*1 formula for calculat- mathematical purely by enacting Section
ing support child 154.123(3) §
154.123. AnN. Tex. Fam.Code 2008).
(Vernon allows provision This consider, among things, other
Court available for financial resources
“any deviating child”
support of the case, the In this support guidelines.
child did not utilize court specifically
trial question that the is no There
provision. support computation of child
trial court’s of all complete exclusion based on the This annuity payments. monthly Attorney sustain the
was erroneous. We sole issue.
General’s
Conclusion
Having found that exclusion these was errone- annuity
entire facts the trial
ous, and remand to we reverse accor- proceedings in
court for further opinion.
dance with this
Leeroy CARBALLO, Appellant, Cesar Texas, Appellee.
The STATE of
No. 01-07-00824-CR. Texas,
Court of (1st Dist.).
Houston
July 2, 2009. Overruled Dec.
Rehearing
Background 2006, Luis Solis night On Halloween to a convenience store drove his car local *3 a cousin. purchase beer for his When car, noticed a man— got he out of his Solis pay the appellant later identified —near he leav- outside the store. As was phone store, ing Solis heard a noise. Solis’s the car that working cousin had been on Solis’s may the night, thought that noise and Solis his car. He went falling be his muffler off DeBorde, Houston, TX, Ellis C. Nicole and knelt down the back vehicle Law, TX, Attorney Spring, McCullough, the Solis then heard check muffler. Appellant. for behind, say to him from “Nice appellant Cornelius, At- District Shirley Assistant car.” Houston, TX, County, torney-Harris you.” At up say “thank Solis stood Appellee. car appellant demanded Solis’s point, JENNINGS, of Panel consists Justices appellant the keys. give refused to Solis KEYES, and HIGLEY. keys, a from appellant pulled handgun and jacket re- pocket.
his continued to Solis OPINION keys. over fuse to hand his handgun pointed it at Sol- raised the and HIGLEY, Justice. LAURA CARTER arm. grabbed appellant’s is’s Solis head. Leeroy jury appellant, found Cesar The grazed The and gun fired the bullet Solis’s Carballo, robbery.1 of guilty aggravated punched appellant, appel- head. and Solis allegation one enhancement finding After in his weapon shooting lant fired the Solis true, be the assessed punched appellant again, shoulder. Solis years prison. at 40 in and shot him the chest. The appellant in issues, appellant complains ground In four two men fell with Solis (1) top grabbed gun he assistance of appellant, received ineffective and Solis (2) punishment phase; open hand. two men counsel in sponte up, appellant “the erred not sua and Solis shot twice trial court stood testify to his neck. then appellant region his ver- face and Solis permitting by refusing get pickup and a truck that permit appellant sion of events saw into up about the had scene. Solis fell to appellant pulled to read statement trial”; standing ground handgun he and a few events for which tossed (3) denying wife then appel- away. “the trial court erred feet Solis called his and prosecu- phone. lant’s for mistrial after 9-1-1 on his cell motion tor, argument, violated closing appel- arrive, police When the first officer Solis lant’s state and federal constitutional told officer he had been robbed silent”; to remain the evidence was he wearing man blue and that Hispanic factually support judg- insufficient to pickup the man in a truck. seen leave ment conviction. later, A time walked into short collapsed. Both nearby fire station and
We affirm. (Vernon 2003). 1. See Tex. Penal § Code 29.03 Ann. jury’s findings were taken to the hos- (citing
Solis Id. Cain v. pital for treatment. (Tex.Crim.App.1997)). placed coma for Solis medicated person A robbery if, commits in the hospital. one month When he theft, course of committing as defined in awoke, picked photo- he out Chapter and with intent to or obtain lineup. graphic he, alia, maintain control of property, inter aggravated was indicted for or intentionally knowingly places another robbery. testify during He did not in fear of bodily injury imminent or death. guilt-innocence phase but did testi- 29.02(a) (Vernon § *4 Tex. Penal Code Ann. fy during punishment phase. After 2003). is Theft the unlawful appropriation of appellant aggravated was convicted rob- with property to deprive intent bery, appeal followed. property. owner of the Tex. Penal Code (Vernon 2008). § per- 31.03 Supp. A Ann. Sufficiency Factual son aggravated robbery commits when he issue, appellant In his fourth challenges robbery commits as defined section sufficiency the factual of the evidence to 29.02, and he uses or deadly exhibits a his support conviction.2 weapon. Tex. Penal Code Ann. Sufficiency Factual Standard of Review (Vernon 29.03(a)(2) 2003). § and Elements of the Offense Analysis appellate An can court deem the evi- In conducting a sufficiency factual re factually to be dence insufficient two view, (1) we must consider the important most ways: supporting the evidence the con- is “too to evidence that the support viction weak” the factfin- claims under (2) considering conflicting jury’s der’s verdict or mines the verdict. See Sims v. evidence, State, factfinder’s verdict is (Tex.Crim.App. S.W.3d “against great weight 2003). preponder- Here, and contends that ance of evidence.” Laster v. witness, testimony complaining Luis (cit- (Tex.Crim.App.2009) Solis, trial, was not credible. At appel ing 414- Watson theory lant’s defensive that Solis (Tex.Crim.App.2006)). The Court of aggressor, appellant. been the set Criminal has out three rules Appellant points own Solis’s testimo- for a appeals court follow when con- ny history that he had a bur- criminal (1) a ducting sufficiency factual all review: glary family-violence and assault. theAt of the evidence be must considered a time of Solis that testified he was light in light neutral and not most favor- adjudication community supervi- deferred (2) verdict; explicating able to the acknowledged sion for He that burglary. may factually in- evidence be found be filed State had a motion to revoke his only necessary prevent sufficient when adjudication community supervi- deferred injustice; explanation manifest family-violence sion a pending based on provided regarding why must be the evi- assault al- indictment which Solis was too support dence is weak to the verdict or leged to have assaulted his common-law why conflicting greatly evidence wife. Solis admitted that he had also been against weighs the verdict. Id. addi- tion, conducting previously prosecuted for at least oth- factual-sufficiency when one review, appeals family-violence court of must defer to er assault. purposes clarity, appel- For we address out of lant’s issues order. little sense” because victim in “[a] also contends that the sub- “makes
Appellant terrifying, robbery the wake of a brutal credible. stance Solis’s story pains separate would not take himself Appellant “[Solis’s] asserts only Appel- means of credulity and would be difficult his defense.” stretches far person if it lant continues that makes more “[i]t to believe had been told surviving sense that after history Appellant, no of deceit.” with attack, complainant’s away sought get with Appellant first takes issue Solis’s disabled, dangerous, though from the still testimony that he went the convenience and, complainant, having no use for the cousin, a beer for his purchase store weapon, it at a distance from dropped making Solis’s repairs who had been Appellant entered own ... [Solis] that “the car Appellant points car. out vehicle to flee.” store, with [Solis] went *5 consumption desperate this because alcohol a viola- Solis “would have been more for is community money supervi- tempted tion of the terms of his and more to steal.”3 sion. only The during direct evidence offered injuries guilt-innocence
Appellant points phase regarding out that Solis’s the of trial actually being by appellant shot twice were what occurred Solis and between testimony. life-threatening. Appellant appellant only extensive and was Not Solis’s testimony give asserts that that he did Solis a account of what Solis’s detailed fought against appellant gained actually happened, he on back and also denied cross- gun sustaining control the after such examination that he the on aggressor was words, injuries plausible. question. the In other Appellant night serious is not the guilt it likely appellant’s contends that is more that determination of boiled Solis’s Appellant’s jury “wounds occurred after down to whether the found Solis’s likelihood, [Solis], testimony Appellant and that in all does not credible. [wounds] objective was the initial cite an in the record aggressor.” basis show that the and great weight preponder- that lo- asserts the “ultimate jury’s ance of the the evidence contradicts gun’s cation recovery suggests Rather, verdict. the evidence cited and the aggressor.” was Solis testified [Solis] argument support appellant offered him, hit appellant, shot he factual-sufficiency of his challenge pertains two ground, the men fell to the Solis credibility. to Solis’s gained gun, appellant, control of the shot truck, staggered to waiting complete a We afford almost deference to ground, jury’s then collapsed Solis and determination based an evalua- Ap- the a few v. gun away. credibility. Solis tossed feet tion of Lancon testimony pellant asserts that Solis’s A jury plea guilty, 3. cites his at the cated trial on of not "evi- own phase support punishment that is at the for his factual dence introduced little, stage sufficiency challenge. any, We cannot consider of a trial can have if effect on testimony. guilt” We the cited are limited in our the of the evidence on the force issue factual-sufficiency in- review to the evidence and therefore "our consideration of the evi- guilt-innocence phase necessarily troduced the dence is limited that evidence jury the at the trial. See before the time rendered its Barfield (noting guilt”). (Tex.Crim.App.2001) bifur- verdict of that in all, some, may jury choose believe or car. me keys. Give you Tells he testimony presented. around, none of the Id. at turned thought guy jok- jury judge is the sole ing, looked at him. credibility weight of the witnesses No, seriously, the guy shows him the Here, given be testimony. their Id. gun. you you And bet when the bet— weight resolved the issues of guy him gun showed and you part— credibility in favor of the theory State’s your job in this case is to evaluate the was the aggressor and credibility. witnesses’ Mr. [ap- Carballo against appellant’s theory that Solis was pellant] get up didn’t on the stand and aggressor. We defer to that determi- sir, you, No, tell pardon me— nation. See id. Honor, [Defense counsel]: Your may we reviewing
After evidence neu- approach bench? light, tral we conclude that the evidence At that point, discussion held at supporting the conviction not too weak bench, was not but recorded. Follow- support jury’s verdict, nor is the discussion, ing the the trial court told the jury’s great weight verdict against and jury: gentleman, “Ladies and you’re in- preponderance of the We evidence. hold structed disregard the last comment factually evidence is sufficient to the prosecutor.” The defense then moved support appellant’s aggra- conviction for mistrial, which the trial court denied. robbery. vated continued, The prosecutor then We overrule fourth issue. Excuse Ime. didn’t to say mean Mr. *6 Carballo. I say What meant to was Mr. Denial of Motion for Mistrial stand; Solis get did not on the and issue, In his third appellant con I that’s what say, meant to was Solis tends, “The court trial erred denying instead of Carballo. Mr. Solis did not appellant’s motion for mistrial after the get on say, you know, the stand and I prosecutor, closing argument, violated told sorry, him—excuse me—I’m sir. appellant’s state and federal constitutional you No. He exactly told what he said. right to remain silent.” you He told the paint truth. He didn’t During argument, closing the State re- picture, try put the to himself out to be sponded appellant’s argument to that Solis any angel more anof than he was in the aggressor. was The prosecutor ar- guy situation. A him gun; a showed gued, said, and he Back off the fuck or I’ll kick Now, let’s talk about happen what did your up ass. He didn’t come here and got who, this case. guy You’ve a on try paint any to picture. other He told night, Halloween is shot. He’s coming you exactly happened. what get buy beer. He a comes beer. appeal, On appellant complains I don’t know what would have made him prosecutor’s the remark “Mr outraged so between then and the beer get Carballo up didn’t on the and stand tell that he would decide to attack some- you” improper was an appel comment on body. in, But anyway, goes buys he he lant’s guilt- failure to the beer. He comes back looking out. He’s innocence phase. Appellant correctly at the They’ve just muffler on his car. a points out that comment aon defendant’s been on the working looking car. He’s at a failure to ear, muffler on the violates a defendant’s making sure they’ve put it back on state and right. rights Bends federal constitutional down, muffler, Hey, against looks at the provi- nice self-incrimination the and
748 the adopted measures cure misconduct of Criminal Procedure Texas
sions of Code Const, V; (the efficacy any cautionary amend. instruction U.S. article 38.08. Tex. I, 10; § Crim. PROC. judge); certainty art. and the the Tex.Code Const. (Vernon 2005). (the prosecu A 38.08 art. the conviction absent misconduct Ann. impermissi amounts to an tor’s comment supporting the strength the evidence failure to ble comment on a defendant’s conviction). Archie, 221 See S.W.3d if, the jury’s testify only when viewed manifestly in the comment is standpoint, factor, first analyzing appears In be, or of such character that tended to prosecutor did not from record that naturally and necessari typical jury would deliberately failure to appellant’s refer be, comment on the defen ly take it guilt-innocence phase. testify during State, testify. v. failure to Cruz dant’s Rather, in- reference 546, (Tex.Crim.App.2007); S.W.3d context, read in it is advertent. When State, 761, v. Bustamante S.W.3d had intended apparent prosecutor Solis,” misspoke and to refer to “Mr. but assuming prosecu Even that the addition, pros- said “Mr. Carballo.” impermissible tor’s an com comment was re- ecutor’s comment was brief testify, ment on failure of the consti- peated. Although nature by denying appel trial did err court prosecutor’s affected tutional motion for mistrial. A mistrial is lant’s serious, prejudicial remark was effect prejudicial oc remedy extreme flagrancy lessened absence process. during the trial See Ar curring persistency. See Perez (Tex. chie v. (Tex.App.-Waco 112-13 trial court sus Crim.App.2007). When the no pet.). objection raised tains an basis factor A review of the second reveals jury improper argument and instructs taken. The that curative measures were jury disregard, but denies defendant’s disregard trial court instructed the mistrial, motion for we review the trial *7 jury prosecutor’s the comment. The deny a an court’s decision to mistrial under jury the it charge instructed See Haw abuse of discretion standard. consider, any purpose, appel- not for could (Tex.Crim. State, 72, kins 77 v. 135 S.W.3d testify. Any lant’s decision not to harm State, App.2004); see also v. 129 Wead resulting improper from the comment 126, 129(Tex.Crim.App.2004). S.W.3d prosecutor further cured the correct- when of has Court Criminal had intend- ed himself and clarified that he the for appropriate determined that test appel- ed to refer to Mr. Solis and determining whether a trial court abused lant. denying its motion for a by discretion circumstances, In in most Mosley the mistrial is tailored version of to disregard improper argument struction Archie, 700; 221 test. See S.W.3d response by the is considered a sufficient
Hawkins, (discussing 135 at 77 S.W.3d State, v. trial court. See Wesbrook State, 249, Mosley v. 983 S.W.2d 259-60 103, Er S.W.3d (Tex.Crim.App.1998)). To determine argu prosecutor’s improper jury ror in a its whether the trial court abused discre concerning a defendant’s failure ment mistrial, by tion the we balance denying may be cured an instruction (1) severity three factors: the of the mis (the the comment. disregard trial court to the magnitude prejudicial conduct State, 747, remarks); Longoria the v. 154 S.W.3d prosecutor’s effect of the See (Tex.App.-Houston [14th 763-64 Ineffective Dist.] of Assistance Counsel State, 2004, ref'd); Linder pet. v. issue, In his first con 290, (Tex.App.-Houston S.W.2d [1st tends that he “received ineffective assis ref'd). 1992, Moreover, pet. prose Dist.] of tance as counsel his trial counsel did not is a cutor’s self-corrective action relevant request abide his on his own determining consideration in harm. See punishment phase behalf the of trial.” Hawkins, 135 at 84. mentioned, appellant As did not testify during guilt-innocence phase ... presumption that an instruc “[T]he but did testify during disregard] tion will generally [to not cure phase. brief, In his appellant acknowl- comment failure the accused to testi that, edges examination, on direct defense fy point ... has been eroded to “questioned counsel about his crimi- [him] applies only examples. to the most blatant history, confinement, nal previous his his Otherwise, the Court has to find tended home life imprisonment, since work his the instruction to have v. force.” Dinkins history, childhood, his difficult his school- State, 894 S.W.2d 356 (Tex.Crim.App. his ing, parents, siblings, children, his 1995) (quoting Waldo injuries and the during he sustained (Tex.Crim.App.1988)). light robbery for which he standing trial.” brevity remark at issue and its The crux of appellant’s coun- ineffective of nature, nothing inadvertent in the record sel claim is that “defense counsel never shows the comment was so “blatant” that actually asked what happened it would have rendered an instruction robbery for which Appellant disregard ineffective. See Moore v. just been convicted.” 405-06 (Tex.Crim.App. cross-examination, On when asked 1999). accepted whether he responsibility robbery, appellant responded that he had Finally, considering evidence, all the pleaded guilty to the offense. The certainty of appellant’s conviction absent asked appellant say- State whether he was allegedly improper comment was ing jury “got that the with wrong” it all great. Solis’s regarding the respect finding guilt. to its surrounding robbery was de- responded that because he had “failed to tailed and support more than sufficient to testify” guilty-innocence phase, “the appellant’s conviction. As discussed in the got my never to hear side of the section, preceding jury, final arbiter *8 story.” only jury He said the Mr. “heard weight of the credibility and of the evi- story angles Luis Solis’s of the facts of his dence, believed Solis’s and re- hap- of where it of he happened what said jected appellant’s theory defensive that pened. happened, No one else saw what aggressor. Solis was the We conclude that only exactly and me and Mr. Luis know certainty high is that would happened.” what regardless have convicted of been the com- questioning, appellant On further stated plained-of comment. “I Ap- that did rob Mr. Luis Solis.” factors, Balancing the three Mosley we prosecutor, you pellant asked the “[W]ould hold that the court trial did not abuse its my story? like to hear version of the Is by denying appellant’s discretion motion I possible? that never had a chance.” for mistrial. We overrule third the prosecutor After asked a few asked, issue. questions, appellant more “[Y]ou he in- exactly every- Appellant contends that received you explain me to want happened of what that assistance of thing, my statement effective counsel “You replied, The night?” prosecutor punishment phase because defense counsel you on your lawyer will have redi- question him about his version did own can— if rect, go through it that’s he can and night question. on the of you to do.” guys want what correctly points out that a crimi- Appellant defendant a fundamental constitu- nal has finished his cross- prosecutor After the testify in own right tional defense. defense counsel appellant, examination 223, State, 169 Johnson v. questions. had no further indicated that he (Tex.Crim.App.2005). asserts that he He appellant that he court then told The trial right” “a re- point, At that had fundamental could down.” “stand garding charged occurred: “his conduct in the of- following exchange that Appellant failing fense.” contends I can [Appellant]: I want to see if read happened night on the “[w]hat to ask him Is something jury. to the this last “effectively defense question,” counsel I’ll to talk them? be able Appellant denied his fundamental constitu- you asking? are The Yes. What Court: right to ‘present tional to ‘be heard’ and lawyer I [Appellant]: my I asked if ” complete further defense.’ jury. could read letter given that he an op- contends “been I’m prosecutor]: Judge, going [The portunity to conduct on the explain his all, object reading. to him First of that [sic], night burglary of the there is rea- jury. province Sec- invades probability sonable would all, proffer of I’d like to see a ond of resulting have believed and the on, what’s going before we know what’s likely punishment would have been differ- about be— ent.” copy it? The have a How Court: You
many pages? Allegations of ineffective assistance just right this here and [Appellant]: It’s firmly counsel must be founded here, page right this part 828, 833, Bone v. record. here. prove n. To prosecution counsel, The counsel]: ob- assistance of [Defense ineffective jected say I have nothing must show a preponderance evi- (1) objection. performance counsel’s fell dence Objection objective right. The All sus- below standard reasonable- Court: you unless to continue this. probabil- tained want ness there is reasonable ity that the result of the would proceeding I prosecutor]: mean— [The have been different but for the deficient you opposed Are to him Court: performance of counsel. Strickland v. reading it? 694, 668, 688, Washington, 466 U.S. I problem have no prosecutor]: [The 2068, L.Ed.2d 674 S.Ct. testifying. with him (1984); Salinas v. *9 Testifying The is different from Court: 740 (Tex.Crim.App.2005). reading a statement. Yes, Judge, op- showing we’re a prosecutor]: A failure to make under ei [The posed reading to him the state- component ther Strickland defeats claim ment. Ry ineffective assistance of counsel. State, v. 110-11 right. Objection All is lander Court: sus- appellant (Tex.Crim.App.2003). If an fails tained. harsher on “prejudice” compo appellant. sentence See John- prove the second son, coun nent, need not address whether at we 169 S.W.3d 240. Boyd deficient. See performance sel’s was that appellant We conclude has not (Tex.Crim. 105, 109 811 S.W.2d by preponderance shown of the evidence App.1991). that there probability is reasonable that Here, appellant has not satisfied proceeding the result of the would have pre- component. More second Strickland Strickland, been different. See 466 U.S. that there cisely, appellant has not shown at at Accordingly, S.Ct. 2068. we probability that the result is a reasonable appellant hold that has not demonstrated punishment proceeding would have of the that he received ineffective assistance of permitted different had he been been counsel phase testify surrounding the events about trial. Johnson, offense. See 169 S.W.3d 239- appellant’s We overrule first issue. a motion for did not file not contain
new
and the record does
Appellant’s Right
to Give Certain
testimony
appel-
that
the substance
Testimony or to Read a
given
have
on redi-
lant claims he would
Statement
by his defense counsel.
questioning
rect
Thus,
possible
not
to determine
issue,
his second
con
punishment pro-
the result of the
whether
by
tends
“the trial court erred
not sua
if
would have been different
de-
ceeding
sponte permitting appellant
testify
questioned appellant
re-
fense counsel
by refusing
his version of
his version of the events. See Ex
garding
permit appellant
to read his statement
McFarland,
parte
standing
about the events for which he was
(concluding that de-
(Tex.Crim.App.2005)
trial.”
prejudice
cannot show
from coun-
fendant
Appellant first contends that
the trial
call witnesses absent evi-
sel’s failure to
sponte duty
court had a sua
to act
some
were available to
dence that witnesses
that appellant
per-
manner to ensure
testimony
at trial and that
their
testify regarding
his version of
mitted
favorable).
have been
would
surrounding
robbery. Ap-
the events
that,
further note
on cross-examina-
We
pellant acknowledges that
the Court of
tion
indicated
held that the
Criminal
has
Strick-
reasonably
can
he did not “rob” Solis. We
of counsel test
land ineffective assistance
that,
infer from this
had defense
provides
appropriate
framework
redirect,
questioned appellant
counsel
addressing
allegation
the defen-
would have further denied com-
denied
dant’s
the offense and would have testi-
mitting
Johnson,
defense counsel. See
aggressor.
fied that Solis was the
Such
acknowledges that
at 235.
responsibility
denial of
would
have
Strickland,
requirements
“to avoid the
To the con-
appellant.
been beneficial to
must reveal er-
complaint
the defendant’s
trary, during
punishment phase,
ror attributable to the court and
sim-
responsibility
a defendant to take
expects
at 232.
ply to defense
See id.
counsel.”
for the offense for
show remorse
complaint
that his
re-
Appellant contends
guilty.
appel-
which he has been found
If
error.
veals such
guilt,
jury,
lant had further denied
Relying
general legal principles
on the
failure to take re-
irritated
*10
right
to
likely may
imposed
have
that a defendant has the
sponsibility,
and has the
a fair
right
appellant
his own defense
to
to read his statement about the
trial, appellant contends that
the trial
events for which
standing
he was
trial.”
duty
court
to sua
act
sponte
to Appellant again relies on his constitutional
appellant
permitted
ensure that
was
to right
to
on his own behalf. As
testify about his version of the events. mentioned,
objected
the State
to appel-
it
apparent
asserts that was
to
request
lant’s
to read a statement
to the
the trial court that defense counsel was
jury. The trial court
objec-
sustained the
question
refusing
appellant regarding
to
tion.
offense,
surrounding
despite
the events
By
request
statement,
his
to read a
ap-
appellant’s
provide
obvious desire to
such
pellant
asking
represent
himself
testimony. Appellant argues that
trial
during part
proceeding,
court erred when it did not
sponte
sua
but not the entire proceeding.
In other
permit
intervene to
appellant
give
words, appellant
seeking
permission
testimony.
hybrid
for
representation. Although a tri-
Appellant’s reasoning is flawed. This is
it,
al court has discretion to allow a defen-
not a case which the trial court prevent-
dant
right
has no constitutional
hybrid
appellant
ed
from testifying either
representation.
State,
Scarbrough
See
Instead,
part.
whole or in
it is a case in
83,
(Tex.Crim.App.1989);
chose,
which
presum-
counsel
State,
272,
Landers v.
550 S.W.2d
ably
strategic reasons,
question
not to
Thus,
(Tex.Crim.App.1977).
it was not er-
appellant about the
surrounding
ror for the trial court to sustain the State’s
offense.
challenge to appellant’s reading of the
To conclude that the trial
court erred
Landers,
jury.
statement
to the
See
failing
require
ques-
defense counsel to
appellant
tion
about the events would be
Moreover, neither the United States Su
concluding
tantamount
the trial
preme Court nor the Texas Court of Crim
duty
court had a
interfere
the de-
inal
has held that a defendant has
fense’s trial strategy
inject
and to
itself
constitutional
to read an unsworn
attorney-client
into the
relationship. Such
statement
to the
free from cross-
a position is untenable and rife with con-
74,-
examination. See Moore v.
No.
flict.
059,
(Tex.Crim.
231323,
2004 WL
at *6
Appellant’s complaint on appeal does not
2004) (not
14,
App. Jan.
designated for
implicate “an error attributable to the
publication)
Hall,
(citing United States v.
court,” rather it
alleged failing
involves an
(5th
381,
Cir.1998)
152 F.3d
abrogated
of defense counsel. See id. at 232. With
grounds
other
United States v. Mar
court,
no error attributable to the trial
tinez-Salazar,
528 U.S.
120 S.Ct.
Strickland,
above,
as noted
provides the
(2000)).
the events surrounding the offense. trial court erred when it did not intervene to allow testify regarding further contends that the trial “by court erred refusing permit version of surrounding the events the of- *11 guarantee deprived that no one shall be has not shown also fense. the by sustaining liberty process court erred without due of law trial reading of objection appellant’s to right State’s include a to be heard and to offer jury. to the statement testimony.... testify second issue. to is found in the right overrule The
We Compulsory Process Clause of the Sixth Conclusion Amendment, grants which a defendant trial judgment of the favor,” affirm We call in his right to “witnesses court. in right guaranteed that is the criminal by courts of the States the Fourteenth JENNINGS, concurring.
Justice included in Logically Amendment.... JENNINGS, Justice, right the accused’s to call witnesses TERRY testimony is “material and favor- concurring. whose defense,” right his ... is a able to stated decision Against expressly himself, he in testify should decide is Carballo, his trial Leeroy Cesar appellant, fact, to do the most his favor so. counsel, punishment phase the defense in important witness for appellant as a wit question failed to criminal the defendant many cases is about “the events ness before justification today There no himself. is he was surrounding” the offense of which can be no sound trial for a rule denies accused accused. There unilaterally over strategy attorney in an opportunity testimony. to offer his own testify in ruling his client’s decision defense, right an absolute under own “grants ... Sixth Amendment [T]he and the Texas States Constitution United personally right the accused V, Const, amends. Constitution. See U.S. accused, It make his defense. is I, Const, VI, XIV; § 10. This art. Tex. counsel, who must be ‘informed of contrary Agos conclusion to Court’s accusation,’ nature and cause of the who (Tex. 115-16 ‘confronted with the witnesses must be h.), pet. no App.-Houston [1st Dist.] him,’ against and who must be accorded Accordingly, although is in serious error. obtaining wit- ‘compulsory process for sepa I join majority opinion, I write ” nesses in his favor.’ error rately to address this Court’s a personal more fundamental to Even
Agosto.
self-represen-
right
than the
defense
Supreme
As stated
the United States
tation,
“necessari-
which was found to be
Court,
“it cannot be doubted that
defen-
of the
ly
the structure
implied
right
in a criminal case has the
dant
Amendment,” ...,
right
an accused’s
is
and to
in his
take the witness stand
his own version
present
Arkansas,
Rock v.
or her own defense.”
opportu-
words. A defendant’s
his own
2704, 2708,
44, 49,
107 S.Ct.
483 U.S.
defense
call-
nity to conduct his own
(1987).
in Rock:
explained
L.Ed.2d 37
As
may
if
incomplete
is
he
ing witnesses
testify on one’s own be-
The
as a witness.
present himself
half at a criminal trial has sources
also a
opportunity
provisions
several
Constitution.
corollary
Fifth Amend-
necessary
that “are essential
rights
It is one of the
against compelled tes-
guarantee
ment’s
adversary
of law in a fair
process
to due
stated:
timony
[has]
....
Court
th[is]
necessary ingredi-
... The
process.”
privileged
criminal defendant is
“Every
of the Fourteenth Amendment’s
ents
*12
defense, or
testify
right
testify,
type
to
in his own
to refuse
his constitutional
to
“this
properly
to do so.”
of claim is
characterized
one of
as
ineffective assistance of counsel and that
51-53,
at
at
107 S.Ct.
2708-10
488 U.S.
analysis
prejudice
usual
under
(citations omitted).
Washington applies.”
Strickland v.
Likewise,
guar-
the Texas Constitution
Strickland,
225;
S.W.3d at
see
at
U.S.
accused of a crime
every person
antees
687,
(requiring two-step
helped *13 sum, has failed agree I actually he was
to demonstrate failure to by his trial counsel’s
harmed However, testify. by his decision
abide unilateral decision counsel’s
defense right to about
override offense surrounding” the
the “events a rea- stage of trial fell below professional assistance. level
sonable Court, held to having previously
This Agosto.
contrary, should now overrule M.D., BENSON, III,
Royal Individu H.
ally Center Southwest d/b/a Refinement, Ben
Female Genital Center, PA, Appellants,
son OB/GYN VERNON, Appellee. Lynn
Jo
No. 10-08-00271-CV. Texas,
Court
Waco. 12, 2009.
Aug. notes Appellant speculates cousin did not.” robbery likely purchased employed the time of the but it is more that Solis himself, could not to that Solis was not. asserts that beer but admit