Brown v. State

STONE, Before GREEN ANGELINI, JJ. ON APPELLEE’S MOTION

OPINION FOR REHEARING STONE, Justice. Rehearing is

Appellee’s for denied. Motion January opinion of court issued opinion and this is 1998 is withdrawn substituted therefor. appeal a conviction of

This arises from (Brown) Mandy plead Lee Brown murder. charge of guilty to the murder assessing guilt, degree. first After twenty years incar- jury sentenced Brown Division ceration Institutional Department of Criminal Justice. Texas error, raises three is- points four (1) denied effective whether she was sues: of the Sixth violation assistance States Constitu- of the United Amendment I, of the Texas Article ten tion and section (2) Constitution; the trial court whether misdirecting on the law erred and the doubt burden regarding reasonable (3) the court erred proof; and whether jury on the law properly instructing of self-defense. denied effective assis-

We find Brown was Accordingly, we reverse tance of remand judgment of the trial cause for a new trial. Background been admissi- and would not have cial Factual ineffectiveness; for counsel’s ble but 21,1995, night the Atas- On October (2) Incorrectly burden the State’s lessened Department County received a cosa Sheriffs during argument; proof re- call from Richard Collins. Collins (3) improper to an state- Failed husband, Ernesto ported Brown had shot her post-arrest si- regarding Brown’s ment Olivarez, at house bleed- and arrived Collins’ lence; residence, ing. At Brown’s Atascosa Sheriff (4) proper jury laying on his bed instruc- Deputies found victim Failed ensure tions; a a near left and small with revolver side right

knife hand. (5) opening Faded argument; deputies During ensuing investigation, (6) a while as counsel scene, to serve Continued at Col- collected evidence searched existed; of interest house, conflict Brown lins’ and confiscated the car car, depu- shooting. (7) drove after the expert Failed to voir dire the State’s containing ties a mirror traces co- found of the presence outside witnesses wrapper. razor It was caine and a blade jury; and on the later determined Brown’s blood was (8) preserve selection error. Failed wrapper. razor blade assistance of To ineffective trial, alleged At Brown she shot her hus- (1) must show a convicted defendant band self defense. Brown introduced ex- deficient, in performance trial counsel’s was tensive evidence that she was an abused errors he or that made such serious question, spouse, night and on the she shot functioning effectively as coun she was only at husband after attacked her (2) sel; preju performance deficient a with knife. Brown testified that even degree a that the diced the defense to such life, though she feared for her she did not deprived a fail’ trial. defendant husband, only intend to kill her and she fired 690, 668, Washington, 466 U.S. Strickland weapon attempt keep in an him from (1984); 2052, Her 104 80 L.Ed.2d 674 S.Ct. ‘ hurting her. (Tex.Crim. State, 53, 57 nandez v. 726 S.W.2d App.1986) (adopting standard for Strickland appeal, the State contends it tried the On resolving allegations of ineffective assistance theory killing case that the under and state con of counsel both federal by related. This contention is belied stitutions). right to effec The constitutional argued record record. The reveals State entitle a defendant to tive does not calculated, assistance actions and not Brown’s were Cruz, parte Ex 739 errorless end, done self-defense. To that 53, In this (Tex.Crim.App.1987). 58 S.W.2d in- physical introduced and medical evidence connection, strong presumption exists that dicating parties were involved in that the adequate assistance and counsel rendered struggle immediately preceding the victim’s significant decisions in the exercise made all death, sitting posi- the victim was professional judgment. Strick of reasonable fired, and when the fatal shot was tion land, 2052; 689, 104 Banks at S.Ct. 466 U.S. superficial per- were wounds 676, State, (Tex.App. S.W.2d 681 819 haps even self-inflicted. — San ref'd). 1991,pet. Antonio Ineffective Assistance Counsel judge Brown meets the We whether error, points In the two Brown first reviewing the “totali Strickland standard alleges numerous errors trial counsel ty representation” rather than isolated right to effective amounted to a denial of State, Wilkerson v. acts or omissions. See Specifically, of counsel. Brown assistance 542, (Tex.Crim.App.1986), 726 548 contends trial counsel: denied, 940, 1590, 94 cert. 480 U.S. 107 S.Ct. Banks, (1987); door, S.W.2d at (1)Elicited, 779 819 opened and failed to L.Ed.2d presumption 681. Brown must overcome’ to numerous acts of extraneous circumstances, prejudi- trial counsel’s highly were under which misconduct 292 allegation conflict not arise until after might

actions be considered sound trial strat did Strickland, 689, egy. guilt/innocence phase, See at U.S. fails 2052; prejudiced S.Ct. Jackson v. 877 S.W.2d alleged illustrate how the conflict (Tex. Moreover, Crim.App.1994). ap trial. iyial ply the at the time of without the test Strickland, hindsight. 705(b) at benefit U.S. 2. Rule Error Jackson, 2052; at S.Ct. 877 S.W.2d Second, is Brown’s contention allegations 771. We sustain ineffective by failing voir trial counsel was ineffective firmly if only assistance founded in the rec expert pursuant the State’s dire witnesses affirmatively which al ord demonstrates the 705(b) Rule of the Texas Rules of Criminal leged ineffectiveness. McFarland v. 705(b) Rule for counsel to Evidence. allows (Tex.Crim.App.1996), expert pres voir dire witnesses outside the — denied, U.S.-, cert. 117 S.Ct. jury. Through rule this counsel ence (1997). L.Ed.2d 851 Even under this strin opportunity an of formal discov has outside gent burden, is “ineffectiveness of counsel expert basing the is ery grasp what facts specter” and

not a it does exist when the However, opinion rule on. neither the of effect trial counsel’s errors undermines the a presumption the ease law creates of nor State, concept of a fair trial. v. Green 899 request if voir dire. error counsel fails 245, (Tex.App.—San 247-48 Antonio S.W.2d agree nothing with the illus We State 1995, pet.). no did not know the basis of the trates counsel experts’ opinions. If defense counsel knew 1.Conflict of Interest testimony the then it opinion the basis of addressing Brown’s claims of inef there no need to invoke this follows that counsel, of find fective assistance three of of rule evidence. First, alleged without merit. errors are is alleged conflict of interest arose 3. Failure to Obtain Record acting surety out of co-counsel as a on Third, argues Brown ineffective assis jury’s finding of Brown’s bond. After of counsel because of trial counsel’s tance guilt, phase, punishment but before the during jury failure to a record se establish prosecutor bond re asked that Brown’s be proceedings Trial conducted lection. counsel attorneys voked. One of Brown’s ar record, thereby at the bench and off the revocation; however, gued against co-counsel failing to a for Brown to base create record stated to the court that she was concerned allegation or for this court review. flee, might though Brown even she admitted the failure to create record Brown contends ly “nothing had that on....” The base to ineffective assistance because amounts argues Brown court revoked bond. effectively prevented Brown from counsel presumption raises this conflict of interest raising specific appeal. How allegations on of strict standard error and less recited ever, regarding in no addition to evidence Sullivan, 335, 348, Cuyler in 446 U.S. 100 selection, any file Brown failed to evi 1708, (1980), applies 64 L.Ed.2d 333 S.Ct. supporting her contention with dence However, than this court rather Strickland. As of motion for new trial. our standard recently visited the distinctions between dictates, any allegation error of must review Cuyler ap Cuyler and We held Strickland. firmly To find trial be based the record. plies attempts represent co- when counsel ineffective, without counsel was defendants, applies but Strickland when record, for firmly would call founded aspect attorney of has a self-interest some State, we shall not do. See Jack speculation which the case. Monreal v. son, (holding appellate 771 1996), 877 S.W.2d at aff'd, (Tex.App.—San Antonio 947 speculation not conclude based on (Tex.Crim.App.1997). We fur S.W.2d 559 record is that counsel was ineffective when presumption prejudice “no ther held that why about he made the decisions es silent out the self-interest conflict—to arises counsel, trial); Delrio did at ineffective assistance tablish Here, (Tex.Crim.App.1992) (reversing court of prove prejudice.” Id. client must had a speculation that she never appeals decision that Brown testified based justification a num- had no for trial and had not used cocaine problem trial counsel testify experi- juror). years, that she to strike a she did decision not ber this past. At mented with cocaine Although we find the three issues ad- for them. point the State’s work done above do not amount to ineffective dressed of co- counsel elicited the evidence Defense dispose assistance of does not car, connected in Brown’s and caine found Therefore, appeal. we also address past use co- drugs Brown allegations Brown’s additional of error. to offer caine. This also allowed State testimony to Brown’s tes- rebuttal contradict 4. Extraneous Offenses timony prior drug no addictions. argues trial counsel opportunity capitalized on the door, State opening fatal elicit made errors In an afforded them defense counsel. failing to extraneous evi ing, defense, effort to further discredit Brown’s promiscuity. dence of use and Extra used State offered evidence that she inherently prejudicial neous offenses are excess, basis, regular cocaine on drank when counsel fails to to numerous end, promiscuous. To this matters, and was prejudicial extraneous regarding called a number of witnesses is ineffective. See Williams v. reputation. damaging was the 344, Brown’s Most (Tex.Crim.App.1983); 346 5.W.2d Cude State, testimony of Richard Lewis. Lewis testified v. (Tex.Crim.App. 588 895 S.W.2d heavy user do State, drug Brown was a who would 1979); 52, Wenzy v. S.W.2d addition, re- anything drugs. for In Lewis 1993, (Tex.App. pet. [14th Dist.] — Houston 'd). sponded in the affirmative when asked Generally, drug ref no evidence has rele drug whether Brown was a addict with non-drug prosecution, vance in a see Couret Although State, 106, propensity for violence. defense (Tex.Crim.App. 792 S.W.2d Lewis, objected at 1990), calling to the of counsel may and counsel be ineffective for point proverbial gained had that snowball eliciting such evidence. See Hutchinson v. velocity. had es- 610, terminal Defense counsel (Tex.App.— 663 S.W.2d 613-15 ref'd). for Lewis’s testi- tablished State’s basis 1983, pet. Drug Houston [1st Dist.] mony. combing A of the record reveals the evidence instant case was irrelevant. damaging prejudicial con- most and evidence appeal, argues On the State evi bad acts which were ad- cerned extraneous dence was relevant to the State’s theo only because of defense counsel’s con- ry mitted her drugs.1 Brown killed husband for However, noted, duct. argument this as stands in stark contrast to the record. The State nev explanation why no reasonable for We find argued er that Brown for killed husband open counsel the door to defense rather, drugs; merely argued in damaging and aid extraneous evidence

Brown did shoot her husband self- linking evidence to the defendant. We defense. recognize technique of offer- obtuse trial jury an drugs presented ing damaging of to first mention evidence during presentation attempt forthcoming and honest. How- of the State’s case- to be ever, noted, strategy “regardless of his trial in-chief. As traces cocaine were what was, protect ap- appellant’s failed to found the ear which Brown left the counsel intro- Although pellant was men- from effects of the accident scene. cocaine the adverse tioned, destroyed theory and it was never tied to the State’s duction of extraneous offenses acquittal appellant’s damaging hopes an or of the case. The most all Hutchinson, granted through being probation.” dur- was introduced defense counsel Hutchinson, we do not ing examination he in- at 614. As Brown’s direct when quired drug history. Although any connection between defense coun- into find admissible, adopted by interpretation defense counsel was not ineffective 1. This of the record is relying upon an unsuccessful trial strate- provides and the basis for the dis- but was the dissent that because evidence was gy- sent’s conclusion investigating An offi of counsel’s assistance. sel’s elicitation evidence and strategy. Id. cer Brown received testified that after give to me warnings, Miranda she “refused failing object In eliciting addition to to sign any even the waiver.” information or offenses, ac- to extraneous defense counsel Rather, object. to Defense counsel failed cepted proof, improper an failed to burden questioned the of cross-examination counsel object concerning implications to meaning warn ficer on the of Miranda silent, right object failed to to remain ings, seemingly in an effort illustrate incomplete jury We need not instructions. obligation speak no to the Brown had standing instance determine whether each police. guilt It is law that no hornbook However, require alone would reversal. be from a citizen’s enforcement inferred agree do that these errors further illustrate protections afforded her the Miranda for, preparation defense counsel’s ineffective Ohio, warnings. Doyle See 426 U.S. at, presentation trial. (1976); 618, 96 S.Ct. 49 L.Ed.2d 91 (Tex. Sanchez v. 5. Burden of Proof Crim.App.1986). Defense counsel’s cross-ex object failing addition extrane- pro amination his awareness of this reveals offenses, provided ous defense counsel tection, it is but clear counsel jury regarding with erroneous information question prepared respond to the State’s First, proof. defense burden of ing objection. with an jurors jury potential during told the selection proving that Brown had burden of self- Charge 7.Jury by preponderance defense evidence.

Second, counsel failed to when Lastly, Brown trial counsel was contends prosecutor argument during stated oral by failing to the ineffective to raise the issue of self-defense Brown holding charge. Brown on case law relies testify. no would have to We note there is request that counsel’s failure to instructions error, prosecutor’s evidence that the remarks is not to reversible but that amounts Rather, instructed, testify. forced to jury Brown the record but here. was the case to pursuant shows Brown testified trial strat- incomplete. Brown ar- instructions were the Nonetheless, egy. placed im- object incomplete the State an gues to the failure to an proper impression jurors minds of in the the amounts to reversible error. instruction recognize failed cure. allegation which counsel to or determining Without this whether standing alone to ineffective assis- amounts any prejudice The State contends caused coun- tance of we note defense by by remarks cured the trial counsel’s was charge to included sel’s failure ensure court’s instructions. The State directs us to counsel’s complete instructions reflects on (Tex.Crim.App. Rose v. 752 S.W.2d 529 knowledge appropri- of preparation and 1987), of which held that in the absence of nature. ate instructions in a case this contrary, presumed evidence to the it is Therefore, lends allegation we find that this jury followed the court’s instructions. on support Brown’s claim based further to possibility recognize the that these alle We ineffective assistance of gations more without constitute ineffective assistance of counsel because Conclusion any by regard cured in this trial court error instructing correctly proper on every allegation Not of ineffective However, proof. we find that burden justify in this case would ness of counsel illustrate lack these errors defense counsel’s However, totality of defense reversal. preparation for a of this nature. case representation counsel’s undermines This in the conviction. court’s confidence 6. Post Arrest Silence has held ineffective when counsel (1) jurors, properly failed to voir dire find counsel’s failure to counsel We also defense (3) (2) offenses, made no questions regarding post- elicited extraneous (4) evidence, inadmissible the ineffectiveness effort to arrest silence illustrates (5) history of proof of Brown’s preparation, Consequently, his lack of admitted mo- to show was admissible proof. drug the burden of Montez v. addiction misstated 404(b), contrary tive, Evid. (Tex.App. Tex.R.Crim. see — San Montez, evi- majority’s suggestion no that such pet.). Antonio we held to the trial, in a murder appellant did a fair relevant not receive would not be dence totality apparent of trial un it counsel’s assistance at If op. case. See 293. was dermined the Court’s confidence in the out drug going evidence was that the Brown Many in, of the trial. Id. at of the come 311. for her it not unreasonable come was present Spe drug same factors exist in the case. past use undeniable deal with her cifically, Indeed, trial counsel must be aware of the impact. the ex- try minimize its offenses, impact of extraneous and their ad major- evidence cited traneous offense lightly. mission should not be taken Even of Brown’s ity proof as ineffectiveness Strickland, under the strict standard of strategy part of his be viewed as find that defense counsel’s ineffectiveness led theory. For motive to deal with the State’s damaging to the introduction of extraneous testimony drug use example, Brown’s such that our confidence re a past her is consistent with part was sult of the trial is undermined the extent not have killed theory that she could certain that we cannot state with reasonable long- drugs was no over because she husband ty guilty whether the defendant was found re- argued, She also with er a user. charged crime or for the extraneous bad theory, spect to her self-defense acts offered the State. his car cocaine her husband’s found and that his addiction was cause points We sustain Brown’s first and second her. abusive behavior toward of error. need not address Brown’s addi- We points disposition tional of error because our elicited evidence Whether or points requires of these alone reversal. Ac- drug history, entitled own cordingly, judgment we reverse the was, she at the time of trial court and remand the cause for new murder, hopeless drug who was addict trial. drugs willing to kill her husband for testimony body. hid That Brown’s GREEN, opinion by Dissenting J. “opening the perhaps also be seen as could proof to the does not make door” GREEN, Justice, dissenting. dealing fact of strategy of with the counsel’s respectfully Mandy I dissent. Lee Brown ineffective, fac- drug legally however her use husband, claiming shot and killed her it was may it turned out. tually ineffective have drug- it self defense. State claims was a majority related murder. The reverses and is much that The record contains largely for a trial on the basis remands new theory of the case. consistent with State’s improperly trial counsel that Brown’s raised counsel, cards that playing with the Defense and, history use her before him, duty lay out bound were dealt consequence, her ineffective as a rendered From thought hand. what he best believe, I do not how- assistance of counsel. distant, perspective, we post-verdict our ever, complained of overcome the errors But played best cards. agree not represen- strong presumption of effective There guess. entitled to second are Moreover, Brown has not shown tation. best, way try case. or perfect, is no that, probability is a but for there reasonable subjective in- many factors There are too result of the errors of trial lawyer formulating consid- in what a volved been different. the trial would have ers, judgment, to be professional in his case, strong presumption strategy. The best trial In this “wife shoots husband” murder in law representation exists provide a for the of effective needed to motive State Brown has this into account. in the face of Brown’s self-defense take murder repre- presumption of effective argued overcome the that Brown shot claim. The State defen- plausible is argument drugs. sentation because there in an over her husband theory justifies strategy em- sive

ployed trial

In order reversal to obtain a because counsel, a

ineffective assistance of defendant required test for

is harm. The

determining whether ineffective assistance in out in

counsel resulted harm was set Washington,

Strickland v. U.S. (1984). 2052, L.Ed.2d 674

S.Ct. there

... The defendant must show that is that, probability but for coun-

a reasonable errors, unprofessional the result of

sel’s proceeding have been different. probability probability

A is reasonable

sufficient to undermine confidence

outcome.

Strickland, 2052; 466 U.S. at S.Ct. (Tex.

Hernandez v. In

Crim.App.1986). view of the entire record case, nothing to suggest there is have differ

the result of the trial would been had claimed of counsel not

ent errors indicated, evi likely it is

occurred. As would have come

dence of Brown’s use support mo as evidence theory. matter that the evi

tive It did not first came as elicited

dence attorney.

own

A murderer should not be able to convicted

get simply strat- a new trial because view, my

egy was unsuccessful. is Therefore, I happened has this case.

what

respectfully dissent. KINNEY, Appellant, Lee

Robert Texas, Appellee. STATE to 04-97-00385-CR.

Nos. 04-97-00383-CR Texas, Appeals of

Court of Antonio.

San

May 20, 1998.

Case Details

Case Name: Brown v. State

Court Name: Court of Appeals of Texas

Date Published: May 20, 1998

Citation: 974 S.W.2d 289

Docket Number: 04-97-00126-CR

Court Abbreviation: Tex. App.