Goodspeed v. State

committed before its effec- some offenses GOODSPEED, Appellant, Melvin date,

tive it is not irrational or absurd to may suppose Legislature have earlier codifications of wanted exclude In from the newer scheme.

the offense of Texas. STATE allegations we regard to enhancement No. PD-1882-03. said, just recently nothing have “There is statutory interpretation absurd about Appeals of Texas. Court Criminal prior in certain convictions which results April and oth- being available enhancement it being ers not available.”3 And so precursor

with offenses. we did construe an Griffith encompass certain

enhancement statute

statutory precursor offenses that were not But that statute did

listed the text.4 broadly provision

contain a “catch-all” prior “similar” offenses committed

covered states, necessarily encompassing

in other prior versions of

both the current and Con

offenses committed other states.5 interpret the enhance

sequently, encompass Texas statu provision

ment produced the

tory precursors would have statutory pre including result of

absurd own every state but our

cursors mandatory supervision statute at issue

6The case, however, catch-all

in this includes no regarding out-of-state offenses.7

provision into the statute unwilling

I am read

something plainly not there. dissent.

respectfully (Tex.Crim. 5. Id. 155 S.W.3d 153

3. Getts v. App.2005). 6. Id. (Tex. 4. Griffith (the "argument Crim.App.2003) defendant's 508.149(a). §7. weight it not for” have more were would statute). language in the other

I. BACKGROUND dire, voir conducted its After the State but the venire counsel addressed defense In his com- any questions. not ask did ments, he had counsel stated that approximate- for prosecutor listened to the covered and that she had ly two hours of including the defense side everything, Although defense counsel exer- the case. challenges, peremptory all ten of his cised used on challenges those were two of jurors previously who had been spective court. excused the trial aggravated -virasconvicted of Appellant age a child under four- sexual assault of years in ninety-nine teen and sentenced a for new prison. Although motion filed, an ineffective assistance was and motion, in the no counsel claim raised was Davis, Texarkana, appel- James E. for to the regard made with complaint was lant. conduct, hearing and no above-discussed DA, Habersang, Texar- Nicole Assist. the motion. held on was kana, Paul, Attorney, Matthew State’s made complaint a appeal But on Austin, for state. appeals court of the conduct. The about deficient held that this conduct constituted OPINION possi- no because there was performance, KELLER, P.J., opinion delivered the it have been based on bility that could PRICE, WOMACK, the Court which strategy.1 The court ex- legitimate trial KEASLER, HERVEY and COCHRAN and of voir dire plained importance joined. questions to ask the failure held to no assistance to the defen- amounted must whether the failure We determine no conceivable trial dant and that any questions during voir dire and voir dire.2 permit counsel to waive would peremptory challenges the exercise of two failure to appeals found the The court of jurors already had been excused who light ask to be deficient obviously that is so constitute impartial need for fair for inquiry deficient that into the reasons answers tendency questioning to elicit unnecessary. conduct becomes counsel’s challenge basis for a that form the reasons inquiry hold that an into the We gender or race-neutral provide cause or for counsel’s conduct is still needed. Con- chal- exercising judgment of the reason sequently, we reverse the lenge.3 appeals. court of (Tex. Goodspeed. 3. 120 S.W.3d 408 2004). App.-Texarkana Id. at 410-411. affirmatively further believed record must demonstrate” panel

that the failure to examine the the meritorious nature of the claim.10 Di- pre- appeal usually inadequate vehicle ascertaining vented the defense from rect raising such a claim because the record whether some members of the venire generally undeveloped.11 This is true punishment.4 full consider the regard question with to the of deficient appellant The court observed that was eli- performance which counsel’s conduct gible community supervision, and while —in deference, great reviewed with without explain range punish- the did State the distorting hindsight12— the effects of ninety-nine ment as being “probation up to where counsel’s reasons for to do years prospective or life” and asked the do in jurors something appear the record.13 they if could consider the full We have said that “trial counsel should punishment, appeals the court of felt ordinarily be afforded an clearly inquire that the State did not into explain being his actions before denounced prospective whether could consider opportu- as ineffective.”14 Absent such an probation sentencing option.5 as a nity, appellate court should not find The court of also appeals found its performance deficient unless the chal- performance holding deficient was re- lenged outrageous conduct was “so that no by quired peremp- defense counsel’s use of attorney in competent engaged would have tory previously pro- strikes on two excused it.”15 jurors.6 spective characterized those strikes as “wasted” Despite appeals’s the court of char they and found that cast “extreme doubt acterization of counsel’s conduct as “no Goodspeed’s whether counsel was ac- assistance,” we cannot conclude that the tively in adversarial participating the any questions failure to ask in voir dire just cess to ensure a and fair trial.”7 outrageous that no constitutes conduct in attorney engaged

competent would have II. ANALYSIS it. Defense counsel’s articulated reason Ineffective of counsel to ask the declining questions —that cov two-part prosecution’s questioning adequately claims are evaluated under the by Supreme test formulated concerns—could be a Court ered defense’s Washington,8 requiring legitimate appro Strickland v. a under the showing priate circumstances. The Court of both deficient Montana, example, declined to prejudice.9 A Strickland claim must be has “firmly asking in the find counsel ineffective for founded record” and “the 4. at 11. Id. at Id. 411-412.

5. Id. 412. at 12. Id. at 813.

6. Id. 13. Id. at 814. 7. Id. Rylander 14. 101 S.W.3d

8. 466 U.S. 80 L.Ed.2d (1984). (Tex. Thompson 9 S.W.3d (Tex. 15. Garcia v. Crim.App.1999). cert, denied, Crim.App.2001), 537 U.S. (2003). 154 L.Ed.2d 1030 here, as it is important as is at least the ment voir dire where only one the failure stated that courts have and thor- several an “extensive record revealed (whether questions “life-qualifying” to ask ough voir dire State.”16 fairly consider juror can prospective on Arm- dissenting opinion relies sentence) necessarily consti- does not life proposition for the strong v. State17 According to deficient tute performance.21 obligation has an defense counsel Circuit, validly may have the Sixth dire, Armstrong but questions during voir be- asking such refrained thing. in Arm- held no such The issue jurors to prospective not want cause he did juror’s strong prospective was whether a answers, he was because hear each other’s prosecu- failure to reveal that she influence jurors might death-leaning afraid juror tor were close friends constituted with jurors, he was satisfied other because not, it did held that We misconduct.18 ability jury and its of the composition panel- had ever asked the because no one duties, its or honestly ably perform and to It was they if knew the ists prosecutor.19 prose- did not want to aid because he only in context that we said that de- this to exercise its own deciding cution in how “obligation” an fense counsel has peremptory challenges.22 today does not holding Our questions.20 that suggested has Court of Tennessee precedent. conflict with validly could refrain defense counsel appeals opinion indicates ground that asking questions such on the ques- that counsel’s failure to ask guilt on and focus of the defense was strategy a trial in this tions was not valid inquiry” regarding pun- intense “[t]oo particular case because the court believed by potential “may perceived ishment be that the veniremembers were not ade- credible evi- jurors as a concession that they could quately questioned on whether guilt dence of exists.”23 fairly probation. issue of But consider the potentially ap- are All of these reasons counsel has not af- appellant’s trial been in a such as this one. Coun- plicable case respond forded the to to this pun- that more might have been afraid sel concern. A number of valid articulated jurors could influence ishment-oriented strategies counsel to prompt jurors; may he have been satisfied others asking questions regarding refrain from a may he composition panel; with the prospective juror’s ability fairly to assess a questions asking refrained from have punishment, including probation. certain giving to the State context, probation about avoid capital In the murder which per- to exercise more information on which life jury upon is called choose between death, challenges; may he have believed juror’s ability emptory and where perceived be punish- questioning that such would fairly consider entire (2002); 105, 108, 47 Common Kotberg, 154 L.Ed.2d 16. State v. 241 Mont. 785 (1990). Morris, P.2d 684 546 Pa. wealth denied, (1996), cert. A.2d 1042-1043 17. 897 S.W.2d 361 2484, 138 L.Ed.2d 521 U.S. Hartman 18. Id. at 363-364. (Tenn. 1995). 19. Stanford, at 454. 22. 266 F.3d 20. at 363-364. Id. Hartman, Parker, 896 S.W.2d at 105. 266 F.3d Stanford denied, (6th Cir.2001), U.S. cert. admitting

as there was credible evidence the appellant’s resolve ineffective assis- guilt; may any or he have had combina- separately tance of counsel claims. I write tion of these might reasons. Counsel also explain the difference between this case have that aggra- believed the facts of this Andrews State.1 vated assault of a child case were severe Andrews, defense counsel failed that there was possibility little or no correct a misstatement of the that law appellant receiving probation upon convic- harmful possi- to his client.2 There was no tion. proposed These specula- reasons are strategy ble reasonable trial that would tive, above, but as discussed is the lead defense counsel choose to remain problem trying with to evaluate an ineffec- Thus, reasons, any, silent. if counsel’s tive claim in which defense unnecessary to were resolve the ineffective given counsel has not been an opportunity assistance of claim.3 counsel why to respond, and such claims are usual- I have doubts about whether defense ly rejected. . ' pursuing this case was a reason- Finally, the court contends able trial when he failed ask counsel’s deficient is re- panel. of the venire Nonethe- vealed his use of two chal- less, it possible there was some lenges already who had been legitimate reason for choice that counsel’s Again, excused. has not been af- apparent is not in the record before us. respond.24 forded the to But case, In this inadequate the record is for even if per- the strikes constitute deficient us to determine whether counsel was inef- formance, appellant they must show that proceedings fective. Habeas are a more harmed him. This he has done. in appropriate avenue this case. judgment The of court the of is comments, join majori- With these I the reversed, and the is case remanded for ty opinion. further proceedings consistent with this opinion.

HOLCOMB, J., in dissenting which JOHNSON, J., MEYERS, J., dissented. joined.

PRICE, J., respectfully I I concurring opinion filed a in dissent. would hold that COCHRAN, J., joined. which appel trial counsel’s errors were such that lant’s claim of ineffective assistance of HOLCOMB, J., dissenting filed a properly counsel is reviewable direct MEYERS, J., opinion in joined. which State, appeal. Thompson v. 9 See S.W.3d PRICE, J., in concurring which 808, (Tex.Crim.App.1999). 814 n. 6 I COCHRAN, J., joined. would further hold that trial per counsel’s I agree majority with the the formance was deficient and tantamount to rec- ord in this at all. inadequate case is for us to no counsel See Strickland v. Wash Lewis, 262, 290, People 24. See 50 Cal.3d 834, 892, Cal.Rptr. 266 P.2d 786 909 (1990)(defense automatically State, counsel not inef- Id. at 102. See Matthews v. 350 S.C. failing 272, 276, 766, (2002) (con- fective for to exercise all of his allotted 565 S.E.2d 768 peremptory challenges). cluding that cannot assert "[C]ounsel object as failure State, (Tex.Crim. 1.Andrews v. S.W.3d 98 comments which constitute an error of 159 law 2005). App. inherently prejudicial”). and are advantages. tactical 2052, several employ 80 to 104 S.Ct. ington, 466 U.S. of (1984); by the court v. Wain noted Gideon to those L.Ed.2d addition attorneys might, 872 U.S. common it is appeals,1 State, Hernandez 9 L.Ed.2d 799 jurors to establish question prospective (Tex.Crim.App.1986). 726 S.W.2d attorney and the the between rapport “humanize” as well as to jurors, spective First, appeals’ of agree with the court Litigation PRImer no sound the accused. See there could be conclusion Texas ed.). Institute, (Trial 2d entirely Advocacy waive for trial counsel to reason 57-58 State, 120 S.W.3d use- Goodspeed especially voir dire. have been This tactic would 2003)(cit- (Tex.App.-Texarkana 411-12 charged with appellant here as ful (Tex. 23, 24 644 S.W.2d ing Miles v. of a child. assault aggravated sexual right pet.)). no The App.-El Paso however, there is importantly, More implicit prospective question the simply no excuse an right the right to counsel and they jurors about whether prospective State, 572 jury. Trevino v. impartial punish- range the full consider (Tex.Crim.App.1978). S.W.2d ment, community su- include which would to insure process designed voir dire Goodspeed v. in this case. pervision disinterested, alert, im intelligent, that an (noting that the State at S.W.3d jury partial, perform and truthful will punishment did not address Armstrong it. duty assigned to dire). jury process its voir Because Moreover, parts that defense the most critical this Court has said is one of selection obligation trial, logic counsel has it defies to insist a criminal tending bring calculated to out information particular Sixth bring these appellant impartial juror’s inability to show a to be on habeas review Amendment claims (citing and truthful. See id. at 363-64 may offer a conceivable that trial counsel (Tex. State, 134, 137 Jones v. 596 S.W.2d to right client’s waiving for his 1980), Op.] overruled on Crim.App. [Panel trial, a fair and counsel, a fair and to to State, grounds, Sneed v. 670 S.W.2d other State, 644 Miles v. impartial jury. See 262, say To (Tex.Crim.App.1984)). at 24. S.W.2d may that some conceivable now there be Second, rea- legitimate can no there be therefore, dire, reason to waive voir and peremptory use two lawyer for a son opportunity an defense counsel must have have jurors who prospective strikes explain why he chose to waive Allowing trial for cause. excused been policy and conflicts with right, not sound plain explain this opportunity Linnell v. counsel an precedent from this court. 426, State, (Tex.Crim.App. judicial re- 428 935 S.W.2d be waste error would 1996) (embodied in to counsel is right Judge Meyers noted And as sources. counsel venire so that right State, forcing habeas review Thompson v. may intelligently exercise of counsel claims of ineffective cause). challenges challenges on the face of the plain that are for errors indigent appellants prevents record matter, And, voir dire practical as a record county-funded appellate obtaining a the accused with provides ed., 2003)). (Matthew Aug. (citing Bender & Co. 3 Goodspeed, 120 at 411 1. See S.W.3d § 72.03[1] Practice Guide: Trial Texas Criminal

396 See, e.g., Gray v. appointed adequately and the assistance counsel. 9 er be shown. J., (Meyers, 648, 2045, at 4 dissenting). S.W.3d 817 n. Mississippi 481 107 S.Ct. U.S. (1987) (requiring 95 622 automatic L.Ed.2d not though Even the record does defini- juror single reversal even where a tively reflect act- the reasons counsel unconstitutionally excluded and there was did, ed as he I do not believe there is suggestion part no of bias on the anything say he under circum- these seated); jurors actually Batson v. Ken- stances to show his actions were the 106, 1712, 79, tucky, 476 106 S.Ct. 90 product strategy.2 of a sound trial There- U.S. fore, State, this one of classic believe L.Ed.2d 69 994 Gonzales instances which ineffective assistance of 170, (Tex.Crim.App.1999) 172 S.W.2d may adequately argued be State, (Price, J., dissenting); Sloan 809 appeal, despite reviewed on direct the lack (Tex.App.-Tyler pet. S.W.2d 238 developed of a at a record motion new improvidently granted). dism’d gives opportu- trial which trial counsel an State, 947 264 Cain v. S.W.2d nity explain his actions. See Mitchell v. that, ex- (Tex.Crim.App.1997), we stated State, (Tex.Crim.App. 68 S.W.3d constitutional er- cept certain federal 2002) (generally, ap- the record on direct rors deemed structural the United peal sufficiently developed will not be Court, categor- no error is States representation show that counsel’s was de- ically error anal- immune from a harmless Strickland); ficient prong under first ysis. The situation here is different and is Thompson v. 9 S.W.3d at 814 n. 6 attorney in the analogous having to not (noting holding con- should be courtroom at all. See Gideon v. Wain- strued to mean that an ineffective assis- might, 372 U.S. at adequately tance claim can never be re- (the deprivation total of counsel at trial is appeal); viewed on direct see also Jackson (Tex.Crim. error). 768, 771 that the 877 S.W.2d structural I would hold (record App.1994) insufficient to show inef- dire is a right to have counsel conduct voir per- fective assistance of counsel where no a fair trial that its infrac- right so basic to emptory strike or motion for cause was tion could never be treated as harmless juror prospective used on who said he Cronic, error. See United States impartial); could not be Delrio v. 659 n. U.S. see, (1984); v. e.g., L.Ed.2d 657 Burdine Cir.2001) Johnson, (5th 262 F.3d question prejudice, As of I do not to the coun- (sleeping equivalent counsel is to no disagree appeals with the court of resolu- sel; stage was at critical tion, absent I apply but would not the standard Cronic). here, meaning within of Strickland analysis harm the errors made uniformly has found impact because the of the error could nev- The Court venire, . give yet jority we trial counsel In his brief comments to the believes must explain why waived opportunity to he counsel reveals at least some of his reasons another any questions. Specifically, two strikes. voir dire and wasted Mitchell, (a petition for fairly 68 S.W.3d at 642 trial counsel told the venire "I am brief See usually appropri- say up corpus the and I will not take all writ of habeas in what I have to this, present explaining ate vehicle which to ineffective the that she has taken in time Well, that, the rea- counsel claims because and the other.... I’ve listened to assistance of less, of counsel’s choices often in- two more or and she's sonableness her for hours appear appel- my that do not in the everything, even side of the volves facts covered Here, record). counsel’s reasons for Despite the fact that trial counsel’s late case....” record, waiving appear ma- voir dire in the record. reasoning is reflected in the of the court judgment I would affirm any showing of error without constitutional appel- insisting than rather totally appeals counsel was either when prejudice claims bring his ineffective lant assisting the prevented or absent on collateral review.5 during stage a critical accused Johnson, 262 ceeding. Burdine v. See The error here defies a harm

F.3d at 345. subjecting

analysis because the error mean- prejudice would render

Strickland by the

ingless protections afforded Ohio, v.

right e.g., to counsel.3 See Penson 75,109 346,102

488 U.S. S.Ct. L.Ed.2d (1988) Chapman (reasoning applying BRYANT, Randolph Clarence defen- to an Anders violation would leave Appellant, very that An- protection dant without the sought provide)4; ders McKaskle 177 n.

Wiggins, 465 U.S. of Texas. STATE (1984) (error deny- 79 L.Ed.2d 122 PD-672-04. No. ing right self-repre- Amendment Sixth subject to harmless error sentation not Appeals Texas. Court of Criminal analysis). 6, 2005. April thoughtful filed a opinion unanimous well-reasoned legal non-rep- question address clear applaud

resentation. their effort type

show that this of malfeasance is

wrong Apparently and harmful. we have relegated highly

now this to the

problematic and uncertain world of habeas

corpus. Unfortunately, negates this

scholarly ap- from the court opinion

peals. 18, 23-24,

3.However, California, applying Chapman 386 U.S. even when the standard analysis, harm here be error could not Anders 87 S.Ct. 17 L.Ed.2d 705 because, by effectively allow- found harmless California, 386 U.S. appel- ing the State to conduct voir dire for (1967). L.Ed.2d 493 lant, violated; holding Strickland’s central i.e., judging any claim of "The benchmark Torres, parte 5. See Ex must be whether counsel's ineffectiveness (Tex.Crim.App.1997); see also Mallett v. functioning proper conduct so undermined the (Tex.Crim.App.2001) (Mey- process that the trial cannot adversarial ers, J., dissenting) (prior rejection of an inef- having just produced a result.” be relied on as claim on direct fective assistance of counsel Strickland, 466 U.S. at See appeal relitigation of the claim will not bar also, added); (emphasis see United applicant con- offers evidence not when Cronic, 466 U.S. at States record). appeal tained in the direct (critical question is whether counsel’s process that the deficient lost its character as a confrontation between adversaries).

Case Details

Case Name: Goodspeed v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 6, 2005

Citation: 187 S.W.3d 390

Docket Number: PD-1882-03

Court Abbreviation: Tex. Crim. App.