*1 mеnt, explaining rationale of the rule it appeal, On Berthelot argues also she is adopted: paid entitled funds her after Virgi- nia’s death and before Baxter’s January recognize If we a right thus in the life 2007 “notice of claim” her under defenses profits, tenant a large undistributed estoppel and laches. already We have inevitably number of life estates will in- rejected arguments Berthelot’s that those volve complicated and difficult problems apply defenses for failure to record the which accounting, may run back 1987 Settlement Agreement. Rejecting years, perhaps even reach into the arguments Berthelot’s that she is entitled propriety accounting of the methods of to certain suspended sums sums she the corporation concerned. we paid, resolve her second issue Bergin, 159 Tex. at at S.W.2d 950 against her. (Garwood, J., concurring). argues
Berthelot she also is entitled to III. CONCLUSION all paid Virginia’s sums after death Having rejected Berthelot’s two is- “delayed accrued before her death under a sues challenging the trial summary court’s pursuant income” doctrine to San Antonio judgment Baxter’s favor his declara- Hamilton, Loan & Trust 155 Tex. Co. claims, tory judgment affirm we the trial (1955). However, judgment. court’s case apportionment concerned between the life tenant remainderman of
property bought with in- funds from both “profits”
terests. The of the corpus were
paid to the life tenant life. her Co.,
San & Antonio Loan Trust 155 Tex. at 21. suspended The funds here concern funds that were DeLEON, Appellant, Jose Armando declared payment during the existence of the life paid estate were not to the life estate before holder the life estate Texas, Appellee. The STATE of ended. the facts in Because San Antonio No. 14-09-00319-CR. Loan & Trust are Co. different from the case, facts in Berthelot’s reliance it Texas, Court Appeals is misplaced. Dist.). (14th Houston category dispute second of funds in Aug. $25,417.71) (totaling consists of funds represented profits operations net Virginia’s
after paid death that WTG
Berthelot it suspended before payments. argued
Baxter these funds belonged
owner Interest, of the Net Snyder Profits death,
which he following Virginia’s
and his ownership this interest entitled
him to a declaration that he owned
funds and Berthelot should be ordered to
return this amount him. *3 Background
I. less than seven- Complainant, female old, outcry made years teen statement appel- 2007 that January her mother in lant, by marriage, of her the uncle mother her had touched on several inappropriately trial, complainant At testified occasions. oc- with first incident family when the curred October 2004 *4 Texas, in living Tyler, and she was was in just had grade. the fourth Her brother born, her was in been and mother wife, young- hospital. Appellant, his and in daughter their home est travelled from baby. Complain- Bryan, Texas to see the appellant “up- ant testified that rubbed her his while she was sit- per leg” with hand in the ting watching television the couch in the living only people roоm. The other younger at the time were her apartment Houston, Martinez, Appel- Ralph R. for appellant’s daughter, both sister and lant. re- whom were in different rooms. She any- or say called that she did not move Brick, Turner, John Bryan, Bill R. thing frightened. because she was When Huntsville, Appellee. couch, stopped, up he and got he this nothing happened on occasion. else Panel Justice consists Chief during The incident occurred next and HEDGES and Justices ANDERSON family after grade year, fall of her fifth her CHRISTOPHER. in Bryan had back to 2005. She moved school, sit- appellant’s was at house after OPINION living watching on a in the room ting couch next to her and Appellant television. sat HEDGES, Justice. ADELE Chief her clothing above her touched her DeLeon, ap- “private part” “bottom area” or Appellant, Jose Armando front indecency Subsequently, told not to then her tell. peals from his conviction appellant private A to touch her sexual contact. continued with child got,” chance on a couch pun- part “every and assessed appellant guilty found room, his living in In in the while her sister and years prison. fourteen ishment at daughter’s in room. daughter were appeal, appellant contends two issues on anyone Complainant explained further that he ineffective assistance received daughter’s bedroom could guilt/innocence punish- appellant’s in counsel in the on the couch. appel- not see her and phases ment of the trial. affirm We however, in conviction; ap- continued finding that incidents lant’s grade the fifth through of house on the couch assistance pellant received ineffective grade in Com- re- and into the sixth punishment phase, we counsel became punishment proceeding. plainant a new stated mand for much plainant having difficulty so with during summer “worse” family his her unzip kept her shorts and “stick she was at home he would shorts, although through holidays being not beneath instead of ba- hands in” her bysat testified that he outside of the home. her underwear. She also day I’ll get a threat: “One repeated Loup Bryan Detective of the Police De- touching The last occurred good.” partment, primary investigator birthday her twelfth December week of Bryan for sex crimes and lead detective thereafter, January 2006. Soon assigned investigation, this testified re- appel- her mother about complainant told garding years experience working his five touching lant’s her. specialized on sex crimes as well as his training that she and education. He described Complainant said didn’t under- this her, touching delayed outcry, case as a which he why appellant stand said Further, further stated was common for child victims. angry. it made her She period argued time she he noted that there was no need to look for previ- physical more than she had evidence since this was an inde- with her mother *5 cross-examination, case, complainant nothing suggested cent contact and ously. On anyone step investiga- that not tell otherwise. The first acknowledged she did tion to have the inter- except prosecutor complainant the had was by a at clothing touched her inside her and made viewed forensic interviewer Scot- House, a ty’s advocacy threats to her. child center. After interview, observing Loup interviewed the Complainant’s mother recounted people, including appellant several other family’s Bryan Tyler move in 2002 from one interpreter, appellant’s daugh- via Bryan in 2005. After their and return ters, In complainant’s parents. and his return, both she and her husband were at interview, appellant denied accusations daugh- work when for her school ended him. against Loup stated that based on ters, they arranged family so for extended investigation, his the last offense occurred pick up them from school and either appellant’s home and wаs committed Boys off at the drop them Girls Club appellant. house. She started notice Mikeska, professional in in a licensed problems complainant’s Cheryl behavior counselor, has fifteen during grade fall of her fifth testified that she year. Complainant angry years experience working became dis- with children. in children public. obedient at home and Around She has counseled over hundred sexually Her edu- complainant’s December behavior who had been abused. in suspended degree psy- was so rebellious that she was cation includes a bachelor’s in Boys chology degree from and Girls The moth- and a master’s counselor Club. symptoms that when She described the er further testified she was education. age, similarly she had acted and behavioral characteristics of sexual complainant’s having as a been abuse victims. She further described result molested. experience, symptoms complainant on her own she came to and behavior had Based may Although acknowledged have also exhibited. she suspect complainant began complainant’s therefore to that behavior could have been molested. She by something other than sex- question complainant possible about moles- been caused abuse, oрined she that there were clear year, complainant’s tation. Over the next ual having sexually been inquiry mother made this about “half a indicators of her By dozen” times. December of com- abused. offenders, appellant’s youngest psychology including
The called of sex defense daughter as a She is a second protect witness. conclusion that: “If want to complainant cousin to and was seventeen public, you put then them in a situation years at the time of trial. She recount- old they where can’t have access to children.” trip Tyler complainant’s ed the to visit convicted appellant of indecen- family baby only born. when the was She cy with a child sexual contact and as- being complainant’s parent’s recalled punishment years’ sessed at fourteen con- baby apart- bedroom when the finement. any ment and did not notice unusual be- complainant. Appellant’s havior her
daughter
long history
also testified to
II.
Standards
Review
babysitting complainant
siblings.
issue, appellant
In his first
contends that
She disputed complainant’s description of
he was denied effective
of coun
assistance
her home and
her
described
bedroom as
during the guilt/innocence phase
sel
of tri
being only
steps”
“two
from the living
issue,
al. In
his second
сontends
room,
enough
peo-
close
that she could see
that he was denied effective assistance
ple sitting on the couch from her bedroom
punishment
phase. The Sixth
door.
always
She testified
she was
Amendment to the United States Constitu
complainant
around
when she was at her
guarantees
right
reasonably
tion
complainant
house
never
effective
assistance
counsel
criminal
appellant.
alone with
She asserted
VI;
prosecutions. U.S. Const. amend.
*6
complainant
appellant
had accused
because
Richardson,
759,
McMann v.
397 U.S.
771
parents.
she wanted attention from her
14,
1441,
(1970).
n.
25
S.Ct.
L.Ed.2d 763
She explained
complainant
was treat-
In reviewing an ineffective assistance
than
siblings
ed worse
her other
because
claim,
appellate
court
a
indulge
“must
Finally,
she had a different father.
she
strong presumption that
complainant
claimed that
would lie to her
counsel’s conduct
parents
“any
and her on occasion about
within the
range
wide
of reasonable
[fell]
assistance;
is,
other little thing.”
professional
[appellant]
that,
presumption
must overcome the
un
trial,
punishment phase
At the
the
circumstances,
challenged
der the
ac
opened
plea
defense counsel
with a
might
tion
be considered sound trial strat
jury to
probation
appel-
recommend
egy.”
v. Washington,
Strickland
466 U.S.
statement,
lant.
In
opening
his
he also
668, 689,
2052,
104 S.Ct.
Appellant proving by bears the burden of Prior Abuse preponderance of the evidence that counsel In the majority was ineffective. Id. Appellant complains first about cases, appeal simply the record on direct complainant’s mother’s that she undeveloped adequately cannot reflect sexually was abused as a Specifical child. alleged failings of trial counsel. Jack ly, prosecutor when the asked the mother (Tex. State, son v. why she felt something was “going on” Crim.App.1998). particularly This is true complainant, with responded the mother when alleged deficiencies are matters that complainant acting was way the same of omission and not of commission revealed that the mother had when she moth [the proper the record. Id. A record is brief, er] molested as a child. In his developed corpus proceed best a habeas appellant contends that ing or in a motion for new trial hearing. irrelevant because it did not involve either (Tex. Jensen v. 66 S.W.Sd complainant or appellant, alternatively, ref'd). App.-Houston pet. [14th Dist.] it was prejudicial because it “was To establish ineffective assistance of coun passion offered to inflame the sympa object, sel based on a failure to thy of the to both the witness and her must demonstrate that the trial court daughter.” He further asserts that trial committed harmful error performance counsel’s was deficient be objection if overruling trial counsel had cause he did not testimony. to this objected. Alexander v. 282 S.W.3d However, assuming even that appellant is (Tex.App.-Houston [14th Dist.] regarding correct the admissibility of this ref'd). pet. evidence, the why record is silent as to *7 object. may counsel did not There have During III. Performance Counsel’s been strategic reasons for counsel to de Phase Guilt/Innocence object cline to even to inadmissible evi stated, appellant As asserts in his first Thompson, dence. See 9 at S.W.3d issue that he (declining representation received ineffective assis- find was guilt/innocence tance phase given either effective or ineffective lack of trial. Specifically, explanation he contends that coun- in the record for failure to State, object object sel was deficient in that he failed to hearsay); McKinny (1) 463, to: complainant’s testimоny mother’s S.W.3d 473-74 (Tex.App.-Houston [1st (the mother) that she had been molested no pet.) (discussing Dist.] various (2) child; testimony as a the mother’s why reasons criminal defense counsel complainant symptoms having might strategically exhibited decide not to (3) evidence).1 molested; been expert testimony Accordingly, inadmissible we Cheryl that complainant say Mikeska was sex- cannot on this record that counsel’s cross-examination, example, during prior experience may For that the mother’s own pressed trial counsel fact mother on the predisposed symptoms her to see in her statement, prior complainant's outcry daughter may have lead her to cause frequently asking complain- mother was outcry complainant her fabricate state- ''touching” ant whether someone had been ment. may suggest her. Counsel have intended to and relates those characteristics was deficient because performance testimony complainant is admissible even if the com object to the mother’s failed to plainant impeached. has not been Yount a child. had been molested as that she (Tex. State, 708-09 Testimony However, Opinion testi Crim.App.1993). “[e]xpert B. Mother’s mony does not assist the if it consti next contends that coun Appellant tutes n dirеct opinion on the truthfulness’ objected to the mother’s sel should have complainant’s allegations.” of a child complainant’s behavioral testimony that (Tex. Schutz v. S.W.2d after problems “made sense” the mother Yount, Crim.App.1997) (quoting complainant. learned of the molestation 708). specifically asserts that this tes Appellant testimony, highlighted In her Mikeska moth timony inadmissible because the certain behavioral characteristics common- qualified expert er was not as an on such victims, ly by child abuse includ- exhibited However, appear it does not matters. ing difficulty sleeping eating, low self the record that this esteem, depression, poor interpersonal re- it expert testimony; instead presented as further lationships, and isolation. She only lay opinion to have been evi appears specifically certain of spoke regarding dence based on the mother’s own observa displayed by those characteristics com- experience. generally prior tions and plainant. following exchange then oc- 701; Bargas v. Tex. Rule Evid. prosecutor curred between the and Mikes- (Tex.App.-Houston 897-98 ka: pet.). Appellant no of [14th Dist.] Q. symp- And when have these argument
fers no
as to whether this evi
toms,
your impression
diagno-
what is
properly
have been
admitted
dence would
[complainant]?
sis
Accordingly, he
lay opinion
evidence.
has not met his burden to show that coun
My
A.
impression
[complainant],
with
under the
performance
sel’s
was deficient
particularly, is that there are clear indi-
Alexander,
prong
first
of Strickland. See
sexually
having
cators of her
been
C. not offer an ultimate did conclu Appellant regarding complainant’s next insists that coun sion truthfulness objected Cheryl merely sel should have Mikes- this case. Mikeska stated *8 complainant complainant had exhibited the behavioral char expert opinion ka’s sexually who sexually Generally, expert been assaulted. acteristics of child had been Expert if it the that a child testimony is admissible assists abused. jury intelligently determining in an issue exhibits behavioral characteristics jury. empirically the have been shown to be com but does not decide the issue for 906, State, among See Duckett v. 797 914 mon children who have been S.W.2d been in (Tex.Crim.App.1990),disapproved on other abused has held admissible similar State, State, 819, 817, grounds, v. 849 cases. See Perez v. 113 S.W.3d Cohn S.W.2d (cit ref'd) State, 2003, (Tex.App.-Austin pet. (Tex.Crim.App.1993); 819 Drake v. 832 (Tex. 596, State, 697, ing 123 606 Hitt v. 53 S.W.3d 707 (Tex.App.-Houston S.W.3d ref'd). 2003, 2001, ref'd), pet. Vasquez v. pet. Expert App.-Austin tеsti [14th Dist.] State, 415, (Tex.App.-Aus 417 mony physical identifies certain or 975 S.W.2d 1998, ref'd), Yount, pet. tin 872 S.W.2d behavioral manifestations of sexual abuse Cohn, 819-21), 709, Jose 849 S.W.2d at A. DeLeon. grounds, Taylor on other v. overruled prosecutor’s The was im questioning State, 571, (Tex.Crim.App. 268 S.W.3d proper. prosecutor only not asked State, 2008); also v. No. 01-07- see Jiron Loup developed Detective who he aas (Tex. 1904068, 00441-CR, 2008 WL at *3 suspect during the course of investiga the 2008, 01, May no
App.-Houston [1st Dist.] tion, he also asked who committed the Perez). pet.) (citing Accordingly, counsel the offenses where last offense oc failing to object was not ineffective for State, v. curred. See 691 S.W.2d Huffman See, testimony. e.g., Ex parte Mikeska’s 726, 1985, 730 (Tex.App.-Austin pet.) no White, 46, (Tex.Crim.App. 160 S.W.3d (finding court in permitting prosecu erred 2004) (holding counsel was not ineffective ask sheriff if felt deputy tor to he crime object to admissible evi failing had been committed where dence). defense); claimed he shot in self victim see State, 12-04-00291-CR, also Lovell v. No. Testimony D. Detective’s 1916950, (Tex.App.-Tyler 2006 WL at *3 Next, appellant contends ref'd) (mem. op., Nov. pet. not failing his counsel was ineffective for designated publication) (finding trial object Loup’s testimony, to Detective permitting prosecutor court erred in to ask impermissible opin which “constituted аn whether, police officer upon based his in ion the an guilt as to or innocence of vestigation, officer believed defendant had expression guilt individual.” The law,” as merely “violated this was any ease is a to be innocence conclusion expression opinion officer believed in by upon reached based was guilty). defendant given structions them the court’s However, assuming even that counsel’s charge, coupled with the evidence admitted performance an objective fell below stan judge through course of the dard reasonableness due his failure trial. Taylor testimony, this in order to be (TexApp.-Houston pet. [14th Dist.] entitled a reversal for ineffective assis ref'd). competent witness is voice No Strickland, appel tance counsel under an opinion guilt Boyde as to or innocence. lant must further demonstrate that but (Tex.Crim. error, pro for counsel’s the result of the App.1974). explaining After a typical how ceeding would been different. See investigation sexual assault of a child is Thompson, begin at 812. We conducted, interviewing including the analysis our of the second Strickland child, Loup responded prosecu Loup did prong noting that Detective questioning tor’s additional as follows: directly appel state that he beliеved case, Q. your upon And based guilty; merely lant indicated did determine investigation, where investigation pointed indecency offense had occurred? Loup first perpetrator. was the wit *9 A. The last occurred at Yes. offense case, pros in the the apparently ness and Bryan, ... suspect’s the home. It’s in simply ecutor wanted to establish the cir County. Brazos under which was cumstances Who, arrested, ie., Q. based the for the upon your investigation, to “set scene” addition, suspect person pros was the or the who com- to come. In the witnesses questioning garbled mitted this indecent contact with was ecutor’s so [com- clear im plainant]? unlikely it left a was behavior, including “on their how opin control Loup’s personal pression regarding Furthermore, any temptations or away type the push the matter. ions on desires,” themselves from line of and “to remove not continue the prosecutor did way; He further stated any it in situations.” emphasize high-risk questioning or in closing the offender during hope mention it was that he not even did Instead, pri “gain enough information prosecutor’s would argument. question they will it to the rest of apply in both the case-in-chief mary focus to where they necessary have the complainant’s was on their life will closing argument reаsons, to remove themselves situa- these we decline abilities credibility. For trigger counsel that could sexual behavior. tions to find ineffective assistance Strickland, education, impor- isolat is and the just based on this one It is under —it potentially inadmis it is to further sexual object prevent tance of ed failure to re-direct ex- testimony. generally Ingham Additionally, on behavior.” sible (Tex.Crim. amination, a sex Russ of- explained definitely re- probation fail App.1984) (explaining that isolated fender prison gen counseling that within object improper evidence ceive ures to probation sys- constitute ineffective assis to the erally system, opposed do not counsel); tem, typically do not receive the Moore offenders tance of (Tex.App.-Houston counseling. level of [14th same (same). Finding pet.) no Dist.] by prosecutor, cross-examination On assertions of ineffec none of however, as follows: Russ testified in guilt-innocence tive assistance facts Q. particular If in a case the were merit, appel phase to have we overrule was convict- person to show what a first issue. lant’s a where either ed for was situation plan- through through opportunity During Performance IV. Counsel’s nobody it was in a where ning position Punishment Phase secrеtive; it, see it un- else would issue, contends In his second nobody a child talked would know. less ineffective assistance of that he received people if the Is that risk still there punishment phase counsel trying prevent aren’t that? around alleges that counsel Specifically, trial. always be A. Sure. That risk will (1) injecting national ineffective disappear. never there. risk will legal a out that he is origin pointing if alone with the Regardless they get Mexico; in the United States from resident child, regardless if there are other (2) expert calling probation a officer as house, the risk adults remains. gave damaging testimo- witness who then up The risk is the brain. It’s here. [¶] (3) ny; failing prosecu- put person the desire. can It’s You damaging questions which elicited the tor’s you anything can want to prison, do begin reviewing the testimony. We will of the get them. You cannot rid devian- officer. testimony of desire, any offender. cy, the sexual natural, but Sexual behavior is when During phase, the punishment [¶] deviant, Russ, is when we get a Brazos it becomes appellant called Charlie them, it officer, On Once it is with doesn’t to the stand. worried. County probation examination, purpose That of treat- disappear. Russ testified direct don’t care proba ment. Punishment —I placed [¶] when sex offenders are *10 punishment you give kind of some- tion, to learn to what they receive treatment body, it never forces out particular year-old issues he described one They always their will have probationer brain. some who had a room in his home desire, they kind of deviant sexual girl with “little dresses and some dolls and always community. will risk be at to a little up bed made for them.” He fur- way That just is it works. ther described how pro- some offenders on “toys bation have games they video so subsequently He line expanded on this can the neighbors’ invite little kids to come on re-cross: you over.” He concluded that: “If to want Q. Now rehabilitation sex offenders: protect public, put then you them in a they point Are ever rehabilitated to the they situation where can’t have access gone? where the risk is children.” Absolutely A. No. not. The risk will always may be there. It be minimized This was particularly lessened, always or but the risk will damaging prospects pro remain because we don’t know—I don’t prison bation or a short sentence. Appel anybody thinking. know what here is lant contends that he received ineffective We can we never assume that know assistance of counsel because counsel what a thinking. sex offender is [¶] object and, failed to to this evidence they risk is this: were sex offenders fact, presented Russ as a witness. Gener they before committed the offense. So ally, when a defendant contends that or we what thinking, don’t know he is what her counsel was ineffective because he or they’re planning. give We can them evidence, object she failed to the defen treatment, we things can do all the dant must establish such evidence was law; required by up are but we can’t see in fact inadmissible. Ortiz See v. here, truly predict so we can never what 79, 93 (Tex.Crim.App.2002). There day day is going happen from one to here, showing has been no either trial or got two. You assume all the [¶] trial, on motion for new as to whether you story risk because have heard after qualified Russ give expert opinion this; story, never thought “I he would do However, testimony on these matters. thought my I never grandfather would whether qualified, or not Russ appel this; I my do never thought dad would lant’s trial in failing counsel was deficient never, you push [¶] do this.” So ever highly inflammatory to the testi always out the risk. You assume the mony for calling Russ stand great. risk As long you is assume place. the first Mares great, hopefully risk then that is (Tex.App.-San 892-93 Antonio going enough protection to create ref'd) 2001, pet. (holding counsel was defi other prevent being children from im- cient where counsel called offi pacted way just one or the other. You cer as witness and to object then failed know. I guys don’t can have that do [¶] opined person when she that a everything perfectly, up they’re but here defendant’s situation would not make a having molesting still sexual fantasies of good probation); candidate Jackson two-year-old girls two-year-old boys. State, (Tex.App. proba- Just because succeed well ref'd) (find 1993, pet. Dist.] Houston [14th risk, tion does not remove the for, ing among counsel was deficient other Russ problems things, calling went on list various Child Protective Services he’s as a probation encountered officer as witness who then caseworker “raised dealing with sex example, questions” concerning possible offenders. For child *11 Hill, In other punishment. of abuse); 863 S.W.2d assessment parte also Ex see words, probability, there is a reasonable (holding (Tex.Crim.App.1993) ie., one sufficient to undermine confidence calling alibi wit deficient for counsel was outcome, pro of the that the result already guilty to the pleaded had ness who crime). have been but for ceeding known different have Counsel should same testify performance. See An on counsel’s deficient these going how Russ drews, The de at 102. been no strate There could have matters. appel probation, to recommend as permitting and clined producing for gic reason and instead assessed testimony. requested, Andrews v. lant had damning See such punishment years imprison of fourteen (Tex.Crim.App.2005) (“[ years out a of between two range trial strate ment of no reasonable W]hen conduct, See Tex. Penal Code twenty years. trial justify could the counsel’s gy 12.33(a) punishment range §§ objec (providing falls below an performance counsel’s 21.11(a)(1) felonies), degree of as a mat for second reasonableness tive standard indecency with a law, (classifying the child con regardless of of whether rec ter felony).3 Accord degree as a second reflects the trial counsel’s tact adequately ord did.”).2 inef ingly, as we find that trial counsel was subjective acting reasons for she fective, appellant is therefore entitled prong, Turning to the second Strickland punishment. hearing to a new on impact exactly what it is difficult assess Mares, (remanding at 892-93 jury. testimony had on the Without the punishment phase for new where counsel with a is a hei question, indecency child damaging testimo gave called witness who offense, juries significant nous ny candidacy regarding defendant’s punishment they may assess latitude in the to that testi object and failed However, given the for such a crime. mony). testimony emphasis this аnd the nature of (Russ’s that was inef- testimony up it took Because we find counsel placed upon as pages presenting of fective for Russ a witness of 71 total testi pages 36 record failing object prosecutor’s mony punishment phase, and was the questions, we need consider only be considered line of the who could witness argu- phase other during phase), punishment it expert presented ment, ie., that counsel was ineffective likely jury’s it an effect on the had punishment holding jury’s This suggests we the stiff assessment. 2. The are dissent attorney competent primary would have that "no incorrect. The basis for assertion is probation officer a witness called a as prejudice, as forth determination of set our doing punishment phase of and that the trial" above, damaging text is the nature of a be ineffective as matter so would assistance testimony. comparative of Russ’s The volume As law. This incorrect. indi- of assertion is severity testimony punish- and the above, counsel either cated in the text defense support only ment are additional factors how his own knew or should have known was in fact the conclusion that very going testify matter witness was suggest certainly quite damaging. We do not testify. which he called the witness to long prison jury's assessment a sen- case, dеfense counsel Under the facts of indica- for a sexual offender is itself tence producing this witness and was ineffective for prejudice tive of from ineffective assistance failing damaging testimony. to his empowered punish are counsel. Juries they justified; deem howev- offenders such that our determination of dissent states er, judiciary to ensure the it is the role of the grounds: appears prejudice to rest on two leading proceedings fairness basic relative volume of Russ’s punishment. entirety punishment phase record and such
387 unnecessary for a court to consider the appellant’s of national the issue raising Strickland, 697, at prong. second is- other 466 U.S. appellant’s We sustain origin. 104 at 2069. S.Ct. sue. conviction; how- appellant’s affirm
We per Our review of defense counsel’s ever, appellant received inef- finding deferential, highly beginning formance is pun- in the assistance of counsel fective strong presumption with the that the at we remand for a new phase, ishment torney’s reasonably profes actions were punishment proceeding motivated trial sional and were sound State, v. 877 strategy. Jackson S.W.2d dissenting.
J. CHRISTOPHER
(en banc).
768,
(Tex.Crim.App.1994)
771
trial
When the record is silent as to
coun
Justice,
CHRISTOPHER,
TRACY
will
strategy,
sel’s
we
not conclude
dissenting.
appellant
rеceived ineffective assistance
defense counsel
agree
I
“
conduct was
‘so
challenged
unless the
dur-
not render ineffective assistance
did
competent attorney
that no
outrageous
trial, but I
ing
guilt/innocence phase
of
”
engaged
Goodspeed
in it.’
v.
I
majority
from the
in that would
differ
State,
390,
(Tex.Crim.App.
392
appellant also did not receive
hold that
2005)
State,
(quoting
v.
57 S.W.3d
Garcia
during
of counsel
ineffective assistance
(Tex.Crim.App.2001)). Usually,
I therefore
phase of trial.
punishment
however,
pre
the lack of a clear record
dissent.
respectfully
appellant
meeting
the first
vents
part of the Strickland test because the
I.
Standard
Review
reasonableness of counsel’s choices and
review claims of ineffective assis
We
proven
be
during
motivations
trial can
de
counsel under the standard set
tance of
not nor
only through
ficient
facts
do
v.
Washington,
forth in Strickland
record.
mally appear
appellate
668, 104
duct
below
standard
falls
II. Probation Officer Charles Russ
representation as a
reasonable
matter
presented
law or on the facts
here.
Russ,
proba-
the
regard
With
to Charles
during
officer
the pun-
tion
who testified
Appellant has not offered
I
and have
trial,
phase
ishment
contends
authority
majori
any
supporting
found
the
trial
ineffective
attorney
that his
rendered
ty’s
attorney
that no competent
conclusion
assistance, first,
a
by calling Russ as wit-
probation
would call a
officer as a witness
all,
second,
failing
object
at
ness
punishment
during
phase
the
of trial. To
testimony in
areas.
specific
to Russ’s
The
cоntrary,
Ap
the Court of Criminal
majority agrees
argu-
with both of these
expressly stated that
peals has
a defendant
ments,
and finds
defense counsel’s may
probation
during
call a
officer
conduct undermined confidence
punishment phase of trial to help establish
Thus,
jury’s
punishment.
assessment of
community
suitability
the defendant’s
majority
reverses the sentence and
State,
supervision. See
Ellison
punishment hearing
remands for a new
(Tex.Crim.App.2006).
I
reaching appellant’s
argument
without
disagree with
majority’s
further
read
defense counsel rendered ineffective assis-
(Tex.
ing of
Mares
S.W.3d 886
punishment
tance
of trial
phase
ref'd).
App.-San
pet.
Antonio
by introducing
although ap-
evidence that
ante,
In holding
386-87.
that the
Mexico,
a
pellant
legal
citizen of
he is a
defendant in that case received ineffective
of the United
resident
States.
counsel,
assistance of
the Mares court did
respectfully
majori-
disagree
I
with
holding
not base its
on defense counsel’s
ty’s conclusions
coun-
concerning defense
calling
probation
conduct in
a
officer
in calling
sel’s effectiveness
Russ as a
testify
ob
or even
counsel’s failure to
witness, in failing
object
certain tes-
adverse;
ject
simply
that was
timony,
finding
preju-
and in
this conduct
rather,
the Mares court held that where
to аppellant.
dicial
I therefore would
objective
punishment hearing
the sole
of a
appellant’s remaining arguments,
reach
probation,
was to obtain
counsel rendered
record,
but
I would con-
based
by failing
ineffective assistance
prong
clude
neither
of the Strickland
unqualified
expert opinion
witness’s
has been
test
satisfied.
probation
would not recommend
she
person
for a
with the defendant’s criminal
Calling
A.
Probation Officer as Wit-
Mares,
while. But is what will benefit the fact that counsel’s tactics could have society the most. result”) achieved the desired (emphasis You heard Charlie Russ when say added). I would instead hold defense people things, they do these have devi- objective counsel’s conduct fell within pro- deep ant desires They their mind. fessional standards. thoughts hopefully have the rest of have, don’t always us and will have Object Testimony C. Failure to That them. Appellant “Illegal Became an And Mr. Deleon is not an educated Upon Alien” Conviction man, but there is education available. provide Appellant Mr. Russ also contends inef- Roy can that. Dr. he received that.[3] Luepnitz provide can fective You assistance because defense counsel heard about that “if allegedly testify Mr. testimo allowed Russ to Russ’[s] convicted, ny. type This of education necessary is would be- immediately people have these typefs] illegal According who come an alien.” appel- Roy provid- 3. Luepnitz Russ testified that Dr. parole. tion or counseling proba- ed to sexual offenders frequently referred to Fifth has lant, “be- Circuit excludable such “no defense this the distinction between as was incorrect.” opinion cause the See, representation.” “shoddy at all” and supported is not Appellant’s argument Johnson, 238 F.3d e.g., v. Gochicoa record4 to relevant citation Johnson, (5th Cir.2000); Jackson hold that I therefore would authority.5 (5th Cir.1998); Childress F.3d Tex.R.App. is waived. See argument Cir.1997). (5th Johnson, 103 F.3d 38.1(i).6 P. Strickland, as In latter are referred to ineffectiveness.” Strick- of “actual claims Prejudice D. Absence land, at 2064. U.S. at 104 S.Ct. that defense I would conclude Because one, be- important is distinction professional within conduct fell counsel’s type of constitutional violation cause the standards, question I not reach the prejudice whether is alleged determines Strickland, at 466 U.S. prejudice. presumed or must be shown. at 2069. I nevertheless 104 S.Ct. “representation” right has If the first or disagree- explain my it here to address violated, prejudice presumed, is been then ap- the standard review ment with is entitled the defendant plied by majority. set aside. circum- judgment “[S]uch Amendment, a criminal Under the Sixth of the Sixth impairments stances involve first, right, has to actual defendant identify easy that are right Amendment counsel, second, representation by and, pros- and because the reason from such counsel. effective assistance easy for the directly responsible, ecution Thus, claims of ineffective assistance government prevent.” Id. be to be of two may
counsel
considered
resulting
pre-
5.Ct. at
Violations
(a)
those in which coun-
types:
corresponding
occur when
defen-
prejudice
sumed
*17
effect,
sel,
not act as the defen-
actually
in
does
denied the assistance
dant was
prevented
stage
proceed-
or is
representative
dant’s
at a critical
counsel
(b)
so,
repre-
ings,7
“entirely
in which
failed
doing
and those
counsel
defense counsel
defendant,
so in a
the
case mean-
subject
prosecution’s
but fails to do
sents the
ingful
such that
tеsting”
adversarial
manner. The
competent
professionally
testified,
country
attempted
anybody
from this
or
ever removed
''[I]f
4.
instead
I
Russ
not
American citi-
my
reentiy
on
caseload that is
an
after removal. The statute therefore
zen,
immigration
let
application
I have
contact
here.
no
has
pick
up
them in
They will come
them know.
my
deport them
to Mexico or
office and
back
State,
v.
6.
No. 14-00-
also Villarreal
See
agreed
He further
with the
their homeland.”
00948-CR,
1249329,
(Tex.
at *2
WL
2001
proba-
prosecutor
supervise
not
that he did
18, 2001, pet.
App.-Houston
Dist.] Oct.
[14th
country.
removed from the
tioners who were
ref'd)
(not designated
publication)
examination, however, Russ clari-
On redirect
(”[C]ounseTs argument
appellant
an
is
referring
probationers
who
fied that he
likely
deported
illegal
thus
to be
alien and
country illegally
were in the
visitors
serving
plausible
punishment was a
his
after
undisputed
ap-
expired
It is
with
visas.
strategy
trying
to induce
trial
legal
pellant is a
resident and that defense
impose a shorter sentence because
jury’s
repeatedly
this
drew
fact
counsel
pose
a threat
thereafter
attention.
community.”).
argument, appellant cites
support
5.
In
of this
Cronic,
648,
466 U.S.
7.
United States
concerning
only
reentry of
removed
statute
25,
2039,
25,
(West 2005).
2047 n.
80
n.
S.Ct.
§
See 8 U.S.C.A.
aliens.
657(1984).
аppellant was
L.Ed.2d
party
Neither
contends
constructively
defendant was
denied the
“it is
exactly
difficult
assess
impact
what
(c)
altogether,8
assistance
counsel
the testimony had
jury,”11
on the
but nev-
engages
State
in various kinds of interfer
ertheless holds
preju-
ence with counsel’s assistance.9 Id. at
diced
defense counsel’s
conduct
call-
692,
2067;
State,
104 S.Ct. at
Johnson v.
ing Russ
aas witness and in failing to
228,
169 S.W.3d
228-29 (Tex.Crim.App. object to
testimony
regarding the reha-
2005).
hand,
On the other
if the second bilitation of sexual offenders. This conclu-
i.e.,
right
violated,
allegedly has been
if
appears
(a)
sion
to be
primarily
based
on
claim is
defendant’s
based on “actual
of pages
number
used to transcribe
ineffectiveness,” then the defendant must
Russ’s
relative to the overall
“affirmatively prove prejudice” before a
length
the punishment-phase transcript,
reviewing court will
judg
set aside the
(b)
jury’s
failure to recommend
Strickland,
ment.
U.S.
appellant requested.12
This
S.Ct. at 2067.10
This
true even if multi
seems me
insufficient basis on which
ple
permeate
errors
the proceedings. See
to conclude that appellant has made the
Aldrich v.
296 S.W.3d
233-259
requisite showing
prejudice,
not least
'd)
(Tex.App.-Fort Worth
ref
pet.
(op.
because
approach
ignores all of the
banc).
en
reh’g
remaining evidence.
Here, appellant alleges “actual ineffec-
tiveness,”
thus,
record,
As I
must
read
affirmatively
there
nowas
rea-
prove prejudice. The majority opines that
probability
sonable
the jury would
Strickland,
8. See
flicting
Cannon
interests.
bation children, testified two witnesses tact with Defense counsel offered evidence problem have no con- they would phase of trial that al- punishment have contact tinuing appellant to allow citizen, is a Mexican though appellant in their families. One young girls with country legal has been resident of the street witnesses lives across of these have become an since 1985 and would three-year-old and has a appellant citizen, but he pass American could witness, appellant’s daughter. The third citizenship speaks only test because he wife, appellant still main- testified write. De- innocence, Spanish and cannot read and although and she was tained his promise jury that she could she to this sure fense counsel referred evidence children not leave him alone around of the opening closing arguments and she undermined again, ever trial, phase and punishment by agreeing equally sure that she implicated “that ap- that remarks contends with the com- appellant had not been alone ethnic, national, pellant’s immigration also unrelia- plainant. She demonstrated strictly prohibited are characteristics bility accounting for her husband’s irrelevant, outside the rec- inadmissible as undisputed Finally, it is whereabouts.13 ord, and prejudicial.”14 appellant’s grandchildren— that three of an infant to live including girl such Contrary appellant’s argument, —continued him. with per neither inadmissible se nor evidence is prejudicial, and none of the inherently sum, evidence In there was abundant by appellant support cited such a supporting his efforts cases instead of by failing to dered ineffective assistance ob- asked did after re- 13. When what verdict, guilty wife ceiving inflammatory derogatory ini- ject to remarks tially family national, just ethnic, sat in a room stated that about his *19 time, together whole when if but asked argu- immigration characteristics. These errands, appellant ran some she admitted that any have factu- ments have not been shown to go to of the outcome he did “advise the store” al in the record. None of the State’s basis appellant of the trial. When asked if went arguments punishment phase of trial tires, shopping admitted this well for she any deportation to or to contained reference appellant changed a and testified that had tire immigra- ethnicity, nationality, appellant’s or daughter’s vehicle. on their status, appellant has inflam- tion and cited no matory derogatory prose- tire or references complains Appellant 14. also of his counsel's ethnicity, nationality, appellant’s or cutor to argument by improper jury to failure to immigration I therefore would hold status. According appellant, "The State State. Tex.R.App. argument be waived. See this P. argued upon deportation, defendant 38.1(i). subject supervi- would not be He contends that defense counsel ren- sion.”
395 Offering such evidence can holding.15 Conclusion a trial and strategy, form valid part Although has defense counsel had no choosing for offer such many reasons opportunity appellant’s reply allega- imagined. example, can be For evidence assistance, possible tions of it is ineffective became res- appellant legal evidence that a imagine strategies reasonable trial for coun- ago supports ident decades defense Moreover, challenged conduct. probation by sel’s in favor of arguments record, I that there is would conclude no capable showing appellant of self- reasonable that the probability outcome of voluntarily has policing and successful- punishment phase of trial would have ly Appellant a past. done so has been different if none of the challenged jurors name and the saw that the Hispanic conduct had The absence being trial translated into occurred. of a Spanish was Defense have may performance by counsel deficient defense appellant. counsel jurors may that the been concerned prejudice and the afford absence inde- was an thought appellant illegal alien. pendent grounds affirming the trial was resi- legal fact that a thus, judgment; court’s for each of these positive appellant. a fact for the dent was reasons, I respectfully dissent. also have chosen evi- may
Counsel to use long legal residency to
dence of strong his roots
demonstrate in the com- to undermine
munity arguments ignore reg-
inferences that would requirements,
istration violate the condi- or avoid probation, supervision
tions of his home I
returning country. there-
fore hold that defense con- counsel’s objective profes-
duct fell within norms of representation.
sional drug Appellant not contend evidence offenses does that defense of extraneous was improperly prejudicial); Holiday v. elicited extraneous-of Inns 931 counsel evidence, mentioned, 1996, 614, (Tex.App.-Amarillo рreviously and as S.W.2d 626-27 fense denied) (civil improper argu which no evidence of writ case in evidence of cites Thus, prejudicial); support citizenship he cites alien held to be not ment. the cases was 754, argument origin” 792 S.W.2d "national are distin scos 758 Ria 1990, See, Walker, guishable. e.g., parte (Tex.App.-Houston pet. Dist.] Ex [14th 427, (en ref'd) argument); (concerning improper jury (Tex.Crim.App.1989) S.W.2d banc) (Tex. (eliciting hearsay Knighton, extraneous-of Matter 685 S.W.2d writ) (civil prejudicial); App.-Amarillo evidence was no case in fense Standard 835, Reese, asking jury to Co. v. which it held that decide Fire Ins. (Tex. (civil 1979) finding custody religion based on wife’s case no reversible children Employers’ attorney argued lawyer prejudicial); Ins. where Tex. Ass'n error Jones, together (Tex.Civ.App.- doctor worked increase medical n.r.e.) (workers' bills); Employers' Haywood, Waco Tex. Ins. Ass'n v. writ ref'd com 242, 246, pensation in which court found harm 153 Tex. 858-59 case (Tex. (workers’ 1954) compensation argument improper jury based racial case *20 Berry, attorney religious prejudice prejudice); Penate which court found where jury (Tex.Civ.App.-ElPaso plea case made blatant to decide (civil n.r.e.) which the writ ref'd case in court based on idea that witnesses' "color alone incurably badge perjury”); prejudicial for an ... a held that it was Brown attorney decide a (Tex.App.-San urge case 293-94 Anto ref'd) (eliciting pet. (op. reh'g) citizenship). nio based