins v.
632,
2002,
(Tex.App.-San
Antonio
580,
(Tex.App.-Beaumont
26 S.W.3d
Lemke,
798;
pet.);
parte
no
Ex
we need not address third See points. Tex.R.App. sixth P. 47.1. CAYCE, C.J., dissenting filed a concurring opinion. CAYCE, Justice,
JOHN Chief dissenting concurring rehearing.
I respectfully majority’s dissent to the holding has established that,
preponderance of the evidence but performance, result would *34 have been I agree different. While majority’s holding per- that counsel’s deficient, formance I do not believe preponderance of the evidence shows that his func- conduct so undermined the
tioning process adversarial would,
trial produced unjust an I result. therefore, point. overrule Aldrich’s first I majority’s
Because concur with the dis- position point, of the second I would re- verse the trial re- judgment court’s
mand case to the trial court a new punishment re- trial. would affirm the
mainder of judgment. the trial court’s
GRANBURY MINOR EMERGENCY Salas, M.D., and Abel
CLINIC Appellants,
v. THIEL, Teagan Appellee. No. 2-08-467-CV. Appeals Texas, Court of Fort Worth. 27, 2009. Aug. showing made that Accordingly, plea here. decline to order the reinstated. offer