Hernandez v. State

may take oath?” A death sentence not imposed juror

be where one even been excluded,

improperly Davis v. however.

Georgia, 97 S.Ct.

L.Ed.2d 339 This formula used prosecu trial court easy. was too court, taking

tor and trial perhaps a cue venireman, pro

from earlier this told

spective juror beginning from the that he escape duty by this discomfiting

could sim refusing

ply to take the That is oath. not juror

the law. The reason for

refuse take the oath is if cannot it.

follow Bradshaw exclusion could. His jury improper. was therefore

A defendant in capital as in all case jury.

others is entitled impartial to an

method used to exclude Bradshaw produce stripped

case would jury instead a might impose those all who hesitate willing

death sentence. We should not system,

to live with such a nor to let some

die it. majority’s

To the dispos- unconstitutional appellant’s error, ground

al of third

respectfully dissent. MILLER, JJ.,

TEAGUE join.

ONION, P.J., participating. HERNANDEZ, Appellant,

Paul Texas, Appellee.

The STATE of

No. 1009-83. Texas, Appeals Criminal

En Banc.

Sept. 1986. Brandes, Austin, appel-

Michael L. for lant. Earle, Atty. Ralph

Ronald Dist. Gra- ham, Austin, Atty., Asst. Dist. Hut- Robert tash, Austin, Atty., State’s for the State. OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW DAVIS, Judge. TOM G. appel- jury1 upon

Trial was before the charge plea guilty lant's of not to a Code, Penal Sec. capital murder. V.T.C.A. 19.03(a)(2). jury After the found court, guilty, acting pursuant to V.T. Code, 8.07(d), pun- Penal Sec. assessed C.A. Appeals for ishment at life. The Court (Aus- the Third Judicial District tin) appellant’s affirmed conviction unpublished opinion, Hernandez 3-82-370, (Delivered September No. 1983). granted appellant’s petition for We discretionary review in order to examine Appeals’ holding appel- the Court of lant’s trial counsel rendered effective as- sistance. decision,

Following Appeals’ the Court of the United States Court handed opinion in down its Strickland v. Wash- 2052, 80 ington, 466 U.S. 104 S.Ct. opinion L.Ed.2d 674 Strick- federal established an authoritative land determining in- constitutional standard for for ascertain- effectiveness of counsel and prosecution. juvenile juris- juvenile, Prior to trial court waived for criminal 1. appellant, fifteen-year-old diction and certified ing when such preju- ineffectiveness is Since we find that threshold stan- determining dicial. dard for effective assistance counsel enunciated is not Strickland Accordingly, prior examining the facts substantively different the standard of the instant we determine whether this Court propounded years, recent I, under Art. Sec. of the Texas Constitu- refusing there is no apply reason 1.05, tion Art. V.A.C.C.P. we must arising Strickland standard cases under apply higher those standards than enumer- I,Art. Sec. 10 of the Texas or Constitution in ated Strickland. 1.05, Art. V.A.C.C.P. respect determining With ineffective- determining The prejudice test for re- or ness, general standard established in resulting versible error from as- ineffective differs or not Strickland little at all from sistance in spelled of counsel was also out standard, this Court’s which in turn is Strickland: on Fifth precedents. based Circuit “ ... The defendant must show that parte (Tex. Duffy, In Ex 607 S.W.2d 507 that, there is probability a reasonable but Cr.App.1980), progeny and its we stressed errors, for unprofessional counsel’s that effective “rendering counsel is counsel proceeding result of the would have been likely and to render” reasonably effective different. A reasonable is a probability assistance. probability sufficient to undermine confi- Supreme The in Court in Strickland dence 104 noted: outcome.” S.Ct. 2068.2 “As all Appeals Courts of Federal held,

have now proper standard for test, This in at least certain circumstanc- performance is that of reason- es, differs tests our by from the devised ably effective assistance ... When a prejudice Court to determine in ineffective complains convicted defendant of the in- See, example, assistance cases. Ex assistance, effectiveness of counsel’s held, Duffy, supra, again where we rep- must show counsel’s precedent, based on ef- Fifth Circuit objective resentation fell below stan- right important fective so assistance was dard reasonableness. petitioner to a its condemned to death that infraction could be treated as harm- never specific guidelines “More appro- are not less error. Does our recent case or law priate proper ... The measure of attor- I, language history 10, or of Art. Sec. ney performance simply remains reason- Y.A.C.C.P., 1.05, suggest Art. de- that a prevailing professional ableness under fendant to a put should be lesser standard norms ... “ proof establishing prejudice than ... A making convicted defendant Strickland standard? claim of ineffective assistance must iden- tify opinion the acts or Starting omissions counsel that with the Caraway alleged are not to been the (Tex.Cr.App.1967), result of professional judgment. reasonable consistently applied The this Court has the test whether, by court must then in for counsel employed determine effectiveness of circumstances, light Ellis, of all the the identi- the Fifth Circuit MacKenna (5th Cir.1960), denied, fied acts were outside F.2d 592 omissions cert. range of professionally competent wide U.S. 7 L.Ed.2d 78 is, recog- assistance ... That consistently court should has Court [T]he strongly presumed nize that consciously applied counsel is a federal constitutional adequate have rendered assistance standard in all effectiveness cases and significant all made decisions in the exer- utilized the enunciated standards professional judg- cise reasonable Fifth Circuit in absence of an author comprehensive opinion ment.” 104 2064-66. itative and from the S.Ct. at Supreme rejected likely specifically 2. The more altered the outcome in than not required stricter test that would have a defend- case. ant show that his deficient counsel’s conduct right to effective of coun- Court. See Mercado v. assistance today Strick understand sel as we was derived land, clearly set forth right to be counsel.6 heard the federal constitutional standard to be Accordingly, language in no sense can the followed. I, intent of the framers of Art. Sec. interpreted to effec- include a I, language far as the of Art. Sec. 10 As greater tive assistance of counsel than (as is concerned as the identical lan- well provided Strickland. 1.05, V.A.C.C.P.),3 way guage in Art. pro- interpreted it be independently can law An examination this Court’s case greater protection be- vide for a defendant years regarding effective assistance by ineffective of counsel set incorpo- the Sixth before Amendment was protection provided by Strick- than applied rated into the Fourteenth7 I, language of Art. Sec. land. point. serves the States to buttress the insuring have the that a defendant “shall permit Ineffective counsel or counsel not being right by heard himself or by the trial court effective was ted to be both,” 1836 can be traced back hence a tantamount to counsel at all and Republic of the of Texas Constitution I, State, of Art. Sec. 10. v. violation Jones obviously on the Sixth was modeled 526, (1954); 116 159 Tex.Cr.R. 265 S.W.2d to constitution4 Amendment the federal 627, State, 241 91 Turner v. Tex.Cr.R. right, “to guarantees accused’s which all,” (1922). Even “no counsel at S.W. 162 for his de- Assistance of Counsel however, not error did result in reversible fense.” showing of a of harm. See in the absence heard right The Sixth Amendment to be 558, State, 117 37 v. Tex.Cr.R. Fuller understood, and originally counsel was also 156 See S.W.2d throughout all of the 19th and understood State, (Tex.Cr. 396 v. 393 Fletcher century, part earlier 20th to State, App.1965), and 388 S.W.2d Jones v. right encompass the to re- of a defendant (Tex.Cr.App.1965), cases decided 429 two prep- of his for the tain counsel own choice su shortly Wainwright, after Gideon v. provision trial of The aration and a case. showing required pra, where harm right yet understood to include asserting ineffective assist of defendants indigent to have counsel of an defendant ance claims. right of appointed expense at State or the short, our and stat In constitutional enjoy to effective assistance do a standard utory provisions not create of counsel.5 Krantz, al, (Eds.), 1.05, V.A.C.C.P., Right essentially to See S. et the same of counsel. Art. is in 3. Cases, (1976); Page 166 predecessor in Criminal back to Counsel statutes which date form Waltz, Inadequacy Representation Trial Code of Procedure. the 1911 Criminal Crimi- As a Ground Post-Conviction Relief for Cases, Nw.U.L. 289 at 293-295 nal (1964). 59 Review Braden, (Eds), 4. See G. et The Constitution al Compara- of Texas: Annotated and the State An many courts enter- however that It is clear Pages (1977). Analysis, tive 35-36 assistance what amounted to ineffective tained time, especially if claims of counsel before (Eds.), Jayson, L. et The Constitution 5. See al See, appointed. example, Turn- for counsel Analysis And United States Of America: 627, S.W. 162 91 Tex.Cr.R. 241 er v. (1922). (U.S. Pages Interpretation, Govern 1215-1216 however, 1948, late as our Court As (7th 1972); Printing Office) W. Bea ed. ment re- with to decide whether an accused refused Courts, Right ney, to in American The Counsel complain could of ineffective tained counsel (1955). Pages 22-28 93, parte Lovelady, Tex.Cr.R. Ex 152 assistance. Further, (1948). we did not al- the term "effec- The Court first used 6. ways statutory provi- state what constitutional or respect appointment of counsel tiveness” to right guaranteed sion effective assistance. to 55, 45, Alabama, v. U.S. 53 in Powell 526, See Jones v. 265 S.W.2d Tex.Cr.R. (1932). made clear 77 L.Ed. 158 That Court 116(1954). Alabama, Avery U.S. 60 S.Ct. right to Wainwright, L.Ed. 377 that Sixth Amendment 83 S.Ct. 7. Gideon included the to effective assistance L.Ed.2d 799 assistance day ineffective cases more friends were arrested the next while protective rights attempting burglarize of defendant’s than the another residence. put standard forward the Supreme appellant, According his trial counsel Court in Accordingly, Strickland. we will rendered ineffective assistance for three follow in full Strickland standards in pursue insanity reasons: failure to an de- determining preju- fense; presentation of evidence rebut- resulting dice therefrom. self-defense; ignorance ted the defense governing facts of case and law. Turning instant we summa- rize the relevant appellant’s facts inef- Appellant contends that trial counsel im- fective assistance claim. pursue properly insanity failed de- an incomplete investigation. fense because 2, 1977, During evening ap- of June An insanity purportedly defense was war- pellant youths, other two Michael Cas- psychological report ranted due to filed Gonzales, unlawfully tro and Manuel en- psychologist court D.I. Goldwater and tered a habitation 1607 East 11th Street testimony showing due to youths looking Austin. were large consumed a amount beer and bullets they firing to use a rifle had been paint sniffed on the day of the offense. posts day. at fence earlier in the youths and appropriated found some .22 Appellant proffered any has not during caliber Appel- bullets their search. showing facts that trial counsel failed to rifle, lant to loading confessed but trial investigate insanity thoroughly defense. testimony conflicted as to which of the Admittedly thing this is often a difficult boys rifle. loaded the appeal. cannot, however, do on direct We assume that a is silent as to because record point during wanderings

At some their depth investigation the attorney’s of an youths the upon Domingo house the came defense, insanity the he made no such in Vasquez, deceased, the and resident of the vestigation. Appellant pursue is free his house, asleep pile who was rags under claim on ineffectiveness collateral review on the kitchen floor. Appellant and his surrounding where the facts trial counsel’s killing cohorts discussed the deceased but representation may developed at a hear against doing decided so. ing. later, youths Some time the returned to report strongly suggest- Dr. Goldwater’s Vasquez and roused him from his sleep respect ed that with to certain of his com- whereupon the old boys man chased the appellant, year municative skills fifteen out of the brandishing house an ax. old, mental development had the of an youths stopped The three in the de- old, eight year appel- half and one and yard. ceased’s front As the deceased came impulsively. lant often acted This alone door, out of the front appellant shot him prove does trial counsel failed to with the rifle. investigate insanity further defense. Testimony differed as to whether Vas- by appellant Not are two re- mentioned quez process chasing was still ports appellate sent record to the boys pro- when shot or was in the instead County Attorney by Travis District Dr. returning cess of to the inside of his home. indicating appellant Coons was sane at shot, however, The fatal entered the de- competent the time of the offense and ceased from the back the testimony and stand trial. undisputed that no blocked barrier appellant’s consumption As to of beer appellant retreat of and his friends. paint sniffing relation of insanity defense, appellant

After shot deceased these to an V.T.C.A. Pe- Code, 8.04, precludes took the use the butt rifle and hit the de- nal Sec. of a intoxication-insanity get up. voluntary ceased in the head as he defense to tried through youths three then rifled the commission crime. See Hawkins v. pockets. Appellant deceased’s and his purported whelmingly presentation ample

Trial counsel’s established and evidence self- evidence that rebutted the defense of supported appellant a conclusion that the testimony defense involved of code- friends unsavory his were characters. fendant Michael Castro trial was whose sup Likewise defense counsel’s appellant’s. severed from Castro testified posed ignorance Family Code, of V.T.C.A. thought that he deceased had aban- requirement concerning prop Art. 51.09’s pursuit of appellant doned his and friends magistrate’s in no warning way er could appellant time shot him. affected the jury’s verdict. Defense and later Trial counsel cross-examined apparently counsel did not realize that called to the stand both Castro and Manuel warnings by there were two two different Gonzales, many accomplice. the other magistrates in case and the instant respects, counsel’s cross-examination warnings only the administered when the effective, establishing that Gonzales was signed rights his a waiver of had in- Gonzales and Castro as much were given police presence to be outside of a ransacking house volved the deceased’s unequivo officer. evidence however appellant showing that Gonzales cally established that no officer was was afraid chased them when deceased appellant signed when his present waiver wielding out The ex- of his house an ax. rights. support Gon- amination Castro tended testimony zales’ until the former testified Appellant chastises trial counsel fail- go had when that the deceased turned to ing subpoena Rodriguez witness Martin testimony a shot. fired Medical morning testify he was called to until reflected that died from deceased Reyes and witness John until the afternoon bullet wound back. Further, testify. before he was slated to respect Rodriguez, counsel options to tri Given available that he not think absence stated did al in a case where evidence was, “really going to hurt but against overwhelming, we his client was testimony like to have his because would hindsight cannot sit and find ineffective it—something may Rodriguez come out.” this, involving ness to an error such as due written Reyes’ never testified but state- examining calculated risk a codefend- stipu- ment was admitted into evidence right to counsel is not ant. The parties. Reyes’ letter to both con- lated the to error-free counsel. carried firmed that the deceased an ax supposed ignorance Trial counsel’s protect him in to himself. about order takes governing of the case and law facts according appellant. forms to several Though behavior trial counsel’s with impeach Gon order to Manuel respect subpoenas to the evidenced lack of in counsel zales on cross-examination trial preparedness, say we on this record cannot his written The State troduced confession. probability is a that there reasonable contended, agreed, that trial court the trial have been differ result of would statements in the confession certain Rodriguez if counsel had to it that ent seen “opened up” that the extraneous offenses testified. upon. These extrane State could elaborate attempt to Finally, object trial counsel’s previous burglary of ous offenses were charge ineptness at pre- revealed to the attempted house and the deceased’s serving error. in on youths engaged burglary the were objection jury entire Counsel’s if day of their arrest. Even charge was as follows: ignorant of the and ineffective law Honor, I Your have to come allowing Counsel]: these extraneous offenses “[Defense However, I objections as would in, such. probability that there is no reasonable charge included here. like to have differ jury’s verdict would have been will, course, your to underlying And I leave this ent the mistake. The absent discretion, something like have capital over- but I’d to burglary in the murder was in here particularly respect that indicates that the defend- to al- with counsel’s leged pursue insanity is failure guilty ant not found of the offense of to defense. capital may murder that he be reindict- judgment of the Appeals recharged charge voluntary on a ed— affirmed. manslaughter. J., CAMPBELL, “THE concurs result. request COURT: That will de- nied. CLINTON, Judge, concurring. Okay. I’d And Counsel]: “[Defense Discretionary review should not charges— move that the granted Compounding been in this cause. object “I on charge ground mistake, majority that initial decides an sup- sufficiently that issue us, issue that is not before decides ported pleading you and ask to wrongly, improperly applies and then on rule that. mistakenly adopted. standard it has right, “THE COURT: All it will be over- Though (almost majority has inadvert- ruled.” result, ently) reached correct I must protest every virtually step wayward The best that can be said about fore- going performance goal. that is that trial counsel was course taken to attempting inept in an fashion obtain I. charge voluntary manslaughter on or self- defense. Among good several reasons for re cause, fusing compel review in this most however, again, appellant Once has ling is appellant presented no rea prejudice. Appellant failed establish Tex.Cr.App. son for such Rule review. See does not sup contend that the evidence 302(c). Appellant does not claim the court ported a charge voluntary manslaught appeals’ opinion is in conflict With respect er.8 to his claim self-de Court, appeals, of another court this fense, to support evidence same court, statute, any other or rule of law. extremely best weak. It was uncontradict- Appellant points out no deficiencies nothing ed appellant’s blocked retreat Instead, performance. argues counsel’s and that the deceased died from a bullet reading close “[a] Moreover, wound the back. Record, Facts, Briefs, Statement of and his were in friends the course of bur Opinion, Appellant’s Motion for Re glarizing the deceased’s home. hearing clearly Ap ... demonstrate that It is obvious from a review the entire Hanneman, pellant’s trial Paul respects record that in certain trial counsel Appel ineffective in his sub-par rendered assistance. But in the 304(d)(5), lant.” This is insufficient under occurred, particular instances where this discretionary supra, to this invoke Court’s shown, required by has not been Strick- jurisdiction, any readily nor is reason other land, probability, that there is a reasonable apparent. petition The should be refused. or probability a sufficient to undermine State, (Tex.Cr. 712 755 Degrate v. S.W.2d outcome, confidence in the that the result App.1986). proceeding of the would differed had have

trial counsel’s assistance been effective. II.

Appellant develop upon free by majority, is to the facts The issue seized hearing, in post-conviction further a habeas to in full the whether “follow Strickland 19.04, Ap- 8. would be in the Nor such contention correct. Sec. committing when defendant is course testify, underlying pellant de- did not was no evi- one offenses there Code, 19.03(a)(2). anybody dence that he that had Penal Sec. indicated to lineated V.T.C.A. resentment, State, 102, feelings anger, rage, 323 or terror at See Smith v. 168 Tex.Cr.R. State, (Tex.Cr.App.1959); 149 the time of 588 the offense. See Luck v. S.W.2d 443 Leza Moreover, 448, (1946); La- S.W.2d 371 we W. Tex.Cr.R. 552 Scott, Jr., Law, passion” Sec. 76 do not believe that “sudden arises from Fave and A. Criminal Code, "adequate cause” under V.T.C.A.Penal I, determining guage standards in effective assist- or intent of the framers of Art. therefrom,” prejudice resulting 10, ance and is interpreted right Sec. to include ap- not before this Court. court of greater assistance of than 21, peals’ opinion September was delivered provided by Op. p. Strickland.” petition discretionary and the re- is particularly pre- statement This 56. view filed little more than a month there- light sumptuous in of the fact that no one after, opinion both well before the of the interpreta- herein has advocated such an Court of the United States majority’s tion. The statement therefore Washington, Strickland v. amounts to an assertion that it has con- (1984) L.Ed.2d 674 [here- arguments pos- sidered all such that could after Thus the issue decided Strickland ]. wanting. sibly be made and found them I by majority has not been briefed sweeping make no effort to canvas such argued parties, by nor decided do, however, I considerations. find the ma- appeals. only goes court of This not well unsupported. jority’s conclusion beyond this mandate to “review Court’s with, begin premise To that the lan- appeals,” decisions Art. eourt[s] I, guage of Art. 10 of the Sec. Texas Con- 44.45(a) (b), it also denies the “adver- obviously on the stitution “was modeled testing” sarial called for Strickland Sixth Amendment to the federal constitu- only procedurally is incor- itself. This properly tion” has never been demonstrat- rect, upon it forces this Court to take itself ed.1 While it is true that both Sec. 10 and the roles of both State’s and de- right deal Sixth Amendment judge. I com- fense counsel as well as am counsel, strong that alone is not indication headlong pelled to dissent to this rush provision modeled on the that the later is question party no to this cause answer a only is indicative that forebear- earlier. It posed. Lacking prop- has the benefits of a assuring right, taking ers insisted on issue, erly framed a decision on issue designed to do so from statements appeals, arguments the court of reasonably accepted source. See other parties, poor position from are in both we (Tex. 657 S.W.2d Brown question. is important to decide this It (Concurring Opinion). It Cr.App.1983) wonder, given posture equally supportable say would be weakly majority’s conclusions are so “right provision to be heard” is mod- Texas supported. constitution eled on the Connecticut oppor- As afforded no been provision is almost adopted in 1818.2 Our tunity put answer the conclusions forth provision, identical to the Connecticut point majority opinion, in the will out one I, com- our Art. is worded whereas § major reasoning. in its or two of the flaws differently Amend- pletely Sixth ment.

III. here, inappropriate exegesis Detailed disturbing majority’s pro- Most is the say the Texas constitutional nouncement that “in no sense can the lan- but I, authority proposition Texas Constitution 2. Article Section 10 of the 1. The cited for this provides pertinent part: 4) (majority opinion, unpersuasive. Mr. n. just prosecutions shall assertion that "the all criminal the accused Braden makes a bare "In being by himself ... heard similarity Amend- between Fifth and Sixth [the or both ...” striking.” Section 10 is He does not ments] I, analogous provision, Art. Connecticut original Texas constitution- even claim that our 9, provides: § provision federal one. al was modeled on the prosecutions, the accused “In all criminal Indeed, persuasive evidence exists historical right by himself and shall have a to be heard were influenced that it was not: that Texians by counsel ...” already greatly by experience Mexican their of Amendment to the Constitution The Sixth documented, procedures its laws had trial and hand, States, provides in the United on the other be heard himself and coun- for defendant to part: pertinent However, again, a to sel. this is not fit occasion prosecutions, all criminal the accused "In properly be- matter since it is not address the right enjoy to have the Assistance shall the ... fore Court. defence.” of Counsel for his provision subject is “modeled on the Sixth Amend- nouncements on the Fifth ment” court; is irrelevant even if true. fact any Circuit or other federal that the framers of the Texas Constitution interpreting when we are Texas law. It all, provision differently worded the simply cast means that we about for a they simply when could have conformed “reasonably acceptable of definition” effec Rights pertinent provisions Bill our of to of having tive of Constitution, the U.S. demonstrates that one, Brown, found made it our own. su they guarantees had somewhat different in pra, opinion). (Concurring As Justice Hans addressing mind. So when the issue of Oregon Supreme Linde of Court has of ineffective assistance counsel as mat- stated: of ter state law we need not slavish- follow high respect “This court like others has ly Supreme interpretation Court’s of opinions for the Court [of Amendment, any Sixth more than we States], particularly United when need to adhere the Connecticut courts’ in- they insight origins provide into the of terpretation of their constitution. Just be- provisions common to state fed- language cause was once from an- drawn rights only eral bills rather than other source does not mean we abdi- contemporary pragmatic ‘balance’ con- responsibili- cate all time our historical peo- siderations about which reasonable ty interpret to our own laws and Constitu- ple may among differ over time and majority’s tion. The assertion at this late It several states. is therefore be ex- provisions date that the are essence iden- pected that counsel and courts often will denigrates tical our own role as as the well decisions, refer federal or to commen- efforts Republic founders of this decisions, tary based on such even in State. debating an issue under undecided state Furthermore, say that “this Court has it, Lest doubt law. there about consistently applied and consciously a fed- opinions when this cites federal court eral constitutional in all standard effective- law, interpreting provision Oregon it opinion, (cid:127)) (Maj. p. ness cases” is mis- does so because finds the views there leading Caraway at best. In expressed persuasive, not it con- because (Tex.Cr.App.1967), S.W.2d 159 which the siders itself bound to do so its under- majority beginning cites as the of this standing of federal doctrines.” adoption standard, of the federal this Court Kennedy, State 295 Or. 666 P.2d addressing a claim (1983) (footnote omitted). This had been denied his as- effective possessed course of similar “guaranteed sistance of counsel himto autonomy. the 6th and 14th Amendments to feder- al constitution.” Id. at 163. No mention IV. Constitution,

was made the Texas Arti- I, cle In Section 10. such a case it was of prong stan- first the Strickland appropriate course evaluate claim own, dard is the same as our whether coun- light of interpreting federal decisions “reasonably sel assist- rendered federal constitution. Strickland, however, represents ance.” the first time the Court of the However, deciding when standard, applied United States has approvingly claim under state law cites lan “directly the first time that Court guage opinion from a we do federal court fully a claim of ineffec- addressed ‘actual help language so because we find the in a case tiveness’ counsel’s assistance reasoning persuasive. adopt ful going trial.” 104 S.Ct. at 2062. This ing “reasonably likely to render and contrast, Court, by has been faced often reasonably rendering effective assistance” Ellis, question particular of whether test from MacKenna v. 280 F.2d (CA5 1960), denied, assist- trial counsel rendered ineffective cert. developed body way we ance. have a well 7 L.Ed.2d 78 in no We pro subject, applying bound on our stan- ourselves future caselaw the follow 62 reasonably

dard impact might effective assistance in a denied. What the evidence had variety wide We on the case is not of contexts. need not look shown. authority “guid- for other federal than As for proposition the cases cited for the ance” in applying that to the in- standard showing required that a of harm was be- stant case. fore a conviction would be reversed for assistance, State, ineffective Fuller v. 117 rendered Whether counsel effective as- 558, (1931), Tex.Cr.R. did not only question sistance is the us in before cite the Texas Constitution. The Court majority’s adoption ap- this case. The stated, felony capi- “In of less case than plication “prejudice test” Strickland’s tal, presence the law does not make the appellant, when neither unwarranted Id., an essential.” 37 at S.W.2d State, appeals nor the court of has done an 157. That has not been the law in this analysis suffered by appellant of the harm 1, 1959, state since June date alleged due to the failures his trial coun- of an to former Art. 494 amendment of the Indeed, appeals sel. because the court of (now 26.04) Code of Criminal Procedure appellant found that effec- rendered requiring appointment counsel in all tive assistance of there felony years cases. That occurred four question need to address the of harm. Nor applied before the this rule for there reason this Court to do so. through the Sixth states and Four- See, State, 503, 679 Ingham v. 508- teenth Amendments in Gideon v. Wain- 09 (Tex.Cr.App.1984), which this Court wright, 83 9 S.Ct. though “mindful” of the recent decision L.Ed.2d 799 So for those four found that Strickland need not ana- “[w]e least, provide years, pro- Texas did that lyze light two-pronged this case solely tection state law. based test, however, Strickland because we do State, (Tex. Fletcher 396 S.W.2d v. appellant’s not find that inef- counsel was Cr.App.1965), majority says, as the came prior our decisions that fective as construe soon after the Amendment had been Sixth ‘reasonably term that he was not effec- applied through to the states the Four tive’ that as Court construes Gideon, supra. Perhaps teenth for that term.” reason, addressed a federal majority’s As our for assertion that agree standard: “We are unable to provided higher caselaw has never stan- his deprived of constitutional dard of effective assistance than that of rights guaranteed by the 6th 14th Strickland, page I find cases cited at Amendments to the Constitution of entirely supportive of proposi- 56 not States, United or that a different result tion: jury would have been reached but any of or omissions of his court for the acts State, Jones v. Tex.Cr.R. appointed counsel.” Id. at 396. There (1954), does not Art. I S.W.2d 116 address opinion showing is no from the 10 and does not conclude that counsel’s § claim under the defendant even made a assistance was ineffective or amounted to of Texas. laws Constitution “no counsel at all.” Turner Tex.Cr.R., (1922), 241 S.W. 162 does stand (Tex.Cr. 388 S.W.2d Jones v. cited, for for proposition all, which it is App.1965), problematical of is the most Art. was violated when propo because it is to tell what § difficult agent prevented of the State Among things other sition stands. rendering case effective assistance. The that the defendant “was Court there noted showing was reversed without a of harm. counsel of his represented at his trial choosing Counsel was not allowed talk to at 430. This is no own ...” Id. Sullivan, private. finally got longer Cuyler client in When he relevant after 335,100 opportunity, 64 L.Ed.2d 333 told him of some 446 U.S. abolishing counsel asked the distinction stan evidence which for a continu- appointed investigate. ance in dards retained order to That was between Maj. opinion, counsel. Duffy, p. See also Ex 59.3 But this is not the way appellant’s to test Jones claim of ineffective assistance, even object also states that under Under counsel’s failures to Strickland. standard, appellant that may to “must show that inadmissible evidence have been that, probability there is a reasonable but strategy, stating trial before there was unprofessional errors, for counsel’s the re- support abundance of other evidence to proceeding sult of the would have been jury’s Again, verdict. neither state nor different.” 104 S.Ct. at 2068. It is the federal law explicitly cited. of cumulative effect errors that counsel’s proposi- These cases do not stand for the evaluated, must not the effect of each statutory tion that Texas constitutional and making “In individual error. this determi- provided higher law have never standard nation, hearing a court an ineffectiveness of effective assistance than federal law. totality claim must consider the of evi- Nor is that issue before us. Until such judge jury.” dence before the 104 S.Ct. as time claims that Texas law majority’s weighing only at 2069. The of provide protection, higher does such we impact of the individual each er- individual should not issue what is in effect an adviso- shows misconception ror a basic test ry opinion that not. it does majority erroneously followed. misconception

Such demonstrates one of applying the difficulties inherent in another V. court’s test rather than standards this After its justify adopt- needless effort to developed Court has itself over the course ing test, prejudice Strickland the ma- years.4 jority immediately folly demonstrates the of such an improperly applying effort VI. by point, majority that test. Point iso- grant of review Our broader than failing lates each of trial counsel and con- ground for review. Eisenhauer particular cludes that that failure did not State, (Tex.Cr.App. 678 S.W.2d undermine confidence in the result 1984) (Clinton, J., dissenting). didWe trial: grant review decide whether we should “It is obvious from review of the adopt the nebulous standards of the Su respects entire record that in certain preme as United States sub-par rendered assistance. governing law this state ineffective as But the particular instances where granted appellant’s sistance We claims.5 occurred, shown, this it has not been as petition appeals’ review the court of required Strickland, decision, that there is a applicable under state law relied probability, probability reasonable by appellant appel and the that sufficient undermine confidence in the lant was rendered effective assistance of outcome, proceed- that the agree result majority counsel at trial. with the ing indicates, would have differed had trial coun- at least as far this record example, supplemental sel’s assistance been effective.” he was. For in his Emphasis throughout supplied by here 3. is mean to hold that if the State offers sufficient offense, opinion. charged proves the writer of this evidence and also incidentally that a defendant and friends are characters," 4. treatment of individual claims occa- “unsavory proof admission of well, something sionally leaves to be desired as extraneous offenses is harmless. But what else majority's p. notably the conclusion at 58 that to be of this made statement? "[ejven ignorant if counsel was of the law and course, 5.Understanding, allowing ineffective in these offenses the Sixth extraneous in, probability come there no reasonable Amendment the United States Constitution jury’s verdict would have been different establishes minimum standard of effective burglary underlying absent the mistake. The assistance and that Court could not inter overwhelmingly protection. capital pret provide law murder was estab- Texas less But ample supported (Tex.Cr.App. n. lished a conclu- ler 726 S.W.2d evidence 1986), sion denied his friends were unsavo- reh. June 1986. ry Surely majority characters.” does not appeals appellant Strickland, the court ar broadly brief to more than was done gued, 507, “The silent indica Duffy, record is with no see Ex 607 S.W.2d attempted tion to con (Tex.Cr.App.1980), that defense counsel which constitutionally is tact, psychiatric permissible interview secure it axiomatic because is that a psychological experts Sup the interpret for trial.” state is to free its own constitu- Brief, plemental p. statutory provisions 9. But the burden to tional and more broad- in thoroughly ly Supreme show that counsel did not than the Court holds to be possibility necessary construing the de vestigate this viable in the Federal Consti- appellant’s. may presume Hass, 714, E.g., Oregon fense is We not tution. v. investigation 1215, (1975). such lack of from a silent 95 S.Ct. 43 L.Ed.2d 570 But a majority properly points reading Strickland, As the compar- record. careful and out, attempt develop is ing teachings free to to its this what Court has past, fully supports his and held in the appar- record more stated makes it way corpus. issue presently claims writ habeas ent the real before this is Court not whether the facial standard Accordingly, majority while the has Supreme adopted the Court in Strickland I reached the correct result this adopted Court, should also be this deplore properly its decision an issue not making the determination Hanne- whether us, gratuitous and its before abdication appellant; man was ineffective counsel for responsibilities the and of this Court. duties presently the real this is issue before Court Therefore, judgment I concur the applied whether that standard should be of the court. differently. put If one take the to will time the Su- MILLER, J., joins opinion. this preme opinion of Strickland v. TEAGUE, concurring Judge, dissent- and Washington, supra, alongside majori- ing. ty’s opinion, compare judicial teach- therein, ings quite I believe it will become reluctantly I in the that the concur result anyone apparent majority’s reaches, majority that Hon. Paul Hanne- nothing opinion more than effort man was not ineffective Supreme mimic Court stated in its Hernandez, what client, appellant, Paul extremely horrifying opinion dreadful and appellant's extent that conviction should (hor- supra, Washington, v. must, however, Strickland set aside. dissent to rifying to extent of what dreadful con- application majority’s to this .case of what it sequences it will have when comes to Supreme Court stated Strickland judging trial counsel was ineffec- whether Washington, U.S. tive). 80 L.Ed.2d 674 MARSHALL, A HIGHER WHAT WHO WAS DOES TEXAS HAVE STAN- JUSTICE A TRIAL AND AP- INEFFEC- FINE LAWYER DARD THAT GOVERNS HE BE- OF PELLATE JUDGE BEFORE TIVE ASSISTANCE COUNSEL A THE THE FEDERAL CAME JUSTICE ON SU- THAN CLAIMS COURT, HAS TO SAY MANDATES? PREME CONSTITUTION ABOUT STRICKLAND might be true Notwithstanding that pro- History Supreme us statutory teaches that “our constitutional Washington, supra, in Strickland v. [facially] a standard visions do create (in history), time its entire cases that is more “for first ineffective assistance rights attempt[ed] synthesize clarify those protective than of defendant’s distinguishing standards for put standard forward counsel,” Strickland,” inadequate but Court has in the Court in “[f|or part, efforts are un- most past interpreted the Texas Constitutional [its] helpful lawyers To tell and the lower statutory provisions governing ... for a criminal defend- of counsel courts that counsel to the effective assistance reasonably competent long ant must suffer act like a result action that attorney, ante, 2065], May at 687 S.Ct. at Court took [104 essence, nothing. to tell them almost when it handed down Strickland Wash majority judges instructed called ington, supra. Also see United States v. upon Cronic, to assess claims of ineffective assist- supra.

ance of advert counsel to their own regarding institutions what constitutes THE ACCUSATION AGAINST ‘professional’ representation, and has dis- HANNEMAN couraged trying develop them from in appeal The record on this cause re- governing per- more detailed standards ground in appeal, flects that on direct one Marshall, formance of defense counsel.” error, Hon. Michael L. Brandes and Hon. J., dissenting view, In opinion. my this Betty Mackey, attorneys, B. Austin assert- majority opinion represents Court’s an ab- Hanneman, ed that Hon. Paul another Aus- responsibility dication of this Court’s attorney, tin represent who was retained to interpret the Texas Constitution. represent trial, and did appellant at his “rendered ineffective assistance of coun- MY PREDICTION his, sel” on appellant appel- behalf of at predict except I in egre that the most lant’s, appeal trial. The on record also cases, giously defended criminal the Su reflects of time period that for a when the preme Court’s decision of Strickland v. appeal repre- case was on Hanneman also Washington, supra, also see United States appellant sented by appointment. court Cronic, U.S. 80 However, Hanneman withdrew from the (1984), L.Ed.2d 657 which is the companion agreement “in the State Bar of case v. Washington, supra, to Strickland Texas,” appointed after which Brandes opinion majority which the does not cite or by represent appellant the trial court to cause, shall, in discuss this but which I will appeal. Mackey got into the How case is have in deleterious effects the field of crim record, not clear but such is im- from the law, inal regarding the issue of whether my material to fairness to discussion. trial counsel was ineffective Hanneman, I that I must state do not find counsel, much like its decision of Dred qualified now or then he not (19 How.) 393, Scott v. Sandford, U.S. practice this criminal law in State. country. L.Ed. 691 had on this remember, As most of us the Dred Scott THERE NO HAS BEEN HEARING ON Negroes decision held that “free” were not THE ACCUSATION States, citizens of the United notwithstand I pause point out that at no time has ing they the fact that had been in born any type hearing been held on the accusa- United decision major States. The was a Mackey, in tion that Brandes and either indi- causing factor the CivilWar between the States, vidually jointly, against made which commenced 1861 and last Hanneman; thus, years. making the determina- tragic ed for four In the classic Hughes, words tion whether was ineffective of Charles Evans Hanneman Dred represented Scott decision was a “self-inflicted wound” counsel when he trial, required his the benefit more Court is without years testimony than I as to ten to heal. fear that it will Hanneman’s the accusa- against take before tion su- years Duffy, ten-score the wound that him. In Ex pra, following: Washington, supra, pointed Strickland this Court out the inflicts “Experience in the us that taught field of criminal law will heal be most cause, of ineffective purposes, for Sixth Amendment instances where the claim raised, decision is the rattle for assistance of the record death ineffective counsel is appeal simply shape assistance of counsel claims on direct convicted persons. persons representation adequately ac ... that would reflect fail- ..., (nor, add, committing wrongs, espe ings might cused of I criminal trial counsel defendants, cially indigent will, predict, adequately I that would reflect defenses charged that the attorney might thought have to Hanneman was ineffective ineffectiveness). the accusation of counsel. He asserted therein that [Colla- Hanne- teral may just attack the vehicle man was ineffective counsel because he thorough which a and detailed examination pursue failed to insanity defense; alleged may ineffectiveness be devel- presented evidence that rebutted the af- oped spread (607 upon a record.” self-defense; firmative defense of and was 513). “ignorant of the facts of gov- the case and

erning exception law.” With the of the WOULD, THEREFORE, I REMAND assertion that THIS concerns an extraneous of- fense, HEARING, merit, FOR A which I

CAUSE BUT THE find has I find that MAJORITY REFUSES TO DO other accusations SO are without merit. However, light overwhelming evi- Because are we without the benefit of appellant’s guilt, dence of and the fact that defenses, testimony, Hanneman’s as to his punishment automatically set un- any, to the accusation that has been law, der our say am unable to him, against leveled this causes the record Hanneman’s regarding ineffectiveness incomplete really to be ques- answer the extraneous offense was not harmless error. tion whether Hanneman was ineffective represented appellant. counsel when he Thus, metaphor whichever or label one Therefore, I vote to remand this cause to use, chooses to in describing the standard the trial court for a hearing on the accusa- attorney’s performance, for an such as is, view, tion. Not to my take this action performance his made trial a “farce being Hanneman, not fair to and to render mockery,” and he “grossly incompe- was opinion on such a skimpy record as we tent,” performance “perfunctory,” his being have before us is also not fair to the performance his “prejudicial” to the But, bench and bar of this major- State. accused, best interests of the he acted in ity refuses to remand the cause for a hear- faith,” representation “bad his was a ing. pretense,” performance “sham and a his “shocking conscience,” per- to the Notwithstanding this omission formance denied the accused “fundamental appeal, appeals record on im- court of fairness,” performance or his made the tri- plicitly implicitly found and now this Court mockery,” having al “a farce and after finds that there a sufficient record to carefully appeal, read the record on I am make the determination whether Hanne- conclude unable to that Brandes and Mack- Thus, man was ineffective counsel. as the Hanneman, ey’s complaints against includ- Court does not vote remand the cause ing involving the one an extraneous of- hearing, for a I will do the I can best fense, have sufficient merit that would appeal presently the record on that is on appellant’s warrant this Court to set aside file in purposes writing this Court—for Thus, majority correctly conviction. my concurring dissenting opinion. holds that Hanneman was not ineffective counsel to such an extent that reversal WHY BRANDES AND MACKEY appellant’s required. conviction is CLAIM HANNEMAN WAS INEFFECTIVE TRIAL COUNSEL HANNEMAN DID NOT HAVE MUCH brief, original appellate In their Brandes WORK WITH TO Mackey claimed that Hanneman was “opened appeal actually reflects

ineffective because record representing appellant, door” to the admission into evidence of an Hanneman few, through any, extraneous offense his introduc- had favorable facts with which appellant. tion of the written confession of Manuel to muster a defense on behalf of Gonzales, co-defendant, practicing appellant’s every attorney tri- As criminal be- not, However, professional al. the record does as we comes aware in his or her ca- see, reer, support shall this accusation. “There are some cases that cannot be brief, won, (in supplemental why obtaining guilty Brandes added to the sense finder). verdict from the fact An BRANDES AND MACKEY’SCLAIM RE- GARDING AN EXTRANEOUS appraise must a case do the best he OFFENSE (with can with the facts which he is presented).” Rockwood v. appeal The record on reflects Hanneman was both and ineffec- 293-294 regarding tive counsel the admission into Also, noted, as previously punish- but evidence of an extraneous offense. This is judge imposed ment that the trial was auto- because the record reflects that when matically set our law. Gonzales, cross-examining Hanneman was witness, accomplice the State’s the witness THAT BRANDES’ CLAIM HANNEMAN unresponsively following answered the WAS INEFFECTIVE HE BECAUSE question “Q: Okay, as follows: then that PRESENTED RE- EVIDENCE THAT (when arrested), morning, Gonzales was BUTTED THE DE- y’all walking AFFIRMATIVE were down the street and the police picked you up. OF Is that not correct? FENSE SELF-DEFENSE Yeah, going A: were we inside this other toAs Brandes’ assertion that Hanneman [My Emphasis]. por- house.” The latter was ineffective presented because he evi- unquestiona- tion of Gonzales’ answer was during dence the trial that rebutted the bly asked, unresponsive question self-defense, affirmative defense of try as I subject However, objection. to an Hanne- might, yet I have to find a scintilla of Thus, object. man did not he was ineffec- evidence that would support the defense of Thereafter, point. tive on this but based self-defense on the part appellant, upon an representation by incorrect provided V.T.C.A., Code, Penal Section prosecuting attorney ques- of Hanneman’s 9.31. contrary, To the appears to me tion, judge erroneously the trial overruled if anyone that right had the deadly to use objection Hanneman’s to the admission into force, it would Vasquez, have been evidence of the extraneous offense of at- V.T.C.A., Code, victim. See Penal Section tempted burglary of another house that 9.41, property. defense of If it morning Vasquez be Brandes’ occurred the after was regard, In contention killed. this Hanneman Vasquez that because was ef- com- However, fective counsel. but without ob- chasing appellant menced and his two co- jection, put arresting State later on the residence, he, horts from inside his after officer, response who testified as to his to a Vasquez, was awakened his unwelcome police dispatch burglary about “a then in intruders, gave uninvited ap- that this Thus, progress.” Hanneman’s failure to pellant right Vasquez to shoot in the object testimony to the officer’s caused the got back when he porch, to his front I State, Autry error to be harmless. v. 159 because, believe he misses the mark in a 419, (Tex.Cr.App. Tex.Cr.R. 264 S.W.2d735 sense, who, appellant it was and his cohorts 1954). this, In he was ineffective counsel. presence their mere unlawful inside of Notwithstanding this Court’s decision of Vasquez’ residence, provoked Vasquez into State, (Tex.Cr. Ewing v. 549 S.W.2d 392 chasing event, them. ap- because App.1977), part that such error on the pellant never established the defense might question Hanneman “a been self-defense, this moots Brandes’ conten- tactic,” hold, I would for the reasons that tion I because am unable to understand Judge Phillips dissenting opin stated how Hanneman’s actions rebutted what cause, ion he filed in that that Hanneman never existed. objecting was ineffective for not contention, As to regarding Brandes’ last police testimony concerning officer’s that ignorant assertion Hanneman was However, light extraneous offense. law, of the facts of governing the case and overwhelming appellant’s evidence of agree I principle with the reasons the conclude, guilt, though I am unable to not majority why states as to this contention is difficulty, single without some that without merit. error causes him to become ineffective 68 such an Supplemental Brief.) extent that reversal of of And this is anoth- appellant’s required. conviction is Al why hearing er reason a should be held though I am loathe to characterize clas the accusation. sify such harmless, error as I because be Nevertheless, I have carefully searched that lieve of counsel the record for evidence that would estab a “constitutional to a so basic fair lish that the time of commission that [usually] infraction can never [its] appellant, offense a result error,” treated as be harmless Ex defect, severe mental disease or not did

Duffy, supra, 524, 607 S.W.2d at am know his conduct wrong, that see V.T. compelled to do so in this instance because C.A., Code, 8.01(a), Penal Section which penalty the evidence in this non-death case prerequisite evidence is be that must beyond any appel establishes doubt insanity established before the defense of capital lant committed the murder Vas My is raised. search has been in vain. quez, and the error had no affect whatsoev Brandes, support of his contention that punishment on the er assessed. that was Hanneman was ineffective because he did Weatkersby See v. pursue not insanity, defense of (Tex.Cr.App.1982); seizes Allen v. 843, upon part report Goldwater’s 844-846 E.g., Florida, Schneble v. grossly 92 states that immature “ (1972); 31 L.Ed.2d Harring age, for his and that ‘Dap’test, (draw California, ton 89 S.Ct. test), U.S. picture was of sufficient detail 23 L.Ed.2d 284 Also see yield developmental age approximate Perini, (6th Whitsell F.2d Cir. eight years.” However, the and one-half 1969). States, Beasley Cf. v. United might fact that this reflect or indicate that (6th Cir.1974). F.2d 687 appellant might mentally retarded does not reflect or indicate that he was suffer BRANDES’ FAULTING HANNEMAN ing from mental disease or defect to such FOR NOT AN PURSUING an extent he did not know his conduct INSANITY DEFENSE My wrong. yet research has to reveal As to faulting Brandes’ Hanneman single simply where case because defense,” “pursuing an insanity other immature, deficient, mentally accused was admitting than that he had some consumed retarded, this, mentally standing that beer, appellant pre- himself at the testified alone, is sufficient to raise the of defense hearing that the admissi- was held on insanity. does a Nor Brandes cite such confession, bility appellant’s of written see Court, By analogy, this as case. as well Denno, v. 84 Jackson courts, many the has held Federal times 1774,12 L.Ed.2d he had that not mentally person capable that a deficient is any drugs any glue taken or sniffed right waiving of of self-incrimination. Brandes, night paint sup- the before. State, (Tex. See Grayson S.W.2d 553 however, contention, upon of his port relies Estelle, Cr.App.1969); Lavallis v. “psychological report” a that was filed in course, (U.S.S.D.Tex.1974). F.Supp. 238 Of Goldwater, by psy- a Juvenile D.L. subnormality great if is the mental so that chologist appointed by the Juvenile Court. incapable understanding an of accused report appeal. is in the record confession, meaning and effect of his However, transcription we do not of have a then it would not be admissible. Casias proceedings that occurred Juvenile State, Thus, agree I Brandes that Court. with our case. But that is not Brandes’ conten “Since facts in this case remained cov- tion is merit. without Brandes also does undetected, way and of ered there is admissibility appellant’s of attack the telling facts, (relating whether these to the at ground on the written confession that fully possible insanity), defense of devel- he appellant gave oped, would or time confession would not established (P. (of in mentally defense defective insanity) dispute.” was so that capable meaning pra, it the ideal for the understanding of made case effect of his important confession. such to rule on an issue in jurisprudence. Eight our criminal of the however, The majority, tells in that cause received the nine defendants develop that he is to further “free the facts conviction, penalty. After the case death post-conviction in a hearing, partic- habeas amount itself received an enormous of na- ularly respect alleged to counsel’s pursue defense,” publicity, part insanity to tionwide which failure (my emphasis), implying thus Hanne- that “fight” a the Interna- caused between investigate man duty had a this defense. tional Labor Defense of the Communist light appellant’s In and un- express of the N.A.A.C.P., Party and the over which equivocal that, beer, testimony, other than group legal representation furnish would his body subject any did not become defendants, for the which itself is rather substance, other deleterious and the fact interesting when one considers fact retardation, alone, standing mental appears lawyer really that it that no want- defense, insufficient raise insanity represent ed to the defendants at their strongly disagree had Hanneman trials. duty investigation regarding make an a gave long The incident that rise to a possible insanity majority’s defense. The appeals series of trials and of the “Scotts- implication place will an intolerable and 25,1931, began Boys” boro on March when unnecessary upon burden bench Rock, police arrested in Paint Alabama taxpayers bar of as this well as the males, young nine black one of whom was of this they which can ill afford years age this time. of who was another years age, rape sixteen of a THE OF THE THE BIRTH RIGHT TO rape allegedly white female. The occurred ASSISTANCE OF COUNSEL freight traveling between on a “fast” train light approval of this express Court’s Huntsville, Chattanooga, Tennessee and Washington, supra, Strickland v. I will stopped The train was at Paint Alabama. next subject right address the of the deputy posse comi- Rock sheriff and counsel. trial in near- tatus. The defendants stood thus, Scottsboro, Alabama; the name The birth of the assistance Boys.” None the defend- guaranteed “Scottsboro by the Sixth Constitution, Amendment Federal ants were residents of the State Ala- applicable through and made to the States It was later bama. established course, is, the Fourteenth Amendment prostitute appar- victim was well-known fascinating interesting event in the his- “trick,” traveling with a ently on the train tory development law in criminal story she had her and that fabricated However, country. although Sixth up raped been to cover the fact she had Amendment was declared in on De- force crossing illegally state lines. that she cember it was not until community the attitude of the Because Supreme when the Court decided Powell v. Scottsboro, were where the defendants Alabama, 45, 55, 53 77 L.Ed. tried, great hostility, prevent one of was person charged 158 a com- the was called lynching National Guard mitting given right capital crime was the guarded National the out. The Guardsmen counsel, guaranteed the assistance as defendants, Gadsden, in who were housed Federal the Sixth Amendment to the during pretrial pro- and trial the Alabama Constitution, applica- was made which guarding as as the court- ceedings, well through ble to the the Fourteenth States grounds located the courthouse house and Amendment. Scottsboro, stage pro- every in Carter, Scottsboro, D. A ceedings. See THE THAT TO GAVE RISE FACTS (1979). the American South Tragedy of ALABAMA POWELL V. later, 31st, the defend days on March Six gave Supreme The facts rise to the arraigned. Alabama, The tri su- indicted and Powell v. ants were decision 70 judge arraignment however,

al later stated that at of the jurors seven twelve wanted appointed had he all the members of the impose penalty. appears the death It bar purpose arraigning local for the disagreement that this over punish- what defendants. He also stated that antici ment to assess is what caused jury pated that the members of the bar would that case not be able to reach a verdict. help continue to the defendants no coun 24,1932, On March appeared sel at the defendants’ trials. On Alabama, State, supra; in Patterson v. 6th, commenced, April the trials after the State, 540, Powell v. 224 So. et al. Ala. granted. State’s motion for severance was State, (Supr.1932); et Weems al. v. commenced, Before the trials the trial 524, (Supr.1932), Ala. 141 So. 215 affirmed engaged judge long colloquy in a with a Williams, all but the conviction of the six- lawyer Tennessee, from the State of who old, year teen which it reversed because bar, not a was member of the Alabama Williams, juvenile, held that not should appear see whether he would as counsel Only have been tried as an adult. Chief for the lawyer defendants. The Tennessee Justice Anderson the Alabama stated that he had of the come “as a friend Court dissented. He believed that under people paid who are interested not as the circumstances the defendants had been counsel” and that he was familiar with quickly. tried too In Powell et al. v. procedure Alabama nor he had had supra, majority implicitly answered prepare chance to for He the cases. even Judge Anderson’s belief in these words: tually part took capacity the trials in the appellants complain “The speed of the lawyer of an A amicus curiae. local vol There is no trial. merit the com- help lawyer. unteered to the Tennessee plaint. speed, If there was more less lawyer, Another local who had said he delay administration of the crimi- appear could not but will land, nal property laws of life and assist, ing suddenly lead coun became safer, infinitely greater would be re- He lawyer sel. and the Tennessee were spect criminally for would inclined have assisted another lawyer local who (141 211). p. So. at the law.” service, judge apparently drafted sua into sponte. The began. trials then The de Analogizing Czolgosz, to the trial of separate fendants were tried in three assassin shot former President McKin- who groups, apparently but three differ before Buffalo, ley September New York juries sitting ent at the same time. The majority support found its trials, eight which were some attended speedy. the trials holding that were not too persons, only to ten thousand lasted one pointed majority The out that in that case A day. parade place during took the time passed two months from the date occurring. parade, trials were executed, Czolgosz until shooting complete band, sponsored by with a verdict, sentence, and “This and execution Ford Company. Motor verdicts When citizens, north, by good approved were in the Weems and Norris’ case were re west, south, in fact on both sides east and turned, played the band “There’ll the tune (141 211). p. So. at Atlantic.” Tonight.” ABe Hot Time In The Old Town specta applause There was much V. ALABAMA POWELL watching who parade. tors were See backdrop, I With this now turn to the So. Patterson Ala. Supreme Court decision of Powell Ala- (Supr.1932). Jethro K. Also see bama, supra. Liberman, Milestones 10, 1932, exactly On almost six noted, October eight As were of the defendants the day months from that the given penalty. Alabama convicted and the death Supreme rehearing, had denied the jury thirteen-year- which Court The heard the Supreme argument. heard oral It old’s case was a verdict. Court unable to reach 7, 1932, prosecutor jury to as- decided the case November and had asked that sentence; thirteen-year-old the life restricted issue to be decided to wheth- sess a the counsel, er the were in employ incapable defendants denied to ade- substance and right counsel, making their to the quately “with accus- of his own defense because oppor- tomed incidents and ignorance, feeble-mindedness, of consultation of illiteracy, tunity preparation like, of of court, trial.” S.Ct. 57. duty or the it is the of the Thus, the focus of not, attention was not on requested assign whether or to counsel during trial, what occurred the but on the necessary a requisite for him as of due actual amount time the of allotted attor- law; process duty of and that is not dis- neys preparation. for trial Cf. United assignment charged by an at such a time Cronic, supra. v. States preclude under such circumstances as to giving the of aid in prepara- effective the held, however, The Court first that be- tion of case.” the 53 S.Ct. at 65. designation the cause of counsel the defendants was either so or so indefinite Thus, pro- in order for there to be due upon the close trials that such amounted to law, trial, but, cess of there must be a of the denial effective and substantial aid alone, standing assist- without effective of It any counsel. further held that counsel, “[i]n ance of the trial would little event, circumstance, desig- [above] [the meaning importance. Because de- counsel], emphasis nation lends fendants had been denied the as- during conclusion perhaps the most counsel, Supreme sistance of or- Court period the proceedings against critical dered their convictions reversed. defendants, say, these is to from the arraignment of their begin- time until the SUBSEQUENT OF HISTORY POWELL trials, consultation, ning of their when thor- V. ALABAMA’S HOLDING investigation ough-going preparation and Notwithstanding question, vitally important, were the defendants did whether a defendant has a constitutional not have the aid counsel in real right to the assistance of counsel in a non- sense, although they were entitled to such case, capital was not answered in Powell during period aid as at itself.” Alabama, 1938, supra, (Citations omitted.) 53 S.Ct. 60. Zerbst, Court held Johnson appears 1019, (1938), What to have troubled 58 S.Ct. 82 L.Ed. 1461 that, the most assuming pros- was even there that a defendant criminal federal proper designation was a of counsel on the ecution entitled to the assistance of trial, morning that, such would not have counsel to coun- and unable afford permitted sel, period obligation counsel sufficient the trial court had Thus, to investigate going appoint time before an attorney. trial. him the Sixth defendant, charged with a barred a sen- serious Amendment conviction and “[A] crime, stripped must de- right not be of his to tence in a Federal criminal trial if the represented have sufficient time advise with counsel fendant was not counsel prepare competently intelligently his defense.” 53 S.Ct. at 60. had not However, right waived to counsel. next decided whether the deni- non-capital charged State defendants al of the assistance of counsel contravened well. offenses did not fare as process the due clause of the Fourteenth Brady, Amendment to Federal U.S. S.Ct. Constitution. Betts v. tracing After the historical roots 86 L.Ed. 1595 right rejected process the Court concluded that Court the claim that due right required “the the aid counsel ... law counsel [a] guaranteed by proceedings provided fundamental the due state as broad as that process clause Amend- in the courts the Sixth Amend- Fourteenth federal process ment ... We think failure of the trial ment. due clause of “[T]he incorpo- give Amendment does not court reasonable Fourteenth [the defendants] rate, such, specific guarantees found opportunity time to secure counsel process due Amendment.” 62 a clear denial of ... the Sixth [I]n Thereafter, re- capital where the is unable 1256. whether 72

quired non-capital felony in a felony case was offense prison that carried a term as approach. decided on a punishment. case case Coun- required appointed sel was when particular circumstances of the case ONE OF THE EFFECTS OF AFFORDING indicated that the absence counsel would DEFENDANTS IN STATE COURTS in result a lack of fundamental fairness. THE RIGHT TO COUNSEL THE IS Uveges 437, In Pennsylvania, v. 335 U.S. INCREASE IN CLAIMS THAT 184, (1948), ques- 69 S.Ct. 93 L.Ed. 127 COUNSEL RENDERED INEFFEC- tion, appointed, whether counsel should be TIVE ASSISTANCE was framed as follows: “Whether Although right in felony to counsel gravity of the crime and other factors— firmly established, cases is grant- now age such as the and education of the de- ing defendants, right of such particu- in fendant, prose- the conduct of the court or defendants, indigent lar brought on a cuting officials, complicated and the nature proliferation of claims from convicted indi- charged possible of the offense and the gent defendants repre- that counsel who proceed- defenses thereto —render criminal sented them at trial were in ineffective ings apt without counsel so to result defending them.

injustice as fundamentally to be unfair?” Burke, 773, Also see 337 Gibbs v. U.S. 69 1247, (1949).

S.Ct. 93 L.Ed. 1686 QUICKLY BUT BARRIERS WERE 335, In ERECTED TO SUCH Wainwright, Gideon v. 372 CLAIMS U.S. 792, (1963), 83 S.Ct. 9 L.Ed.2d 799 the Su- Although early agreed this Court preme put to rest the above distinc- person proceeding an accused in a criminal by overruling Brady, supra, tions Betts v. constitutionally protected right has a right and held that the Sixth Amendment counsel,1 and the applicable to counsel was to the States on, Legislature early supra, statutorily see through process the due clause of the Four- provided indigent defendants with Thus, appoint- teenth Amendment. when it came to whether counsel was inef- required ment of counsel was in a state fective, Court, others, many as well as felony prosecution, as well inas a Federal early succumbed to but later held to be felony prosecution, when the defendant appointment erroneous view that employ attorney. could not afford to an action, privately counsel was state whereas Lewis, Trumpet Also see A. Gideon’s implicate retained counsel did not state ac- (1966). State, 939, tion. See Newton v. 456 S.W.2d supra, State, Wainwright, (Tex.Cr.App.1970); Byrd Gideon v. was ex 941 421 v. panded Hamlin, Thus, in Argersinger v. 407 U.S. 915 S.W.2d 25, 2006, (1972), making 92 S.Ct. 32 L.Ed.2d 530 the determination whether counsel ineffective, punishment misdemeanors ex where the the distinction between re- Illinois, appointed ceeded six months. tained counsel and court Scott v. counsel 367, 1158, 440 U.S. 99 S.Ct. 59 L.Ed.2d 383 was drawn. Gondek v.

(1979), (Tex.Cr.App.1973); the Court held that there was where McKenzie confinement, (Tex.Cr.App.1970). Today, be no Illinois, however, notwithstanding did not attach. But Baldasar v. that the retained, 222,100 his effectiveness must meet U.S. S.Ct. L.Ed.2d degree ap- held the same of effectiveness as Sullivan, pointed Cuyler uncounseled misdemeanor conviction with counsel. See 335,100 jail out a sentence could not be used to 64 L.Ed.2d 333 (1980); subsequent supra. misdemeanor to a Duffy, convert Ex cases, Morrison, (1949); capital “Requiring Appointment 1. Since at least and since cases, non-capital Appeal,” at least Texas has of Counsel at Trial and on 28 Tex. Bar that, Onion, Counsel,” (1965); Right required requested, indigents when must J. 23 “The be furnished Tex. Bar J. 357 counsel. See 28 Tex.L.Rev. 236

73 State, In this appointed court counsel demonstrated.” This Court also did not formerly was very high held to a standard appear apply the harmless error test to in order to be effective. one of the few such errors of commission or omission on cases that this Court reversed on direct part counsel, if ap- it found court appeal times, in earlier involving ap court pointed ineffective, counsel the conviction pointed counsel, this Court held in Rodri would summarily reversed. See Vessels guez State, v. 170 Tex.Cr.R. 340 State, v. 432 (Tex.Cr.App.1968) S.W.2d 108 S.W.2d 61 “viewing that the case as (On rehearing). motion for picture, an over-all we are constrained to appears It also from the decisions of this conclude equal justice under law this Court has consistently would preserved best be by maintained made the determination whether ap court awarding appellant another trial.” pointed counsel was ineffective only after from the entire record it appar “[W]hen it had carefully reviewed the entire record ent that the accused has not been ade appeal, i.e., on it viewed the claimed errors quately represented the courts should have of commission or totality omission from the hesitancy saying.” (63). in so The an representation accused, of the rather question, swer to the ap whether court than dissecting isolated failures counsel pointed counsel was ineffective in that object, or isolated acts or omissions upon factors, turned namely: several State, counsel. In Benoit v. 561 S.W.2d (1) inexperience in han 810 (Tex.Cr.App.1977), this Court stated dling cases; (2) serious criminal his actions following: “Any claim of ineffective during the trial permitted which the State assistance of counsel must be determined to introduce what would have been other upon particular circumstances of each wise inadmissible injuri evidence that was individual case.” Also parte see Ex Robin ous to the defense. Interestingly, the dis son, 639 S.W.2d 953 (Tex.Cr.App.1983); sent that was filed in that by Judge cause State, Ferguson (Tex.Cr. v. 639 S.W.2d 307 Woodley concluded that majority was App.1982); State, Romo v. 631 S.W.2d 504 mandating higher qualifications for the (Tex.Cr.App.1982); State, Boles v. 598 representation indigent defendants than (Tex.Cr.App.1980); S.W.2d 274 Flores v. required was for clients who had retained State, 576 632 (Tex.Cr.App.1979); S.W.2d counsel. The dissent also would have held State, Ewing (Tex.Cr. 549 S.W.2d 392 the errors of commission that were State, App.1977); Long v. 502 S.W.2d 139 made appointed court counsel amounted (Tex.Cr.App.1973); State, Nielson v. 437 to trial tactics part on the lawyer, of the (Tex.Cr.App.1969); S.W.2d 862 Garcia v. and lastly would have held that such er State, (Tex.Cr.App.1969); 436 S.W.2d 911 rors, any, were E.g., harmless. Fletcher State, (Tex.Cr. Caraway v. 417 S.W.2d 159 State, 396 S.W.2d 393 App.1967). appeared And this to be a con majority, however, held that the de tinuing today. rule of this Court until Fur fendant had not received the effective as ther, Dunham, parte see Ex 650 S.W.2d sistance of and reversed the de (Tex.Cr.App.1983); 825 Burnett v. fendant’s conviction. This decision was (Tex.Cr.App.1983) (Dally, S.W.2d 765 many hailed in quarters. However, history J., Dissenting opinion); Burns, parte Ex experience teaches us that it was not (Tex.Cr.App.1980); S.W.2d Ex approved many because judges, includ parte Scott, 581 (Tex.Cr.App. S.W.2d 181 ing the one who appointed had 1979). Cf., however, Ybarra, parte Ex Rodriguez, supra, appoint refused to other (Tex.Cr.App.1982); Ex experienced than and older attorneys of the Diaz, (Tex.Cr.App.1981); 610 S.W.2d 765 local bar represent indigent defendants. (Tex.Cr. Dugger v. Nevertheless, when it came court ap- App.1976). pointed counsel, this Court committed it- However, self: “This Court does not hesitate to re- it came when to retained coun- sel, verse a held, conviction where post, ineffectiveness of cf. early appointed] counsel is manifestly deciding ineffective, [court whether counsel was question to be answered mockery justice?” If the record whether counsel guilty of willful mis- reflects that counsel filed a “ton” of writ- conduct without the knowledge motions, ten vigorous in his cross-ex- client that amounted to legal a breach of a witnesses, amination of the gave State’s duty to the client that reduced the closing trial to a full argument, displayed a sa- farce and mockery justice. gacious Boles v. tactics, election of trial will he be State, supra; Scott, parte Ex supra, at deemed effective even when it is 182; State, Gondek supra; Jones v. established that absolutely he did pre- State, 388 S.W.2d 429 (Tex.Cr.App.1965), investigation trial of the case? Never con- whereas, noted, when it came to court sulted with the client? Has read a law appointed counsel, question was wheth- book since he finished law school ten over er counsel rendered reasonably years ago? Has not attended a criminal assistance. See Ex Duffy, supra, at law institute since he finished law school 513-514. years ago? over ten What if counsel is

board certified criminal law? Is he to be LABELS: ARE THEY held higher to a MEANINGLESS standard than counsel who

UNTIL is not APPLIED? board certified? observed, As previously courts, and now Or, yet, better past their efforts to including Supreme Court, have at- place stringent requirements that must be tempted give in stating labels what stan- satisfied before counsel will be held to be performance dard of governs, as to wheth- ineffective, appellate placed courts be- ineffective, er counsel was such as coun- fore the defendant what oftentimes are sel’s commissions or omissions caused the insurmountable establishing barriers proceeding entire to result in “a farce and that counsel was ineffective an effort to mockery justice,” counsel’s lack of dil- protect judges? course, Lawyers, of igence competence reduced the trial to willing should and must explain be what sham,” “a farce or counsel must “rea- they But, did and why they did it. what sonably likely to reasonably render effec- explain facially cannot what is assistance,” tive and the like. a blatant error of commission or omission? explain it, If he cannot can how a trial But, applied, until are these labels not judge explain why he did not intervene? general too distinguish indefinite to diligent from the attorney; indifferent acu- THE TEST IN TEXAS men incompetency? Texas,

In determining test used for the effectiveness of counsel has SOME been the THOUGHT PROVOKING reasonably standard, QUESTIONS effective assistance i.e., likely rendering to render and Is it not true that until in light viewed reasonably effective assistance. The test particular circumstances of gen- applied by gauging totality of the eral definitional standards are of little as- rendered, representation parte Duffy, Ex in making sistance the determination supra, Caraway also see whether counsel was or was not effective (Tex.Cr.App.1967); S.W.2d 159 McKenna v. counsel? It has been stated Ellis, (5th Cir.1960), 280 F.2d 592 modified “[bjecause present the cases do not a uni- curiam, per (5th Cir.1960), 289 F.2d 928 tary theory trial, concept of a fair denied, cert. 82 S.Ct. standards for ineffective assistance have L.Ed.2d 78 which first announced merely extrapolated been leading from the test, and the determination whether cases without true theoretical link be- always counsel was effective has de been tween the types various of misconduct dis- cided this Court on a case case Whitebread, cussed.” Constitutional approach. Procedure, When, Criminal at 365. ex- actly, does counsel’s Although acts of commission or may be true that the above omission cause a trial to become “a farce adopted origi- test this Court has one nally far, announced light the Fifth Circuit in of what I have stated so Ellis, nevertheless, supra, totally disagree majority’s McKenna v. it is must with the conclusion. also axiomatic that this not bound by rulings of lower federal on courts Fed- HAVE PROFESSOR GENEGO AND I questions, eral Constitutional because both READ A DIFFERENT STRICKLAND parallel state and federal courts are of V. WASHINGTON? importance deciding questions, such however, Perhaps, Professor William J. both answer to the di- Genego, see 22 Am. L. “The Cr. Rev. rect review. Pruett v. 463 S.W.2d Future of Effective Assistance of Counsel: (Tex.Cr.App.1971). However, Competent Performance Standards and interprets same is not true when this Court Representation,” and have read a differ- statutory the State Constitution and State opinion ent Strickland than the one the provisions, interpretation its because conclu- majority read because draws this supreme. those laws adopting sion therefrom: “While the new Furthermore, pointed but as out Clin- competency’ language, ‘reasonable the ton, J., Wice, and in their article law review opinion Strickland in Court wrote Texas,” entitled “Assistance Counsel in manner which ensures that the courts will 12 Mary’s St. Law Journal apply underlying still elements of the although the Fifth originally Circuit did mockery’ ‘farce and test.” adopt Ellis, in above test MacKenna v. yet, And Caraway at least since supra, it did not continuously adhere to supra, if at least since Ex Galle- test, whereas this Court has for the gos, (Tex.Cr.App.1974), part continuously most adhered to the decided, rejected this Court has the “farce Judge point- above test. Clinton and Wice upon mockery passing and test” in ineffec- following: ed out the “While the Fifth Cir- tive assistance of claims. struggling cuit explain applicable its that, Thus, Strickland, supra, holds standard competency, the Court of Crim- purposes, for Sixth Amendment courts Appeals inal similarly engaged in set- apply underlying must elements of the tling Accordingly, its own ... the ‘reason- test, mockery” why “farce and then does ably effective assistance’ standard remains Supreme Court’s standard not differ in Ap- viable ... the Court of Criminal “reasonably from this Court’s standard of peals.” assistance?” effective THE MAJORITY’S ASSERTION STRICKLAND V. WASHINGTON 14, 1984, Court, May Supreme majority respect asserts On that “With ineffectiveness, deciding after to venture for the first time determining general history disorderly in its into the accumula- standard established in Strickland differs metaphors, supra, regarding tion of see little or not at all from this Court’s stan- govern what standard shall when it comes Using dard ...” this statement as its deciding claims of ineffective assistance linchpin, it is then able to conclude the decided Strickland v. Wash- following: supra. pointed ington, As out Profes- short, In constitutional and statu- [Texas] Genego, supra, Supreme sor see Court tory provisions do not create a standard addressing try decided to its hand at in ineffective cases that govern issue standard should for of what protective rights more of a defendant’s so purposes. Sixth Amendment It did put than the standard forward ap- courts of after all the federal circuit Strickland. Accord- peals adopted “reasonably compe- had ingly, we will follow full the Strick- tent” standard. determining land standards in view, resulting could not prejudice my assistance and there- as its from. selected a sorrier case to use vehicle to important write on such an issue WASHINGTON’S ATTACK ON TRI- HIS AL federal criminal COUNSEL AND law. COMMENCES THE CASE REACHES THE ELEV- defendant, facts reflect ENTH CIRCUIT AP- COURT OF Washington, during ten-day period PEALS time, planned groups and committed three By way post-conviction collateral at- crimes, which included three brutal stab- tack on the death sentences that were im- bing murders, torture, kidnapping, severe posed, it was claimed that trial counsel was assaults, murders, attempted attempted ex- respects. ineffective six None concerned tortion, and theft. The defendant confess- pleas guilty. defendant’s On even- police ed to the about the third of the appeal Circuit, tual to the Eleventh see episodes criminal and also confessed to the Strickland, Washington v. 693 F.2d 1243 Acting against first two murders. court- (11th Cir.1982), the claims were narrowed appointed advice, counsel’s the defendant (1) following: whether counsel was pled guilty degree to three counts of first investigate, ineffective because he failed to murder, multiple of robbery, kidnap- counts procure, present character evidence ping ransom, breaking entering sentencing stage relevant assault, murder, attempted and con- trial, (2) prejudiced whether this failure spiracy robbery. acting to commit Also the conduct of his defense against advice, counsel’s the defendant imposition of the death sentence. right waived his under Florida law to an The Eleventh Circuit ordered the cause re- advisory jury capital sentencing at his hearing. manded to the lower court for a hearing. short, placed In the defendant If the lower court found that “there was the decision whether he should live or die in plausible more than one line of defense at judge, hands of a trial who had “a another; expense strategic and if the great deal respect people who are reasonable, (the Tunkey choice was attor- willing step to forward ney) and admit their duty did breach his to investi- not (at 1258). responsibility.” Although opinion gate.” p. Tunkey had testified strategic that he made a appointed states that court choice to introduce counsel was during plea limited character evidence experienced “an lawyer,” criminal it does colloquy rely upon and thereafter ex- what, any, knowledge not reflect expe- frankness, pressions sincerity, and re- rience particular counsel had with this persuade judge impose morse to judge regarding punishment his views on (at 1251). imprisonment, p. sentence of life assessing punishment and his in different sum, The Eleventh “In Circuit held: cases, i.e., kinds of criminal the record does strategic who makes a choice to not reflect judge whether the trial investigation channel his into fewer than “hard-nosed” or “liberal” when it came to plausible all lines of defense is effective so assessing punishment, and what he had long assumptions upon as the which he previously comparable done in a case strategy bases his are reasonable his this one. assumptions choices on the basis of those court, In argument by the trial after (At 1256). p. are reasonable.” The Elev- counsel, judge and after the trial found enth Circuit also held that if the defendant circumstances, (and aggravating numerous Tunkey established that was ineffective single comparatively insignificant none or a counsel, then the lower court should make mitigating circumstance, appar- which was the determination whether ently the fact that there was no evidence of prejudice magnitude suffered of sufficient any prior convictions, and not the fact that granting to warrant the writ of habeas willing step the defendant had been for- i.e., corpus, the defendant had to show not responsibility), ward and admit his sen- only possibility “a prejudice, but that [it] tenced the defendant to death on each of worked to his actual and substantial disad- capital pris- three counts of murder and to vantage.” If the defendant was successful burden, terms for the satisfying other crimes. then the lower court was ordered punishment to make the determina- assessment of in a criminal prosecution tion whether established case. beyond error was a rea- harmless making holdings,

sonable doubt. its TEXAS LAW AND FLORIDA LAW acknowledged Eleventh Circuit ARE NOT THE SAME Sixth Amendment accorded criminal de- Court also overlooked the fendants the to assistance of fact that not all of our States have the and also held corollary that a vital to this procedure assessing same when it comes to right is reasonably likely that counsel is punishment where the defendant has render and renders been reasonable effective as- given guilty found of a crime for totality sistance which the death circum- (At 1250). p. penalty stances. possible punishment. is a example, For procedure gov- which WHAT IS LACKING IN STRICKLAND capital punishment erns hearing murder V. WASHINGTON Texas, 37.071, V.A.C.C.P., see Art. is a important thing believe that the most cry procedure far from the mandated lacking in Washington, Strickland v. su- major State Florida. Another differ- pra, question is the fact that whether ence Texas and between Florida law is that trial counsel was ineffective did con- 1.14, because of Articles 1.13 and V.A.C. itself, cern the merits of the case either as C.P., both the State and the defendant are pretrial or trial. The precluded waiving by jury on the only concerned itself what would be guilt punishment issue of where or. equivalent this State “capital of a mur- parte murder. Ex capital accusation is punishment hearing,” held, der that was Bailey, (Tex.Cr.App.1981); 626 S.W.2d 741 jury, not before a but judge, before a trial Jackson, Ex (Tex.Cr. and its discussion concerned counsel’s Eads v. App.1980); S.W.2d 304 prepare punishment failure to for the hear- Dowden, Ex (Tex.Cr.App.1980); ing. Batten v. (Tex.Cr.App.1979); S.W.2d 364 State, previously noted, trial,

As as that term ordinarily is (Tex.Cr. understood members Cf. Hicks v. S.W.2d 329 legal community, of the Strick- App.1984). occurred in Furthermore, law, under Texas Washington, land v. supra, because the thing presentence there is no such as a pled guilty charges. to the jury when investigation report assess- Thus, Washington dispute did not what punishment, capital es whether the case is State of Florida had accused him of com- non-capital. Lastly, or but because Texas mitting. only The issue that was then be- many dangers case law contains so and judge fore punishment the trial was what disadvantages putting on evidence should be assessed. punishment hearing at the after de- guilty capital

fendant has found of been WHAT LEGAL DEFENSE IS THERE murder, every that defense believe almost THE

TO ASSESSMENT OF attorney in this a State who has defended

PUNISHMENT? murder, person capital or convicted even non-capital a murder will attest that Supreme The Court considered the as- risky danger- extremely to do so can be and punishment though sessment of as there is ous business for his client because of the legal imposition a defense to the or assess- admissibility doctrine curative waiv- punishment ment after a defendant has er of error to errors that occurred at the However, guilty. been found I am un- trial, guilt stage aware, of the as well as the except possibly the defend- where danger aggravating already a what was ant becomes insane after he is found Smyth situation. See guilty, legal or where there is some reason bad (Teague, prevent punishment, (Tex.Cr.App.1982) the assessment of J., legal dissenting opinion). that a defendant a defense capital Records of cases in murder affirmative: counsel’s conduct so “[Did] Court’s archives also reflect that it is proper functioning undermine the capital rare murder case where the process defend- adversarial that the trial cannot be ant, been guilty capital who has found having produced just relied on as a result?” murder, presented any pun- at the evidence supra, Washington, Strickland v. hearing. ishment place “trial,” the word phrase, capital substituted the “a This, course, say is not to that the this, however, sentencing proceeding.” Is attorney in capital defense murder case mockery” the “farce and test that this putting should not consider evidence at adopt, long Court has refused to and so punishment hearing; simply say ago abandoned? many that if he he does runs risks that might very aggravate situation, well Court then enunciated a costly deathly which can and even to his three-part test to determine whether coun- client. sel’s conduct ineffective under the Sixth part Amendment. The first WHAT WAS LAWYER requires test that the defendant must first TUNKEY’S ERROR? identify the acts omissions he claims opinion Strickland v. Wash- However, rendered counsel ineffective. ington, supra, only reflects that seri- “strong” at the confronted outset with Washington’s ous Tunkey, omission presumptions that counsel fulfilled his role attorney, investigate failure to adversary process in the Sixth friends, find the fourteen employ- former “rendered Amendment envisions and ade- ers, neighbors, and relatives who later at- quate significant made all they tested that would have testified at pro- decisions the exercise of reasonable Washington’s punishment hearing they i.e., judgment,” fessional he acted rea- However, had been asked do so. professional prevailing sonable under points majority opinion per- these out that norms. must The acts omissions not be sons would have testified subject professional judg- to reasonable good “basically person defendant was ment. The defendant must next establish family’s who was worried about his finan- (1) by preponderance of the evidence that or, problems,” put cial Marshall Justice deficient, i.e., performance counsel’s dissenting opinion, it in his in the witness- performance that counsel’s fell below an defendant, experiences es’ with the the de- reasonableness, objective standard responsible, fendant “was nonviolent that he so made errors serious man, to family, devoted his and active in guaran- did as the not function “counsel” the affairs of church.” teed the defendant the Sixth Amend- I believe sincerely ment, that even the most (2) perform- that the deficient capital unskilled and unlearned murder i.e., defense, prejudiced ance that coun- prosecutor in Texas had a would have field deprive sel’s so to errors were serious as day during with these witnesses his cross trial, of a fair trial whose defendant them, examination of if the case had been presumed to result is be reliable. “Unless gotten tried in and the had Texas witnesses showings, it can- defendant makes [these] up in the face what the defendant Wash- or not be said that the conviction death ington as set had done testified out sentence resulted from a in the breakdown above. adversary process that renders result proper measure of unreliable ... THE TESTS SUPREME COURT’S FOR attorney performance simply rea- remains INEFFECTIVE COUNSEL prevailing professional sonableness under deciding norms. The Court also held: court whether counsel ineffec- “[A] tive, indulge strong presumption must Supreme Court held that before ineffective, counsel can deemed the fol- counsel’s conduct falls within wide be lowing question range professional assist- must be answered reasonable

7Q anee; is, the defendant THE must overcome LACK BY OF UNDERSTANDING that, presumption under the circum- THE SUPREME COURT OF THE stances, challenged ‘might action be ROLE OF THE DE- CRIMINAL ” considered sound strategy.’ trial FENSE ATTORNEY is, course, There much mischief that If the pre- defendant hurdles the above Washington, will flow from Strickland v. sumptions, he still has the burden estab- supra. Probably greatest its piece of mis- lish that the error of commission or omis- Supreme chief lies in the Court’s lack of sion judgment had an effect on the of con- reasons, understanding, for whatever viction or sentence. The defendant must attorney the role that the criminal defense i.e., “affirmatively prove prejudice,” plays in society. our “The role of an attor- the error or errors “had an adverse effect ney facing for a prose- criminal on the regard, defense.” In this “[t]he (or sentencing) not, however, cution defendant must show that there is rea- see that his or her client received a fair probability that, sonable but for counsel’s just and that a outcome resulted. The errors, unprofessional pro- the result of the attorney’s everything role is to do ethically ceeding would have been different.” A proper to see that the client receives probability reasonable was defined possible most favorable outcome —whether probability Court to mean “a sufficient to produces or not it society outcome which outcome,” i.e., undermine confidence just. Society considers relies on the adver- “[Wjhether there probabili- is a reasonable sary system produce just results from that, ty errors, absent the the factfinder partisan advocacy. guiding principle would have had a respect- reasonable doubt in determining whether an (or ing guilt that the factfinder would not provided representation must Or, have assessed the penalty).” death discharged then be whether he or she put way, it another “the decision reached partisan faithfully role of advocate reasonably would likely have been differ- zealously, performance not whether the ent absent the errors.” yielded just what a court as a re- views However, the defendant runs into anoth- Genego, supra, sult.” at 200. presumption er when it comes to establish- ing prejudice or that the error or errors ANOTHER PREDICTION had an judgment adverse effect on the defendants, especially For those those conviction sentence. It presumed is also indigent, promise guaranteed who are challenge judgment “absent on Amendment, the Sixth that counsel will grounds of evidentiary insufficiency, effective, predict promise will remain a judge jury presumed acted [is have] For unfulfilled. those who are now to be according to law ... The assessment of subject what Court stated prejudice proceed should assumption Washington, supra, Strickland v. that the reasonably, decisionmaker consci- making claims, they ineffective assistance entiously, and impartially applied the stan- procedural will be confronted with the text- govern dards that the decision.” given book the Court has lower claims, in dispose courts how to of their TUNKEY WAS NOT namely, “apply strong presumption a of INEFFECTIVE COUNSEL does, competency everything lawyer a In Washington, supra, heavy strategic Strickland v. for measure of deference to opinion, many reasons stated in assumption the of decisions and an uncritical of herein, original which I also reliability set out the de- the of the result of the Washington get proceeding.” Genego, supra, fendant did not even out of 201. For at reasons, other, the chute in his if Tunkey, claim that his trial these a convicted de- counsel, sentencing clearly was ineffective and the fendant denied effective assistance proceeding fundamentally extremely The of counsel at his trial find it unfair. will difficult, any impossible, Court denied him relief. to obtain relief. 80 See, for example, Maggio, Court, however, Larsen v. 736 made short the shrift of (5th Cir.1984),

F.2d 215 in which Fifth decision of the Circuit Appeals, Court of held Circuit that “where the defendant fails holding “only surrounding first when prejudice, alleged demonstrate defi- justify circumstances in- presumption of in performance ciencies counsel’s need not can a claim effectiveness Sixth Amendment considered,” (at 217); p. even be also see inquiry be sufficient without into counsel’s (5th Ricalday Procunier, 736 F.2d 203 performance actual at it trial.” Because Cir.1984); McKaskle, Gomez F.2d was not had demonstrated that counsel (5th Cir.1984). any failed to “in meaningful function sense adversary,” in light Government’s of the Supreme what Court has light presumptions of in stated in supra, stated Strickland v. Strick- Washington, Washington, supra, I its land v. places heavy believe decision too upon However, burden a convicted Court reversed. defendant who told the de- fendant, “Respondent claims that his trial counsel was ineffec- can therefore make therefore, should, This tive. hold out a of claim ineffective of that Art. Section of the Texas Consti- by pointing specific counsel errors made 1.05, V.A.C.C.P., tution and Art. apply by trial counsel ... Should respondent higher standards to appointed or retained pursue based specified claims on errors counsel, than those in enumerated Strick- remand, made they counsel should be so, land. Because it I fails to do must evaluated under standards enunciated respectfully dissent. Washington, supra.” Strickland v. I will believe that defendant Cronie UNITED STATES V. CRONIC light find of Strickland v. Wash majority opinion fails cite or dis- ington, supra, legal standpoint, from a companion Strickland, cuss the case to Federal courthouse door be only will not Cronie, namely, United States v. U.S. there, gets closed when it will locked be 104 S.Ct. L.Ed.2d tighter you than know what. reversed which the Tenth Circuit of Appeals decision of v. United Cronie MY PROPOSED STANDARD States, Cir.1982), (10th 675 F.2d 1126 which I believe inadequacy representation had held that of empty unless whether he re- be may proof specific be inferred without appointed, adequately tained or court trial, prejudice following from the represents client, effectively ac- (1) investiga- the time factors: afforded for proper cused. I that the believe standard preparation; (2) experience tion and judging for counsel’s effectiveness is the counsel; (3) charge; (4) gravity adequacy legal standard of the services defenses; (5) complexity possible profession; as in other the exercise accessibility possible to coun- witnesses customary knowledge skill and which sel, and ordered the defendant’s conviction normally prevails in the field of criminal reversed where it was that the established place law at the time where the servic- attorney, experi- prior defendant’s whose E.g., es are rendered. Moore v. United practice ence in federal criminal was limit- (3rd States, Cir.1970, 432 F.2d 730 at 736. ed to “involvement” one other but find that such standard is commend- “trial,” prac- that this his first and his able, acceptable to the mem- law; would tice was limited to real estate that it practice who bers the bar criminal law took the Government half four-and-one persons this State and defend accused prepare years charge, which the wrongs. committing criminal This stan- sixty- faced toup a sentence of dard, course, highest seeks to exact the years, five but the afforded possible of assistance for days prepare for trial. level the accused. which to wrong is put on But what is with that? Counsel no defense. The last- What trying days. wrong highest ed four The defendant received a with achieve the year possible representation twenty-five legal sentence. The for accused persons? wrong trying implied any suggestion unusual What upgrade the criminal defense None indigent might bar? client make as to how to Burger, recently other than Hon. Warren defend his is “absurd and nonsensi- case Court, of Chief Justice cal,” attorney and for the to execute leading lawyers been critic of trial suggestion by might client that be con- of these He United States. maintains attorney to sidered “bizarre” causes the large numbers of the of our trial bars “stultify prostitute profes- himself or unqualified incompetent States are sional standards.” Williams United cases, try years suggested I ago “Ten that States, (D.C.App.1965) F.2d up lawyers to one-third or one-half of the C.J., (Burger, concurring). coming really into our courts were not standard, my proposed Under the defend- qualified adequate represen- fully to render ant, course, would have to establish a Burger, “The State of Jus- tation ...” See prima facie case ineffective assistance tice,” 62 American Bar Association Jour- by showing specified acts 62, 64, points nal which he out that commission or omission might fig- high; have been too the correct by the would be considered erroneous aver- being percentum. ure 25 or 30 Also see age lawyer. criminal Once this has been Burger, Special Advocacy: “The Skills accomplished the State would then have Specialized Training Are and Certification proving burden of that either no actual System of Advocates Essential to Our prejudice attorney’s resulted from the inef- Justice?”, 42 Fordham L.Rev. 229 fectiveness, er- or that such was harmless Burger Chief Justice also maintains that ror. “the behavior of some of the more visible reasons, respectfully For the con- above advocates not such as to reflect credit on majori- cur the result but dissent profession.” our Burger, “The State of locking ty’s taking wrongful step Justice,” He, course, op. cit. does not persons courthouse doors to those who lawyers represent that trial believe should they de- seek relief because have been their clients to the fullest extent allowed prived effective assistance of coun- “Historically, lawyers law: com- honorable at their trials. sel plied with traditions of the bar and re- doing frained from all that the law or the But,

Constitution allowed them to do.”

one who large believes that there is such a incompetent

number of members of our States,

trial bars these United isn’t it strange

rather that the former Chief Jus- tice did not dissent in Strickland v. Wash- SATTERWHITE, Appellant, T. John however, ington, supra. Perhaps, it is eas- up public ier to hold the trial bar ridicule Texas, Appellee. The STATE contempt with references to such as “procurers,” guns,” “hired and “huck- 67220. No. sters,” as he has been known to do in the Texas, Appeals of of Criminal past, Shrager, “Response see to Chief Jus- En Banc. Trial, Burger: Page,” tice President’s April, No. than it is to mandate Sept. 1986. that members of the trial bar be more Certiorari in Part Granted for their actions and omissions. accountable 1, 1987. June course, Burger Of former Chief Justice See 107 S.Ct. 2480. justice is the who once stated that an attor- ney who voiced the contention that lineup police

“absence of counsel at the acting

voids a conviction” was in a bizarre “Disneyland” fashion. He has also

Case Details

Case Name: Hernandez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 17, 1986

Citation: 726 S.W.2d 53

Docket Number: 1009-83

Court Abbreviation: Tex. Crim. App.