Jaubert v. State

JAUBERT, James Harmon

Jr., Appellant, Texas. STATE of

Nos. 0260-01 to 0264-01. of Criminal Appeals

Court Texas.

April Sturns, Arlington,

Louis Appel- E. lant. Worth, Gibson, DA,

C. Asst. Fort James Paul, Austin, Matthew Atty., State’s State.

OPINION KELLER, P.J., opinion delivered the WOMACK, the Court in which COCHRAN, KEASLER, HERVEY JJ., joined. consider, among granted

We review issues, Arti- question other of whether 37.07 other 3(g)1 applies cle during the case-in- than that used future to Articles Code of Procedure. 1. All references refer to Criminal Analysis chief.2 will reverse B. We the decision of the Appeals. Court of To succeed on an ineffective as claim, appellant sistance must show Background

A. attorney’s performance was deficient Appellant drive-by was involved three performance and that the deficient preju shootings in Fort plead guilty Worth. He case, appellant alleges diced him.4 In this separate to five indictments mur- charging conduct was counsel’s deficient murder, attempted der and he elected request because he failed to notice of the a jury punishment. During have assess intent use State’s extraneous bad acts. case-in-chief, its the State introduced evi- claim, part establishing As a appel dence of each charged of the offenses. No lant must show that he was entitled to extraneous offenses or bad acts notice the extraneous offenses intro presented by the State at that time. duced at trial. case-in-chief, appellant the defense that, crimes, introduced evidence since the The present governed issue is he religion had rediscovered and was whol- statute, so we resort to the usual rules of ly reformed. The defense also called wit- statutory solely construction. look We testify good nesses to that he was a child language statute its plain and a youth. well-mannered The State meaning ambiguous the text is unless cross-examined these witnesses testified application of the statute’s plain language about various extraneous offenses and bad lead to an absurd result that the committed, appellant acts had including Legislature possibly could have intende raping a fellow inmate. The State also produced § testify 3(g) provides, rebuttal witnesses to d.5 Article 37.07 in rele about the offenses. part: vant jury sixty year assessed one sen- defendant, timely request On no- tence, sentence, twenty year one and three tice of intent to introduce evidence un- year appeal ten sentences. On the case given der this article shall be was transferred to the Tenth Court 404(b), required by same manner Rule (the Court). Appeals Appellant Waco Texas Rules of Criminal Evidence. claimed that his trial was ineffec- counsel then, plain language, Under Article tive failing request, pursuant to Arti- § 3(g) 37.07 incorporates reference § 3(g), give cle 37.07 that the notice 404(b)’s giving Rule manner of notice. of its intent to offer evidence of extraneous states that certain evidence is Court, offenses or bad acts. The Waco that, rule, provided admissible under the justice dissenting, agreed one by the in a “upon timely request accused court, judgment reversed the of the trial case, given criminal reasonable notice is remanding the case for a new 44.29(b) advance of trial of intent to introduce in hearing in accordance with article such evi- the Texas Code of Criminal Procedure.3 the case-in-chief 668, 687, disposition question, Washington, 2. Due to our of this 4. Strickland v. 466 U.S. (1984) grounds State’s other for review are dis- 104 S.Ct. 80 L.Ed.2d 674 missed. (Tex. Boykin (Tex.App.- 3. Jaubert v. 65 S.W.3d 73 Crim.App.1991). 2000). Waco 404(b)’s case, if its to be done—ah— going Because Rule notice dence....”6 evidence, provision to will be some notice only there encompasses case-in-chief lawyer that it’s and his 3(g)’s the defendant Article 37.07 done, just I think going to be encompass its face to appears on this in that is cleanup simply case-in-chief evidence. the law because law strengthening is statutory language Even if the being on is not now the books we have however, factors ambiguous, extratextual used, Or, being it’s at least if it is used. Article notice re support limiting 37.07’s or skepticism re- being used some quirement to case-in-chief evidence. part luctance on the State. we inquiry, an extratextual conducting So REPRESENTATIVE SMITH: (1) consider, among matters: other it, just you’re re- you’re prohibiting (2) attained, object sought to be days ten given that the notice be quiring under which statute was circumstances trial? prior (3) (4) enacted, common legislative history, No, PLACE: and REPRESENTATIVE statutory includ provisions, law or former the fact that is cleaning up I think it’s subjects, ing on the same similar laws legislative body our intention that as (5) con consequences particular of a if there is an extraneous offense— (6) struction; administrative construction proven, it can this properly ah—and be (7) statute; (caption), and the title says going that it’s to be admitted. bill preamble, emergency provision.7 SMITH: And REPRESENTATIVE history 37.07 legislative of Article requiring them to state exact- you’re § 3(g) in the is detailed Fort Worth Court be, might but sim- ly what that evidence opinion Washington v. Appeals’ they introducing ex- ply that State,8 we which addressed the same issue traneous evidence? today. history That indicates consider I’m PLACE: REPRESENTATIVE purpose statutory primary discovery. changing any the laws after clarify, amendment was simply giving I’m that there be notice— contrary Court’s decision to the in Grunsf going to be used. provision that’s eld,9 unadjudicated extra that evidence now, discovery that’s Whatever prior neous offenses and bad acts is admis it will continue to be.10 what punishment. provision sible at The notice law re designed existing reinforce amended, the statute was At the time offenses, not garding notice of extraneous regard- law existing described the requirement: to create a new and different ing notice of extraneous offenses. Moreover, common law has favored lim- What REPRESENTATIVE PLACE: a notice evidence going clarify iting to do is to the admis- such in the case-in-chief.11 sion in a criminal introduced of extraneous offenses added). 404(b)(emphasis (quoting from debate Tex. 6. 10. Id. at 507 Tex.R. Evid. Floor, R.S., Leg., 73rd C.S.S.B. House Gov’t.Code, State, 311.023; 7. Brown v. Tex. 6, 1993). May (Tex.Crim.App.1997). State, (Tex. (Tex. State, Washington 8. 943 S.W.2d 501 Gipson v. 11. ref'd). pet. App.-Fort Worth Crim.App.1981). (Tex. 843 S.W.2d 521 Grunsfeld Crim.App.1992). that, We have held pres- reversed, when the State Appeals is and the trial court’s ents judgment extraneous offense rebut- is affirmed.14 mitigation tal to evidence offered

defendant, advance notice of intent to offer COCHRAN, J., concurring filed a the extraneous offense pos- evidence is not opinion. situation, defendant, sible: “In such a MEYERS, J., filed a dissenting opinion

rather than the determines whether PRICE, HOLCOMB, JJ., raised, contested issue will be joined. determination will not be made un- known til he presents his It prac- case. would be COCHRAN, J., filed a concurring tically impossible for give the State -to opinion. notice until that time.”12 join the majority opinion. I add this

The extraneous offense evidence in this simply concurrence as a reminder that the case during was introduced cross-examina- letter of the law not always perfect is tion and testimony, rebuttal in the spirit reflection of the of the law. The Therefore, State’s appellant case-in-chief. 404(b),1 spirit 37.07, of' Rule article was not entitled to notice of § the extraneous 3(g),2 and article 38.37 is to ensure judgment offenses.13 The of the Court of proceedings Texas criminal are not a arising other than that in the same transac- 12. Id. at 170-171. tion. dissenting opinion 13. The would have us duck 37.07, 3(g) § TexCode Crim. Proc. Art. reads: 2. underlying by addressing issue in this case defendant, timely request On the ineffective notice assistance claim. We of intent to introduce evidence could have under this path. chosen that roundabout We given article shall be in the same manner could also have resolved this case on the 404(b), required by Rule Texas Rules of interesting jurisdiction’s issue of which law attorney repre- Criminal Evidence. If the applies to transferred cases. But the lower senting the state intends to introduce an opinion published, court's is and it is incor- extraneous crime or bad act that has not underlying Addressing rect on the issue. resulted in a final conviction in a court of underlying straightforward issue is the most probated suspended record or a or sen- and, course, resolving manner of the case tence, notice of that intent is reasonable helpful far more to bench and bar than the only if the notice includes the date on dissenting opinion’s suggested route. county alleged which and the in which the crime or bad act occurred and the name of remaining points There are no of error to 14. alleged victim of the crime bad act. by be Appeals. resolved the Court of requirement under this subsection that attorney representing give the state no- 404(b) Evid. Tex.R. reads: applies only tice if the makes a defendant (b) Crimes, timely request attorney representing to the Wrongs Other or Acts. Evi- crimes, the state for the notice. dence wrongs of other or acts is not prove person admissible to the character of a 38.37, 3,§ pro- 3. Tex.Code Crim. Proc. art. conformity order show action in there- vides: however, may, with. It be admissible for motive, defendant, purposes, proof op- timely request other such as by On intent, portunity, preparation, plan, give knowl- state shall the defendant notice of edge, identity, or absence of mistake or acci- state’s intent to introduce in the case in dent, provided upon timely request by chief evidence described Section 2 in the case, required give accused in criminal reasonable notice same manner as the state is 404(b), given advance of trial of intent to intro- notice under Rule Texas Rules of duce in the State’s case-in-chief such evidence Criminal Evidence. offense evidence gamesmanship or trial intent offer extraneous of clever contest 37.07, Article very pre There is little formal in the case-in-chief. ambush.4 State’s criminal discovery mandated Texas foundation. 3(g) upon same built proceedings, notice, but our Rules Evidence upon This of advance are Texas criminal drafted ensure that timely applies only to request, practitioners gentlemen gen remain prosecutors because case-in-chief evidentiary who do spring tlewomen than rest of clairvoyant more on their adversaries. surprises cannot, should They world. thus to, evi- required precisely what predict A number of our Rules of Evidence re- or what dence the will defense introduce quire practicable notice advance when might as rebuttal evidence be relevant is one of those reasonable.5 law Our result of defense. requires prosecution particular It rules. give long recognized has fact.6 the defense reasonable of its 202, as do primary duty prosecu- judicial So does Rule 4. "It shall be the of all notice. convict, justice see that tors ... not but to Rules 204. Under Rule 203 and is done.” TexCode Crim. Proc. art. 2.01. This give its intent defense advance notice of must prosecutor duty upon capacity the falls in his previous to offer of a sexual evidence victim’s representative as in the criminal mat- proffer evidence conduct and make a of that a ters. As trustee of the citizens’ interest in 609(f) requires Rule both camera. trials, providing prosecutor obliged fair prosecution give advance no- and defense to honest, always forthcoming to as well as to prior to to use tice their intent convictions always prevail ensure that the truth will and 705(b) impeach either witness. Rule entitles a judge jury may properly jus- and render prosecution dire a or the defense to voir prosecutor tice. Thus the is more than underlying proposed concerning expert advocate, fiduciary but a mere to fundamental forming his upon facts he relied and data Berger principles of v. fairness. See United opinion the witness testifies before before States, 78, 88, 629, U.S. 79 295 55 S.Ct. L.Ed. jury. (1935), Supreme 1314 which the Court eloquently duty: set out this 648, 6.See, State, e.g., Elkins v. 543 S.W.2d Attorney represen- States The United is the (State (Tex.Crim.App.1976) is not re- 649 ordinary party tative not of an to a contro- quired identity wit- disclose the of rebuttal to versy, sovereignty obligation of a but whose 186, State, nesses); Hoagland v. 494 S.W.2d govern impartially compelling to is as as its (Tex.Crim.App.1973) (noting 189 that all; obligation govern to and at whose in- intend to introduce true rebuttal cannot therefore, terest, prosecution in a criminal does the State before because case, is not that shall win a but that not theories the defendant will know what such, justice shall be As he done. is in State, advance); Washington v. 943 S.W.2d very peculiar and definite sense the servant 501, 1997, pet. (Tex.App.-Fort Worth law, the of which twofold aim is that ref'd) (to give required to that State is hold guilt escape shall not or innocence suffer. advance of rebuttal extraneous offenses notice may prosecute vig- He with earnestness and require State to under "would art. 37.07 indeed, But, he do so. he should while or— may arguments predict possible a defen- all blows, liberty strike hard he is not to notify might and the defen- dant raise then duty foul ones. It is as much his strike those rebut dant the evidence improper from methods calculated refrain Doyle possible arguments”); v. wrongful as produce conviction it is to pet.) (Tex.App.-Tyler legitimate bring every use means about (concluding is not for the that it reasonable just one. wit- anticipate needing undisclosed State to justice system Our Texas criminal works well testimony it could defense ness rebut prosecutors do take obli- because foresee); Stringer gation seriously. (Tex.App.-Houston Dist.] [1st ref’d) (Rule 201(c) example, pet. par- entitles either For evidence); Yohey applicable ly taking to rebuttal propriety be heard as to hand, possible On other it is principal, tant a second cousin who knew prosecutors manipulate church, notice rule’s appellant through rights and a civil purpose applicability and simply by reserv- investigator appel- who had worked with ing all extraneous offense evidence until its lant’s mother. These witnesses had case, rebuttal required. when notice is not appellant known before he became in- Although strategy conforms to the in gangs volved prior testified to his law, letter of the it clearly violates the law-abiding' and peaceful nature. The spirit. any State did not cross-examine of them concerning extraneous

I do offenses. suggest such manipu- lative strategy occurred in this particular Then the defense called witnesses who Quite case. the contrary. This record appellant’s testified to changed nature af- supports the conclusion that both the de- arrested, ter he been charged had prosecution fense and conducted them- offenses, these placed jail. These effectively, fairly, selves accord with cousin, witnesses included another who letter, spirit, as well as the of the law. jail. had received a call from appellant Here, appellant, James Hannon Jau- appellant She testified that lead her bert, Jr., also known “Big as Jube” or prayer. lawyer Another was a whose son “J.J.,” pled guilty jury to a of one count of County was also in the Tarrant Jail and murder and four counts of attempted mur- appellant’s parents who had met during resulting der from separate three “drive- jail appellant’s visitation. was un- Another n by” gang shootings Fort Worth. Dur- cle, who a minister. Appellant’s par- trial, ing pre- the State ents both testified and told of appellant’s sented regarding all three events repentance recent changed and nature. in its “drive-by” case-in-chief. The first Finally, appellant jailhouse testified to his shooting in resulted one victim being shot transformation. twice. “drive-by” The second shooting re- The State first referred to an extraneous rear, in sulted one victim in being shot the during offense its ap- cross-examination of and the bullet lodged spine so close to his direct, pellant’s minister-uncle. On that it could not be removed. the third witness testimony by stating concluded his attack, “drive-by’ only which occurred a appellant’s that father had told him that second, few minutes people after the two appellant had turned his life around while were shot and a third was killed. Al- - jail in and had “become closer to the though presented many the State wit- cross-examination, Lord.” On the State es- nesses, the solely evidence was limited very tablished that uncle knew appellant’s the specific offenses in indict- charged the appellant little about either the offenses ment. No mention any was made of extra- jail. had committed or his conduct while in neous offense. question The State asked one about the case-in-chief, During punishment its the knowledge witness’ role in a appellant’s defense offered numerous witnesses to tes- jailhouse rape. nothing The witness knew tify that the religion, defendant had found of it. was, changed ways, his and time the trial, During appel- the direct examination of wholly and repentent reformed father, young man. The defense called lant’s counsel himself appel- defense pastor, lant’s retired a high brought up subject jailhouse school assis- the 404(b)] (Tex.App.-San requirements An- the notice [of tonio, 1990, ref’d) evidence”). pet. ("[b]y very applicable terms to rebuttal in an occurred least one of them father that at appellant’s and testified rape day while he was in the was not involved that event. cell close appellant open cross-examination, ap- tested State the event. On room able observe knowledge of his son’s pellant’s father’s appel- jury, rejecting apparently proper This rape. involvement was ways changed had theory that he lant’s impeachment. sixty religion, sentenced him and found testimony on was to Appellant’s direct murder, years one twenty years for “coming effect that he was clean” with attempted charges, murder and misdeeds, jury past about his ten-year for the others. three sentences gang all the involvement. were result apparent from facts are Several voluntarily uncharged He confessed 1) the recitation of the evidence: brief drive-by He testified to two shooting. any any evidence of did offer State he had been involved in while “conflicts” concerning other than conduct inmates, fight other jail, one during its charged offenses other, He guard. a confrontation with case-in-chief; 2) was appellant’s defense jailhouse denied involvement my jail changed religion “I’ve found incident, slept rape testifying he had 3) ways”; appellant’s witnesses validated through it and had about it heard to appellant’s defense and testified prisoner. from another On cross-examina- joined gang character before he good deny any personal he continued to tion 4) jail; these and to his reformation knowledge rape. or involvement appellant’s did not know about witnesses Then came the State’s rebuttal. Seven jailhouse rape; in a involvement purported appellant had not witnesses testified that 5) their was entitled test changed at all he good and that was not a knowledge appellant’s conduct while community supervision. candidate for One jail- jail specifically concerning from of those witnesses was a lieutenant 6) he testified that rape;7 appellant house jail Tarrant who County gen- testified much of this but very aware incident erally jail rape, about the but who was asleep; he had no involvement because was vic- permitted testify rape to to what the 7) was entitled call rebuttal State appellant’s tim had told him role about directly appellant’s contradict witnesses event that was hearsay. because testimony concerning independently a fact case, appellant After the rebuttal State’s 8) punishment;8 appellant was relevant more took the stand to rebut once to, did, testify and sur-rebuttal entitled in- and his impeachment evidence reassert testimony of the deny explain jail rape. He testified nocence rebuttal witnesses. that, fact, there had direct examination start character The State did not he multiple jailhouse rapes, but that been ball, sim- rolling. did it hide the any ball Nor not involved in of them. On was of- saving up of extraneous cross-examination, changed ply evidence testimony his Appellant on rebuttal. spring that he fenses to position longer more: his jail- through and also stated the door to evidence of slept rapes, opened he Sharlot, Goode, 405(a) (“[i]n generally cases Wellborn & See Tex.R. Evid. all 8. See testimony un- [character] where admitted Civil Criminal Rules Evidence: and Texas rule, inquiry Contradiction”) der this on cross-examination ("Impeachment by § 607.3 specific into relevant instances allowable conduct”). ed.1993). (2d rape by house his defense strategy failing based claims to file a request written for upon religious jail, reformation while in 5) notice; for a trial need judge grant and thus the State was entitled to walk a mid-trial continuance for the defense to through open door. The violat- investigate “surprise” extraneous offense spirit ed neither the nor the letter of the 6) evidence; requires such exercise 37.07, notice in article 3(g), prosecutor both the and defense to focus surprised. nor was the defense It had body potentially on the entire admissible ready jailhouse answer to rape evi- trial, well before the and either or Thus, dence. appellant’s counsel could not original positions both revise their be deemed requesting ineffective review; upon finally, based and most written notice of extraneous offenses be- 7) importantly, beyond it is fair all mea- 1) cause: require law does not sure. 2) evidence; of true rebuttal and the evi- dence appellant indicates that both and his comments, join these I majori- With trial counsel were rape well aware of the ty opinion. allegation and had a response formulated. cases, however, Many are not so clear MEYERS, J., dissenting opinion, filed a Thus, may prosecutor cut. behoove a HOLCOMB, J.J., in which PRICE voluntarily deliver to the defense a written joined. list of all known incidents which indictment, explicitly set out but of Twice, appellant the instant action has prosecutor which the is aware First, been ill-served. counsel might any become admissible for reason at constitutionally failed to effective render self-imposed time. This duty has sev- assistance, See Jauberb v. 1) aspects: eral beneficial it assures that 2000). Then, 73 (Tex.App.-Waco no conviction will be fail- reversed majority of fortuity this Court relies on the notice, give ure to reasonable should the the State introduced extraneous of prosecutor decide that he needs use fenses in “rebuttal” to appellant’s punish what he originally thought might had ment “case chief’ to reverse the Waco rebuttal extraneous offense evidence dur- Appeals reject Court of appellant’s 2) case-in-chief; ing his if the prosecution ineffective assistance of counsel claim. discovers additional extraneous offense ev- (Tex.Crim. Jaubert v. 74 S.W.3d 4 idence on during the eve of trial or even (hereinafter App.2002) “Majority cited as trial, good he has shown faith in revealing Op.”). majority’s opinion dissent to the all of the evidence he was aware of well Moreover, regard. I that dissent to the trial; 3) before if the list is titled “potential majority’s underlying holding, that Article evidence,” intrinsic and extrinsic act nei- of 3(g) 37.07 section the Code of Criminal parties judge ther the nor the trial need a Procedure1 entitles defendant to notice engage hair-splitting a debate concern- that of extraneous offenses ing specific whether the evidence is evi- punish State intends to introduce 404(b) dence of other acts under Rule or is ment “case in This holding chief.” belies subject “same transaction” evidence not to plain language of the statute as well as 4) requirements; notice a de- the dramatic guilt differences between the attorney any possible allega- fense avoids felony of penalty phases noncapital tions ineffective assistance of counsel of a 1. All future references to "Articles” refer to the Code of Criminal Procedure. that, for coun- but probability of reasonable I would affirm the Waco Court trial. errors, of result unprofessional sel’s Appeals. have different. proceeding would been 1. Ineffective Assistance of Counsel. 694,104 Strickland, S.Ct. 466 U.S. In order to on his claim of inef- succeed foremost, I this believe that First and representation, appellant was re- fective in the sentenc- analysis application has attorney’s to show failure quired that his In noncapital felony a trial. ing phase of deficient that request to notice was belief, I have support appended of this deficiency him. prejudiced Strickland dissenting opinion parte in Ex my text 668, 687, Washington, 466 U.S. 104 S.Ct. Miller, 74,211 March (Tex.Crim.App. No. (1984). majority 80 L.Ed.2d 674 2002) (not designated publication). for standard, correctly takes of this note but Specifical- properly apply then fails to it. appellant that was re- To the extent majority that ly, part “[a]s states existing law to demonstrate quired under establishing deficiency], appel- [counsel’s prejudiced by that he trial counsel’s was must he was to lant show that entitled I he succeeded. as- performance, deficient notice of the intro- extraneous offenses was in a forth- acting sume that the State at trial.” at 2. Majority Op. duced Wheth- right appellant’s case. Had manner appellant to er was entitled notice of notice, request appellant made a goes question offenses to the of whether him notice provided State would have appellant was harmed their admission. was the of- because the State aware of not, however, It does speak to whether fenses, that rele- they and it knew were counsel, deficient for pro- who is light sentencing particularly vant — to the ceeding punishment phase of a case Community Motion appellant’s pre-trial plead guilty client to five I therefore with the Supervision.3 agree felony indictments, separate to fail re- Appeals appellant preju- Court of was quest notice of intent the State’s to intro- defense diced because had counsel been duce extraneous offenses. I think prepared, probability there is a reasonable instance, certainly such an it is deficient sentence have been Jaubert’s notice, for counsel to request fail to Jaubert, less. at 82. Appeals would affirm the Court Jaubert, regard. See at *80-82.2 addition, although I note that transferred from prong appeal To succeed under the second was Fort Worth Strickland, Waco, well Appeals claimant must the Court was demonstrate as majority assessing 2. Once the decided that tation” ineffective this failure standard for part on trial counsel’s did not amount during punishment phase sistance claims assistance, nothing ineffective there left trial, felony noncapital failure of long decide. It has been law that request defense under Arti counsel prong failure to succeed on either not, itself, 3(g) cle did constitute 37.07 test Strickland for ineffective assistance is fa counsel); Huynh v. ineffective assistance of appellant’s tal to an claim. See McFarland v. (Tex.App 833 S.W.2d . -Hous (Tex.Crim.App. 1992, (failure pet.) no to file [14th ton Dist.] Strickland, 1996) 700, (citing at 466 U.S. 104 motions, itself, pre-trial in in does not result 2052). painting S.Ct. Instead of with the assistance). ineffective to, majority broad strokes it could chose holding its far have based on the narrower below, appel- placed As 3. noted motion ground perfor of its belief that counsel's Rodriguez, suitability community supervision mance was not deficient. See 981 lant's 357, (Tex.App. S.W.2d Antonio issue. —San 1999, (under pet.) "totality represen of the rights apply within its exception law of its I take points several .the jurisdiction. brief, majority’s interpretation, In least of the State ac- which is its unusual spin on the word knowledges that our intermediate courts of manner. Article 37.07 3(g) pro- section appeals are free to among differ them- timely request vides: “[o]n of the defen- question selves on a of law that remains dant, notice of intent to introduce evidence by undecided they two courts to which given under this article shall be in the owe obedience. See Barstow v. 404(b), required by same manner Rule S.W.2d 2 (Tex.App.-Austin 501 n. Texas Rules of Criminal Evidence.”4 denied). pet. For all of policy 404(b), turn, provides Rule that evidence arguments that brought by forward of extraneous offenses be admissible about expectations of the “upon timely at trial if request by litigants these proceedings, there is a case, accused in a criminal reasonable no- strong argument justice counter given tice is in advance of trial of intent to better served the intermediate courts of introduce the State’s case-in-chief such appeal striving to arrive at they what de- evidence.” majority The reads these two termine to interpretation be the best provisions conjunction and concludes If law. the effect of the decision of the “[bjecause 404(b)’s Rule notice encom- Appeals Waco Court of in the instant case evidence, passes only case-in-chief Article was that attorneys routinely defense made § 3(g)’s 37.07 appears requests under 3(g), Article 37.07 section on its encompass only face to case-in-chief routinely the State replied to Majority Op. majori- evidence.” at The 3. them, this effect hardly rises to the level of ty thereby giving reads the manner of unpredictability” “randomness 404(b) notice under Rule to refer to the Indeed, that the State decries its brief. 404(b). scope of notice under Rule below, as discussed such a result exactly An interpretation that is far truer to the the one that the Code of Criminal Proce- statute,5 text of the is to read manner to dure contemplates place. the first mean manner. In determining plain “[wjords statute, meaning of words in a Statutory Interpretation II. phrases shall be read in context and majority The determines that it must according gram construed to the rules of analyze appellant’s by deciding claim usage.” mar and Tex. Gov’t Code Ann. whether a defendant is entitled to notice of 311.011(a) (Vernon 1998); § Dowthitt v. extraneous offenses introduced in “rebut- State, (Tex.Crim.App. punishment. tal” at Majority Op. at 3. 1996). As noted the Waco Court of majority proceeds “plain then to the Appeals, way, manner is defined as “a language” of Article 3(g) 37.07 section and mode, doing anything, method of or mode concludes that a defendant is not entitled proceeding case or situation.” Jaubert, to such notice. Id. (citing at 84 Black’s Law Dictio 4. substantially Texas Rules of Evidence were Criminal Evidence is identical to 404(b) jointly promulgated by Supreme the Texas of the Texas Rules of Evidence. Thus, Ap- Court and the we cite to the current rule for Texas Court of Criminal ease of peals. reference. The combined rules became effective Marchl, However, 3(g) section change. does not reflect this Tex.Code Crim. 5. See Rocha v. 16 S.W.3d 1 at 23-30 (Vernon (Holland, J., 3(g) Supp.2000). (Tex.Crim.App.2000) Proc. art. 37.07 concur- ring). Former Rule of the Texas Rules

11 (Ver- § 3 ed.1990)). Proc. art. 38.37 (6th Crim. in context Tex.Code 963 Read NARY Rule incorporation If of gram Supp.2001). of non with rules in accordance the and 404(b)’s suffi- giving notice in Article 37.07 manner usage, and manner mar own, Rule cient, incorporate mode or its to to the on 3(g) simply section refers 404(b)’s case to the State’s requested in which notice is reference method 404(b): chief, have no need advance been given under Rule then there reasonable, as 38.37 trial, and so forth. Manner to limit Article Legislature the did 3(g) Legislature in Article 37.07 section does the used as it did. If section 3 scope which to the of evidence about Article 37.07 to the refer fit limit not see to provide “case-in-chief,” obligated the State is to do so we should not 404(b); timely State, under request See, the face of e.g., v. Tamez in its stead. (Kel- the refers to manner. (Tex.Crim.App.2000) (“[ejstablished J., ler, dissenting) princi- sup plain language The statute statutory dictate ples of construction meaning If of the ports my reading. in accordance interpret we a statute to statutory apparent text would have been language is language unless that its literal it, give on we legislators who voted absurd results.... ambiguous leads to plain meaning. Boykin to effect govern- branch of law-interpreting As the (Tex.Crim.App. 818 S.W.2d ment, judiciary empowered to 1991). Here, apparent it would have been right it believes to be substitute what to the who voted on Article legislators written, has Legislature fair for what 3(g) 37.07 section the State’s obli un- unwise or even if the statute seems gation to notice was not limited provide fair”). its “case in chief.” There is mention “case in chief’ Article no- Finally, 3(g)’s Article 37.07 section take 3(g) accordingly,

37.07 section beyond extends tice Legislature at its I draw not word. pun- to introduce the State intends only phrase on absence of “case-in- chief,” re- because the ishment “case 37.07, in Article also its pres chief’ but applies to evidence quirement explicitly Legislature ence where the wished The evi- introduced “under this article.” Arti Specifically, make such a limitation. Arti- introduced under may dence that be 38.37, admissibility governs cle way in no the same evidence cle 37.07 is cases, 404(b) of extraneous offenses in certain Rule introduced under provision: contains a similar notice majori- portion in the a trial. guilt defendant, ignores this crucial distinction: request by ty simply timely On 404(b) entirely Rule of Article 37.07 and give shall the defendant notice state To assume one-to- the case different creatures. the state’s intent introduce in provisions is to their evidence described section one correlation in chief language blindly ignore as Article the same manner [of 38.37] 37.07, that lan- the effect give notice under Article but also required the state 404(b), from this had on decisions Court guage Texas Rules of Criminal Rule contrary.7 Evidence.6 37.07, Legislature's summary reversal of 3(g), for a 6. we refer As with Article section. of Evidence extra of the Texas Rules Court to the effect that decisions supra, ease reference. See n. independently admis were not neous offenses Legislature punishment. That the sible on 7. See Clewis to overturn this concerted effort made such J., 1996) (White, dissenting) (Tex.Crim.App. 12 sets exceptions stage out limited guilt/innocence. of the trial than at general

to the rule that oth- “[e]vidence of theory, any probative evidence prop- of crimes, er wrongs or acts is not admissible punishment er any acceptable peno- under prove person character of a in order logical theory would be relevant punish- at to show in conformity action by therewith” ment”). providing a of purposes list such Legislature When the enacted the notice may evidence be admitted. list requirements of Article 37.07 3(g) section limited and the items therein depend in for evidence introduced “under this arti large part on the defendant’s introduction presumably cle” did so of because of evidence to contrary. markedly different inway which evidence governs Article 37.07 penalty phase is introduced at the punishment phase noncapital trial. In contrast to Rule Indeed, trial. phrase absence of the “case

404(b), the evidence that be admitted in chief’ Legisla could be on based under Article virtually 37.07 is limitless: understanding ture’s that there is no “case Regardless plea of the and whether the in chief’ punishment. as such at It true punishment be judge assessed that at a hearing, both sides jury, evidence bemay offered as to take turns in their presentation evi any matter the court deems relevant to dence, but whether the State has a “case sentencing, including but not limited to in chief’ in the legal strict sense is doubt prior criminal record of the defen- phraseology ful. The in chief’ of “case dant, general his reputation, his charac- part be large seems linked to the ter, opinion character, regarding his of proof. e.g. Long State’s burden See the circumstances of the offense for State, 302, 742 (Tex.Crim.App. S.W.2d 327 tried, being and,

which he is notwith- (“it 1987), should be clear to all that the 405, standing Rules 404 and Texas Rules prosecution in this instance had the burden Evidence, Criminal other evi- establish, of proof during if it could dence of an extraneous crime or bad act chief, case all of beyond that is shown the essential elements reasonable doubt to have of the charging beyond been committed the defen- rea instrument doubt”), denied, dant or for 993, which he could be sonable held crimi- cert. 485 U.S. nally responsible. (1988) 108 S.Ct. 99 L.Ed.2d 511 grounds, overruled on other Briggs v. Tex.Code Crim. § Proc. art. 37.07 3(a) State, added). 789 923 (Tex.Crim.App. S.W.2d (emphasis See George also E. Drx 1990); State, Wilson v. 581 S.W.2d Texas Dawson, & RobeRt O. Practice: Crim- (“[t]he 38.21, (Tex.Crim.App.1979) Vol. inal PRACTICE AND PROCEDURE (1995) (“[t]he scope always at must identity relevant establish the of the vastly greater chief’); (cid:127)evidence is at the penalty accused as an element of its case in dant, admissibility Court's decisions about the than rather determines raised, punish extraneous offense whether a contested issue will be phase noncapital felony ment of a trial makes his determination will not known he until majority's pre presents reliance on decisions that case. It practically would be legislative extremely impossible date the give amendments for the State to notice until problematic. ”). Majority Op. (relying See at 4 throughout time’ As discussed Gipson (Tex. opinion, open-ended punishment phase in the Crim.App.1981) support a noncapital felony notion trial under the current 37.07, limiting "common law has favored a notice text of Article both the defendant and to evidence introduced the State determine whether "is contested " State's case chief' because 'the defen sue” will be raised.

13 admitting extra- State, 130, in favor of argument 132 his v. 943 S.W.2d Valenzuela (“[m]ore- punishment: at neous offenses 1997, pet.) (Tex.App.-Amarillo over, to that has “logically lies with the State is relevant” the burden Evidence of voluntarily. “any tendency to make the existence prove that the accused acted of to any consequence fact that is question means is that What this proba more of the action determination voluntarily, acted whether the defendant than it would probable or less accidentally, ble involuntarily to or opposed as 401, Tex. without the evidence.” truly but rather ele is defense at logical But relevance chief’) (cita R.Crim.Evid. ment the State’s case non-capital stage of a punishment omitted). tions difficult to determine because is a burden Although the State bear few, if fact issues any, discrete there such as whether proof on issues v. Miller-El jury for the to decide. committed the offenses defendant fact State, 892, (Tex.Cr.App. 782 896 S.W.2d punishment, wishes to introduce at 1990). Indeed, this Court has held assigned has been no burden State punishment to assess deciding what proof punish- on the broad “issue” what oriented and process, policy normative State, to See v. ment assess. Miller-El v. intrinsically Murphy bound. fact 896, v. (citing Wright 1 782 S.W.2d n. Thus, State, punish 111 at 63. S.W.2d State, (Tex.Crim.App.1971) 422 468 S.W.2d in the ment evidence is not “relevant” v. 62- Murphy 111 S.W.2d at more or less sense that it tends to make (plurality n. (Tex.Crim.App.1988) fact; rather, probable some identifiable rehearing)). opinion on State’s motion simply informa punishment evidence any The State need not offer evidence on appropriate, tion that has been deemed years to proper term of be assessed. or Legislature either Wright, 468 at 424. These differ- S.W.2d courts, for fact finders to consider guilt portion between the and non- ences assessing Murphy punishment. have capital felony sentencing would been State, 111 at 63. S.W.2d legislators to who chose not apparent State 843 S.W.2d Grunsfeld limit provision Article 37.07’s notice (McCormick, P.J., (Tex.Crim.App.1992) Therefore, the State’s “case chief.” amorphous decision dissenting). This Legislature assume the meant what it said. 37.07 is reflected in Article making process Boykin, 818 S.W.2d at 785. See the State or the defendant itself. Either any on matter the may introduce evidence Moreover, regardless of whether either sentencing, relevant court deems pun- has an actual side a criminal case wait for the obliged is not State chief,” readily appar- “case in it is ishment his case in order present defendant at making process the decision ent relevant. offenses to “become” extraneous sentencing vastly differs from the decision making guilt phase. at the make process majority Both the evaluating traditionally employ in State cannot tools we much of the notion that the woefully capital sentence are what will be relevant rebuttal anticipate a verdict used, presentation. rarely of the defendant’s inadequate, and the context advance been might 5. This have felony Majority Op. As then- at noncapital sentencing.8 37.07, of Article prior under versions explained true Presiding Judge McCormick See, rule, e.g., peal. Jackson v. within the general 8. As a sentence ap- (Tex.Crim.App.1984). range statutory will be disturbed on permitted which this Court ny prior held admission testimony being offered. extraneous offenses on only Washington, 943 506. The if the defendant opened the door to such Washington pains court took to: See, e.g., Grunsfeld, evidence. 843 S.W.2d caution the State to cir- attempts However, at 555. under the current ver- cumvent the requirement notice of arti- statute, sion of the the relevance of the 37.07, (g) cle by offering section 3 extra- punishment State’s evidence at does not neous offense evidence rebuttal when depend on the defendant’s “case chief.” it not properly does rebut the defen- court, It depends on the what the exer- punishment dant’s theories will be discretion, its cise of deems relevant to 37.07, upon. all frowned In article sec- sentencing, Texas Rules of Evidence 404 issues, tion 3(g) cases notice we will notwithstanding. Tex.Code Crim. closely review the nature of the ‘rebut- 3(a). § Proe. art. 37.07 Certainly the de- tal’ evidence to determine whether the portion fendant’s theories make a of State introduced the evidence the State’s evidence more relevant or more stage the punishment merely to persuasive, but State required the is not to mandatory avoid the require- notice helplessly sit on its hands and wait for the ments. to the open defendant door to the admis- sion of extraneous offense evidence. This By failing Id. to examine the evidence particularly true where the defendant truly offered the to see if it is State pre-trial files a for community motion su- rebuttal, majority effectively offered in the pervision, place definition obligation pro reheves the State its to his suitability supervision for community vide notice of the extraneous offenses it at issue. The recognized State as much phase intends to introduce at either when it argument admitted at oral that it trial, provided the State introduces the could have introduced evidence of the dis- offenses after the presented defendant has puted extraneous offenses in its “case-in- his evidence. See e.g. Yohey v. cannot, therefore, It chief.” be heard to (Tex.App. Antonio - San complain that it “prac- would have been ref'd) (under 404(b), pet. Rule State tically impossible” to anticipate that the to obligated provide notice of offenses disputed might offenses “become” admissi- it introduces rebuttal to defendant’s evi ble at punishment; the offenses were ad- dence) (under Op. at 4 Majority missible at the outset. obligated provide 37.07 3(g), State not majority

The does not even differentiate notice of in “rebut offenses it introduces between that are extraneous offenses of tal” to “case in defendant’s chief’). fered in “rebuttal” and majority’s reading extraneous offenses Under the simply law, lay offered the defendant the effectively the State can be after presented has Washing log his evidence. See hind obligation the and skirt (Tex. provide ton v. extraneous the offenses refd). App. Worth pet. of which that it intends to aware and - Fort Washington, upon majori introduce, a case which the so the has long as relies, ty heavily court specifical patience noted sit on until its hands and wait ly that the State had “no clue” about presenting defendant has finished substance the defense witness’s testimo “in evidence chief.”9 mentioning requirements It bears provide also the same notice under Rule permit required Court that would the State to skirt its and Article 37.07 has ut compro- through probably Finally, dispute majority’s legislators, statuto- 3(g) section the text is the ry Article 37.07 because [and] construction mise .... to the majority legislators resorts inasmuch as of what evidence definitive history legislative (and of the article without had in mind.” perhaps governor) ambiguous. holding that statute is In this in- at 785. Boykin, 818 S.W.2d majority correctly that “[w]e states excerpted stance, majority reads solely language plain look 37.07’s notice to mean that Article debate meaning for its unless the text is statute that the is limited the ambiguous application or of statute’s punish- to introduce in its intends State to absurd - plain language would lead an at 3 Majority Op. ment “case chief.” possi- could not Legislature result the however, not definitive excerpt, is This at 2 bly Majority Op. have intended.” had in Legislature what the evidence of 785). (citing Yet Boykin, 818 S.W.2d Article 37.07 mind at the time it enacted general recognition of rule despite our it much persuasive, law. I don’t find into construction, majority statutory for the conclusive. less goes if the statuto- “[e]ven on write that possible meanings to There are several however, ry language ambiguous, is extra- to the substance of the collo- be attributed support limiting factors Article textual majority relies. Cer- quy upon which the to case-in-chief 37.07’s is tainly majority’s interpretation the one Op. at 2. The effect of Majority evidence.” Yet that the concern possibility. it seems our case has that a stat- law never been Representative of was not questioning the language plain can be both and am- ute’s scope obligation the so much the of biguous. majority the cannot read specifici- the of provide degree notice as ways overruling Boy- statute both without ty required with which the State would long upon and a it. relying kin line of cases Tamez, See, (Keller, interpreta- e.g., respond. possible 11 S.W.3d at 203 Another J., Mason, dialogue v. irrele- dissenting); largely 980 S.W.2d tion is is (Keller, (“[a]s 635, J., concurring) 641 we pres- it the vant because does address in Boykin, appellate noted an court Representative statute. ent version of the not consider extratextual factors absent asked, them to “you’re requiring Smith results”). ambiguity or absurd be, might the exactly state what introducing they would be simply but Indeed, majority’s repair to extra- Representative extraneous evidence?” and textual in this instance considerations answered, changing of “I’m not Place points to cau- dangers Boykin some However, discovery.” the final laws of against ago. tioned over decade We provision version of the statute includes a plain language our to the restrict review attorney statute, representing “[i]f possible, the text where “because to introduce an extraneous state intends of the statute is the law in the sense that it act...., thing adopted by notice of that intent only actually is the crime bad anticipate requests tically impossible” specificity for the State to most of a defendant who State, See it will introduce in rebuttal such notice. Mitchell v. 982 S.W.2d which offenses 425, 1998) (Tex.Crim.App. Espinosa punishment "case chief” 427 the defendant’s means to (Tex.Crim.App. it well within 853 S.W.2d 38 finds defendant's 1993) curiam) (defendant rely through a statements and (per on stack witness cannot sort anticipate which offenses the State intends request notice of extraneous offenses that Hayden in chief. discovery State’s case made in a motion without secur introduce is motion). (Tex.Crim.App. 272 ing ruling on 66 S.W.3d the trial court’s Moreover, "prac it 2001). the same Court that finds if reasonable the notice includes the county date on which and the U.S. S.Ct. 80 L.Ed.2d alleged crime or bad act occurred and the (1984) appli- to determine whether alleged name victim of the crime or cant’s counsel rendered assis- effective Perhaps sponsor bad act.” the bill’s was phase tance at the trial. not familiar the bill he trying with I dissent because Strickland can have no pass. A explanation better dis- meaningful application noncapital sen- however, crepancy, dialogue is that this tencing is, proceedings, and Hernandez simply awkwardly excerpted passage therefore, unworkable. Hernandez should legislative from the course debates be overruled in favor of standard we shape that Article 37.07 would take -parte Duffy, articulated in Ex once was enacted into law. dia- (Tex.Crim.App.1980).10 Such logue has place interpretation our bottom, At the problem applying plain the statute’s language, unless abso- Strickland in the of noncapital context sen- lutely necessary. See Boykin, 818 S.W.2d hence, tencing proceedings, prob- and the case, plain at 785-86. In language this the Hernandez, lem with sentencing is that in of the statute interpre- is sufficient for its noncapital a case philosophically is and majority tation. the Because fails to limit procedurally distinct from the guilt/inno- analysis fashion, its in this and because the capital sentencing cence and proceedings majority the of misreads text Article 37.07 Supreme originally ap- to which the Court order overturn the of Appeals’ Strickland, Court plied 466 two-prong test. claims, disposition appellant’s 695, of at dissent. 104 U.S. S.Ct. at 2068-69. The explained

Court the distinction thus: APPENDIX We need not consider the role of counsel ordinary in an sentencing, IN THE OF COURT CRIMINAL proceedings involve stan- informal APPEALS OF TEXAS sentencer, dardless discretion may require hence approach a different 74,211 NO. to the definition constitutionally effec- EX PARTE MICHAEL RYAN capital tive assistance. A sentencing MILLER, Applicant proceeding like the one involved case, however, sufficiently is a trial like THE FROM COURT OF CRIMINAL in its adversarial format and the exis- 2 DISTRICT COURT NO. OF tence of standards for decision ... DALLAS COUNTY proceeding counsel’s role is com- MEYERS, J., parable to at dissenting filed a counsel’s role trial —to en- opinion. testing process

sure the adversarial DISSENTING OPINION produce just works to a result under governing standards decision. State, In accordance with Hernandez v. (Tex.Crim.App.1999), 988 Strickland, 687, S.W.2d 770 466 U.S. at 104 S.Ct. at (citations omitted).11 majority applies Washington, v. Strickland 2064 Hernandez, 772; State, expressed willingness a This Court has 988 S.W.2d at Malik v. 1997). overrule case law that is in (Tex.Crim.App. unworkable or 240 consistent. See Medrano 67 v. S.W.3d 2002) (Tex.Crim.App. (Meyers, 901-902 11. When the Court in overruled Hernandez J., participating); Duffy "reasonably standard of effective Standefer (Tex.Crim.App.2001); replaced 180-81 assistance of counsel” and it with 302, 327-28, sentencing Penry Lynaugh, U.S. “ordinary,” noncapital That 2951-52, 106 L.Ed.2d sen- S.Ct. capital from proceedings distinct (1989). certainly out tencing proceedings is borne our example,

in Texas law. For under initially upon by seized The distinction scheme, sufficiency sentencing capital stems Court Strickland Supreme finding a supporting of the evidence in which the the manner directly from by the judged dangerousness future prejudice. Specifically, Court defined doubt, the beyond a reasonable standard of he has been showing a make out judging inquiry employ that we same deficiencies, de- a by counsel’s prejudiced legal sufficiency supporting of evidence probabil- “a reasonable fendant must show legal a We not measure the conviction. do that, unprofessional ity but counsel’s a sufficiency supporting errors, proceeding the result of sentence, noncapital noncapital Strickland, because 466 U.S. have been different.” range a sentencing place takes within 694,104 at 2068. In the context S.Ct. Therefore, punishment. although sentence, analy- there a or death conviction correspon- must be a certain measure As may realistically implemented. sis imposed between the explained: dence Supreme Court sufficiency the evidence legal convic- challenges defendant When capital sentencing, Texas law does not tion, question is whether there correspondence in a non- require the same that, the probability absent reasonable addition, In in sentencing. the capital errors, had the factfinder would have a trial, punishment phase a the noncapital guilt. respecting reasonable doubt may “any admit matter challenges court a a death defendant When in sentencing.” court the at issue this the deems relevant sentence such as one 3(a). case, is § is whether there question Proc. art. 37.07 the Tex.Code Crim. that, the probability absent admissibility the reasonable language governing While errors, would have the sentencer.... punishment phase of evidence the of a aggrava- balance of concluded effect, trial is of similar it is not as capital mitigating did ting and circumstances admissibility as governing broad death. not warrant noncapital sentencing context. See 2(a). 695, Tex.Code Crim. Proc. art. 37.071 at 2068-69. 466 U.S. at S.Ct. Moreover, capital sentencing proceedings However, analy- prejudice the Strickland that, unique in as a matter of a application are sis the context defies of federal law, jury’s sentencing proceeding discretion because noncapital constitutional the factfin- unguided. See considerations that inform may unfettered or be test, ("[t]he phase penalty capital of a is un predicated trial two-prong Strickland Duffy gravity particular that the standard of a decision on notion assess the dertaken to with federal constitutional inconsistent it warrants to determine whether offense and and, therefore, the Court had "no choice” law many punishment; re it is the ultimate Hernandez, Duffy. to overrule but guilt or spects a the trial on continuation 771. To the extent that the Su S.W.2d at murder"); capital see also Cas innocence of issue, it preme spoken to the has Court has Bohlen, pari U.S. 114 S.Ct. emphasized unique correla continually (1994) (noting 127 L.Ed.2d sentencing proceedings capital tion between open question whether Strickland "left portion guilt/innocence of a trial. See and the noncapital apply to test would [.Strickland} 721, 731-32, Monge California, 524 U.S. cases”). 2246, 2252, (1998) 141 L.Ed.2d 615 118 S.Ct. sen- noncapital der’s determination tencing proceeding transcend the outcome- simply way is what know factors led analysis oriented preju- Strickland judge deny community supervision, prong. dice applicant’s or what extent sentence Factfinding inherently subjective impacted would have had to be to demon- process. particularly This is true in the “prejudice.” strate context, sentencing where the bases Finally, dissent to the result that the making decision are moral ethical majority reaches because counsel they more than are scientific concrete. reasonably instance did not render effec- However, sentencing capital proceedings Applicant complains tive assistance. guilt/innoeence portion resemble the of a call trial counsel’s failure to two additional trial in that they formalized and there punishment majority witnesses. one imposi- outcome to review: the equate holds that such failure does not non-imposition tion or of death sentence. performance deficient trial counsel. In of noncapital sentencing, the context Miller, 74,211, parte slip op. Ex No. 3-4 weighs subjective the factfinder consider- 2002). (Tex.Crim.App. March ations arrives at a sentence that regard, majority explains that counsel configured variety be in an endless testimony decided the wit- four Strickland, ways. applying So what nesses he called at be is a outcome court to evaluate determin- request support applicant’s sufficient to ing whether a prejudiced? defendant was community supervision holds “we Do we look to whether the defendant was do conclude that counsel’s conduct can- imprisonment sentenced to rather than strategy.” considered sound community supervision, as we are asked conclusion, Id. at 4. as well as This in this application? simply do Do we de- “[cjounsel majority’s assertion that cannot cide whether defendant would have been give a and then had no reason conclude he punished severely ren- less had his counsel reason” both from the mistaken as- suffer assistance, dered did effective as court sumption reason is a constitution- Milburn reason, acceptable ally and. while the Dist.]), (Tex.App.-Houston pet [14th “distorting hindsight” may effects of (applying refd prejudice Strickland’s unnecessarily castigate be used to defense prong an ineffective assistance of coun- counsel, they may be used bene- always sel finding “appellant claim and has dem- Here, prosecution. pro- fit the hindsight case, prejudice onstrate this even integrity tects .the sentence applicant’s though speculation is sheer that charac- testimony counsel himself despite from mitigation ter witnesses in have strategic failing that he had no reason for favorably jury’s fact influenced the assess- 2. In to call the witnesses. id. at n. See omitted)? (citation punishment”) ment case, plea an applicant open entered Indeed, possible applicant is it ever for an mercy guilty and threw himself to make out a successful claim that By fail- punishment. of the trial court “outcome” of his case would have been ing police appli- to call the officer to whom if different “outcome” can be defined in psychotherapist cant confessed and the variety ways?

infinite him, deprived who later examined counsel

I contend that it is possible opportunity under applicant meaningful illustrates, current law. As this case there present psyeho- his sole defense.12 opportunity applicant prejudiced 12. Denial of alone counsel’s demon- strates therapist the officer were the appli- that would have enabled

witnesses

cant that disinterested to demonstrate community him

parties worthy viewed

supervision. Accordingly, I dissent to the

majority’s reasoning result. MARTINEZ, Appellant,

Rafael Garza

The STATE of Texas.

No. 2124-00. Texas, of Criminal Appeals

Court

En Banc.

April

shortcomings.

Case Details

Case Name: Jaubert v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 10, 2002

Citation: 74 S.W.3d 1

Docket Number: 0260-01 to 0264-01

Court Abbreviation: Tex. Crim. App.