Jackson v. State

JACKSON, Appellant, Kenneth Earl Texas, Appellee.

The STATE of

No. 115-84. Texas,

Court of Criminal

En Banc.

July hearing (court evidentiary an appointed), peal in order that Chapman David K. regarding develop facts (court might held to appointed), San Richard D. Woods ground of Antonio, appellant’s first error. Jackson appellant. (Tex.App. = —San Jr., Millsap, Atty. Linda Sam D. Dist. & 1982, ref’d.). first pet. Appellant’s Antonio Anderson, Canales, Hipólito C. Jr. & John ground alleged that trial counsel of error Horn, III, Attys., Anto- J. Asst. Dist. San by fail rendered ineffective assistance had Huttash, Austin, nio, Atty., Robert State’s ing sufficiently him as to the to advise for the State. electing jury consequences of to have assess 26,1983, evidentiary hear- August an

On OPINION ON STATE’S PETITION FOR held, developing germane ing was facts

DISCRETIONARY REVIEW of ineffective assistance. appellant’s claim appeals, from the court of The instructions MILLER, Judge. parties by judge, the trial as read to the appeal This is an from a conviction for were: heroin, delivery degree of felony. first hearing “A conducted in the should be 4476-15, 4.03(b), See Art. Pun- V.A.C.S. § objective trial Court to establish whether ishment, by proof enhanced prior of a felo- have been made [sic] information conviction, ny was assessed at might which have re- to the trial court twenty-five years confinement in the Texas imposition in the of a more severe sulted Department of Corrections. punishment years than the 15 assessed appeal appellant’s This arises from sec- trial, thereby and determine at the first ond trial for the same offense. At the first whether there was a reasonable basis for trial, appellant delivery was convicted of [Emphasis sup- trial counsel’s action.” heroin, offender, repeat found to be a plied] was assessed the court at opportunity full that hear- State had at statutory minimum allowable ing present “objective all information” it proof prior conviction, felony fifteen could, including bring a continuance to an years Depart- confinement the Texas additional witness. ment of Corrections. See V.T.C.A. Penal 9, 1983, justice On November with one Code, 12.42(c). Pursuant to former Art. § dissenting remedy, Anto as to the the San 40.09(12), V.A.C.C.P., however, the trial Appeals nio held that Court subsequently granted appellant court trial counsel had rendered ineffective as new trial. sistance of counsel and reversed the convic 1981, January, was retried (Tex. tion. Jackson v. again delivery convicted of of heroin. 1983). App. Antonio The court of — San Appellant pled true to the enhancement appeals appellant was noted that because allegation and elected to have the as- sentenced the court at his first 37.07, sess pursuant to Art. concerning objective absent information 2(b)(2), Punishment, V.A.C.C.P. en- part ap identifiable conduct on the by proof prior felony hanced of a convic- orig pellant occurring after the time of the tion, twenty- was assessed sentence, im inal the trial could not years five confinement in the Texas De- pose than the mini a more severe sentence partment of Corrections. mum of 15 under North Carolina v. appeal, appellant On direct attacked U.S. and,

sufficiency progeny. By of the evidence in three L.Ed.2d 656 and its grounds error, punish alleged trial counsel had to have the ment, however, exposed himself rendered ineffective assistance. On June 30,1982, range punishment applicable the San Antonio Court of to the full (15 years, or repeat held that the evidence offender to 99 was sufficient to to a conviction, life). ap Stynchcombe, sustain the but abated the Chaffin U.S. law, then, process requires L.Ed.2d 714 “Due (1973). Upon reviewing against a defendant for record vindictiveness having successfully his first evidentiary hearing, attacked court of play held must no in the sen- that there was conviction no informa- trial. And tion tence he receives after a new concerning conduct identifiable since the fear of such vindictiveness which would have allowed unconstitutionally deter a defendant’s ex- impose a more severe appeal ercise of the or sentence; collateral- appellant’s trial counsel conviction, ly process attack his first due failed to sufficiently advise him as to the requires also be freed that a defendant consequences to have retaliatory mo- apprehension of such a punishment; though and even sentencing tivation part on the effectiveness of judged is to be (Footnote ommitted.) judge.” the totality of representation, this sin- In order to assure the absence of such a gle permeated error so proceedings motivation, concluded that we have counsel was ineffective as judge imposes a more severe whenever a a matter of law. upon sentence a defendant after a new granted We petition the State’s for dis- trial, doing for his so must the reasons cretionary review to examine the court of affirmatively appear. Those reasons appeals’ holding that a may error upon objective must informa- be based constitute ineffective assistance as a mat- concerning tion identifiable conduct on ter of law and to review the State’s conten- part occurring of the defendant after tion that there was a tactical reason for original sentencing pro- the time of the appellant’s election because there existed ceeding. upon And the factual data objective information of identifiable con- which the increased sentence is based by appellant duct occurring after his first record, so that must be made trial sufficient to authorize a more severe legitimacy of the in- the constitutional sentence judge. We affirm the fully reviewed creased sentence decision of the appeals. court of appeal.” on In Pearce, North Carolina v. supra, a Id., 725-26, 89 S.Ct. at 2080-81. 395 U.S. at defendant, whose conviction was reversed frequent inception, Since its this Court has on appeal, longer received a sentence from ly applied Lechuga of Pearce. the doctrine judge a on originally retrial than that State, (Tex.Cr.App.1976); im- v. 581 532 S.W.2d posed by (Tex.Cr. State, the first trial. The 527 S.W.2d 529 Moore v. Supreme State, App.1975); Court held that 523 Bingham it would be a v. S.W.2d Bowman, violation of the (Tex.Cr.App.1975); Due Process Clause of 948 (Tex.Cr.App.1975); Payton Fourteenth 523 S.W.2d 677 Amendment for a trial court to State, (Tex.Cr.App.1974); impose v. 506 S.W.2d 912 a harsher sentence a recon- State, (Tex.Cr. S.W.2d 269 Miller v. 472 victed explicit purpose defendant for the also, State, App.1971).1 v. 656 Palm punishing a successfully defendant for at- (Tex.Cr.App.1981). S.W.2d 429 tacking original Noting his conviction. difficulty proving retaliatory motive supra, Stynchcombe, v. Chaffin case, and any given actual vindictiveness in Supreme the doctrine of Court reaffirmed the Court it necessary found to establish a punishment on retrial is Pearce where the prophylactic protect rule to a defendant assessed held that a judge, apprehension from the reasonable higher by jury punishment vindic- assessed at a tiveness appeal- that could deter him from second trial not “offend the Due Pro- does ing his conviction: long cess so is not Clause State, Recently, McCullough v. 720 S.W.2d when a vindictiveness established greater retrial, (Tex.Cr.App.1984) (Opinion Rehearing), following 89 imposed on sentence is granted applicable punishment cert. 472 U.S. at 105 S.Ct. 86 where a assesses L.Ed.2d 716 we reaffirmed our decision assesses the first upon and a Miller, supra, holding retrial. of them or prior sentence and the sec inmate “that one informed of the [the to, they if jury] would have sentence is not otherwise shown to be [sic] ond again, one of them Id., guilty find me product of vindictiveness.” I give me more time than that had couldn’t at 1987. Both before was, that’s forgot I which one it ... has reached the after this Court Chaffin Appel- my attorney.” me ask what made State, same result. v. 521 S.W.2d Weeks attorney testified that he asked his lant State, (Tex.Cr.App.1975); Fairris subject on occa- about this more than one (Tex.Cr.App.1974); Atkins S.W.2d sion, during Appel- both before and trial. State, (Tex.Cr.App.1974); 515 S.W.2d 904 attorney responded lant testified that his State, (Tex.Cr. Curlin v. give one that he didn’t know which State, App.1974); Fuery v. 464 S.W.2d 666 punishment, increased but that he would State, (Tex.Cr.App.1971); Casias v. According appellant, check it. (Tex.Cr.App.1970); S.W.2d 483 Gibson v. attorney him to elect the advised (Tex.Cr.App.1970); because the trial (Tex.Cr. Branch v. S.W.2d 756 trying new and was to make a name for App.1969). Appellant himself. testified that he elected Applying princi these constitutional jury punishment the for because his attor- bar, ples important to the case at certain go ney jury him to to the because advised applicable pun considerations arise the was new. phase appellant’s ishment trial. Under Appellant’s trial counsel testified at the the of vindictiveness estab evidentiary hearing. having He denied dis- supra, lished if elected appellant regarding cussions with whether to punishment have the trial assess jury the or the would be bound retrial, on the maximum he could receive prior punishment. Appellant’s the years fifteen would be confinement absent jury testified that the decision to have the concerning “objective information identifia punishment assess came about as follows: [appellant] ble conduct the on “Q. Okay. How did the conversation occurring original after the time of the about; you come do remember? sentencing proceeding.” Under the ratio “A. Before we started the trial we had supra, Chaffin, nale of if elected required, to make an election as punishment to have the on re and we discussed it back and forth trial, proof prior felony of a convic way as to what would be the best tion, the absolute minimum he go.. to And at that time the deci- could receive would be fifteen con go jury. to sion was made to the Code, finement under V.T.C.A. Penal “Q. go you Did advise Mr. Jackson to to 12.42(c),yet exposing he would be him jury specifically? life, possible self to confinement for or a Specifically, “A. no. I remember dis- Thus, of not more years. term than 99 recall, cussing it with him. If I it by appellant absent identifiable conduct oc during Judge’s the time of the sentence, curring original min after campaign, election and I believe we imum which the Judge the fact discussed that imposed punish was the have maximum him, perhaps, would be harsher imposed. ment the trial court could have would, than the and because of Appellant asserts that his trial counsel ren headlines, you, and what have that ineffective assistance he dered because arise of the trial. And out sufficiently failed to advise him of the con go decision made to electing sequences to have the as jury. agree. sess We evidentiary hearing pursuant

At the held “Q. appeals, appel- Okay. you any Did time—do to the order the court telling grant- you he remember Mr. Jackson lant testified after had been you a new he had heard from another didn’t know which would ed stated, (Tex.Cr.App.1980). Fully go sentencing? 2d 507 to to better for effective counsel is “coun words, the standard you did feel confi-

In other likely render and render reasonably go sel your suggestion to dent with Id. reasonably assistance.” ing effective jury? Ellis, 14, quoting MacKenna v. at n. “A. Yes. (5th Cir.1960). applying F.2d 592 “Q. Why you going to did recommend standard, adequacy of counsel’s service jury? gauged by an accused must be on behalf of just explained “A. I it. Ex totality representation. “Q. For the election reasons? Raborn, (Tex.Cr. parte S.W.2d “A. Yes. App.1983); Archie 615 S.W.2d 762 Thus, the constitution (Tex.Cr.App.1981). other rea- you Can think “Q. does not mean errorless al to counsel why you son would have advised Robinson, counsel. jury? togo him to Mercado v. (Tex.Cr.App.1982); (Tex.Cr.App.1981). “A. No. “Q. Mr. ever mention to Did Jackson In the case at bar the court Judge you that he had heard that concluded, from the facts that were ad- reputation hand-

Barrera had a court, duced ing heavy sentencing because out correctly appel- advise counsel’s failure trying to make name for he was consequences lant himself? punish- jury instead of the to assess to be denied discussed at time.” ment caused “A. It was added.) of counsel as a matter effective assistance (Emphasis of law. judge presiding The second evidentiary hear- demonstrates,

trial also testified at the wheth As this case ing. He testified that since elect- reasonably rendered effec er counsel has punishment, he jury ques to assess never is a mixed ed tive assistance of counsel and fact. See Strickland v. investigation report presentence received a tion of law 668, 698, that, although Washington, appellant had a and he knew (1984). record, 2052, 2070, know the 80 L.Ed.2d 700 Of prior criminal he did not record, being assistance necessity, nor did he recall a claim of ineffective extent of the upon must determined any arrests of of counsel be made aware of each individual particular trials. The trial circumstances between the two Raborn, supra; parte Benoit case. Ex occurring before the recalled a discussion State, (Tex.Cr.App.1977). by appellant, attorney, his and the S.W.2d bench designate any to error as regarding appellant’s election at While we hesitate prosecutor as a trial, “impression his assistance of counsel per and it was se ineffective the time of reason, (and retreat [appellant] did law we therefore whatever matter of language in the any to assess from such inference not want the Court added.) (Emphasis appeals), we hold jury.” employed by the court this case but result supports record “reasonably The standard of ef reached; court of to of counsel” is used fective assistance by appellant’s of omission error adequacy representation afford test the constituted ineffective assistance. ap by accused retained as well as ed an recognized very prac We have performance is to pointed counsel when the criminal defense right consideration that the Amendment to tical judged be the Sixth a case progress applicable lawyer to controls of counsel made assistance per only three client confronts Amendment while the the states the Fourteenth charge, plea his provision of sonal decisions: “right to heard” and by jury, be tried and whether Consti whether to I, Rights, Bill of Article Section See Burnett parte Duffy, 607 S.W. testify on his own behalf. tution of Texas. Ex to circumstances, op- (Tex.Cr.App. knowledge of the 642 S.W.2d n. 8 full 1982). 37.07, 2(b)(2) tions, consequences. impact Clearly, the Art. certainly belonging supra, the defen relevant to an election is a choice to dant, regarding encompassed personal deci informed and conscious choice within right of election on retrial. jury.2 appellant’s sion of whether to be tried Dunham, parte In Ex S.W.2d must lawyer A criminal defense (Tex.Cr.App.1983),we considered a claim of a firm command of the facts of have ineffective assistance of counsel based governing before he case as well as law attorney’s persuading an advice an reasonably can render effective assistance right accused to waive his trial in parte Lilly, his client. Ex 656 S.W.2d order to preparing avoid dire. voir Ybarra, (Tex.Cr.App.1983); Ex Among assessing the factors considered (Tex.Cr.App.1982); (1) this claim were: whether advice was supra. parte Duffy, responsibility given promote which would an under having a firm command of the facts of the facts, standing of the law in relation to the governing case as well as law in order to (2) reasonably whether the advice was com criminally assist and advise one accused is (3) petent, and permits whether the advice placed one the State. See Wool an informed and conscious choice. Dun- (Tex. dridge v. 653 S.W.2d n. 7 ham, supra, we sustained the contentions Cr.App.1983). parte Duffy, See also Ex noting: of ineffective assistance must, therefore, supra. charge appel We Applicant’s appli- "... counsel convinced attorney knowledge lant’s with of the con right cant to waive his to a principles applicable punish stitutional though even such a waiver would not be duty ment on retrial and the to advise advantageous applicant impact consequences way, probably and would be sure to be punish to have the disadvantageous. appli- It is clear that ment in this case. given competent cant was not advice and Appellant’s attorney did advise him applicant prevented thus from mak- reputa- about the attitudes and ing an informed and conscious choice re- case, judge in very tion of the trial garding to a trial.” important factor to consider the election shows, analysis clearly We believe this should also decision. The record how- apply very ever, statutory right appellant’s valuable attorney that failed to ad- 37.07, 2(b)(2), of election under Art. regarding prophylactic protec- V.A. vise him the § C.C.P. For statutory right applicable the Texas of judge tions of Pearce to the trial meaningful, election to be contrasting open punishment it must be an and the wide decision, made, Thus, informed intelligently jury.3 in with discretion vested the the 37.07, V.A.C.C.P., 2(b), provides days 2. Article § in the six after his conviction com- trial pertinent part: plaining gotten he a "bad deal.” In the had case, appellate instant briefs had been filed be- "(b) Except provided as in Article 37.071 [Pro- granted fore the trial court a new trial. Certain- Case], Capital Ending guilty cedure in if a of ly, procedure, appellate under our former if the returned, responsibility is it shall then be the granted filing trial court a new trial after the of punishment applica- of the to assess the briefs, appellate application. Pearce has See offense; however, provided ble to the that... 40.09, 12, (1965) (The Art. record V.A.C.C.P. (2) in ... cases where the so elects defendant event, duty). appeal In court’s —trial writing plea at the time he enters his in rehearing Castleberry pending as is is such court, open the shall be assessed yet not authoratative. added.) by jury." (Emphasis the same appeals The court of in this case held that complains The dissent non-final de- about the lack counsel's error demonstrated an “obvious Castleberry cision of this Court in knowledge applicable legal principles of 166-83, (Tex.Cr.App., Nothing S.W.2d 21 delivered governing punishment No. on retrial." 18, 1984), July relationship and its Pearce that conclusion. The dis- this record rebuts holding. unique holding may suggestion facts and limited sent’s that counsel have inter- only Castleberry preted applicable do not control the instant case. Pearce as to reversals higher surprising Castleberry, upon appeal by a letter to court defendant wrote promote advice did not understanding occurring an of errors solely pun cause in the See phase ishment of trial. law relation to the facts and the Scott, 181 (Tex.Cr.App.1979) advice did permit an informed and con- (failure investigate the circumstances result, appellant scious choice.4 As a made underlying convictions used for enhance a decision which resulted in a sentence ten Estelle, ment). also, Vela v. See 708 F.2d years greater than he would have received denied, (5th Cir.1983), cert. 464 U.S. gone had he to the court for 1053, 736, (1984). 104 S.Ct. 79 L.Ed.2d 195 Considering appeals’ finding the court of that, recognized We have prac also as a there was no information matter, tical some may isolated omissions concerning identifiable conduct of the ac- particular so affect the outcome of a case that, cused between the two trials and reliability as to undermine the pro therefore, the trial was locked into May ceedings. See 722 S.W.2d giving the minimum years, sentence of 15 (failure (Tex.Cr.App.1984) to have de there is more than a probability reasonable application probation sworn). fendant’s for advice, counsel’s the result of Blackburn, Nero v. also, 597 F.2d proceedings would have been different (5th Cir.1979) (“Sometimes er (i.e. the sentence would have been ror is so substantial that it alone causes the less). Strickland, supra at 104 S.Ct. attorney’s assistance to fall below the sixth at 2068.5 standard.”). case, amendment In this we We have held that an accused agree must with the court of denied effective appellant’s assistance of counsel be- attorney failure to suffi- light strong staying by appellant the dissenter’s belief in conduct which would have allowed within the record. punishment by increased the trial court. That holding seriously is correct cannot be dis- 4. The State asserts, and the dissent as much as puted. point The dissent would to "evidence" in argues, inasmuch as the record reflects appear the record that failed to for a subsequent had been arrested for theft setting trial was surrendered the sureties sentencing proceeding, to his first the trial on his bond. We decline to elevate same to the was not bound Pearce and status of “evidence” because same were never strategy. was the result of trial We need not developed appellant’s as a factual matter at today consider the State's contention that an evidentiary hearing or at ordered arrest is "identifiable conduct" within the mean ing appeals. court Nor has this nor do we “evidence" been consider whether an alleged meaning arrest is an “event” within the of Was or briefed as identifiable conduct before States, appeals, man v. United or court before this Court on the review, petition discretionary sufficient to over State's either jus come of vindictiveness and locally attorney affected district or the tify an increased sentence. The relevant in prosecuting attorney. State’s As is obvious from quiry appellant’s attorney here is whether coun record, parties protracted litiga- to this gave seled him on these matters and him advice rely upon tion do not this "evidence’ as identifi- product strategy. which was the of trial Likewise, evidentiary able conduct. value record, including complete the State’s cross ex arrest, it bears the issue appellant, attorney, amination of his and the conduct, especially of identifiable is nil. This is evidentiary hearing by at the ordered appellant committing true since of- denies the appeals, clearly the court of ing except indicates that noth fense, crime, prosecuted has never been for the [judge’s] "the election reasons" were testimony evidentiary and no was at the offered electing jury considered in the in this case. See hearing appellant to even indicate did commit also footnote 5. Additionally, absolutely legit- the offense. no prosecu- imate inference can be drawn from the 5. The dissent surprisingly ignores the record of inquiry tor’s unanswered about five arrests "for hearing appeals the ordered of the court in a assault, things aggravated felony such paragraph beginning: "Turning to the theft...,’’ nothing because in the record even information about identifiable conduct on the short, supports question. any argument In the origi- of the after the time of the appellant engaged that in conduct sufficient to sentencing, hearing, spe- nal cifically The ...’’. ordered existed, remove the of or was con- develop to such evidence if it cerned that evidence of identifiable conduct evidentiary revealed none. After review of the might punish- hearing, be introduced the State at the ordered to establish whether conduct, phase, speculative, engaged intervening in ment is unfounded and out- identifiable the appeals court of held there was no identifiable the side record.

5H judgment appeals court of is ciently consequences him the The advise as to affirmed, punish- of to have the assess permeated proceeding ment the entire and WHITE, J., participating. rendered counsel’s assistance ineffective.6 ONION, Judge, Presiding dissenting. held, the court of since the As punishment, assessed reversal Appellant of the actual was convicted proper remedy heroin, substance, is remand for a delivery to new a of a controlled trial. Bullard v. 4476-15, first-degree felony. Article grounds, other rev’d on 4.03(b), (Tex.Cr.App.1977), prior felony V.A.C.S. One con- § (5th Cir.1982), vacated, alleged proved F.2d en- for the viction The hancement of as- U.S. (1983).7 years’ confine- sessed at The dissent tin accusation that "a court whether coun- 6. concludes with that need not determine today performance stage we set the for a multitude of claims sel’s was deficient before exam- ining prejudice ineffective of assistance of counsel based on one suffered the defendant as stage single alleged preju- The due to error. for reversal a result of the deficiencies.” counsel, standard, consequenses Supreme error of so in its severe dice as constructed permeates entirety representa- Court, requires that tion, that: long single has been set. "Sometimes a “The show that defendant must there is a error is so substantial it alone causes that probability reasonable but for counsel's attorney’s assistance errors, to fall below the Sixth unprofessional pro- the result of the Blackburn, Amendment standard.” Nero v. ceedings been would have different. A rea- (5th Cir.1979) (emphasis sup- F.2d probability probability sonable ais sufficient year, plied). May v. Last in 722 S.W.2d to undermine confidence the outcome.” (Tex.Cr.App.1984), Court considered 104 S.Ct. at 2068. "whether counsel’s to have [the failure defen- Can it be said that has failed to probation motion for sworn dant’s] to constitut- prejudice? Is not demonstrate counsel’s error ineffective ed discussing assistance of counsel.” Without pun- the "but for” cause of increased representation counsel’s overall at ishment? Are in the we confident outcome of trial, we noted that this error "not the result proceedings? strategy” of trial and held counsel had not ren- simply sockdolager is this: Thus, dered effective assistance of counsel. inquiry ultimate focus must be on “[T]he May, single occurring error of omission at the proceeding fundamental fairness trial, punishment phase of for which there was being challenged. every whose result strategy, might no trial and which have caused whether, case be the court should concerned (i.e., proceedings the result of the to be different despite strong presumption reliability, jury might probation) granted have particular proceeding the result of the is unre- accused’s, materially therefore harmed con- liable because of a breakdown the adver- stituted ineffective assistance counsel. In the process system sarial counts on our to bar, single occurring at case error omission produce just results." punishment phase for which 104 S.Ct. at 2069. strategy, there was no trial and which did un- questionably proceedings cause the result supplemental petition, In a brief the State’s (i.e., different an almost two-fold increase attorney argues the State's that since the elec- punishment) materially appel- harmed the solely belongs appellant, tion decision to the he lant, and constituted ineffective assistance of simply pun- could elect to have counsel. retrial, ishment in the event of further and if Fortunately, history single years, shows errors assessed in excess of fifteen However, magnitude ig- again allege of such are rare. ineffective assistance of coun- simply such nore single, error because it is sel and reversal. obtain still another We dis- 37.07, granting multiple agree. while where relief er- While it is true the Art. 2(b)(2) cumulatively magnitude, belongs solely rors same reach the election decision accused, contrary very inquiry seems reasons that caused the relevant is whether he intelligent the creation of the doctrine of effective makes an assist- informed and choice with knowledge ance counsel. of the relevant factors. As noted above, reject As for the dissent’s on reliance Strickland v. we the notion "automatic” inef- 2052, 668, Washington, 466 U.S. fective In this vein we assistance counsel. note, (1984), however, cogent L.Ed.2d 674 it is to note that in counsel or trial that a careful outlining practical appli- considerations for the should ensure that record reflects an two-pronged exposure greater cation of its test for ineffective accused’s awareness of the counsel, Supreme punishment assistance Court stated on is elected. retrial if thereby determine whether Department

ment in Texas of Correc- trial and V.T.C.A., Code, for trial Penal 12.42. there was a reasonable basis tions. § result, appeal As a counsel’s action. appeal grounds ap- On in of error three in hearing ordered and a abated pellant urged, through appointed appel- purpose.” court for this trial counsel, late the ineffective assistance of ground remand the record was his trial counsel. In his fourth At the time of the previous appellant sufficiency meager error attacked the to evidence of a trial. as the evidence no earlier trial. to sustain conviction. The docket sheet reflects granting judgment, No sentence or order rejected The San Antonio Court the suffi trial, etc., record. There new are in the ciency appeal issue for an but abated was a statement of facts reference to a evidentiary hearing concerning his first intro- previous from a but was ground relating of error to the ineffective duced. assistance of counsel. The other two grounds of error were not reached. Jack for trial hearing on the motion new (Tex.App.— appel- son v. 640 S.W.2d 323 reflect that in the instant case does 1982, 'd.). San pet. Antonio ref in No. originally lant indicted Cause was a delivery for of heroin with 77-CR-1066 ground urged His first of error ineffec “repeater” allegation in the 144th District tive assistance of counsel because Court; 16, 1978, appellant that on March sufficiently was not advised as to the con guilty before the plea entered a of not sequences to have the as court; 24, 1978, years that on March punishment sess in the event of a convic punishment by was the trial assessed alleged appeal tion. He was from his new judge; subsequently a motion for conviction at a second trial for the same overruled; hearing mo- trial that a was offense; that at his first trial the court had by “appellate” tion filed coun- for new trial punishment years’ assessed his im at 15 3, conducted; on December sel was offender; prisonment repeat as a that sub 1979, granted by was the trial new trial sequently granted him the trial court had 40.09, judge, apparently under Article su- 40.09, pursuant new trial former Article pra, in There was some then existence. 12, existence; light then in in § testimony the word “actu- indication Pearce, North Carolina v. indictment ally” had been left out of the and Mil resulting in the trial delivery of heroin (Tex.Cr.App. ler v. granting the trial. judge’s action in new 1971), the trial court could not assess more No. court testified Cause clerk of the years’ imprisonment, than 15 the minimum “reinstated” under Cause 77-CR-1066 was punishment first-degree felony, for a en subsequently “rein- No. prior 77-CR-3150 felony hanced one conviction and under No. 80-CR-0934 there no stated” Cause reason to elect the trial had been punishment indictment the instant at the second trial. which Yet appointed contends his conducted. at sufficiently the second trial had not advised evi- of remand there was At the time him and he chose the who assessed the indict- record that after dence twenty-five years’ imprison failed to ment 80-CR-0934 ment to his detriment. forfei- appear setting and a bond for a trial discussing After capias the Court of issued ture ordered and a 29,1980. wrote: He was September his arrest on by the October “Therefore, surrendered on hearing should be con- V.T.C.A., Penal sureties on his bond. ducted in court to establish Code, (Bail Jumping Failure to 38.11 whether information could have police one officer-witness Appear). At trial been made available to the trial court charge against might imposi- pending theft which have resulted in the referred to only evidence appellant. This was the tion of a more severe than conduct on the possible the fifteen assessed at the first identifiable interrogation ended His gested jury. the the first sentence appellant after with: imposed. was reasons other “Q. you think Can evidentiary the August at On him to advised why you would have Appeals,

hearing by the Court ordered go jury? the already parole on was appellant, the who sentence, “A. No.” prior year testified on his 25 an- he had heard from the second trial Barrera, Jr., he was testified Judge Roy the prisoner that either inmate or other appellant’s second trial judge at the trial give him the have to

judge or 13,1981, judge of that he had been January as at the first amount of time same since October 144th District Court the one it he could not remember which three He stated the trial was about it. was, his counsel about that he asked hardly “I appointment his months after it as he attorney promised to check on The elec- I in the middle of an that was doubt the appellant to do didn’t know and asked Judge re- Barrera year campaign.” tion men- thing. Appellant testified he same the bench in front of called a discussion to his counsel several tioned this matter judge jury, or and it the election of about re- and received no answer. He did times the wanted was his recollection judge told him that the late that his counsel the to assess himself, a name for trying was to make hearing develop did not evidentiary jail “was and he had heard the objective as to infor- very well the evidence jury” rough” “picked kind of so he conduct mation about identifiable him to do so. after counsel advised first the time of the appellant between Appellant at his first testified the second. sentencing and Judge Hippo trial was Garcia and hearing appellant ad- evidentiary At the Barrera, Judge Roy second trial theft dur- he arrested for mitted had been heard the and that it was Barrera that he ing period question, denied his the time jail. talk about guilt, year his 25 convic- and stated after Appellant’s counsel testified second trial charges dismissed. had been tion theft evidentiary hearing. The record re- Judge Barrera testified he was When flects: whether he had prosecutor asked presentence report informa- not received

“Q. actually in- (appellant) But did he during period question the time tion that had told you form that someone “for arrested five times appellant had been him he one or should choose assault, felony aggravated things such you and he which the other asked ,” pointed out that it theft ... one it was? requested a trial and he had didn’t come “A. No. The conversation report. presentence way.” about that attempt to de- not further The State did they stated discussed an election Counsel testimony though that line of velop this and a decision was before the trial started principal apparently had been during go jury, that “it was made to Further, appel- Appeals. of the Court Judge’s campaign” time of the election interrogated was never lant’s trial counsel judge would and the fact was discussed the of the Pearce he was aware as to whether jury. explained He harsher than that area or had researched decision based on “election recommendation was sentence, indictment, judgment, law. acknowledged they had dis- He reasons.” papers granting new trial or other order repu- Judge Barrera “had a cussed the fact never introduced first trial were from the sentencing handing heavy out tation for evidence.1 into a name for trying he was to make because hearing, evidentiary Following deci- stated he left the himself.” Counsel Appeals agreed with sug- appellant though he had Court sion to the hearing. evidentiary of counsel at appears had ineffective assistance 1. It the State ground first of error questions and noted that the of ineffective assistance of coun- judge imposed could not single have a more sel. A error on part counsel’s penalty appellant severe appellate on the at the an by sec- viewed court necessi- ond trial absent information con- of a case tate reversal without consider- cerning part ing totality representation, identifiable conduct on the of the other assistance, after the provided time of the first claims of ineffective sentence, and big counsel did enough, the one envisioned error is bad not advise him enough as to this matter. The in eyes appellate judges. Appeals Court of then held that Appellant’s counsel is faulted allow- was, law, as a matter of denied the effec- ing appellant opt for the to assess tive assistance of counsel. rather than the trial Recognizing applied the standards in year the which resulted in a 25 sentence rather past to claims of ineffective assistance of than the 15 the trial counsel, the court nevertheless light wrote: have been limited to in of North Car- olina v.

“It is true in the case before us proge- and its singled we have out one error of counsel ny. surely It argued cannot be that with- upon which holding. we base this In our applicability out the of Pearce counsel’s opinion, however, single error of action would not call for reversal. permeates counsel proceeding entire below and demonstrates an obvious lack Pearce involved the reversal of a convic- knowledge applicable legal prin higher by appeal. tion court on It first ciples governing punishment on retrial should be observed that case instant by appellant’s attorney.” Jackson v. there was no reversal of the conviction State, (Tex.App.—San 662 S.W.2d 74 to An appellate an The court. first trial 1983). nio granted a new trial he before was succeed- ed on the bench another some 10 Appeals The Court of reversed the con- months later. reaching appellant’s ground viction without of error 2 claiming and 3 also ineffective If seeing counsel is faulted for not though assistance of counsel even acknowl- case, applicability of Pearce to the it should edging effectiveness of counsel is to be 18, 1984, July be noted that as late as judged by the totality representation. (7-2)2 majority in Castleberry of this Court State, (Tex.Cr.App.1984), v. 704 S.W.2d 21 majority of this Court now affirms wrote: judgment of the Court of stat- ing: “We conclude the rationale of Pearce apply does not and cannot designate

“While we instant any hesitate to simply per error as case because never ex- se ineffective assistance of (and statutory ercised his or as a matter of law constitutional we there- higher any fore retreat from such to review a court. There- inference fore, language employed by happened the court of him in what terms appeals), sup- we hold that the record increased cannot any under ports the result the court of interpretation un- attributed reached; error of response omis- constitutional to exercise of by appellant’s sion rights counsel constituted response those condemned —a ineffective (Emphasis assistance....” supplied.) Pearce.” We have seriously now abandoned or un- Castleberry pending rehearing.3 is now dermined our passing Regardless standards for of what action is taken on re- State, Judge Teague 2. This writer and (Tex.Cr.App. dissented. Moore v. 527 S.W.2d 529 1975); State, Lechuga (Tex.Cr. v. past applied In the this Court has Pearce (Tex. App.1975); Palm v. S.W.2d 429 granted by where a new trial was the trial court Cr.App.1981). extending rationale See, appeal. e.g., without Payton an discussed, Pearce in these cases was not how (Tex.Cr.App.1974); 506 S.W.2d 912 ever, (rationale) McCullough was discussed in Bowman, (Tex.Cr.App.1975); being product from penalty on retrial faulted if he inter- hearing, can counsel be or on the applicable only to rever- retaliation vindictiveness preted Pearce as If by higher sentencing judge court? he who was offended upon appeal sals faulted, good company. in se then he is successful efforts the accused’s Beto, 333 curing a new trial. Casias Further, granted by the new trial was (N.D.Tex.1971),aff 'd. 459 F.2d F.Supp. 214 apparently of a judge the first trial because 970, 93 (5th Cir.1972), den. 410 U.S. cert. 54 defect in the indictment. fundamental (1973). 1450, 35 L.Ed.2d 706 Can S.Ct. judge months later a new as Over 10 by Judge was offended be said Barrera court, the bench of the trial and sumed Judge granting by of a new trial Garcia? 18 later second trial commenced months rule, course, has been read The Pearce likely a indictment. Is it new vindictiveness, apply presumption judge consider himself second trial only by objective may overcome which “personal prior in the to have a stake” justifying the in- information in the record engage in conviction or a “motivation to v. creased sentence. United States Good- self-vindication”? See and cf. v. Chaffin 2485, win, 368, 374, 102 S.Ct. 457 U.S. 27, 17, 412 93 S.Ct. Stynchcombe, U.S. (1982). 2489, 73 L.Ed.2d 74 See Wasman (1973); 1977, 36 L.Ed.2d 714 v. Wasman States, p. supra, 104 S.Ct. at v. States, 559, 104 3217, United 468 United U.S. S.Ct. Wasman, opinion, plurality In 3222, (1984). 3221. appel 424 82 L.Ed.2d While Burger wrote: Chief Justice expressly lant did not concede the second was not vindictive because “If it not clear from the Court’s was aside, prior had set see conviction been Pearce, from our holding in it is clear 319, 398 90 Maryland, Moon v. U.S. S.Ct. subsequent applying cases Pearce that 1730, 26 L.Ed.2d 262 he made no process due does not in sense forbid Judge claim that Barrera was vindictive on charges, only enhanced sentences or but is true that in Bingham basis. It v. vin enhancement motivated actual State, (Tex.Cr.App.1975), toward the defendant dictiveness applied there the rule of Pearce was where having guaranteed rights. In exercised judges. different The conviction were two the Court Blackledge,4 Pearce and “visiting” in a trial was obtained before ‘presumed’ that the increased sentence judge. appeal the cause remanded On charge products of actual vin were Court, by this not for a new aroused the defendants’ dictiveness reassessment of because of the defendants’ appeals. It held that improper admission of certain evidence. process violated not to due remand, “regular” Upon charge were because the sentence and although court increased the enhanced, there was no evi but because aware of the earlier sentence and without presump introduced to rebut the dence part of identifiable conduct on the evidence was be tion that actual vindictiveness original defendant after time of sen words, increases; in other hind the tence. No other rationale was offered. law, operation of the increases were deemed motivated vindictiveness. major purpose It has been said Bordenkircher,7 Colten,5 prevent Chaffin,6 doctrine is to an increased Pearce 1953, 104, 92 493,497 Kentucky, (Tex.App v. 407 U.S. 5. Colten v. 680 . —Amaril 1983), (1972). by Justice Countiss for the court in the lo 32 L.Ed.2d rehearing opinion on which cause was reversed grounds. McCullough v. on other 17, Stynchcombe, 93 S.Ct. 6. Chaffin granted, (Tex.Cr.App.1983), cert. S.W.2d 89 1977, (1973). 36 L.Ed.2d 1007, 2699, (1985). L.Ed.2d 716 U.S. 105 S.Ct. submission, Castleberry, original overruled Hayes, U.S. 98 S.Ct. Bordenkircher v. 7. sub silentio. these cases (1978). 54 L.Ed.2d Blackledge Perry, 417 U.S. (1974). Goodwin,8 on the other pending hand—where the dismissal of charges after the presumption was held not to apply imposition year of the 25 sentence at his —we made process Appellant clear that a due second violation trial. and his counsel only by proof obviously be established were pending aware these charges actual vindictiveness. at the time of the second trial. There was question reference at the sum, “In presumption where the ap- evidentiary hearing five ar- plies, the sentencing authority or the facts, rests after the first trial. These prosecutor presumption must rebut the course, developed. were not Besides other charge that an increased sentence or re- problems with well vindictiveness; sulted from where the if have concluded that had cho- apply, does not the defen- punishment, sen to assess and there had affirmatively prove dant must actual vin- been an insistence on his dictiveness.” was limited to 15 under the justices Five concurred in the result of rule, Pearce the proved State could have may Wasman a sentence be increased conduct” “identifiable after the first trial. intervening retrial based on an event as judge may that situation the have as- conduct, intervening well as but in sub- sessed a harsher than the stance stated the Pearce is actually really did. Can it be said that simply not concerned with actual vindictive- counsel’s action was without the wide ness, but is protect against also intended to range professional of reasonable assist- apprehension reasonable of vindictiveness 9 ance? seeking that could deter a defendant from majority The views counsel’s action trial. Supreme jus- new Thus the Court error, the case as and a error agreement tices too are as to the alone, standing deprived appellant proper application of Pearce. Needless to the effective assistance of counsel. While say, ambiguities; “Pearce is not without its majority from “retreats” the “matter Wasman, supra, p. ...” at 104 S.Ct. at approach of law” Appeals, the Court of 3224. It surprising would not be if counsel depart nevertheless seems to from the difficulty determining had if Pearce had adopted standard for effective counsel— application to the circumstances in the in- “counsel reasonably likely to render and stant case. rendering reasonably effective assistance.” Turning information parte (Tex.Cr. Duffy, Ex 607 507 S.W.2d about identifiable conduct on the of App.1980). Cf. Washington, Strickland v. original after the time of the 668, 104 2052, 2070, 466 U.S. 80 S.Ct. L.Ed. sentencing, it is first noted there was a (1984). majority 2d 674 acknowledges appear failure to and an ordered bond for- that each claim of ineffective assistance Appellant feiture. was later surrendered counsel must par be determined bond, by the sureties on his all within the ticular circumstances of each case. Benoit prescribed period. time Such conduct State, (Tex.Cr.App.1977); 561 S.W.2d 810 well have constituted a violation of V.T. Raborn, parte (Tex.Cr. Ex C.A., Code, (Bail Jumping Penal 38.11 App.1983). And know that the constitu we Appear). Surely appellant Failure to tional to counsel does not mean error- and his counsel were aware of this counsel, conduct. less and ineffectiveness is not to hearing At evidentiary admit- by hindsighted comparison be determined ted he had been arrested for theft after the might with how other counsel have tried State, first supra; claimed innocence and the case. Benoit v. Boles v. Goodwin, 8. United States v. 102 tive information about identifiable conduct or (1982). S.Ct. original event since the trial of the sentence. If this is done the trial will not be limited to Upon by major- the retrial now authorized course, years, again 15 and of if is chosen ity guaranteed greater will be no jury may impose penalty with the entire than if 15 convicted. The range objec- State will be authorized to demonstrate error, case, any, if (Tex.Cr.App. stances of this State, 598 S.W.2d alone, such, 1980); standing as to call Hawkins v. importantly, (Tex.Cr.App.1983). And most assist- of ineffective reversal on basis adequacy of counsel’s service on behalf of counsel. Court ance gauged by the totali must be of an accused grounds of errors considered never than isolated ty representation, rather of ineffective as- dealing also with claims State, supra; acts or omissions. Boles v. I remand to sistance of counsel. Raborn, State, supra; Benoit v. grounds and that court to consider those supra; 615 S.W.2d Archie error ground reconsider this under (Tex.Cr.App.1981). totality representation test. said Strickland v. Wash- What was vigorously majority I dissent most 2065-66, supra, p. ington, setting prying open Pandora’s box and here instructive. stage of ineffec- for the multitude of claims scrutiny per- “Judicial of counsel’s counsel based on one error. tive highly formance must be deferential. It tempting is all too for a defendant J., DAVIS, joins this dissent. W.C. after guess second counsel’s assistance McCORMICK, Judge, dissenting. sentence, conviction or adverse and it is sel’s sonable. Cf. cessful, all 71 L.Ed.2d ment of that construct challenged time. Because of the difficulties inher- parties wide particular must ent in assistance; [100 gy.’ overcome the nal defense less 107, 133-134, conduct from counsel’s act or omission Goodpaster, The Trial for Life: Effective ‘might that counsel’s counsel any easy distorting circumstances, ways L.Ed. 83 defense after every range See Michel v. indulge given making to conclude that a ^[91] attorney performance requires to client considered sound trial strate- conduct, effort he made to eliminate attorneys provide case. circumstances of counsel’s 102 S.Ct. effects of (1955) Engle court, examining reasonable (1982). is, it has strong presumption the same Even counsel was unrea- evaluation, and to evaluate the ]. the defendant must effective would not defend a v. Louisiana, perspective challenged falls There 1558, 1574-1575, Isaac, hindsight, A proved the best crimi- professional fair assess- ^[158] within the particular way. are assistance 456 U.S. a court unsuc- supra, at 164 count- action at the under coun- to re- North Carolina v. well have lived of a ment ly intervening that has brought not address need rather record Presiding Judge no tactical reason for the quite probably a reason to select the cation. The prison of counsel issue. sistance of counsel if in fact there were Obviously, from the references in the We I received. meager join wholeheartedly opinion appellant pre-sentence investigation, only ignores are not here concerned with whether than the sentence than the not otherwise be admissible to have been an consider the effective assistance record before us that there was factors which could any intervening attempted to select the painted, received most attention of a issue up wherein he dissents from reality majority. Pearce, 395 did not who, light did. Thus we it is to of what vindictiveness attorney arrest, (1969) impose longer with the benefit give reputation quite opinion To hold from effective as- U.S. him. have been is there has to advise probable original- present. punish- picture pursu- which appli- need very to Article 37.07 V.A.C.C.P. ant Penalty Assistance of in Death Counsel Cases, (1983).” 58 N.Y.U.L.Rev. Further, majority has now con- since appellant could cluded that the most this totality representation is the Since mini- years, and since the receive is fifteen proper inquiry, Boles basis they opt agree, years, why mum is fifteen do supra, given I cannot the circum- merely reflect, judgment reform the determined, they only punishment available? more, however,

What concerns me

whether, retrial, counsel will be deter-

mined to appel- be ineffective if he advises punish-

lant to choose the to assess knowing

ment that a reversal of con-

viction will be automatic if he chooses a

jury and any punishment

greater years. than fifteen To allow the

manipulation system our as has been ignore

done is to our judges

duties as both the law and to the justice.

administration of reasons,

For these additional I dissent. JACKSON, Appellant,

Kenneth Earl Texas, Appellee.

The STATE of

No. 115-84. Texas,

Court of Criminal

En Banc.

Nov. Woods, appointed,

Richard D. court San Antonio, appellant. Jr., Millsap, Atty.

Sam D. Former Dist. & Estee, Atty., Charels Former Asst. Dist. Antonio, Huttash, Atty., San Robert State’s Austin, for State.

Case Details

Case Name: Jackson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 24, 1985

Citation: 766 S.W.2d 504

Docket Number: 115-84

Court Abbreviation: Tex. Crim. App.