*1 46
if still on direct appeal, is to be required Keith WHITE. parte
considered Ex Wendell and applied “prospectively.” We have held that an Atkins claim is 74757, 74758. Nos. equivalent to an affirmative defense. If n we that, believe then we must Appeals believe of Texas. of Criminal Court a jury must pre consider the fact issue 29, 2004. Sept. by equivalent sented affirmative this of an defense. 15, 2004. Dec. Rehearing Denied
Ring, Apprendi v. Jersey, New 530 U.S.
466, 120 2348, S.Ct. 435 147 L.Ed.2d
(2000), and Blakely v. Washington, 296,
U.S. 403, S.Ct. 159L.Ed.2d
all stand for the a factor proposition that
that increases by a must be found sentence
a jury beyond a doubt. With reasonable
Atkins we talking equivalent are about
of an affirmative defense than sim- rather
ply an increase A sentence. suc-
cessful Atkins claim can decrease a death
sentence to the alternative, only a life sen-
tence. I believe it correct to logically
that, if the claim a which entitle
defendant to a life not consid- sentence is by
ered a jury and made decisionis
the trial court, the trial court’s is decision equivalent to an in the sentence increase from life to Therefore, jury death. a must
address the issue of mental retardation this case.
Because appeal still on direct this case is
and must mental retardation issue of
be by jury, this Court should addressed case determination
remand ability is “so appellant’s whether mental
impaired range as to fall within
mentally whom about retarded offenders
there their against is a national consensus” Virginia, U.S. at
execution. Atkins 2242. Since majority 122 S.Ct. hold,
does not I respectfully so dissent. *3 Firm, Schaffer,
Randy The Schaffer Houston, Applicant. for Office, Houston, Attorney’s District Austin, Paul, Atty., for Matthew State’s State.
OPINION PRICE, J., opinion delivered KELLER, P.J., Court, in which HERVEY, KEASLER, WOMACK, COCHRAN, JJ., joined. HOLCOMB,.and corpus relief seeks habeas aggra- murder and from his convictions stem from assault. The convictions vated after an altercation applicant’s actions County. fleeing In from in a bar Harris bar, ran over Latasha pick- with his Vasquez Tracey Johnson during the sin- up truck. The main issue ran there whether reasonable gle trial was outcome of the case intentionally. would have been dif- women over the ferent if counsel had not opened the door conviction, challenge In his testimony regarding applicant’s that his trial applicant claims post-arrest silence. The other errors com- opening door to were ineffective mitted counsel further undermined the prosecutor’s cross-examination about convicting court’s confidence the result post-arrest silence.1 The of the trial. court recom- applicant also raised six other claims of grant mended that we relief. assistance of To ob ineffective counsel.2 disagree with the convicting court’s corpus tain habeas relief for ineffective *4 deny recommendation and relief because under Strickland counsel assistance of the record not support does the convicting Washington, applicant must show court’s conclusion that a probability exist- performance counsels’ was deficient and ed that a different outcome would have exists, that a probability un sufficient to occurred but for counsels’ deficient per- result, dermine our confidence in the formance. We will address all of the the outcome would have been different but claims raised by the application for habeas deficient performance.3 counsels’ corpus relief. The convicting agreed court with the I. Factual and Procedural Background
applicant and found that
trial counsels’
performance
open-
had been deficient for
On an April
night in
applicant
ing the door to
prosecutor’s questions.4
went
to a bar in
County
Harris
and be-
convicting
The
court also found four other
came embroiled in a dispute because John-
performance.
son,
instances of deficient
In ad-
patron, alleged
another bar
dition,
convicting
court
applicant
found that
verbally.5
harassed her
This dis-
1.
applicant
victims;
note
ineffective assistance of coun-
intentionally ran over the
claims,
(3)
though they may
sel
failing
be raised on
object
testimony by
to
police
to
two
appeal,
effectively
direct
applicant
are most
raised in
intentionally
officers tiat the
ran
victims; (4)
proceedings.
habeas
failing
The reason for this
over the
object
has
to
to testi-
mony
explained
many
been
of our
tint one
pregnant
cases:
of the victims was
died; (5)
and that
appeal
usually inadequate
record on direct
the fetus
is
the failure to
request
to determine
whether trial counsel acted con-
lesser-included instruction on man-
slaughter
negligent
and
strategy.
sistent with a reasonable
criminal
trial
All
homicide on
(6)
charge;
the murder
agreed
current
and
to
members of the Court have
failure
See,
Nailor,
prosecutor’s argument
principle.
e.g.,
parte
with this
Ex
punishment
(Coch-
phase
applicant
(Tex.Crim.App.2004)
pute the victims with his truck. over He had his truck. Johnson’s got bar and into up, glasses,6 lost his and punched and been beaten had- friend followed scared for his life. He did not realize face, knocking appli- off the him in the Vasquez. that he had hit Johnson and glasses. cant’s Also, surprised police ar- truck toward a his drove him. rested lot with parking that shared restaurant trial, turned then his testified at the bar. The When bar, drove toward asked him whether he had told the truck around and He hit away police happened from the exit. his version of what had at which was gathered replied A crowd his truck. the bar. The that he had Johnson with under the that Johnson was not. yelled revved truck. The jury charge given Before the accelerated, running then engine his a lesser-included jury, requested the State Vasquez hitting again over Johnson aggravated on assault offense instruction out of the help Johnson trying to who was charge. murder attempted suffered severe truck. Johnson way of the objected. In his affidavits sub- *5 pregnant, who was injuries Vasquez, and in during proceedings the habeas mitted being run over as a result of was killed case, that he dis- trial counsel7 said this applicant. the offense instructions lesser-included cussed of the trial and The home. Tvo applicant applicant drove with the patrons acquit- home an applicant pursue bar followed the to applicant wanted police. police and called the The went to lesser- did not want applicant tal. The home, name, in him his included asked included offense instructions driveway him and asked if the truck in the objected charge. applicant The instruction, him belonged police to him. The arrested the con- inclusion of the and him of rights objection. and read his under Code victing court overruled 38.22, Section Criminal Procedure Article and Test II. The Standard during a except
2. The
was silent
of
Ineffective Assistance
car
another
police
transfer
from one
Counsel Claims
home all
when he said that he had been
mention that
night.
The
did not
total defer
almost
We afford
that some-
had been in an altercation or
findings
factual
ence to a trial court’s
punched
one had
him.
those
when
proceedings, especially
habeas
credibility and
findings
upon
with
are based'
charged
The State
However,
trial court’s
if the
attempted
murder for
demeanor.8
killing Vasquez and
by the
findings
supported
of
injuries
murder for the
Dur-
fact are
to Johnson.
record,
findings.9
trial,
may reject
then
its
ing
applicant’s theory
of the
we
(Tex.
Martin,
Although
parte
6.
he lost
8. Ex
6 S.W.3d
testified that
glasses,
his
Crim.App.1999).
another witness testified
glasses
wearing
had
when
his
he ran over the victims.
Adams,
(Tex.
parte
9.
768 S.W.2d
Ex
Crim.App.1989).
trial,
During
two at-
torneys who
to each other.
were married
Only
attorney
one
an affidavit in
submitted
proceedings.
these
home,
ar-
taken from his
Washington,10
rudely
to was
Strickland
Under
rested,
booked,
eventually
then
on an ineffective assistance
and
prevail
claim,
jail-
must show
and
property
from a
clerk
learned
(1)
performance was defi-
charged.
counsels’
that he had been
house television
objective
stan-
by falling
cient
below
found that the di-
convicting
(2)
a
of reasonableness and
there is
dard
regard-
rect examination of
probability sufficient
to undermine
ver-
exculpatory
to tell his
ing his failure
in the outcome that but for
confidence
failure to
sion of events and his
errors,
unprofessional
counsels’
the result
post-an'est
his
si-
testimony regarding
proceeding
would have been differ-
trial strate-
did not advance counsels’
lence
“indulge
strong
in a
presump-
ent.11 We
court also concluded
gy.
falls
tion that counsel’s conduct
within
existed that the outcome
probability
that a
assistance,”
range
wide
reasonable
for counsels’
have been different but
con-
challenged
‘might
that “the
action
be
fully exploited the
”12
error
the State
because
strategy.’
sound trial
sidered
deciding
assume without
error. We will
performance
that trial counsels’
was defi-
III. Claims
asking
applicant’s post-
about the
cient for
probable change
A. No
in outcome for
opening
the door to
arrest silence
and ar-
opening
questions
the door to
point.
cross examination on this
State’s
gument regarding post-arrest silence.
sup-
does not
conclude that the record
In his first
ex-
port
the conclusion that
performance
claims that trial counsels’
that the result would have been differ-
ists
deficient for
to file motion
(1)
counsels’ actions because
ent but for
limine for or to
*6
in the record from
ample evidence existed
argument
applicant
that
failed to tell his
jury could conclude that
which a rational
exculpatory version of
to the
the events
the
intentionally ran over
applicant
the
also
police
applicant
after his arrest. The
(2)
victims;
testi-
before the
alleges that counsel
in open
were deficient
fied,
already
theory of the case had
the
testimony.
In
ing the door to this
his
by testimony that
been undermined
affidavit, counsel said that he believed the
of the officers that
applicant had told one
way
theory
best
to advance the
of the case
night.
home all
he had been
intentionally
had not
ran
testimony
taken
the trial
that
over the victims was to demonstrate
for a rational
to conclude
ample
was
a victim of cir
actually
was
intentionally ran over
that
Specifically,
cumstance.
counsel elicited
testimony that the
the victims. There was
testimony from the State’s civilian wit
exit,
though parked near the
assaulted,
applicant,
that
was
nesses
the vic-
toward the bar where
drove back
scene in a
glasses,
lost his
and left the
A
addition,
standing.
witness testified
tims were
hurry
bloody
a
nose. In
with
engine
revved his
before
strategy by
trial
applicant bolstered this
though oth-
over the victims even
running
of his
testifying that he was scared out
that
yelling
were
Johnson
fleeing
patrons,
patrons
from other bar
er bar
mind while
689,
Strickland,
Strickland,
In its trial court vic- found counsel deficient because the argument, Near the end of its State pregnancy tim’s and the death of her fetus ref- responded to defense counsels’ second highly prejudicial. were irrelevant and by pregnancy saying erence to the that, objection if But we cannot mentioned, that facts defense counsel Vas- been sustained and the exclud- and had been quez young, pregnant, ed, probably the result of the trial to the case. drinking, were not relevant have been different. The main issue that nor Vasquez that neither argued The State was contested in this case was whether the to die. The the fetus she carried deserved run applicant had over the victims inten- preg- reference to State made a second tionally mistakenly. or not that ft was nancy argued when it applicant complains about which the fetus were she and the victim’s fault that directly related to this brief and was killed. Also, testimony about main issue. argument both focus made
pregnancy and the references dealt with and defense counsel State argument were brief. intentionally ran the applicant whether Although examiner his truck. testified over the victims with The assistant medical off-topic to mention general Vasquez’s defense counsel went about condition responded, and the State body, pregnancy that he found on her wounds *9 and did not the cause of these references were brief body, toxicology report, the death, away from the main Vasquez had draw a lot of attention and the fact that contested issue. pregnant pregnancy when she died. The not did show that the jury’s argument decision unlikely that the It is victim have of the applicant’s guilt the would when the families regarding remorse if the trial court had even did not mention been different Trial counsel testified. to the objection by an counsel sustained response, In its claim in his affidavit. this the pregnan- of about admission trial it was re- that at the claimed State proba- that there is a cy. cannot the argument about to counsel’s sponding if change in the outcome bility of a family member of testimony a emotional objected about the had to convicting court victims. The one of the pregnancy. victim’s counsel’s comment found that the defense everyone in the argument request F. Failure to a lesser-included eyes not in their did had tears courtroom was a reasonable offense instruction comment that prosecutor’s invite the strategy. trial As a not look like he cared. applicant did claim, In his sixth concluded, result, trial convicting ineffective for alleges that counsel were objected. have counsel should request jury to instructions on failing performance counsel’s Although trial manslaughter of lesser-included offense objective stan- may fallen below have In his criminally negligent homicide. object in to failing affidavit, dard of reasonableness that he dis trial counsel asserted the record argument, on lesser-included to the prosecutor’s cussed instructions that, and deferred to if coun- offenses with a conclusion support does not request decision not applicant’s there is objected argument, to this sel them. pro- outcome of the that the different. The ceeding would have been fact, of findings
In its com- statement about which that, although court found in the middle of one comment plains was all-or-nothing an trial adopt wanted to predominantly focused argument strategy, strategy was unreasonable such night actions on requested applicant’s and trial counsel should have on the applicant’s prior on the lesser-included of- con- instructions offense and the However, applicant, it in fenses. victions. We conclude instructions, wanting request not prong of has not satisfied the second sought all-or-nothing strategy test. Strickland the case. the another attor- Just because
ney pursued strategy have another Conclusion IV. unreasonable, strategy does not make this deci- especially light Having concluded that the counsel, conclude that counsel were sion. We effective assistance not denied request an instruc- ineffective deny relief. we did not want. tion JOHNSON, JJ., MEYERS change in outcome probable No
G. concurred in the result. failure to to State’s punishment argument. KELLER, P.J., concurring filed a In his last opinion. ineffective
alleges that trial counsel were MEYERS, J., opinion. concurring filed a prosecutor’s by failing to *10 56
KELLER, P.J., concurring may which for his not raise the claim in COCHRAN, J., joined. application corpus.” for writ of habeas
We held in that Sanchez the Texas Con-
stitution against bars the use a defendant post-arrest, pre-Miranda
of his I silence.1
believe this case is not controlled
Sanchez because was not silent arrested;
after he was he told the officers that he had been home all evening. His parte Ex Steven Kenneth strategy at trial was to admit that he had STALEY, Applicant. persuade jurors been at the but bar he did not know he had run over the No. WR-37034-02. victims. His was to that effect. Court of Appeals Criminal of Texas. It was not questions, appli- counsel’s but cant’s trial strategy and his 27, April 2005. opened the door to cross-examination about what he did and did not after his
arrest.2 habeas found that trial coun- significant
sel’s most error was the invita- applicant’s post-arrest
tion comment on
silence. The Court assumes without de- deficient,
ciding that this conduct was but
holds that I fails show harm.
would, instead, hold the conduct was
not deficient. comments, join I
With these the Court’s
opinion.
MEYERS, J., concurring.
I agree majority’s holding with the was not denied effective as
sistance of counsel. I separately write
note that this claim could have been raised appeal
on direct and thus decision to
consider the merits in this case conflicts holding
with the recent Ex Parte Town
send, 79, 137 (Tex.Crim.App. S.W.3d 81-2
2004), stated, in which this Court “when a an adequate remedy
defendant has
at law
State,
State,
213,
(Tex.
(Tex.Crim.
1.
v.
S.W.2d
217
v.
S.W.2d 575
Sanchez
Szmalec
1996,
ref’d.);
App.1986).
pet.
App.-Houston
Dist.]
[14th
State,
958,
(Tex.App.
Bell
867 S.W.2d
v.
See,
Charles,
404,
e.g.,
447 U.S.
Anderson
1994,
pet.).
Waco
no
[14th Dist]
(1980);
100 S.Ct.