Jackson v. State

In Connecticut Board Pardons v. single Dum mates but not a death sentence has schat, 458, 465, 101 2460, 2465, solely request been commuted the con- (1981), Supreme 69 L.Ed.2d 158 Court Presently demned. their inmates await liberty held in clemency interest If execution. those inmates are constitution- review as a for a constitutional claim ally guaranteed right commuta- seek “must found in tion, statutes or other rules process they due commands know what defining obligations of the authority clemency process, criteria is examined in the charged exercising clemency.” with In our meaningful otherwise can no consid- clemency scheme: requests.7 eration of their commutation Department Executive is constitu- application questions The instant raises tionally required adopt and follow rules sufficient to warrant further There- review. comport process with due and due fore, stay applicant’s I would imminent exe- Supreme course of law. Now that cution and remand this matter to the habeas spoken Court of the has United States hearing to conduct to determine Collins, Herrera v. 113 S.Ct. procedures policies whether the concerning process, clemency any, comport the role of clemency pro- the executive requirements process of due and due course

viding a forum for testing claims of “actual not, majority of law. Because the does innocence,” power, Court duty this has the responsibility pro- assure that due requirements cess and due course are met. added.)

(Emphasis Graham, (Tex. parte (Clinton,

Cr.App.1993) concurring).6 J. clemency provides

Because the “fail safe” justice system, our criminal Herrera v. Collins, 414-15, 506 U.S. at 113 S.Ct. at 867- JACKSON, Appellant, Demetrius clemency process provide our mean- ingful of a consideration commutation re- Therefore, quest. power even though the The STATE of Texas. commutation is vested in the Executive Branch, this Court has an No. 1035-96. important clemency pro- role to ensure the Texas, Criminal comports process cess with due and due En Banc. Const, XIV; course law. amend. Const, and, I, § Tex. art 19. July 1998.

III. capital punish-

Since reinstatement

ment 144 in- Texas executed be, process, inadequate may clemency 6. Texas Constitution does not limit the clem- as it process ency Const, of actual judiciary. claims innocence. Tex. the reach of the Would IV, § art. 11. concurring judges sanguine be so if the Board implemented policies that denied commutation does This not seem too much to ask for in a women, African-Americans, to all or to all or to process constitutionally guaranteed that is judges all Court be Catholics? Would the this Indeed, statutorily guaran- mandated. it is eye willing turn a to such invidious blind impose tee and this mandate that us people ex- discrimination? The of Texas would duty requests to ensure that commutation are pect to do more than sit on its hands. this Court meaningfully wrong Is it considered. Similarly, people of Texas deserve Court judiciary process to insist that such a be more willing ensure a condemned inmate’s pretext than or sham? right seek commutation is Constitutional concurring judges readily seem either meaningful. proposition embrace or bemoan Hilbert, Houston, appellant. Paul J. Attorney, McCrory, District Dan Assistant Houston, Paul, Attorney, Matthew Austin, for the State. FOR

OPINION ON STATE’S PETITION REVIEW DISCRETIONARY PER CURIAM. felony jury finding of cocaine. convictions, felony prior had two at con- punishment

the trial assessed twenty-five years. appel- finement for claiming was effec- appealed, lant he denied of counsel at trial tive assistance file motion to trial counsel did not pursuant obtained to an which was Ap- The Court of allegedly arrest. peals determined that counsel was ineffective appellant’s conviction. and reversed the (Tex.App.— peti- [14th Dist.] Houston The State review, discretionary Court for tioned this petition to granted the State’s consid- and we holding. Appeals’ er the Court says that the Court The State Strickland two-pronged ignored test Washington, (1984). argues that The State of ineffectiveness claim will be sustained fail such a affirmatively supports that only if the record agree. claim. We 2, 1993, Deputy Sheriff November On patrol and saw the Henry was on Goss standing Ibid., of a known justified. front of that Dickerson, house. Minnesota v. S.W.2d at dilapidated, house was windows boarded

up and its held that missing. appeared front door It the facts in this case not sufficiently to be establish that abandoned. Goss testified that when discovery of pipe the crack was the result of appellant approach, saw him the appel- a valid Terry search under move, or Dickerson. an abrupt something made stuck result, 921 S.W.2d at 814. aAs pants, his then and turned to run into the Appeals Court of stated there were “serious house. A chase ensued. About ten into feet questions” validity as to the of the search house, appellant and turned Goss, conducted and because the facts ap- hands in the air. Goss stated that he sufficiently the search were not proached appellant “patted and him down developed, the court could not conclude for weapons or contraband.” Id. at 811-12. whether the search was valid or invalid. Be- patting down Goss found cause it could not determine the pipe a silver crack colored cocaine Appeals the Court of pants. waistband of his The pipe was that trial counsel was ineffective in to introduced objection into evidence without challenge the introduction of the crack pipe from trial counsel. appeal, 812. On into evidence. Ibid. argued that counsel was inef- fective in failing to file to suppress a motion had the burden of the crack as product it was the aof proving his claim of ineffective assistance of that pipe had the crack State, counsel. Cannon v. 401 668 S.W.2d evidence, been he would have been entitled (Tex.Cr.App.1984). was re a guilty. to verdict of not quired prove to that counsel’s Appeals agreed. an fell below standard reason stated, upon Appeals ableness based norms “[t]he that there is a probability record does not show whether but arrested with or without a warrant.” Jack-

son, result of the would have been 921 S.W.2d at 813. The court then different. McFarland v. 845 S.W.2d declared that probable Goss did not have (Tex.Cr.App.1992). proba 824 A reasonable cause to make a warrantless arrest. The bility probability is defined a to sufficient found, however, that under the undermine confidence in the outcome of justified making the case Goss proceedings. Miniel v. 831 S.W.2d Ohio, investigative Terry detention under Furthermore, (Tex.Cr.App.1992). 310 889 him burden to establish permitted Ibid Goss was therefore preponderance his claims a of the evi to conduct a appel- search of the dence. lant, only necessary to extent weapons might discover which used stated, the Court of motion Any harm the officer others. would have been scope, which went challenge allegedly vehicle to the fruits of the longer would no be valid and its fruits Furthermore, parties search. all Ibid., suppressed. Sibron agree that counsel had filed a motion to York, New suppress, grant- and if the motion had been L.Ed.2d 917 and Davis v. 829 ed, been ad- would have The Court of mitted into evidence. Because the (Erect if, also noted that a valid was the evidence stop, cocaine, an officer “feels an whose unlikely lant’s it is identity contour or mass makes its immedi- been the evidence would ately apparent,” support then the warrantless seizure without it. conviction

Nevertheless, thorough detailed examination appellant was which a may be sup ineffectiveness devel- obliged prove still that a motion press oped spread a record. would have been order satisfy Strickland. See Roberson parte Duffy, 607 S.W.2d (Tex.Cr.App.1993) 510-12 held we have App.1980). For this reason (unless pre-trial showing that a that, provided an appeal has not when direct ruling merit and on the motion had which adequate record evaluate changed motion would have the outcome through additional might substantiated ease, ineffective for counsel will not be corpus pro gathered a habeas motion). movant, failing to assert the As the general doc ceeding, apply will not we produced required to the raising a claim on habeas that trine forbids presumption of evidence that defeated the rejected appeal. it on corpus after was State, police proper conduct. Russell v. Torres, 469, 475 943 S.W.2d parte App.1997). appel did not meet that burden. First the was in lant failed to establish that arrest prejudice subsequent habeas Without Second, if we fact warrantless. even were corpus opinion the proceedings, the of Court that there was no warrant assume judgment Appeals and the of of is reversed by a the failed to establish the trial court is affirmed. preponderance of that the crack the evidence suppressed. That pipe should have been J., BAIRD, joins the opinion of Court the “questions may validity of there about the the reasons stated in Jackson v. enough. the search” is not See Jackson v. (Tex.Cr.App.1994)(Baird, 877 S.W.2d (Tex. Cr.App.1994) J., concurring). (counsel will not be declared ineffective the does not where record reflect PRICE, concurring. Judge, claim). support prevail To I join write opinion on his claim of ineffective assistance of coun I of Court. our develop separately emphasize had the care which sel the burden analyzing facts and details of search sufficient to take when Courts of claims, appeal, conclude that invalid. search was of ineffective assis- on direct 843; Russell, 845 S.W.2d at of counsel. tance at 9-10. The did not do so. case, present In the reasons, appellant’s claim of For these Washing purported to follow Strickland v. of cannot be ineffective assistance counsel ton, 668, 104 80 L.Ed.2d record. sustained on this (1984) appellant’s of analyzing in claim of counsel. Jackson ineffective assistance of this This is not unusual cases (Tex.App 921 S.W.2d . —Hous sort. granted). The pet. [14th Disk] ton taught Experience us that most pointed out that Strick Court then the claim ineffective instances where (1) land, appellant must show both that raised, the record assistance counsel is objec representation fell below counsel’s shape, appeal simply in a on direct reasonableness, on based tive standard very alleged perhaps of the inef- (2) norms; professional and that below, adequately fectiveness that would for counsel’s failings of trial In- reflect the counsel. would have been result of deed, this, such as where a case different. primarily are errors derelictions that under Strick- also noted than de hors the record rather omission strong presumption that record, is a revealed in commission land range falls the wide may conduct within ... the vehicle collateral attack professional assistance. Id. It of the search sufficient to sustain his then stated “[t]he record before us is ineffective assistance of counsel for devoid would establish conclu- seek to the fruits of that sively the of the search and seizure appeals. reverses the court of Jackson (Id.); in this case” “... the facts were (Tex.Cr.App. 956-57 sufficiently developed to determine 1998). Because I believe that the discovery whether officer’s appeals properly applied the law to the facts crack pipe result of a valid search claim, addressing appellant’s respectfully (Id. 814); ...” “... and that prosecutor neither trial counsel nor the de- veloped investigative facts and details of the arresting I. SUMMARY OF PERTINENT FACTS court cannot conclude that the search was According to the on November (Id.). However, valid or invalid” then con- 1993, Deputy Henry Sheriff Goss was circumstances, cluded that under the patrol appellant standing and observed lant’s trial counsel was ineffective. front of a known crack house. clear, conclusion, It is from its the State, 921 at 810. The house was proceeded apply to dilapidated, windows, up had boarded exact opposite presumption from that man- missing. the front door to appeared was It is, dated That given Strickland. the lack ap- be abandoned. Goss testified that when developed of a factual record as to the validi- pellant approach, appellant saw him made an ty of strong the search and Strickland’s move, abrupt something pants, his stuck in presumption that counsel’s conduct was rea- and then turned to run into house. sonable, only logical conclusion that can house, chase ensued. About 10 feet into the reached, Strickland, that appel- in turned and his hands the air. failed to show that his trial counsel approached Id. Goss that he stated

was ineffective. That the Court reached the “patted weapons him down contra- opposite that, despite conclusion shows down, patting appellant band.” Goss contrary, assertions to the not follow pipe found a crack cocaine in silver colored future, the mandates of Strickland. In the trial, pants. waistband of At greater our courts should take care when was into introduced evidence with- applying clearly established law. objection out from trial counsel. 812.

OVERSTREET, Judge, dissenting. II. OF APPEALS COURT A jury felony pos session he finding of cocaine. After had two appeal, appellant argued On that counsel felony convictions, prior the trial court as in failing was ineffective to file a motion to punishment sessed at confinement for 25 suppress prod- as it was years. Appellant appealed, claiming he was uct of an and that had the denied effective of counsel at assistance trial evidence, in he not been would trial not because counsel did file motion guilty. to a have been entitled verdict of suppress pursu was evidence which obtained appeals agreed. The court of allegedly illegal ant arrest. The court appeals determined that was inef counsel presented of appeals fective and reversed conviction. appeal. on The first issue was two issues (Tex.App.— appellant’s claim in that the trial court erred Dist.], [14th Houston This Court suppressing sponte. the cocaine sua discretionary petition appeals point court of this overruled review. any when coun- waived error objection sel made no to the admission majority concludes that sufficiently develop failed Id. details evidence. at 810-11. seizure, “appellant i.e. point search

Appellant claimed in his second finding of not he would have been entitled was denied effective of counsel assistance attorney guilty.” Id. failed to file a motion to at addressing at In the time of trial. point, applied the court of III. CONTENTIONS STATE’S totality test and looked at the Strickland review, ground for the State In its first making its determination. avers: Washington, citing Strickland 80 L.Ed.2d 674 U.S. relying upon appeals erred The court of The court of reviewed firmly found- speculation, rather than facts facts of the case and found that Officer Goss tidal to determine counsel ed in the investigative justified making de was ineffective. Ohio, tention under alleges: Its second (1968). Jackson, per at 813. Goss was therefore tacitly shift- erred ap mitted conduct a search of bring ing the burden to the State to forth a pellant, necessary the extent appeal. sufficient record weapons might be used to discover which ground, the In its third and final Any harm the officer or others. claims: scope, which went longer no be valid and its fruits would erred Id., suppressed. should Sibron v. prong of the Strickland address the second York, New 392 U.S. 88 S.Ct. 20 test. and L.Ed.2d 917 Davis 829 of insists that State (Tex.Cr.App.1992). 218 of S.W.2d The court such a claim must fail because ineffectiveness if, during noted also a valid only if the record affirma- will be sustained object Terry stop, an officer “feels an whose claim, rec- supports that that this tively and identity immedi contour mass makes ord not. does ately apparent,” the then warrantless seizure Id., justified. if of that Minne CONTENTIONS APPELLANT’S IV. Dickerson, sota v. 113 (1993). 2130, 124 L.Ed.2d 334 court of argues of this case Appellant the facts the found facts this case did not governed by Gurrola sufficiently discovery Gutrola, establish that of the the In crack the result of a valid search reversed the Fourteenth Jackson, 921 or Dickerson. the trial court Appeals’ affirmation that result, S.W.2d at 814. As a the court cocaine found suppressing the not err not Gurrola, questions” stated there were “serious officer came In on Gurrola. validity by arguing the of the search conducted persons group of four Goss, Upon the Id. parking and because the facts lot. at 301. residential terminated sufficiently developed, not the seeing search were the the individuals away. argument not conclude whether the search and Id. court could the walked not to come back invalid. Because could commanded them was valid or officer Id. parked vehicle. validity hands on a them determine the pat began to they complied, he then trial counsel After concluded that found to be Id. Gurrola was challenge the in them down. for was deficient cocaine. Id. gun packet of carrying a and a into evidence. troduction of charged possession test, con He complete the court also was arrested Id. To suppress He filed a motion Id. that the outcome of the trial would cocaine. cluded product of as the filed a the cocaine been different counsel had hearing, suppression Gurrola At on an search. suppress the cocaine based motion they nied, having testified that were a discussion parking lot and Furthermore, initial deten L.Ed.2d 178 subsequent

tion and illegal. search were Id. lant’s burden him to establish his The trial court suppress denied the motion to preponderance claims of the evidence. and Gurrola was at cocaine. Ap The Fourteenth Court of stated, of appeals court a motion to peals affirmed the conviction. Gurrola v. suppress would have been an (Tex.App. — Houston challenge vehicle to the fruits Dist.], 1993). [14th We Gurrola’s addressing search. And in petition appeals. and reversed the court of standard, prong of the Strickland whether We held that the trial court abused its dis performance was deficient cretion in denying sup Gurrola’s motion filing pursuing a motion to press standing arguing in a considered merits parking residential lot the afternoon facts, such a reviewing motion. After suspicious was not justifying behavior court the search and subse- Gitrrola, appellant. officer’s detention of quent questionable seizure were and that S.W.2d challenging counsel was deficient Jackson,

via a to suppress. motion V. ANALYSIS 811-13. appeals correctly announced argues of appeals that the court the Strickland applicable standard as the in relying speculation erred because the reviewing standard for ineffective assistance of appeals “The record before of counsel claims. 921 S.W.2d at us is devoid would establish standard, two-prong 811. That which was conclusively search and adopted this Court Hernandez v. seizure in this case. The record does not (Tex.Cr.App.1986), requires show whether was arrested with or showing defendant to make that coun However, without a warrant.” Id. at 811. performance sel’s fell below an appeals rely specula- the court of did standard of reasonableness under pointed tion. The court reviewed out norms, but counsel’s errors the the facts from the record on which it relied outcome would been have different. Rober making regarding its determination counsel’s

son v. (Tex.Cr.App. performance only case. Not point court out the fact that counsel failed suppress, file motion also fact a Appellant proving had the burden of that counsel failed to to the admission claim of ineffective assistance of counsel. the crack at trial. 811-12. Cannon v. 668 S.W.2d 401 such, App.1984). pointed out lack The court also of facts prove that counsel’s fell surrounding the record the search below an standard of reasonable gives seizure which rise to the aforemen- upon prevailing ness based norms and that quote. fact quote tioned referenced probability there is a that but for of the officer that counsel’s cross-examination errors, result counsel’s the officer arrested was limited to where would have been different. spe- questions instead of about the (Tex.Cr.App.1992), McFarland cific details the search. denied, t. 508 cer The State also maintains that assertion rea only ineffectiveness will be sustained probability probability sonable is defined as a affirmatively I supports to undermine confidence in the out record such claim. premise, proceedings. agree with that but believe that come of the Miniel v. (Tex.Cr.App.1992), cert. de- record which includes an omission requires but for coun- prong a The to file motion to second the failure object to evidence sel’s the outcome would been failure to the admission of affirmatively support appeals still claim of inef- different. court can a motion to things failed file The fact that these are trial counsel fectiveness. pipe, did suppress the of the crack missing the record reveals counsel’s evidence from concerning jury deficiency very their for a instruction in this case omission. ask obtained, not file a illegally and did ground, which claims that evidence State’s trial; and because merely upon spec- motion for new appeals court relied evidence firmly grounded was the direct ulation rather than facts cocaine, remaining lant’s overruled. should be sup- would have been insufficient ground, In its the State claims second the court of port his conviction. Id. Thus tacitly shifting appeals erred in prong. the second did address bring forth a sufficient burden to the State ground third should Therefore the State’s emphasize point, appeal. To its record on also be overruled. on the court of the State centers attention statement, appeals’ “because neither grounds all three of Because prosecutor developed counsel nor the investi- overruled, the court of should be review gative facts and details of the judgment af- appeals’ opinion and arresting this court majority of this Because the firmed. valid cannot conclude that the search was so, respectfully does not do invalid.” 921 S.W.2d at 814. How- ever, merely making the court of developed party that neither observation specific details the search reemphasize

and seizure the trial to deficiency.

certainly did not shift the burden

State; ground thus two should also over-

ruled. asserts in that the three erred in to address prong of standard.

the second the Strickland

Case Details

Case Name: Jackson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 8, 1998

Citation: 973 S.W.2d 954

Docket Number: 1035-96

Court Abbreviation: Tex. Crim. App.