*1 ORDER arbi- position binding FTC’s current tration. The order was delivered PER CURIAM.
IV. CONCLUSION application post conviction The Court has mandated that corpus pursuant filed writ of habeas policy favoring enforcing FAA’s arbi- 11.071, provisions Article Tex.Code agreements trumps tration other federal CeimProC. com- congressional statutes absent a clear 1, 1991, applicant On June was convicted Congress’ mand. To determine intent murder. The of the offense of arbitration, prohibit binding courts review pur- answered the text, legislative history, and the statute’s 37.071, to Article suant Tex.Code Crim. no underlying policies. Because we find court, accordingly, set Proc., and the congressional Magnu- clear intent in the This affirmed punishment at death. policy son-Moss Act to override the FAA sentence on di- applicant’s conviction and arbitration, favoring that the trial hold State, 71,307 No. appeal. rect Brewer v. court did not abuse its discretion in com- 1994) June (Tex.Crim.App., delivered Thus, pelling arbitration. the court of (nonpublished). relief peals granting erred in mandamus allegations invalidating parties’ Applicant presents eight arbitration challenges conditionally agreement. application in which he Accordingly, we sen- validity The writ will is- of his conviction mandamus relief. findings entered court of tence. appeals sue if the does fact and of law and recom- judgment. vacate its conclusions mandamus denied.
mended relief be the record with This Court has reviewed allegations respect made judge’s findings adopt cant. We the trial upon and conclusions. Based and our findings court’s conclusions is denied. sought own BREWER, Ray Brent Applicant. PRICE, J., dissenting opinion filed HOLCOMB, JJ. joined by JOHNSON PRICE, J., filed a dissent to order Appeals of Texas. Court of Criminal in which dismissing Application, JJ., HOLCOMB, joined. JOHNSON Jan. trial coun- alleges applicant provide sel did effective request failed to because counsel services of Keffler, Amarillo, appellant. Rick examine the Owen, Prosecutor, Special trial. Because believe L. John very Austin, is—at Amarillo, presents a claim that Atty., looking closely, and at more least —worth State.
493
majority
bring
because the
fails to file and set
bear
skill
knowledge
such
this
for
case
further
as
will render the trial a
adver-
“reliable
testing
688,
process.”
sarial
466
at
U.S.
test
ineffective assistance of
2065,
at
104
80
at 694.
S.Ct.
L.Ed.2d
counsel
is contained
(citations omitted) (emphasis
Id. at 393
Court’s
opinion
Strickland v. Washin
added).
ton,
presumption
In other
of
words
668,
2052,
466 U.S.
104 S.Ct.
80
(1984).
strategy
does not attach
L.Ed.2d 674
Ineffective assistance
unless and until counsel has conducted
of
counsel
shown when “counsel’s con
necessary
legal investiga-
factual and
duct so undermined the proper function of
tion.
process
adversarial
that the
can
not
having
just
be relied on as
produced a
component
of
ineffective as-
687,
at
result.” Id.
Deficient of consists acts or “A reasonable ais omissions counsel that are “outside the bility sufficient to undermine confidence wide range professionally competent as- Therefore, the outcome.” Id. when coun- sistance.” Id. at 2052. In performance sel’s deficient undermines our reviewing the acts and of coun- omissions trial, confidence the outcome of we sel appellate courts must highly be defer- must reverse the decision and remand for ential. Id. at We must a new trial. counsel’s from the to- tality representation and not on applied When the law is facts isolated instances in the record. Id. case, this I think is incor- rect in concluding that the applicant
There
has
ai’e certain minimum standards
alleged
not
meet,
meritorious claim. Trial coun-
counsel must
In
however.
Ex
Welborn,
sel in
(Tex.Cr.
procure
this
case failed to
(c)
requesting
Presenting expert psychiatric and
double-edged
if he has
a “dou-
psychological evidence
examined? There is
infor-
sword”
edged
ble
*3
from
that
no indication
the record
ex-
Applicant
mation about
was, himself, a mental health ex-
by
exploited
prosecution.
the
posed and
making such
pert
capable
was
de-
jury
the
would consider such
Possibly
purposes, counsel
terminations. For these
to
in an-
adversely
Applicant
evidence
layperson and
have relied on
should
punishment
swering
danger”
the “future
expertise.
with mental health
someone
special issue[.]
Also,
proof
applicant’s
an offer of
about the
Law,
Findings of Fact and Conclusions of
have
the
mental condition could
served as
These
on
the
appeal
basis for .a claim
complete
justify
the
failure
reasons do
a
judge erroneously
denied
in-
condi-
investigate
applicant’s
the
mental
to
jury charge.
in
struction
the
for trial.
tion
finding
reason for
compelling
The most
nothing
Trial
counsel claims that
is that
performance deficient
trial counsel’s
suspicion
applicant’s behavior caused
the
beyond a
health evidence is useful
mental
status,
but the
about his mental
special
jury
issue. The
did re-
committed to a mental
applicant had been
on
dangerousness
ceive
future
instructions
hospital
depression only
severe
three
of-
and
with which the
the deliberateness
oc
the instant offense
months before
And an
can
was committed.
fense
is sufficient
alert trial coun
curred. This
to
challenging the
assist
trial counsel
have
some mental
been
experts
the
during
Moreover,
the
health issues.
If
examination had revealed
phase.
the
Oklahoma,
in Ake v.
have
that would
been
evidence
(1985),
ex
84 L.Ed.2d
helpful,
harmful to the
and
the
mental
that when
defendant’s
plained
have
counsel could
decided not
then trial
guilt
pun
is relevant
condition
trial. That
that evidence at
ishment,
a psychiatrist
“the
exploita-
prevented the State’s
would have
may well be crucial
defendant’s
by deciding
But
tion of the evidence.
80, 105
Id. at
ability marshal a defense.”
an
trial counsel made
investigation,
fore an
especially
true
that a
of this
uninformed decision
jury
when the
decides whether Court endorses with its
capital case
on
will live
die based
the defendant
from counsel’s defi-
Prejudice results
questions
answers to
deliberate
per-
the deficient
cient
when
the defendant committed
ness with which
the
is
undermine
formance
sufficient
and the defendant’s
the offense
of an ex-
trial. The result
outcome
the
id.
83-84
dangerousness. See
for future
amination
86-87,
In his and third reasons Cunningham, Mark a board certified Dr. counsel cites hiring expert, appli- psychologist examined forensic get he could after examin- about whether cant in 1996. His conclusions concerns interviews ing applicant, conducting from the trial mitigation reviewing parties, appel- third evidence of the and whether the history as follows: cant’s have condition would lant’s mental health unlikely [appli- Brent’s But is double-edged. how does been was com- in the offense conduct legitimate cant’s] is basis know whether there issue, mitigation special special mitted as this terms on [sic] but Jury actually presented defined Instructions. His issues that psychological, emotional, jury trial. The did interper- not have the benefit of this when sonal deficits at the offense it decided the I think the issues. represented impediment active majority wrong to not “careful and and, to not requested especially, file of the conse- awareness ground set this briefs review willful, slow, unhurried, and closer look the entire Court. though allowing for deci- sion.” Although trial counsel *4 to develop failed evidence that probability 2. The en- that Brent would was relevant to the gage future acts of criminal violence jury used to sentence the continuing would constitute a threat death, puts stamp society prison while is considered proval on the death sentence (1.61 quite to be per low. offenses inquiry. without further omission Counsel’s per year). Further, offenders undermines confidence in the result substantially less than that punishment phase of the applicant’s trial. represented by systemwide inmates prison system. the Texas Brent would not, then, be expected to dispropor-
tionate risk of violence in prison. that Brent would com-
mit future acts of criminal violence that
would a continuing constitute threat SERVICES, FINANCIAL REVIEW
society paroled serving a capital INC., Appellant, life sentence is also considered be low. techniques and research litera- v.
ture to reach the above con- The PRUDENTIAL INSURANCE clusions were May available in 1991 at AMERICA, COMPANY OF the time of Brent’s trial. Appellee Application for Appellant, Psy- Exhibit No. 14-96-01121-C V. chological Evaluation Factors relevant Texas, Appeals Court of to Capital Sentencing, at Ex parte (14th Dist.). Houston 587-01. Sept.
Evidence that was highly relevant to the special issues and that could have been
presented at trial was available. Dr. Cun-
ningham’s conclusions based on a
1. At spe- trial the criminal acts violence that would consti- cial issues were: continuing s society. tute threat to (1) Whether the conduct Deliberately defendant was defined as "a manner of that caused the death of the deceased was an act characterized committed and with the rea- from careful and expectation sonable that the death of the awareness of the conse- deceased or another would result. willful, slow, unhurried, Whether though allowing decision.” bility that the defendant would commit