*2 BUTTS, JJ. a more sen impose REEVES not severe judge could 395 U.S. tence. North Carolina 89 S.Ct. Bowman, parte REEVES, Justice. at his second App.1975). Appellant, appeal This is an from a conviction for elected to of court delivery heroin. This abated alle true enhancement pled State’s evidentiary hearing in order appeal that appellant sentenced The gation. held to facts might develop regarding The confinement. twenty-five (25) years’ allegation ineffective assist- appellant’s of ordered evidentiary hearing counsel. ance of concerning no information objective reveals Antonio (Tex.App.—San appellant which identifiable conduct ref’d). appeal of this are pet. facts trial to im judge would have allowed Jackson, fully stated punishment. Appellant a more pose severe here clarity they will be insofar had heard hearing testified relevant. inmate, was after from another trial, “that one of them granted was tried and convicted of new [the first to, they would have if jury] of heroin. He was delivery the offense again, that one me offender and find repeat determined be a [sic] me more time give them couldn’t court to the minimum sentenced (Tex.App.—San Antonio ground error was over fourth ref'd). pet. previously by Jackson v. this court ruled I forgot had.... counsel, which one and the representation to be that’s what attorney.” made me ask my At judged by hindsight. Robinson, evidentiary hearing, appellant’s trial 953 (Tex.Cr.App.1982); Mercado counsel testified that the decision to have S.W.2d 225 assess came about as The effectiveness of representa- follows: tion be judged by *3 must totality
A [Appellant’s representation. Archie State, v. 615 S.W.2d Attorney]: we 762,
started the (Tex.Cr.App.1981); trial we to make 765 had Boles v. election as required, 274, and we 598 discussed S.W.2d 279 (Tex.Cr.App.1980). it back and forth as to what would be From this it follows that isolated failures to the best way go. to at that And time object will render counsel ineffective. the decision go was made to to the Archie, supra at 765. jury. In order for a criminal defense law Q: you Did advise Mr. to go yer reasonably to render effective assist the jury specifically? ance, must have he a firm of not command Specifically,
A: no. I remember discuss- the facts of the case but the law also ing it recall, with him. If I it was governing the client’s particular situation. during the time Judge’s of the elec- 516; parte Duffy, supra Ex parte tion campaign, and I believe we dis- Burns, 370, 601 (Tex.Cr.App. 372 cussed the fact Judge that the would him, harsher on perhaps,
jury would, headlines, and because of Viewing the appel assistance which and what have that would arise you, lant received from his trial counsel out of the trial. And decision standards, above hold go made to jury. law, a matter of denied effective assistance [*] [*] [*] [*] [*] [*] is true that the case singled before us have out error of one Q: Okay. Did you you time—do upon holding. counsel which we base this remember telling Mr. Jackson that In error opinion, you didn’t know which would be permeates counsel the entire be proceeding go better to sentencing? to for In low and demonstrates an obvious lack of words, other you did feel confident applicable knowledge legal principles with your go suggestion to the governing punishment by appel on retrial jury? attorney. lant’s erro Yes. A: advice, appellant neous made a decision Q: Why did you going recommend which resulted sentence ten the jury? greater than would have received had he I just A: explained it. gone to the court for There Q: For the election reasons? absolutely can no tactical for this reason Yes. A: By going jury, appellant choice. to the had everything nothing gain to lose and since From this testimony it is evident that the minimum sentence which the could pellant relied on his advice to attorney’s the maximum the could impose was to the for punishment. North v. imposed. Carolina competence standard of supra. criminal defense whether re attorneys, punishment, assessed appointed, Since the tained has been established as remand to the merely court cannot the case “reasonably effective assistance of counsel.” Sullivan, to assess as this 100 court below Cuyler 446 S.Ct. U.S. Bul 1708, 64 L.Ed.2d in an verdict. incomplete Duf would result fy, (Tex.Cr.App.1980). (Tex.Cr.App. lard v. not, however, does This mean errorless 1977); Ellison Thus, we are con- to reverse and remand this case strained
a new trial. Justice, dissenting. respectfully dissent. was mis- complaining that he jury.
led to elect Con- necessity, within that
tained
is his desire to have benefit of North Pearce, S.Ct.
Carolina U.S. a ceil- (1969), placing *4 possible punishment. of 15 on the
ing years 12.42(c) (Ver- CODE
TEX.PENAL 1974) a minimum of 15 places re-
appellant’s punishment. Rather
mand for a new I would reform years. to 15 State, 548
Bullard v. Ellison
App.1977) and elec (Tex.Cr.App.1968) do not involve
tion of or unique
therefore should not sit control
uation. Rocha, Jr., Antonio, se. pro
Thomas Jr., Howard, Law Of- Gary Maloney, Pat Maloney, Pat fices of pellees. ROCHA, Intervenor, Jr.,
Thomas CADENA, Chief Justice. ux., AHMAD M.M. et Janet Ahmad, Appellees. argument was set for oral This cause Jus- consisting of Associate panel before No. 04-82-00245-CV. Appel- Tijerina. Reeves and Esquivel, tices of Appeals Court or dis- a motion “to recuse has filed lant San Antonio. Ti- Esquivel Associate Justices qualify jerina.” allega- motion is based on the Justices challenged the two tions that contribu- received political past, [I]n from of dollars many thousands tions Pat Malo- the Law Office of through Addi- (attorney for appellees). P.C. ney, have been ‘victory’ celebrations tionally, Maloney law offices of Pat held at the