Ex Parte McFarland

Tex.R.App. closing in repeatedly appellant five is ferred to P. Point of error 33.1. and the “17-year-old,” argument as overruled. object. In view State did error, appel point In sixth of and the docu implied State’s concessions that was seven lant contends because he consistently reflecting appellant’s ments years when the crime was com teen old birthdate, adequately reflects the record mitted, penalty of assessment the death than younger eighteen that was appellant against Eighth him the Amend violates the of the offense. years age of time the ment to United States Constitution. Supreme the Court’s mandate Pursuant to claim, support appellant In cites of Simmons, is appellant’s death sentence Roper, ex Simmons v. State rel. of im hereby to a sentence life reformed (Mo.2003), the United S.W.3d which Tex.R.App. 78.1; v. P. Herrin prisonment. Supreme granted certiorari States Court State, 436, (Tex.Crim.App. 125 S.W.3d the Eighth to reconsider whether Amend 779, 2002); v. Collier of by is violated the imposition ment . Point of error six is (Tex.Crim.App.1999) defendant penalty against death criminal sustained. years who was seventeen old when he modify judgment of the trial We committed the crime. life imprison- court to reflect a sentence of Supreme The United States Court has respects, judgment ment.8 In all other Simmons, Roper since decided 544 U.S. is of the trial court affirmed.9 -, 161 L.Ed.2d 1. The “Eighth has now held that the Court JJ„ KEASLER, WOMACK imposition Fourteenth Amendments forbid concurred. penalty of the death on offenders who age under of were their

crimes were committed.” 125 S.Ct.

1200, 161L.Ed.2d at 28.

There is in the record evidence appellant years old seventeen parte George Ex Edward offense, when he committed instant McFARLAND, and the does not contend otherwise. State Applicant. The offense was on or about committed No. AP-75044. July Appellant’s statement indi April cates his birthdate is Texas, Appeals of Court of Criminal sheet, booking report, the arrest En Banc. warrant, arrest and the trial court’s docket May sheet, record, all contained in the reflect April date of is appellant’s birth addition, In counsel re- defense four, points complain appellant error appear those In three now rul ings. complains alleged punish- about errors appellant’s phase. ment Because we reform judg- separate are 8. We note that there three imprison- life death sentence sentence case, and death sentences in this one ments ment, are moot. points three and four judgment each count. Each and sentence hereby of life modified reflect sentence imprisonment. III, Humble, Ap- for E. Herman Walter pellant. Atty., Hous- Roady Asst District

Jack Austin, Paul, ton, Atty., State’s Matthew for State.

OPINION these On issues. we November adopted court’s con- finding and COCHRAN, J., opinion delivered for on twenty- clusions claims through three a unanimous Court. However, three and denied relief. appli- an original This is application for writ of cant’s first two habeas claims deal corpus pursuant habeas filed to Article his trial attorneys provided whether effec- 11.071 of the Texas Code of Criminal Pro- tive of assistance counsel. The claim first cedure. was convicted of one of slept those attorneys murder and in August sentenced to death large portions through of the After trial. of 1992. This Court Applicant’s affirmed ineffective these assistance of counsel on appeal.1 Applicant conviction direct al- rejected claims were appeal, direct leged twenty-three claims for relief in his held, Johnson,3 Fifth Circuit Burdine v. original corpus habeas application filed on lawyer sleeps signifi- through May evidentiary 1997. After an hear- portions cant of trial ing, the trial court conduct Findings entered results Fact Conclusions of Law and recom- the constructive denial of counsel.4 Based denying Burdine, mended relief. upon we filed this' application our appeal reconsider decision on direct Fact, In his Findings judge that applicant failed to show that had noted that almost all twenty-three been counsel” “denied under the Sixth in applicant’s original habeas claims habe- or that attorneys Amendment corpus application provided as raised and been rejected constitutionally on direct appeal.2 There would assistance “ineffective normally evidence, be no habeas review counsel.”5 After reviewing the State, (Tex. (1963), allegation 1. McFarland v. 482 concerning pur- 215 the (en banc). Crim.App.1996) suppression ported grand jury of the testimo- ny of Burks and Walter the of the destruction 2. See McFarland v. 482 S.W.2d Craige tape telephone of Crime Burks’s call to (Tex.Crim.App.1996). One new claim assert- Stoppers. findings, In its writ the trial court applicant's appeal attorney ed direct was applicant concluded that that: failed to show constitutionally ineffective because his attor- grand jury testimony Mr. Burks’s contained extensions, ney many filed forced to show was evidence; Brady the State tran- withheld the filed, why timely cause the brief had not been script Mr. testimony; Burks’s of of admission ultimately poor and appeal, filed a brief. On jury grand testimony the would have been thirty-three points counsel raised of error in applicant; favorable to the State "withheld” supplemental initial the brief. He then filed a Stoppers destroyed tape the Crime which was raising thirty-five points brief more of error. Depart- with accordance Houston Police thoroughly Court This all of those addressed months; policy tape ment after six or the points lengthy published opinion. of a error in any exculpatory contained evidence. We appellate The trial court concluded that coun- adopted findings these and denied relief on representation "protect sel’s was sufficient to those claims on November right reasonably counsel effective in the Further, primary case.” applicant failed to (5th Cir.2001). 3. 262 F.3d appellate per- show but for counsel’s formance, prevailed likely he would have (concluding 4. Id. at “[u]n- that an appeal. parte Owenby, Ex S.W.2d equates conscious counsel to no at counsel (to (Tex.Crim.App.1988) prevail on inef- purposes all” for of the Sixth Amendment claim, appellate fective assistance of counsel case). right in a to counsel criminal defendant must "must to show be able appeal outcome of be the would different" specific Applicant's claims are as follows: counsel). provided competent 1) Brady Mary- A right second new claim Sixth to the was a McFarland's Amendment land, deprived. 373 U.S. 83 S.Ct. L.Ed.2d of counsel has assistance been ap- Fact, robbery-murder, the days the Four after Findings of and court’s Craige Burks called law, deny plicant’s nephew on those we now relief applicable men said that three and Stoppers claims as well. Crime two habeas Mi- in the crime: applicant, were involved I. Burks Clark, Albert Harris. chael and the that two weeks before testified at trial A. The Evidence at Trial driving Michael robbery, with he was a Shirley gro- and Kenneth Kwan ran Kwan’s pointed to Mr. Clark when Clark Mr. Kwan the cery store Houston. and going and said “he was grocery store Powell, security guard, store’s James went robbery and that to retire from armed money twice a to the bank week a bring him guy supposed to [sic] Chinese checks. On No- payroll cash customers’ that, on money.” of Burks also said bunch 15, 1991, the two men returned vember by day robbery, applicant came bag containing the bank a bank from of car with a “bundle his house in a new $27,000 they pulled up cash. to the As him, brother, money” and took store, applicant sitting Powell Mr. noticed uncle for a ride. told them lap. baga on his As nearby with leaves hobo, a a and shot had dressed like robbed got and Mr. out of the Mr. Kwan Powell on the guy, pulled pistol Chinese car, jumped up and shouted security he and guard. He claimed that Powell, carrying shotgun: Mr. $50,000. accomplices his two stole gun. gun. you If “Drop Drop in- don’t, Stephens Bill your I’ll brains Houston Police Officer blow Goddamned robbery-murder Mr. gun. vestigated dropped out.” Mr. Powell Mr. store, Ste- tip, ran to the door of the on Burks’s Officer Acting Kwan front Kwan. him. fired Powell Bartie phens but two shots showed Mr. and Ms. doorway inside for a sec- Powell a tenta- photo line-up. Kwan stood made dropped then floor as more Ms. applicant, ond and to the tive identification fired. Applicant’s accomplice shots were positive Bartie identification made As appli- followed Mr. Kwan into the store. him. yelled the bag,” accomplice, cant “Grab the phase, the State During punishment the Kwan,

wearing mask, a ski Mr. stood over prior applicant’s of three offered evidence back, grabbed him in the and the shot convictions, robbery, including an armed bag. bank Mr. died from his Kwan unadjudicated three of- and evidence of He had shot a total of five wounds. been fenses. times. First, 1991, applicant of September in Bartie, a and of Carolyn friend customer in the employees robbed two Wal-Mart Kwans, robbery-murder the the saw entire from they lot as parking store returned in lot. parking her car the store’s from $5,000in One of the bank over cash. with Bartie testified that she waved Mr. Ms. man applicant as the car, the victims identified Kwan, getting out of his and who and gun to head put a machine nearby. applicant sitting She she noticed money. and his Applicant not a demanded his face. He did wear could see employee’s in accomplice off attempted never to cover his drove disguise and truck, fol- and, one of victims when face. 2) prejudiced the ness outcome representation McFarland falls far and The objective trial. an standard reasonable- below car, lowed in applicant got seventy-two-year-old them another John Benn. He re- out of the truck and fired a shot at him. tained though Mr. Benn even Mr. Benn capital had never tried a murder case un-

Second, just days two after the Wal- der current Texas law. Three months af- Mart robbery, applicant was arrested for ter Benn first made court appearance, nightclub altercation in parking a lot. caution, judge, the trial in an abundance of evening Earlier in the he a gotten had into appointed Sanford Melamed to serve as shouting nightclub match another pa- with Mr. Benn’s co-counsel. Mr. tron. A Melamed was security guard later saw the men lot, considerably still shouting parking younger attorney in the then with con- (later applicant saw a handgun siderably experience, retrieve more trial albeit not found hollow-point to be loaded with bul- The judge cases.6 Mr. warned hjs lets) put gun from car and to the Melamed that to follow he was Mr. Benn’s man’s, security other back. The guard ran lead; he was not to make decisions over grabbed it. the case seeking approval without first However, of both applicant. Mr. Benn and

Third, police December re- judge warned also Mr. Melamed ceived a forthcoming information about that he prepared try should be “bank-bag on robbery” Lockwood. For entire case on his own. they over an hour followed Michael Clark —one of applicant’s accomplices in nothing wanted to do with Mr. robbery-murder driving of Mr. Kwan— sign Melamed and the appoint- refused Jeep they red town around saw only ment of counsel form. He wanted applicant getting of a stolen van out which Frankoff, Mr. Benn’s assistance.7 Richard had been with the traveling Jeep. represented an attorney who had applicant on put punishment defense three charges, other criminal sent phase witnesses. The custodian of records stating letter that he had known Mr. Me- for County the Harris Jail testified that years, lamed for very is a com- “[h]e applicant had been involved in any mitted competent attorney,” and that disciplinary in custody incidents while applicant should talk Melamed. supervisor murder. at a Applicant’s Benn, applicant, also like refused paper company testified that applicant was Mr. Melamed’s assistance. Mr. Melamed good during five-year employ- worker repeatedly tried to meet with Finally, ment. applicant’s wife testified strategy that she and retained counsel to discuss trial two children always good up that he had been and divide trial duties. Mr. Benn kept her. result, putting him As a off. the two Legal Applicant’s Representation B. contact, lawyers virtually pre-trial no had they a Shortly capital significant after arrest for never had substan- mur- der, counsel, his own hired trial tive conversation about the case. by foisting lawyer upon 6. Sanford testified at the appointed Melamed writ hear- an him to ing practiced that he had criminal law for assist his retained counsel. 928 S.W.2d at years, fourteen been retained appoint- had or "[wjhere 508. This Court concluded that ed in over two misdemeanor hundred cases deems, case, trial court as the instant cases, felony and over six hundred and had assistance, may retained need counsel it is approximately thirty felony jury tried trials. acceptable sponte appoint to sua additional counsel, does not violate a defen- [this] Ironically, applicant's appeal one of direct right dant's to counsel choice.” Id. claims trial court was that the violated his right to counsel of "constitutional his choice” trial, he motion for new hearing on the he knew that testified that Mr. Melamed I customari- years “I’m old. explained, client nor co-counsel wanted neither his case. Mr. Me- afternoon.” nap involvement this take ly a short not want come between Mr. no- lamed did to in the Virtually everyone courtroom but, as the trial applicant, Benn and sleeping.8 Melamed Mr. Mr. ticed Benn neared, trying be he realized he would sleeping saw Benn stated that he first Mr. essentially by Mr. Benn tes- himself. dire, case got and it worse during parts of voir hearing that evidentiary at the writ tified said that as the trial He progressed. just for preparing he hours spent four chair dur- nudge Mr. Benn’s bailiff would He also capital murder trial. him, judge and the ing the trial to awaken any pre-trial he file admitted that did not occa- Benn on numerous admonished Mr. motions, subpoena interview or wit- sions.9 nesses, or visit the crime scene. case-in-chief, put on During the State its Melamed, hand, on other testi- Mr. witnesses, cross- fourteen but Mr. Benn to steps pre- that he took numerous fied Although three. Mr. Benn only examined pare studying capital for murder trial — mit- prepare applicant’s said he would treatise, consulting capi- experienced punishment phase, he igation case for the lawyers, observing tal-litigation portions not, Mr. again so Mr. Melamed did. did trial, filing numerous pre- argument did present closing Benn that, by Mr. trial motions. Melamed said extremely jury. His remarks were fully time pre- the trial he was began, jury not to simply concise. asked the He pared handle of it. every aspect Had for swayed by “eye eye” an an mentali- be time, he preparation needed more would sympathy to have ty, but rather for a continuance. have asked and to his life. spare client judge trial Mr. Melamed said that the asked least twice before the II.

trial whether he wanted to continue with said, counsel Applicant retained Mr. Benn. that he contends both Applicant ‘Yes,” requested and he or never other the Sixth was denied counsel under counsel. never additional ex- that he consti Amendment and received pressed dissatisfaction with Mr. Benn to tutionally assistance of counsel. ineffective judge either the or Melamed. Mr. a de Washington,10 Under Strickland trial, claiming fendant ineffective assistance provided At Melamed (1) coun legal demonstrate that representation; lion’s share of must objective an during trial. At the sel’s conduct “fell below slept Benn sometimes waiver, the court made pro- affidavit in the habeas raise issue of In an submitted Thus, juror ceeding, one that Mr. Benn's will not findings stated that issue. we no disgusting sleeping "was so blatant and that it defendant question address of whether a subject different, within the was the conversation accept the offer of who refuses couple jury panel a of times.” counsel, appointed he knows lead awake does remain his retained incidents, judge these After one of trial, during Amendment forfeits Sixth again applicant wanted different asked if he penchant for that counsel’s claim based on appointed. Again, applicant de- lead counsel napping. The writ does not indicate clined. record applicant knew that his re- whether himself 668, 2052, 104 S.Ct. 80 L.Ed.2d 10. 466 U.S. lawyer frequently napped during the tained (1984). 674 might Although well present facts trial. 752 reasonableness,” (2)

standard of this Court that held defendant’s Sixth incompetence caused defendant preju- rights Amendment are violated “if the ac Strickland, however, dice.11 Under there cused is denied at a counsel critical prejudice are a which few- situations in Cronic stage.”16 Under its progeny, under the second prong presumed will be only defendant is denied not counsel when because these errors .both “easy are physically is absent from the identify” “easy government for the but proceeding, mentally when is ab prevent.”12 situations, In those it is well, ie., asleep, sent as counsel is uncon “likely case-by-case inquiry that prej- into scious, non compos actually or otherwise udice worth pre- is not the cost.”13 Such mentis.17 of Cronic is This prong epito sumed-prejudice errors include the “actu- “potted mized by plant” the “inert”18 or al or constructive denial” of counsel or who, lawyer although physically and men “state interference” with counsel’s assis- courtroom, tally present fails to tance.14 (or provide is from prevented providing) any meaningful In assistance.19 this situa A. Actual or Constructive Denial of tion, presume prejudice courts based upon Claim Counsel the actual- denial or constructive of counsel Applicant’s first claim is that he “when such absence the overall threatens constructively was or actually denied coun trial.”20 fairness of a attorney’s sel per because retained agree We that did not have sistent of napping during habit the trial. during active Bern’s assistance argues He slept when Benn postprandial naps trial, naps and that those oc- through portions of significant during stages” totally curred “critical of his trial. deprived was that coun However, sel’s assistance. as this Court stated notes that direct Cronic,15 United States v. Supreme appeal ease: of this Strickland, 687-88, 11. attorney slept through 466 U.S. at 104 S.Ct. cause his a substantial trial). portion of his 692, Johnson, 278, 12. Id. 104 S.Ct. 2052. v. F.3d Gochicoa 238 284-85 Cir.2000) (5th prejudice (stating pre- is 13. Id. sumed under Cronic’s constructive denial of "only prong when the defendant dem- merely onstrates that counsel 14. Id. incom- inert, petent distinguishing shoddy repre- but all”). 648, 2039, representation at sentation from no 15. 466 U.S. 104 S.Ct. 80 L.Ed.2d (1984). 657 685, Cone, 696-97, v. See Bell 535 U.S. 122 659, 1843, (2002) (noting S.Ct. 152 16. Id. at 104 L.Ed.2d 914 S.Ct. 2039. Cronic, attorney’s under failure to test 2039; prosecution's “complete”; be case must 104 see Id. S.Ct. also Bur “ Johnson, (5th only 'entirely defense counsel fails to dine v. 345 F.3d Cir. 2001) (en banc) subject prosecution’s case to (distinguishing adversarial between the ” testing’ presumption prejudice ap- does total lack of counsel and ineffective assistance Cronic, counsel; ply) (quoting 466 U.S. at noting prejudice presumed Nixon, trial, 2039); "when, see also v. during Florida stage of a critical coun -, -, 551, 555, absent, (1) (2) U.S. 125 S.Ct. totally present sel or is either assistance"); Jones, (2004); v. L.Ed.2d 565 French 332 F.3d prevented providing but from effective (6th Cir.2003). States, United F.2d Javor (9th 1984) (defendant's 833-34 Cir. Sixth Burdine, right to counsel was violated be F.3d at 347. Amendment because Mr. Benn’s conduct attorneys. Appellant by threatened had two Appellant active, awake, and an his co-counsel was Additionally was never without counsel. testing in the zealous adversarial at for advocate stated the motion new Melamed prosecution’s case. that do hearing prepared he was to trial Although in the do everything case. we of Counsel B. Assistance Ineffective behavior, viewing not condone Benn’s Claims circumstances, totality appellant relief, applicant claim for In his showing make that he was second fails to counsel un- alleges assistance of effectively represented at ineffective by der Strickland because of his counsel’s Melamed.21 (1) properly to: investi- collective failure attorney, Benn the sole Had Mr. been (2) trial; effectively for gate prepare right applicant’s Sixth Amendment to (3) witnesses; the State’s cross-examine might well been denied under counsel have witnesses; (4) mitigation advocate call But, Cronic. Mr. Benn was not sole closing during argument the client at attorney. (5) con- punishment phase; reveal a Applicant contends al now flict of interest.23 constant, though he did have the actual “ineffective prevail To these lawyer, of a participation active second claims, satisfy applicant must assistance” lawyer was an inexperienced “Melamed First, of the Strickland test. prongs both by who was blind deference to paralyzed that his conduct prove he must counsel’s lead counsel.” He often unconscious assessing In objectively was deficient.24 that he is to asserts entitled relief under this, acting as if was we look see Cronic “presumed and its prejudice” stan competent attorney” would reasonably “a attorneys both of his “entire dard because has Applicant under the circumstances.25 ly subject prosecution’s case fail[ed] and must overcome proof the burden of testing.”22 to meaningful adversarial Be per “strong that counsel’s presumption below, cause, as discussed we conclude range formance fell within wide provided that Mr. Melamed constitutional assistance.”26 professional reasonable ly representation, necessarily effective we employed highly This deferential review reject proposition of hind distorting to avoid “the effect “no meaningful assistance.” 27 Thus, show sight.” applicant must circumstances, so serious attorneys Under these we cannot his made “errors the ‘counsel’ under Cronic. presume functioning counsel was not as prejudice Appli- by the Sixth guaranteed the defendant cant has failed demonstrate that his trial Amendment.”28 fundamental fairness of Nailor, 2039; parte Id. at S.Ct. Ex 21. 24. S.W.2d 505. (Tex.Crim.App.2004). Cronic, 22. 466 U.S. at 104 S.Ct. 2039. Strickland, S.Ct. 25. 466 U.S. at "sleeping lawyer” included his one of his enumerated "ineffective claim as claims, Id. at but because another assistance" repre- provided zealous competent interludes, Id. during we need sentation those Benn’s not address the issue of Mr. ineffec- S.Ct. 2052. 28.Id. tive assistance. Second, appli hearing, even if habeas At the writ Mr. Melamed testi- cant pretrial can demonstrate that his counsel’s fied to preparations. numerous deficient, objectively example, actions were he must For leading he studied the trea- tise, prove performance still that their deficient capital murder defense. He also with, prejudiced observed, his defense.29 He must demon consulted and discussed - strate that probabil “there is a reasonable the facts of this case with three other - that, ity unprofessional but for counsel’s attorneys experience defense who had errors, addition, the result of proceeding capital would murder trials. In he re- Supreme have been different.”30 The viewed the State’s files and submitted proba eight pre-trial motions, Court has defined this “reasonable including a discov- motion, bility” “probability fees, as a ery investigator sufficient to under a motion for mine suppress confidence the outcome.”31 In motion identification evi- cases, dence, capital question is whether the and numerous motions in limine. defendant would not have been found investigator, He hired an visited guilty Jail, murder or whether “there County once the Harris and con- probability is a reasonable him telephone absent the ferred with on the and dur- errors, the ... ing sentencer would have con trial. cluded that aggravating the balance of and explained Mr. Melamed that his mitigating did not circumstances warrant investigator did not to interview attempt death.”32 Absent chal some effect the State’s because he “be eyewitnesses

lenged reliability conduct on the of the lieved it a good would not have been ex process, guar the Sixth Amendment penditure fees,” of investigator’s and he antee generally implicated.33 is prosecution being gen viewed witnesses as erally unwilling “voluntarily turn cooperate”

We now to each of strategic with defense counsel. This was a claimed ineffective assistance errors. decision, made after Mr. Melamed consult 1. Investigation Prepa- Pre-trial experienced ed with more in Har ration Claims Instead, County.34 ris he had his investi scene, gator nearby visit the crime canvass Applicant claims that neither of attempt eye locations in an to find other attorneys “perform[ed] any pre-trial witnesses, scene, photograph the crime investigation, let alone reasonable investi diagram, construct a scene review gation.” He that Mr. claims Melamed’s report reports ballistics and offense failure to prosecution interview the wit him. unreasonable,” “manifestly nesses was Further, argues against applicant finally spoke “State’s case Melamed, McFarland was thin at best.” gave with Mr. counsel a list judge, presumably Id. "[t]he district who is legal familiar with the talents and character Id. at 104 S.Ct. 2052. lawyers practice at the local bar testify, and who saw and heard the witness Id. position we are evaluate in far better than kind, Id. at 104 S.Ct. 2052. charge regional of this and the courts appeals position are in a far better than we Cronic, 466 U.S. at 104 S.Ct. 2039. appellate are to conduct review of these heavily rulings”). fact-based 776, 785, Burger Kemp, 34. See 483 U.S. (1987) (noting 97 L.Ed.2d contra- by Craige Burks witnesses, portedly signed Melamed potential but Mr. (and testimony much of trial dicting locate them. Melamed was unable to witnesses, of the calling establishing perjury on one suggested possibly also various Burks, Frankoff, or or occasions), showing including Mr. Walter but is no there two member, family challenge some other to have told would that Mr. Burks suggestion Craige competency credibility and at version he testified anyone this before of the State’s star witnesses-but Burks-one under Strick- Thus, fails, applicant trial. rejected sugges- all applicant of these land, in counsel’s to demonstrate prejudice tions.35 pre- additional failure to conduct alleged investigation. trial trial court found that Mr. Melamed

The trial developed two-pronged defense record, we upon our review of Based (1) began: trial that strategy before findings that agree with court’s “com- person who committed the murder ob- was preparation Melamed’s mitted, most, than felony murder rather circum- reasonable under jectively (2) murder”; and that the evidence tri- consistent a coherent and stances to reason- prove, beyond was insufficient strategy. al doubt, and applicant present able that was Claims Cross-Examination the offense. trial court committed found, appeal, as did this Court on direct that his attor Applicant claims pre-trial investigation was counsel’s adequately to cross-examine neys failed constitutionally reasonable.36 definitively only two witnesses who Bartie, crime, an Carolyn tied him to the

Furthermore, fails applicant Craige to the eyewitness killing, how the to conduct demonstrate failure im Burks, Stoppers called Crime investigation pretrial prejudiced further that his plicate Applicant uncle. claims him. argues that if defense Applicant Bartie’s have Ms. lawyers should attacked interviewed Burks or Craige counsel had However, eyewitness.37 an credibility as grand-jury testimony more reviewed consistently at both testified Ms. Bartie they would discovered thoroughly, have at trial that hearing and testimony the identification “inconsistencies” between that security applicant holding the testimony. and his trial also relies she saw He Moreover, firing at upon post-trial pur- guard undated Mr. Kwan. affidavit State, (Frank) impeaching testi witness’s McFarland 845 S.W.2d from one See v. 1992) ("When (Tex.Crim.App. a de mony testimony other witnesses. 848 with the strategy by preempts attorney's State, See, fendant McKinney v. S.W.2d e.g., 491 put insisting be on or that certain evidence 1973) (allowing (Tex.Crim.App. prosecu out, assistance kept no claim ineffective if to ask defendant cross-examination tor sustained”). can be testifying “lying” were for State’s witnesses inconsistently version with defendant’s McFarland, 928 S.W.2d at 500-01. error); Ma argumentative, but not reversible (Tex.Crim. son v. Specifically, applicant points out that Ms. Henke, 222 F.3d originally as United App.1969); described the assailant States Bartie pounds, (9th Cir.2000) being approximately (forcing 5’8” and 150 a witness testimony asserts that he is 6'2” whereas on another witness’s comment argues that coun pounds. Maluia, also Hawaii inappropriate); State v. Ms. the fact sel to confront Bartie with failed (2005). be Counsel cannot 108 P.3d con purportedly that her version event something failing to do condemned by with the factual accounts offered flicted permitted to do. is not he But, at the if that witnesses scene. even other true, prevent an the rules of evidence were she photo grand jury identified from a before the he stated appli- spread lineup. and a live cant discussed the murder while they were house, trial, in a family yet member’s Cross-examination is inherent they testified that discussed the murder ly risky, and a decision not to cross-exam However, riding in a car. while these two ine a witness is often the result of wisdom statements are not in necessarily conflict acquired by experience in the combat of another, they easily with one can be trial.38 It is frequently sound trial strat event, any impeach- reconciled. In it is egy not to attack a sympathetic eyewitness relatively ment on a minor issue.41 very strong without impeachment.39 Oth sum, In counsels’ failure to cross-ex- erwise, an reinforcing risks the amine discrep- these witnesses on certain eyewitness’ previous identification of the objective ancies did not fall an below defendant as the assailant.40 standard of Applicant’s reasonableness. Furthermore, cross-examination is suggestion that cross-examination should art, science, not a and it cannot be ade- way have conducted in a been different quately judged hindsight. For example, not presumption “does rebut the that had counsel so vigorously cross-examined counsel’s conduct fell within the wide Ms. Bartie toas raise serious doubts about range professional of reasonable assis- applicant’s identity as the robber-murder- 42 Moreover, applicant tance.” to fails er, might the State well have been allowed probabil- show that there is a reasonable during guilt stage to offer evidence the ity that the result of likely applicant’s about extraneous Wal-Mart would have been different attor- had his “bank-bag” robbery two months before the neys impeached the witnesses on these A strategy offense. defense that particular matters. avoids the introduction of extraneous of- upon reading Based its trial rec- 404(b) fenses under Rule is not constitu- ord, “during the habeas court found that tionally ineffective. guilt-innocence phase applicant’s Next, applicant trial, contends vigorously trial counsel cross-exam- counsel should questioned Craige have ined all of the wit- State’s substantive previous Burks about in his any inconsistencies nesses ... addressed [and] conflicts testimony grand jury. particu testimony.” to the In witnesses’ Like the claims lar, above, rejected he claims that when Burks testified this issue was raised and State, (Tex. Applicant 38. Coble v. 501 S.W.2d also claims that counsel should Crim.App.1973). pointed inconsistency have out an internal Craige testimony. point, Burks’s At one applicant See, State, Burks testified that said that he shot e.g., Dannhaus v. Dist.]1996, complainant, but later testified (Tex.App.-Houston [14th 'd). that Albert Harris shot the said pet. ref closing complainant. During argument, the pointed State out that Mr.-Burks testified that ineffective, (noting "[i]f See id. cross- Harris, applicant, shot Mr. Kwan. Had not can to examination serve bolster the credibili- emphasized point that Mr. defense ty very of the witness and underscore the testified that shot the Burks also sought points impeached. that are to be harmed, complainant, might Thus, this well have good to unless there is basis on which helped, not the defense case. cross-examine ... it can be more effective to cross-examining damaging wit- refrain from impact ness to minimize the his testimo- S.W.3d Resendiz omitted). (citation ny”). (Tex.Crim.App.2003) develop attempt Melamed’s appeal.43 Applicant does rebuked on direct specifically witnesses per- punishment sufficient new evidence present Benn that counsel instructed Melamed original that our decision was suade us and, it; that counsel take care of would wrong. care of that he would take Benn stated Mitigation Evidence Claims present relatives having attor that his claims punishment phase. for the neys failing present ineffective were allegation that Despite his writ mitigation punishment witnesses at have called number counsel should Although stage of his trial. the defense members, witnesses, family ap including only min punishment lasted fifteen case plicant only potential mitigation names one utes, automatically fact does not alone Mr. Frankoff Richard Frankoff. witness: in ineffective assistance of counsel. result formerly repre had is an responsibility of the a short Some such and had him Mr. McFarland known sented mitigation applicant.44 lies with Mr. case affidavit, years. In his Mr. eight for over attempted Melamed to obtain the names testi Frankoff states that he would have possible punishment appli witnesses from McFarland to be fied that he knew Mr. however, Applicant, Mr. cant. rebuked agreeable” and not “friendly and a “violent attempts develop punish Melamed’s testimony Although Mr. Frankoffs man.” specifically ment instructed witnesses on could have been ben direct examination family.45 him to not contact members defense, might attorneys eficial to the He told Mr. Melamed that Mr. Benn would strategic have made wise decision well portion handle that of the trial. calling him. If Frankoff had testi not The trial court found that Mr. Melamed fied, permitted the State would have been applicant talked with for several hours on past repre to cross-examine him about potential punish- several occasions about specifically, applicant, sentation ment-phase appli- evidence and discussed on “violent” representation the Walmart cant’s personal life with him. Mr. Mé- essentially “bank-bag” robbery, was which lamed no determined there were image case. mirror of this Penry-tjpe applicant’s issues case. Melamed made a court found that Mr. upon Based the evidence at hear- the writ decision not to call Mr. Frankoff strategic ing, the trial court further found Moreover, phase. during punishment attempted applicant specifically requested

that Melamed to obtain himself testify. called possible punishment names of that Mr. Frankoff not be witnesses involved, hazards we applicant; applicant potential from the Given McFarland, specific, explicit directive to re 928 S.W.2d at 506. calling po contacting specific from or frain Strickland, 466 U.S. at See McFarland, (Frank) witnesses. See tential ("The ac- reasonableness counsel’s 848; Duncan v. S.W.2d may substantially in- be determined or tions (Tex.Crim.App.1986)(stating that by defendant’s statements fluenced own attorney’s strategy preempts defendant based, quite actions are or actions. Counsel’s insisting by particular that a defense be fol strategic properly, made informed choices stand; lowed, will claim of ineffectiveness supplied by and on information the defendant holding counsel was not ineffec that defense defendant”). by the strategy attempted to when he follow trial tive defendant). upon by Applicant that his counsel cannot claim "thrust him” abiding by constitutionally deficient for However, cannot guilt. conclude that counsel’s decision not argument was made call to Mr. Frankoff constituted ineffective punishment at the phase jury after the had assistance.46 Therefore, already found guilty. objectively Mr. Benn’s conduct was not

Furthermore, this matter was raised merely deficient: he accepted what rejected appeal.47 on direct Applicant jury already Additionally, decided.49 witnesses, any specific has failed to name even if Frankoff, counsel’s comments were an other than Mr. whom his attor- admis- neys guilt, should have sion of prove contacted or called as has failed to Likewise, mitigation witnesses. he has they prejudiced his case. failed to show that these unnamed wit- has not shown but for Benn’s to testify nesses were available or that argument, jury likely would have an- testimony their would have benefitted him. special differently.50 swered the issues He Therefore, he prejudice.48 fails show has prove prong failed to either Strickland test. Jury Argument Claim Next, applicant claims that Mr. Interest Claim Conflict of closing jury during Benn’s remarks to the punishment phase essentially conceded Finally, applicant claims that Mr. guilt and bolstered the State’s case. Benn had a conflict of interest. He con Mr. Benn was person speak the last to to tends that Benn previously represent jury on part behalf. As Clark, was, ed Michael according who remarks, closing jury he told the that: Burks, Craige in peripherally involved this exchange

If we could George’s life for capital murder. Kwan’s], say I alright, [Mr. would man killing going bring but one is not The trial court that concluded Eye back the life of another man. for ground relief on this should denied be eye, a tooth for a tooth went out of First, applicant various reasons. failed to civilized religion long ago. time attorney show that his is the same John Applicant argues that Benn who jury represented would inter Michael Clark or pret person these comments as an that this admission was the same Michael (Frank) McFarland, 848; State, 227, 46. See 845 S.W.2d at 49. See Butler v. 872 S.W.2d 245-46 Cain, 269, (counsel see also Williams v. 125 F.3d (Tex.Crim.App.1994) capital mur- in (5th Cir.1997) (judging performance counsel’s conceding der trial was not ineffective for through "highly deferential” lens and with a guilt during closing argument defendant’s view to "the facts and resources available to punishment stage; noting that counsel "[t]rial trial,” concluding the time of appellant’s guilt conceded as a basis for his strategic that counsel’s decisions were based that, God, argument eyes in the two professionally competent informed and as- wrongs right”). would not be able to amake available). sessment of the information closing argument if Mr. Even Benn's strat- 47. 928 S.W.2d at 501. norms, egy professional fell below it "cannot State, 42, (Tex.Crim. King v. 649 S.W.2d form basis of constitutional ineffective ("Counsel’s App.1983) failure to call wit assistance of counsel claim because there is guilt-innocence punishment at the nesses prejudiced [applicant] no evidence that or [it] stages showing is irrelevant absent a 'permeated entire with obvious [his] trial un- ” appellant such witnesses were available and Dretke, 878, fairness.’ v. 404 F.3d Martinez testimony”); would benefit from their see also (5th Cir., (5th 2005) (quoting v. United States Anderson, 631, Sayre v. 238 F.3d 635-36 Jones, 325, (5th Cir.2002)). 287 F.3d Cir.2001). rv. might had some involve- have Clark Second, even if Mr. in this case.51 ment case this evidence Clark, represented had once judge recognized Benn shows that clearly the although sixteen he was representation occurred Mr. Benn — elder wanted —was attorney applicant murder was sole capital before this months try murder unprepared to ly and Finally, important- and most committed. judge caught between The trial case. testify in this did not ly, Michael Clark hand, Charybdis. On the one Scylla and Therefore, never had the case. Mr. Benn might not that Mr. Benn he could foresee Any him. to cross-examine opportunity representa reasonably competent provide actual never became an potential conflict Amendment, a tion, and, under the Sixth does conflict of interest.52 Nor competent entitled to criminal defendant rep- claim but for Mr. Benn’s earlier hand, a On the other representation.54 Clark, have would resentation also has a Sixth criminal defendant him a witness. called as retained privately to the right Amendment that his choice,55 has failed show judge a trial counsel of con- by any burdened actual a defendant’s unilaterally counsel was remove may not extraordinarily and that the conflict had an without flict of interest retained Thus, judge performance.53 good cause.56 adverse effect on counsel’s actual conflict of inter charged tion of the witness an Clark was never 51. Michael Martinez, transaction, although 630 F.2d offense related to this est exists. United States Cir.1980). (5th applicant in other mat- he was involved with ters. Taylor, 535 U.S. 171- 53. See Mickens v. Routier v. 579- See (2002) 152 L.Ed.2d 291 (Tex.Crim.App.2003) (lengthy 86 discussion of 348-50, Sullivan, Cuyler U.S. at (citing v. potential and actual conflicts of interest 1708). 100 S.Ct. capital prosecution). context of murder Here, Routier, sup- as in the record does not 693, Strickland, 466 U.S. at 54. port applicant’s conflict claim that an actual 2052. best, allega- of interest existed. At possibility tion of a conflict of inter- shows 153, States, 486 U.S. 158- 55. Wheat v. United showing potential conflict of est. The of 1692, 59, (1988) 100 L.Ed.2d 108 S.Ct. actual conflict interest does not constitute an (Sixth criminal defen- Amendment affords Routier, at of interest. 112 S.W.3d 585-86. and, a con- right of counsel absent dants the prove of counsel To ineffective assistance problem ethical of interest or similar flict interest, an actual of based on conflict right pri- necessitating disqualification, the (1) defense counsel was defendant must show their own choos- vately retained counsel of interest; (2) by burdened a conflict of and 731, Prejean, ing); parte 625 S.W.2d Ex specific adverse effect on in conflict had an (mandamus grant- (Tex.Crim.App.1981) relief Cuyler performance. v. counsel’s stances of Sullivan, judge in murder case ed when trial 335, 348-50, 100 S.Ct. 446 U.S. disqualified counsel for a conflict retained 1708, (1980); v. 64 L.Ed.2d 333 Monreal waived; explicitly defendant had interest that 559, (Tex.Crim.App. 947 S.W.2d the selec- stating "freedom of choice in 1997). if actual conflict of interest exists An guaranteed by the accused” is tion of counsel required between to make choice as by and state constitutions both the federal advancing a fair trial or his client’s interest in statute). byas Texas well advancing the detriment of other interests to Monreal, at his client’s interests. Clinton, 780 S.W.2d Stearnes v. See attorney to cross- When an is unable (trial do not (Tex.Crim.App.1989) courts government witness or is hindered examine a disqualify defense power” to have "inherent priv of a a cross-examination because in such choice). prior representa counsel of ilege arising from counsel's case did his satisfy best to both of charge these of a capable- attorney (again, at requirements: constitutional appointed public expense). refused. experienced competent (Ante, 9.) and co-counsel n. to assist Mr. Benn and take over as neces- Having resisted the efforts sary. court to him give the effective assistance of counsel,' although having

We conclude knowingly one of exercised his attorneys slept through portions right of the being represented by continue trial, applicant lawyer was not deprived slept rather than capable assistance of lawyer, counsel under the applicant may the Sixth not now com- Amendment plain because his second about his choice. present and an active advocate at all Furthermore,

times. applicant has failed

to establish that he received ineffective

assistance of deprived counsel which him Sixth Amendment right to. a fair

trial. deny We therefore relief. WOMACK, J., a concurring filed Tony Roy ELARDO, Appellant,

opinion, joined KELLER, P.J., by JOHNSON, J.

WOMACK, J., a concurring opinion filed Texas, Appellee. The STATE of KELLER, P.J., JOHNSON, which No. 06-04-00060-CR. J., joined. Texas, Appeals Court of In addition to the denying reasons for Texarkana. relief that gives the Court opinion, its I join, which I wish add another: The Submitted Feb. waived, trial, the complaint Decided March brings that he today. Opinion Overruling Rehearing As the Court’s account says, appli- April (ante,

cant chose and an attorney hired at 750), spurned the trial court’s efforts

give him attorney the assistance of another 750)

(ante, at or to let him change attor- (ante, 751).

neys going He insisted on

to trial with the counsel of his choice.

This was right, which the trial court

could not have denied him. court, seeing careful trial that the

applicant had poorly, provided chosen him

with the qualified assistance of a public’s expense.

at the

When it was obvious his chosen (see ante, asleep during

counsel fell

751), the trial court asked the if wanted have the trial continue in the

Case Details

Case Name: Ex Parte McFarland

Court Name: Court of Criminal Appeals of Texas

Date Published: May 18, 2005

Citation: 163 S.W.3d 743

Docket Number: AP-75044

Court Abbreviation: Tex. Crim. App.