Melancon v. State

MELANCON, Joseph Appellant, Albert Texas, Appellee.

The STATE of

No. 14-98-00204-CR. Texas, Appeals

Court (14th Dist.).

Houston 21, 2001.

Nov.

Rehearing Feb. Overruled Houston, Harrison, appel- for

Ronnie G. lants. Houston, appellees. Curry,

Alan for court consists of Justices EN BANC YATES, ANDERSON, HUDSON, FOWLER, EDELMAN, FROST, MURPHY,* AMIDEI,** WITTIG,*** and BAIRD.†' MAJORITY OPINION ON REHEARING EN BANC. EDELMAN,

RICHARD H. Justice. rehearing for en The State’s motion majority and dissent- granted, banc is Sep- in this case on ing opinions issued 21, 2000, withdrawn, are tember *** * Wittig sitting assign sitting by Murphy C. Senior Justice Don Senior Chief Justice Paul assignment. ment. ** sitting by sitting by F. Baird † Justice Charles Former Justice Maurice E. Amidei Former assignment. assignment.

following majority, concurring and dis- must be firmly founded and affirmatively senting, and opinions dissenting are issued demonstrated in the record. McFarland place. in their (Tex.Crim. App.1996). In reviewing an ineffective Joseph Albert appeals Melancon his con- claim, ness a court need not determine viction aggravated robbery1 on the whether performance counsel’s was defi (1) grounds that: he was denied effective cient if it is easier to dispose of the chal counsel; (2) assistance of the trial lenge based on lack prejudice. Strick (a) court erred failing to sustain appel- land, 466 U.S. at 104 S.Ct. 2052. objections lant’s grant or a mistrial with regard to prosecutor’s closing argu- A defendant is not entitled to ments; (b) its efforts to jury break the perfect or errorless counsel. McFarland deadlock. We affirm. State, 824, (Tex.Crim. v. 845 S.W.2d 843 Moreover, App.1992). in reviewing inef Ineffective Assistance claims, fectiveness scrutiny of counsel’s The first four of appellant’s points nine performance highly must be deferential. of error contend that he received ineffec- Strickland, 689, 2052; 466 U.S. at 104 S.Ct. tive assistance of counsel because his trial Tong, 25 S.W.3d at 712. A court must (1) counsel failed to: subpoena an available indulge, overcome, and a defendant must a witness; (2) alibi investigate identity strong presumption that challenged ac and availability of other witnesses who might tion be considered sound trial strat alibi; (3) could appellant’s corroborate egy Strickland, under the circumstances. question other available witnesses who 689, 2052; 466 U.S. at 104 S.Ct. Tong, 25 could possibly support appellant’s misiden- at 712. A fair assessment of attor tification defense. ney performance requires every effort prevail To on a claim of ineffec be made to eliminate the distorting effects tive assistance of appellant of hindsight and to evaluate the conduct show, first, must perfor that counsel’s perspective from counsel’s at the time. deficient, i.e., mance was it fell below an Strickland, 689, 466 U.S. 104 S.Ct. objective reasonableness, and, standard of 2052.2 second, that the prejudiced in that there A is a motion for new trial is a probability prereq reasonable errors, that but for counsel’s uisite to presenting result of error on the proceeding appeal would have been different. where it is necessary to adduce Tex.R.App. v. 668, Strickland Washington, 466 U.S. facts not the record. P. 21.2. (1984); S.Ct. A L.Ed.2d 674 trial ruling court’s denying defendant’s State, (Tex. Tong 25 S.W.3d motion for new trial is reviewed for abuse Crim.App.2000). sustained, To be an alle State, of discretion. Salazar v. 38 S.W.3d gation of 141,148 ineffective assistance of counsel (Tex.Crim.App.2001).3 Appellant 1. was convicted Busby and sen- duct. 268-69 years (Tex.Crim.App.1999). tenced the trial court to ten confine- ment. 3.Although appellant does not frame them as such, points asserting of error ineffective Thus, presumption attorney's that an are, effect, assistance of counsel a chal- actions were strategy sound trial ordinarily lenge to the denial of his motion for new trial cannot be overcome absent evidence in the proceeding because the new trial is where the attorney's record of the reasons for his con- presented issue was upon by to and ruled request a con- presence at trial or Subpoena Witness

Failure of her absence. tinuance because trial, During appellant presented evi- trial Granting appellant new and misiden- dence the defenses alibi subpoena for counsel’s failure witness, appel- through single tification all, if at justified, Hearn be Appellant girlfriend, Germany. lant’s Ava i.e., if testimony, that Hearn’s were shown claims his trial counsel was ineffective trial, help indeed be given at a new could subpoena Hearn4 to failing to also Rita However, despite con appellant.5 ful to Germany’s testimony. corroborate alibi important a Hearn so tending that subpoena her at the failure to witness that According testimony appel- to the assistance, appellant ineffective trial was for new lant’s trial counsel the motion Hearn with his presented no affidavit from (the Hearn had hearing “hearing”), motion new trial and offered no testi testify behalf agreed to hearing or mony her at the other spoke her the when trial counsel Instead, wise. evidence of content time, trial. weekend before At the Hearn could purportedly because, subpoena no Hearn saw reason provided was limited to defense coun him they spoke, “very told both times she hearing at the conclusory testimony sel’s emphatically” that she would be trial. Hearn, extent, cor that to a certain “Miss obstacles, any transportation To overcome Al Germany’s testimony.” roborated Ava to arranged trial counsel a taxicab trans- though defense counsel also testified Hearn, port Germany, appellant’s and hearing that he believed abstract at to mother a location near counsel’s home testimony helped would have Hearn’s planned which drive from counsel to them important an defense and that she was However, to trial court. when the cab state, witness, and the he did record location, designated arrived at the Hearn contain, a hearing does not otherwise Despite considering was in it. her an single testify which Hearn could fact important and being (or witness told that she question about events in even day, at a that working restaurant in a position that Hearn ever showing attempt possess any knowledge).6 no further made secure relevant Obviously, appellant because to do such corroborat court and otherwise so. if ing testimony present lacked a that had been elicited from Hearn sufficient record to chal- lenge hearing, appeal. juror for time no affidavits would the first such necessary its to establish materiali been 4. Hearn is referred to as both Rita and Rhoda ty- Hearn the trial record as Rita Hearn in and before us. briefs 6.Appellant’s brief a statement contains group young "had seen African Hearn (Tex. 5. See Butler v. complain- males who matched American ("Counsel’s Crim.App.1986) failure to call ing the robbers en- witness’s identification of such witnesses be 'irrelevant absent complaining apartment ter witness’s showing such were available witnesses robbery. Ms. ob- shortly before Hearn’s appellant would from their testi and benefit girl- Appellant’s corroborated servations ”). mony.’ part The dissent relies in on the group did not in- friend’s statement that this (in jurors speculate three affidavits of which However, no Appellant.” clude citation substantially language) identical that the out statement, provided record come of the case would have been different if any support in the record of nor can we find presented to additional witnesses had been hearing it. appellant’s at the corroborate whereabouts majority robbery Similarly, footnote 3 of our former time the was committed and that states, part, opinion "Trial by in this case was harmed his counsel’s failure Investigate facts, Failure to Without a reflecting record what Call Other Witnesses any, Hearn actually provided, could have prejudice from subpoe- counsel’s failure to Appellant’s point second of error claims na her was not shown trial counsel’s that he received ineffective assistance be- cause his counsel failed global investigate unsubstantiated characteriza- identity availability Driver, of Michelle Hearn, extent, tions that to an corroborat- Driver, Tamala and Patrice Brock as alibi Germany, ed or that testimony Hearn’s Appellant’s witnesses. trial counsel testi- would have helped the defense.7 There- fied at the hearing that he was aware of fore, the trial court did not abuse its dis- these attempts witnesses but his to contact cretion denying appellant’s motion for them were they unsuccessful because had trial, new first moved from previous their residences and error is overruled. he no leads on they where lived.

Counsel further testified that he did not ask investigator to locate these wit- nesses he because had no leads on them. objection counsel testified contraiy, without and re- it is neither the trial court’s role lated the substance of his interviews with support search for additional evidence to expected Hearn and what he trial, party's motion ap- for new nor the would have been had she testified at trial.” pellate court’s role to search for additional Again, nothing we find in the record of the arguments support or appel- evidence to hearing remotely supporting this statement. lant’s brief. The dissent would thus mandate a new trial showing less than would even have 7. This case distinguishable is thus also required preserve been error on the deni- Butler, Shelton, Everage, those such as al of a motion for continuance or writ of dissent, by appellant cited or the where evi State, attachment. See v. Erwin 729 S.W.2d specific dence of the beneficial facts to which 709, (Tex.Crim.App.1987) 714 (noting that the absent witness could have testified was party requesting writ of attachment must only developed, not provided but by was show what the witness would have testified (i.e., else). witness rather than someone See to); State, 60, Hardin v. 471 S.W.2d 62 Butler, 51-52, 55-56; Everage 716 S.W.2d at (Tex.Crim.App.1971) (noting that defendant State, 219, v. (Tex.App.— 893 S.W.2d seeking continuance or attachment must of- 1995, ref’d); pet. [1st Houston Dist.] Shelton saying fer a sworn statement what the wit- State, (Tex.App. 841 S.W.2d — Fort to). ness would have testified pet.). Worth no Because isit not nec Although appellant’s not mentioned in case, essary disposition to our of this we do brief, passages the dissent also cites from not address whether a new trial could ever be Germany’s testimony trial to show where mandated due present to failure to a witness Hearn during had been located robbery where testimony neither an nor affidavit such that she appellant’s could corroborate provided that witness is to show what the However, Germany alibi. testified at trial actually say witness would placed if under 11, 1998, February hearing on and the However, oath. we note that no other wit conducted, denied, April and the motion competent testify ness is about what an would, the dissent actually testify placed absent witness would effect, hold that the trial court abused its (or and, cross-examined); thus, under oath by basing discretion its denial of the motion overturning the entire first trial and conduct solely for new trial present- on the evidence ing a new one in a case would risk that such hearing ed sponte at the and not also sua witness, oath, .missing placed when under reminding remembering itself of re- provide testimony could favorable Germany’s mote no to the testimony details of trial which it defense and that other had heard over ten witnesses who testified weeks earlier during day might again a four at the first trial and which were not be available hearing. even alluded to at the important On the or be less able to remember facts. error point the third again Accordingly,

Because the record contains alleged testimony of what no evidence overruled. (not have even provided

witnesses could point fourth of error Appellant’s value), defense counsel’s of its assessment his conduct of foregoing contends that possible whether it is determine counsel, deprived in the aggregate, have facts that supplied witnesses could Al him effective assistance counsel. supported position found a number of errors can be though or his alibi defense otherwise. Accord effect, non- harmful their cumulative also ingly, appellant’s point second of error effect, not, in may errors their cumulative harm and fails to show is overruled. amount to error. Chamberlain point claims Appellant’s third of error (Tex.Crim.App.1999). provided assis his trial counsel ineffective no appellant Because has demonstrated by failing to call a witness Ken tance performance by his trial deficient Driver, who was at trial be present neth no or harm. there can be cumulative error by had been subpoenaed cause he error is Accordingly, point his fourth Although tes prosecution. Driver did not overruled. trial, tify hearing he testified at the apartment during he the rob Jury Argument robbers, clearly bery saw two fifth asserts of error Appellant’s whose faces were covered. Howev mostly overruling his that the trial court erred er, testified not believe Driver that he did request for a objection denying either robber was because of argu- response following mistrial to the physical ap other their differences from prosecutor: ment pellant, whom Driver best described as his happened on that [W]hat [Prosecutor]: friend. Driver was night is that Kenneth Appellant’s trial counsel testified Johnson], home alone with [Alicia hearing spoken at the that he to Driv boyfriend Kenneth Driver is the er at least three times and intended course, sister. Tarau- Tarauniqui’s Of elicit from Driver but later something about niqui would mention a conscious so made decision not to do savings family to members. her (1) testimony because: Driv favorable Perhaps slip it one Okay. her sister let provided through er could have out came they money. day saving that were (2) police testimony; officer’s Driver could me, Your counsel]: Excuse [Defense have been cross-examined on the State’s Honor, arguing outside the record. part conspiracy that he was theory of a THE Sustained. COURT: robbery; appellant with commit the that counsel]: And ask [Defense (3) could any favorable Driver disregard. instructed jury be provided would have been under last com- Disregard THE COURT: by revealing that mined cross-examination ment. prior felony light In he had conviction. reasonably de- You

of these considerations and the deference can [Prosecutor]: made or the information must afford decisions duce whether strategic we saving money some by trial third about Tarauni- apartment the deci ever out of got error does not that demonstrate can anyone mouth to else. You testify qui’s not to call Driver to fell below sion reasonably once Kenneth objective deduce that standard of reasonableness. information, got seeing period Driver that he decid- er that man for a of six or seven seconds. going ed he was to want some of the money. going object I’m [Defense counsel]: expression personal opin- to the of his I’m going [Defense counsel]: renew by prosecutor. ion objection arguing about outside THE COURT: Sustained. the record. counsel]: Ask the be in- [Defense THE COURT: Overruled. disregard. structed to reasonably You can de- [Prosecutor]: THE Disregard COURT: counsel’s last duce that his here by friend was told comment. Mr. They planned Driver. it.... And move for a mis- [Defense counsel]: trial. Appellant complains appeal THE COURT: Be denied. foregoing argument, suggesting

that conspiracy appel that there Appellant argu was a between claims that this Driver, (1) “improper,” lant and was because ment: attributed a motive to him that However, it was outside the record. the was not either direct testi supported only portion argument associating mony of the or a reasonable deduction from the (2) evidence; injected a new and harmful appellant, ap Driver assuming that (3) fact, i.e., case; motive, into the pellant person was even the to whom the encouraged jurors to base the credibil prosecutor referring was as “his friend here,” ity complaining of the witness’s identifica portion appel was the final to which appellant prosecutor’s per tion of preserve complaint by lant failed to fail opinion girl being sonal ing object. preceding portions truthful. argument implicate only Driver appellant. appellant robbery, Because To the extent the robbers had shirts explain, it does not is not otherwise faces, undisputed, over their it is a which context, apparent from the how those they reasonable inference that did so to statements, record, even outside the being recognized avoid or identified. appellant, could have thus been adverse to apparent how the com- is not complaint this affords no for relief. basis plained argument introduced new or unsupported motive to the case. Nor does Appellant complains following also of the opinion argument express personal portion prosecutor’s argument: of the being prosecutor girl that the thought, This man be- [Prosecutor]: truthful, complains, but as cause he had his shirt over his head that she had sufficient time see neighbor, and because he was a In appellant. person she had identified thirteen-year-old girl that would never event, argument is not foregoing the finger him. This man was wrong. flagrant a nature that it’s of such severe or recognition. The here a issue is the in- effect could not overcome be gentlemen, And ladies and I’m tell- the trial disregard given by struction to point ing you thirteen-year-old girl that that fifth court.8 any problems wouldn’t have whatsoev- of error is overruled. See, State, 103, e.g., speculate of evidence not v. to on the existence Wesbrook that, (holding presented unless it (Tex.Crim.App.2000) where does not warrant reversal 116 denied, it, jury disregard flagrant), cert. 532 U.S. the has been instructed to is offensive or 944, 1407, (2001). prosecutor’s inviting jury 121 S.Ct. 149 L.Ed.2d 349 even a comment the

Jury process again. There through the same Deliberations jury is be some somewhere going to remaining points error Appellant’s make a going that’s to down the line during actions challenge the trial court’s guilt determination of or innocence deliberations. jury upon testimony. this case based Deliberations to Continue Requiring error point sixth Appellant’s judge contends that the trial abused case jury deliberated this supplemen discretion the above by giving 11,1997, February and p.m. 2:50 to 5:20 on jury them to urging tal instruction to the p.m. February a.m. to 2:00 from 9:00 Appellant not chal reach verdict. does during which a lunch break other lenge of the but content instruction breaks were taken. At 11:00 a.m. on about in complains only giving any that such February jury the trial sent court a unnecessary and be struction was coercive stating: note jury willing and able cause the We, jury, cannot reach a unanimous attempting deliberating continue We studied the evidence verdict. have However, their reach a own. verdict very discussions, thorough and had note to con jury’s because the the court open juror and each very discussions opposite veyed precisely the sentiment firmly believes that additional discus- do jury, had not we been withdrawn not sions will matter. We resolve agree giving that taken votes and have numerous each them to reach a verdict urging instruction split there was significant time appel Accordingly, was unreasonable. subsequent vote. Discussions to re- point lant’s of error is overruled. sixth questing testimony have indicated that [previously] requested eighth of er Appellant’s change opinion. anyone’s its ror that the trial court abused contends The court the following thereafter said by ordering jury discretion to continue jury: jurors deliberating after the communicated note, your you inability

Relative to if don’t their to reach verdict.9 After want testimony read, court certainly jury, then I case is to the submitted it; discretion, right may, jury you discharge no insist that read how- its to, ever, time, kept together I’m not for such going at this where has been altogether improbable discharge jury. you yes- As I told time as render it position terday agree. take the same that it can Tex.Cobe PROC. CRiM. —and (Vernon 1981). However, don’t to be Ann. art. anybody now—I want forced 36.31 limit on the time anything length to do and I don’t want to do there no State, may anything anybody’s jury Guidry con- deliberate. violates hand, (Tex.Crim.App.1999). But on the other I cer- science. S.W.3d Thus, only if the your po- to reexamine reversal is mandated tainly you need — verdict, if And reach a record trial court abused you sitions. can reveals you by holding for delib why, we want to do that. As I told its discretion it, then erations. you, you got don’t do I’ve Jackson panel, (Tex.Crim.App.2000). go send over another we verdict, being appellant’s eighth points interpret points these that we 9. In sixth contrary positions take as to presented error whether in the alternative. inability to jury had indicated an reach a above, States, jury As in noted deliberated v. United 272 U.S. 449- field for, most, (1926) (re elapsed this case time 47 S.Ct. 71 L.Ed. 345 7.5 hours during which lunch break and versing judge conviction where trial in other breaks were taken. The indica- quired and was how jury informed was impasse tion in the record anof is the note numerically, divided without indication of above) (quoted jury that the sent to the conviction, which number favored and de judge February at 11:00 a.m. on spite objec that defense counsel made no note, reply In to that the trial gave court tion). However, the Court of Criminal supplemental quoted instruction above. Appeals expressly has declined to follow break, taking jury After a lunch re- such a contention: turned a verdict at 2:00 that afternoon. Nevertheless, appellant insists the tri al court committed error when it fur

Appellant has not cited a in case charge cognizant nished the Allen while actually which a conviction has been re of the numerical division of the dead jury versed for requiring deliberate jury. long illustrating too and thus circum locked See United States Sae- (9th Chua, Cir.1984). in a trial 725 F.2d In stances which court’s conduct has case, been unreasonable in that In in regard. period instant of delib case, length jury spent prior of time the to the charge, eration Allen deliberating certainly jury foreperson was not excessive had informed the trial relation felony to the seriousness of the being court of the nu [without asked] charge facing. was Nor do the jury. Appellant merical division of suggest circumstances otherwise law, contends that under federal case altogether improbable jury possession of such information agree reported could when it its first and charge Ap makes an Allen coercive. after, most, only deadlock 4.5 hours of pellant’s reliance is mis upon Sae-Chua Accordingly, deliberations. Circuit, placed. In the Ninth Sae-Chua eighth point of error is overruled. citing found reversible error ] [Brasfield polled when the trial court a deadlocked

Soliciting Numerical Division jury regarding the likelihood further de Appellant’s seventh of error ar- would have in achieving liberations gues asking that the trial court erred in created prophy verdict.... Brasfield deliberations, jury, during their how forbidding lactic rule the federal they you were divided: “How do stand? juries re questioning courts from their six, ... Twelve to two?.... Six to or nine garding numerical division. Id. Howev three, eight any partic- or to four? Not er, prophylactic such a rule is based you But against. ular for or taken upon Supreme exercise U.S. Court’s vote?.... the last vote?” The What’s supervisory powers upon any jury replied, pretty foreman were “We notion of constitutional infraction. Low split well down the middle.” at 239-249 n. Phelps, U.S. enfield 546,.... prophylactic 108 S.Ct. that, Appellant contends under Sae-Chua, present rule Brasfield law, asking federal case the trial court’s supra, application has no to this simply jury co the numerical division of proceeding holding. state or this Court’s deprived appellant ercive and of a thereby trial, contexts, fair in the context of the We are mindful that some particularly supplemen might engender deadlock and a trial court coercion subsequent instruction, jurors minority actively identifying tal above. Bras discussed See Justice, WITTIG, Senior DON tacitly instructing them viewpoints and rehearing en dissenting on concurring and How- perspectives.. their to reexamine banc. bar, the trial court ever, in case at the attempt jury or probe not

did on the issue majority I concur jurors. The identify minority While of counsel. assistance of ineffective divi- as to numeric court’s information may have conduct counsel’s trial defense and extraneous an unsolicited sion was standards, the in- acceptable fallen below In jury. in a note from reference pro- of the all or record of complete charge we find the Allen this context us unable testimony leaves spective noncoercive. be prong of Strickland. the second gage correctly affirms majority Therefore the Howard v. The dissent appeal. on direct this issue Howard, the light In (Tex.Crim.App.1996). counsel was trial defense aptly evening, the the trial court improperly slammed the cell door shut right after the inquired of the jury: your “What’s last trial court’s erroneous ruling. The state’s vote?” The jury responded they were attorney concluded: “You can reasonably pretty split well down the middle. The deduce that his friend here by was told jury was sent home the retired senior Mr. They planned Driver. it.”1 judge presiding and deliberating continued So what the state argued was: Tarau- the day. next According to trial nique might sister, say have told a testimony in Tamala. this only case lasted four Then might Tamala fifty hours and have told Jury minutes. Alicia. Then delibera- spanned tions days. two Against might Alicia Then, this have told Driver. backdrop, I am constrained to dissent to jury could reasonably deduce Driver told part five, of issue improper jury argument Melancon. by the state. argues, The state and the majority im- The majority correctly recites the rec- plicitly agrees, this was a reasonable infer- ord of the argument. state’s prosecu- The ence or deduction from the evidence. The tor argued Tarauniqui’s boyfriend, sister’s witness, state’s own Tarauniqui, testified Driver, Kenneth was at the house and just she had moved her money, and only course, that: “Of Tarauniqui would men- husband, Eze, knew the whereabouts tion something about her savings to her of the money. evidence, The state’s own

family members. Okay. Perhaps her sis- therefore, showed no one else knew the ter let slip one day they that were whereabouts of this money. Tarauniqui’s saving money.” Trial defense counsel know, sisters did not know; Driver did not timely objected argument to this outside record, only her husband objection money knew where the properly sus- tained, and jury properly Contrary was. argument instructed the state’s disregard argument. extraneous about happened “What night ...” Then the state refused to the ruling follow both Tarauniqui and her husband were of the trial court and reiterated the identi- gone that evening after money cal argument. Masking the extraneous infer, moved.2 How can anyone deduce or speculation, argued state against evidence, the state’s own that a could deduce whether or not the word person longer no conveyed house savings money got ever out of Tarauni- information from one sister to another qui’s mouth to anyone else. “You can rea- who, turn, conveyed the information to sonably deduce that once Kenneth Driver Driver, conveyed who then the information got information, he decided he was to Melancon? going to money.” want some of the Again, argument A valid can be made from timely objected defense counsel to the ar- premise. invalid, valid If premise gument outside the record. Inexplicably, the argument the senior is invalid. judge overruled One cannot objec- the same de- tion to the argument or, same duce he from either the sustained unknown more moments before. The prosecutor case, able like this from the contrary or the majority opinion ignores argued context of 2. The state even that Alicia and Driver argument. extra-record ignores It further were alone. At some earlier Tarauniqui date patent Tamala, sister, effect of the allowing error may have told another about state to manufacture opportunity motive and the money, but not where it was stashed. Tamala, out of whole Similarly, cloth. the majority Tarauniqui, present, like was not opinion ignores preserved error I argued, night question. address. the state on the (Tex.Crim. impossible.3 App.1986). law is well In Wesbrook v. The settled.

State, 103, (Tex.Crim.App. 115 29 S.W.3d State, 85 In v. 879 S.W.2d Holliman 2000), the approved are informed that we 1994, no (Tex.App. [14th Dist.] - Houston. (1) of are: sum argument areas general the extra extra-legal we pet.), addressed (2) evidence, de mation of the reasonable prose the The neous of state. argument (3) evidence, the answer duction appellant the reason suggested cutor (4) plea and opposing of argument go hospital police or call the didn’t the State, v. Hathorn for law enforcement. drugs. was over fight because the 101, (Tex.Crim.App.1992), 117 848 S.W.2d went the record prosecutor again outside denied, 3062, 932, 509 113 S.Ct. cert. U.S. give her argued why Moore refused to (1993). 744 Even when an 125 L.Ed.2d key their home. forty year old son a permissible exceeds the bounds argument There, fabricated prosecutor we held areas, approved such will not con of these by injecting facts explanation “her own unless, in light reversible error of stitute arguments Id. at 87. These evidence.” whole, argument record as a is Here, harmful error. Id. were deemed manifestly improper, extreme or violative she Tarauniqui told one sister even had injects statute, mandatory or new of a money, not a there is saving some facts harmful the accused into an that that sister told shred evidence added.) proceeding. (Emphasis else, anyone much less other sister or State, 286, Todd v. 598 S.W.2d 296-97 boyfriend absent anyone told her (Tex.Crim.App.1980). The must remarks suggest To any money. whereabouts a willful calculated have been effort sister, who Tarauniqui told unknown part deprive of the state to Alicia, Driver, Me- told who told told who State, impartial v. a fair trial. Cantu throwing fisherman chum lencon is like a 627, (Tex.Crim.App.1997), 939 S.W.2d 633 on water. denied, 994, 557, cert. 522 118 S.Ct. U.S. court in overrul the trial erred Because (1997). L.Ed.2d 399 In most 139 instanc appellant’s objection argument, ing es, disregard an instruction to the remarks errors war now consider whether those State, cure the v. error. Wilkerson will TEX. APP. P. 44.2. rant reversal. See R. 321, (Tex.Crim.App.1994), 881 S.W.2d 327 jury argu rulings Erroneous related to denied, 1060, 671, 513 115 cert. U.S. S.Ct. non-consti generally ment are treated as (1994); State, L.Ed.2d 604 130 Cooks Rule purview tutional within the error 697, (Tex.Crim.App.1992), 844 727 S.W.2d 44.2(b). State, 677, 17 S.W.3d denied, 927, Martinez 3048, 509 113 S.Ct. cert. U.S. State, (1993). (Tex.Crim.App.2000); Mosley v. 125 L.Ed.2d 732 Such was not the 249, (Tex.Crim.App.1998), 983 S.W.2d contrary, by overruling To case here. 1466, denied, cert. 526 U.S. 119 S.Ct. objection improper argu to the (1999). 44.2(b) re ment, Rule “the 143 L.Ed.2d 550 put stamp court not affect sub judicial approval” argument, quires any thus error does disregarded. In potential rights harm. stantial to be other magnifying See Good inference, upon yet an- permissible It is not to base an inference another another upon upon illogical, argument an inference in order convict is such an other. Not State, evidence. Thomas v. directly circumstantial impermissible doubly but when it 148 Tex.Crim. in the face of the state’s own evidence Here, (1945). of cards is even the house contrary. tenuous; upon an inference is based more words, criminal “[a] conviction should year one palpably demonstrates the wis- Tex.R.App. be overturned for 41.2(c). non-constitutional error dom of P. En banc court, appellate after reviewing the consideration of a case is disfavored and whole, record aas fair has assurance that preserve reserved to uniformity or for ex- the error did not influence the or had traordinary circumstances. I disagree but a slight effect.” Johnson v. 967 with the court’s consideration of this case 417 (Tex.Crim.App.1998). en banc. The following three factors are used to Even without addressing the visiting analyze the harm improper associated with judge’s improper solicitation from the (1) jury argument: severity of the miscon of its vote before giving verdict and of an (the duct magnitude prejudicial of the ef charge, Allen I would reverse and re- (2) prosecutor’s remarks); fect of the mea 4mand this case for upon a new trial based (the adopted sures to cure the misconduct prejudicial prohibited argument of efficacy cautionary instruction the state. (3) judge); certainty of convic (the tion absent the misconduct strength of BAIRD, Justice, F. CHARLES conviction). the evidence supporting the dissenting on en rehearing banc. Martinez, 692-93; 17 S.W.3d at Mosley, submission, original On we handed down 983 S.W.2d at 259. panel opinion which sustained I already have discussed the tenuous first of error alleging ineffective as- case, nature of the state’s turning as sistance of judg- reversed the upon does year the thirteen old’s identifi- ment of the trial court. One member of T-shirt, through cation appellant. Af- panel Today, dissented. majority ter sustaining objection the identical to the the en grants banc court the State’s mo- same argument extraneous moments be- rehearing, tion for previous withdraws our fore, once, the state reiterates not but opinions and affirms the judgment of the twice, times, for a total of three highly trial court. Because the action of the en improper argument. By the repetition of banc court is fundamentally flawed in this extra-legal speculation fact, respects, three I lodge this dissent. prosecution was just able to fabricate enough motive and opportunity to sway I. En Banc Consideration. jurors the six who had held out more than a day acquittal. for patently This is anot grant decision to a motion for re- conviction; ease with certainty of this is hearing by an en governed banc court cases, the weakest of against a man with- by Rule 41.2 of Appel- the Texas Rules of record, out a felony Tex.R.App. who testified on his late Procedure. P. 41.2. The effect, own behalf. In the state’s illicit portion of that rule relevant to this case argument provided the corroboration provides: words,

through illegitimate while the de- (c) En banc consideration disfavored. fense produce failed tó corroboration En banc consideration a case is not through the legitimate witness. favored and should not be un- ordered Finally, futility of the en banc necessary less to secure or maintain uni- court’s treatment of this case for well over formity of the or court’s decisions unless Assuming, majority suggests, as the majority provided fense again defense preserve counsel once hearings failed to important fodder for future on this error, (which dispute), surely then both de- constitutional issue of ineffective counsel. 2000, pet. (Tex.App [14th Dist.] extraordinary require circumstances en . —Houston State, ref'd); 755 S.W.2d Turner

banc consideration.... 1988, no (Tex.App. [14th Dist.] — Houston rehearing to be authorized State, 133, 134-135 pet.); 728 S.W.2d Miller v. case, must a neces- in the instant there be (T ex.App.— [14th Dist.] H ouston in our sity uniformity to maintain decisions ref'd). Therefore, orig finding our pet. However, extraordinary or circumstances. inal that trial counsel rendered submission presented in of those conditions is neither serve as assistance cannot ineffective the instant case. en circumstance to warrant extraordinary A.Uniformity Of Decisions. the instant case. consideration of banc Cf. (Tex. Willover submission, Edelman original On Justice 2000, pet. grt’d) App. [1st Dist.] — Houston opinion. See dissenting handed down (“The (Taft, J., panel opinion’s dissenting) However, Appendix A. that dissent did not effectively prevailing turns the holding cite case from this court that was rule, around, overturning degrees 180 to Indeed, with inconsistent reversal. appeal ruling ruling on such court’s authority dissent cited no whatsoever. previously is incorrect for a reason not part, Por its the motion for rehear- State’s appeal. trial or on mentioned either at cites three from this court. ing opinions extraordinary.”). beyond find this opinions general propo- cited Those are in the sitions of law area of ineffective C.Conclusion. However, assistance of counsel claims. rehearing necessary neither agrees principles

the State were As is these decisions, of our nor opinion origi- uniformity reaffirmed in the on maintain majority extraordinary may nal the result of an circum- submission. While the State dis- stance, grant re- princi- the the en banc decision agree application with of those case, in ples hearing instant said this case is a direct violation cannot be 41.2(c). for en necessary The State’s motion rehearing that en banc is to rule uniformity rehearing maintain be overruled when the State con- banc should original submission principles panel opinion cedes those “reaffirmed.” were Finally, today’s opinion when en banc deal- should stand.

ing closely with the first of error is Analysis. II. Factual Incorrect

examined, the reader find there is not will single citation to a from court. case this majority opinion provides en The banc Therefore, it that rehearing cannot be said testimony no from the trial mention of necessary to uniformity is maintain our case, ex but rather focuses of the instant decisions. testimony trial counsel clusively on the Only hearing. at for new trial the motion

B.Extraordinary Circumstances. majori lens can the through this distorted “what ty record does not reflect only remaining The reason for en banc state the actually facts, if presence any, be Hearn could consideration would majority The provided.” Supra at 380. extraordinary circumstances. But there faulty premise tact on the employs about our hold nothing extraordinary testimony they only consider assistance of counsel on that can ing of ineffective the trial hearing because Although infrequent, from motion original submission. expected be to remember findings court cannot this court has made similar State, Supra trial. past. 270 v. Milburn n. our night July 7. But law is clear that the complainant hours of judge presumed previ to know what has was in their apartment second floor ously place taken in the case before him. Kenneth, nephew, her Little fa- Co., Vahlsing, Pac. Inc. Mo. R.R. 563 ther, Driver, Tammy, Kenneth while Tra- 669, 674 (Tex.Civ.App. Corpus S.W.2d de and Eze The apartment — were work. writ) (“It Christi no is axiomatic that dimly permit lit to Little Kenneth party required prove is not facts that sleep; dining room was on and light judicially a trial court knows. A trial on, lights but television was no were on judge judicially what previously knows has living in either the room or the kitchen. trial.”). place taken case This is During night, course of the Kenneth why required the trial court is to conduct a apartment Driver left and returned to hearing only on a motion for new trial Shortly several times. after his final re- matters not from the determinable record. turn, suddenly men apart- two entered the (Tex. Reyes ment. The men had their faces covered (“[T]he Crim.App.1993) trial judge abuses heads, pulled with t-shirts over their ex- his discretion failing hold hearing posing eyes. their One of the men aon motion for new trial that raises mat directly went to the complainant. ters which are not determinable from the complainant couple had a of seconds to see record.”). being pushed the man before to the floor. correctly appel- evaluate throat, The man held knife to took lant’s ineffective assistance of counsel her to the bathroom and closed the door. claim, we must be aware of both the trial complainant The had a total of stated she testimony well at as as that the motion for six she get or seven seconds to from where Moreover, hearing. new trial because the sitting was time men the the entered alleged deficient conduct occurred at the apartment the to the bathroom. The com- phase, our analysis necessarily must plainant clearly could not see the men and a include discussion of the evidence offered period complainant some time the we there before can determine if trial could not see them at all her face was as major- counsel was deficient. Because the while, ground. toward the After a Ken- so, ity fails to I must do set forth that neth Driver the and came into bathroom evidence will a provide now. also more stated the had The complain- robbers left. detailed account of trial testimo- counsel’s ant identified the man appellant as with from ny hearing. the motion for new trial knife; the she his appellant identified shoes, eyes and his which were the kind Trial

A. on the Merits she seen appellant had wear around the i. The In State’s Case Chief apartment complex. She described his 1997, July thirteen-year-old In the weight pounds. as 190 complainant was with mother in living her robbery, people the en- After several complex large apartment in Houston. apartment; tered the two of these individ- living apartment the Also were com- sisters, Traeie, Germany uals Ava and Rhoda plainant’s Tammy and were Tra- husband, Eze, Alijua Germany appellant’s girl- de's Hearn.1 was Tammy’s and child, Kenneth” “Little Driver. In the late friend and Hearn was a resident of is, times, emphasize 1. This individual at various referred of the trial her inter- Rhoda, to as Rita name or Hearn. Her will action with the witnesses for both the State summary be when mentioned in the and defense. italicized

391 Rieks not- appellant, Sergeant complex. complainant processing The left apartment feet, apart- inches tall apartment appellant and went to Hearn’s was five seven ed complainant pounds. called her weighed ment where 150 and sister, Tracie, robbery. told her of the apartment, Tracie arrived at

When Appellant’s ii. Case-In-Chief were there. neighbors several Mends case-in-chief, pre- During appellant Germany, seeing Tracie not remember did alibi and misidenti- the defenses of sented spoke seeing did recall Hearn. Tracie but fication, are “two sides of same which complainant who stated See Butler v. coin.” the robbers. Tracie called was one of (Tex.Crim.App.1986). These defenses arrived to investi- police, subsequently who witness, through single asserted were previously gate. Tracie testified she friend, Germany. In Ava appellant’s girl bed; hidden behind her $300 $400— July Germany living appel- was with money robbery. taken in the was apartment lant and his mother in the same July 29, Eric At 12:43 a.m. on Officer complex complainant. July On Department of the Houston Johnson Police Germany had a conversation robbery dispatched was scene. Offi- sister, complainant’s Tammy, who asked spoke complainant cer Johnson with the keep complain- Germany eye complainant and Kenneth Driver. de- Kenneth, Tammy and Little while ant male, scribed her assailant as black five approximately at work. On date feet, tall, inches weighing seven appellant, p.m., Germany, 11:00 shirt, wearing pounds, long-sleeved black to a listening Mend were radio jeans black and a black mask. The ski courtyard apartment complex. This complainant first stated assailant’s approximately area was feet Albert, name gave Officer John- complainant’s apartment. Appellant was apartment son the number where Albert wearing t-shirt. a white complex. complain- lived in the same ant did the not mention assailant’s shoes. to Germany appellant left check the Kenneth Driver identify was unable to the the complainant. arriving After at com- being robbers other than their two black plainant’s apartment, Germany was told males. A apartment search of the for left everything Germany was fine. the Although knife or masks was fruitless. Of- complainant’s apartment stopped but to ficer unit requested Johnson crime scene returning ap- talk with a friend before process apartment finger prints, the for Mend, visiting with her pellant. While the was request denied. Officer Johnson Germany saw Kenneth Driver enter the attempt appellant did not locate while complainant’s apartment. A few minutes apartment complex. the later, Germany black males enter saw two Germany apartment. the testified that Sergeant David Rieks of Houston Germany up appellant. did Department Police conducted the follow neither man was apartment. Af- Rieks with not see the men leave investigation. Sergeant met complainant’s men days seeing ter two enter complainant two after the rob- appellant photo spread apartment, Germany returned to bery and showed her a con- away had moved even farther taining appellant’s photograph. The com- who Appellant apartment. appellant’s picture complainant’s from the plainant picked others, and two Darrin spread. Sergeant Rieks obtained was with Hearn appellant Germany testified appellant. and arrested and Allison. warrant While appear excited, not sweaty did to be or to tions appellate counsel recently engaged in physical activity. prepared a motion for new trial. At the thereon, hearing trial counsel testified he Later, Germany told of the robbery Hearn an apartment located complex both she and appellant went to the and spoke to her the weekend before trial. complainant’s apartment. Germany When Hearn was Germany’s able corroborate arrived, complainant hysterical. i.e., but “baggage,” felony her, calm To Germany console took probation for complainant drug Despite apartment. Hearn’s offense. At point, status, some Germany probationary told Hearn seeing counsel wanted the two men complainant’s apart- witness, enter the Hearn to believing be a her testi- Germany stayed ment. complain- mony help appellant’s defense.3 ant approximately fifty until minutes her Specifically, counsel “I stated: feel like time, During sisters arrived. the com- anytime you try your alibi case where plainant did not Germany appel- tell primary family is a witness member or lant was robbery. involved one, corroboration, you get loved if can strengthens the alibi.” defendant’s

Following robbery, Germany did not appellant see with an amount money However, counsel not subpoena did consistent with that taken in the robbery, Hearn to her presence secure for trial. nor did his change financial situation after Instead, Hearn, arranged for Ger- the robbery. Finally, on cross-examina- many, mother to meet trial tion, Germany testified that at the time of predetermined counsel at a location and robbery, appellant weighed 140 then proceed the four would to court. pounds. meeting This morning was to occur the hours, After deliberating for several after the State rested its case-in-chief.4 jury they indicated were deadlocked and ap- When Hearn at the appear did However, could not reach a verdict.2 pointed location, trial told counsel was trial court ordered the jury to continue working Hearn was at the Jack In The deliberating. As a result of the continued proceeded Box restaurant. Counsel deliberations, found court, but did make a regarding record guilty aggravated robbery. or request Hearn’s absence a continuance. When steps asked he knew the neces- Hearing B. The Motion New Trial sary or, presence to secure Hearn’s conviction, appellant’s Following trial alternative, to preserve ap- this matter for counsel any duty was relieved of further to review, pellate counsel stated: appellant appointed and other counsel was way Sure. That to would been prosecute this appeal. Trial counsel error, preserve if I had a appellate wrote to witness notifying counsel her of Hearn, unavailable, who on that I appel- could have testified wanted representa- upon lant’s behalf. Based a subpoena issue and then ask for a writ According 2. impeached prior trial the trial took who had been with convic- fifty four hours and minutes. Yet the tion. longer period deliberated of time. began Monday, February 4.The trial by 3. This is borne out counsel’s voir dire rested 1998. State its case-in-chief questioned where he they the venire whether Wednesday, February 1998. automatically would disbelieve a witnesses trial hear- for new the motion attachment, counsel from file a -written verified and undisputed: are following facts ing for continuance.5 motion he not made why asked had When the location present at 1. Hearn “I attempt, answered: such trial counsel robbery; time of the and why asked he wrote don’t know.” When appellant and Ger- 2. Hearn was with appellate informing counsel the letter during and rob- many before presence the failure to secure Hearn’s bery; trial, forthrightly counsel stat- appellant’s ball, know, I drop you the com- Germany, ed: “[I]f was with 3. Hearn up it.... I think accept got immediately stand fol- Tracie plainant and it, than way to handle rather right it’s the robbery; lowing it.” to hide and confront Ger- presence corroborates 4. Hearn’s that trial clearly establishes The record testimony which established many’s Hearn lived because counsel knew where and mis- of alibi appellant’s defenses her at he had discussed the case with identifieation; trial. residence the weekend before the Hearn, counsel was aware 5. Trial And knew Hearn was trial counsel where her; personally having interviewed by he was told both employed because Germany appellant’s mother. counsel believed Hearn was 6. Trial witness; important counsel further testified he was

Trial who to locate the individuals unable two Germany’s counsel believed 7. Trial time were with Hearn corroborated testimony needed be robbery. Germany and of the relationship of her close because who Hearn were the witnesses two appellant; supported appellant’s could have misidenti- knew was the Trial counsel Hearn 8. defense. fieation/alibi could cor- witness who only available supported The motion for new trial was testimony; Germany’s roborate jurors three who swore affidavits from appel- they not have voted to convict would counsel knew where Hearn 9. Trial presented worked; lant additional lived testimony supporting appellant’s defenses that Hearn learning 10. Upon affi- of alibi and misidentifieation. These appear voluntarily, trial coun- court davits were considered steps knew to take what sel part the appellate and made record. trial; presence at Hearn’s insure court hearing, At conclusion of the in- steps to counsel took no Trial trial. for new denied motion presence; Hearn’s sure Analysis.

C. explanation had no 12. Trial counsel any to secure taking action testimony is considered for When trial trial; presence at testimony trial Hearn’s conjunction of with denying for con- motion of abused discretion in 5. statement the law correct. Counsel’s circumstances, Moreover, under these first material where counsel located tinuance for trial). an of discretion would have been abuse Saturday prior to See also witness on 29.03, court to have refused motion trial & Ann. arts. 29.06 Tex.Code Crim. Proc. 291, State, Foster v. 497 S.W.2d continuance. 29.13. (trial (Tex.Crim.App.1973) court 292-293 394

13. appellate Trial counsel informed ments to the United States Constitution I,

counsel that Hearn could have tes- and Article 10 section of the Texas appellant’s behalf; and, tified The Constitution. well known prong two standard of v. Washington, Strickland 466 14. Trial counsel admitted he 668, 684, 2052, 2062-2063, 104 U.S. S.Ct. “dropped the by securing ball” (1984), 80 L.Ed.2d 674 is utilized when presence at Hearn’s trial. reviewing ineffective assistance of counsel D. Conclusion. claims. reviewing The court must first decide representa whether counsel’s The majority’s analysis factual of objective tion fell below an standard of point of is fundamentally error be- flawed prevailing profes reasonableness under it wholly ignores cause the evidence admit- If performance sional norms. counsel’s trial, ted and considers trial counsel’s deficient, the reviewing court must testimony from the motion for new trial decide whether there is “reasonable hearing in a testimony vacuum. When the probability” the result of trial would from both the trial hearing and the motion been different but for counsel’s defi considered, are undisputed evidence is performance. cient A probabil reasonable that Hearn awas crucial witness who was ity “probability is a sufficient to undermine available provided and could have testimo- Strickland, confidence in outcome.” ny appellant, beneficial to and trial counsel 694, 466 U.S. at 104 S.Ct. 2052. Absent failed to her presence secure at appellant’s showings, appellate both court cannot trial.6 conclude the conviction resulted Legal Analysis. III. Absence Of breakdown in the process adversarial renders result unreliable. See id. at The majority uses its incorrect factual 687, 104 parte 2052. also S.Ct. See Ex analysis as a legal analysis. means to do no (Tex.Crim. Menchaca, 854 S.W.2d 131 stated, But when facts correctly are State, App.1993); Boyd v. an analysis such is mandated. (Tex.Crim.App.1991). 109 I must now presented resolve the issues by appellant’s first of error. prov The defendant bears the burden of ing assistance of ineffective counsel Appellate

A. Standard Review preponderance the evidence. Jack See (Tex. right State, effective assistance of son S.W.2d is guaranteed Crim.App.1998); to criminal defen Riascos dants Sixth Fourteenth Amend (Tex.App [14th . —Houston this, pause degree testimony note trial counsel testified as of corroborative objection without and related the substance of important would have been because it would Hearn, interview testimony with that her purpose establishing have served the dual important and would have been corrobo- appellant's defense and misidentification/alibi Germany’s. Testimony rative of that is re- Germany’s credibility supporting which was objection ceived without shall not be denied suspect relationship ap- because probative value. See Tex.R. Evid. 802. There- pellant. fore, accepted by those assertions must be us Finally, majority is correct that the if the proven. Corroborating evidence is defined "[ejvidence what record is insufficient to establish supplementary already to that been, ap- Hearn's then would have given tending strengthen or confirm it. pellant receiving fate Additional has suffered cruel evidence of a different character point.” the same Dictionary, Blacks Law 6th ineffective assistance of counsel both at ed., pg. 344-45. in a hearing. case as close at the and motion for new trial

395 in d). independent and to make an 1990, of inef witnesses pet. Allegations ref' Dist] and circumstances vestigation of the facts of be sus fective assistance counsel will Butler, 54 716 S.W.2d at firmly are of the case. See only they founded tained 941, Ewing, 570 S.W.2d citing parte Ex affirmatively appel demonstrated State, Ex (Tex.Crim.App.1978), quoting v. 928 947 late record. See McFarland (Tex.Crim. 482, Lilly, 490 (Tex.Crim.App.1996), parte cert. 656 S.W.2d S.W.2d 500 State, denied, 1119, 966, v. 576 S.W.2d App.1983); 117 136 Flores 519 U.S. S.Ct. 632, v. (1997); State, (Tex.Crim.App.1978); State L.Ed.2d Jimenez v. 804 634 851 (Tex. 335, Thomas, 334, 768 S.W.2d 336-37 (Tex.App 338 Antonio S.W.2d . —San 1989, 'd). pet.) no 1991, App. [14th Dist.] pet. ref When handed the task — Houston. (“[D]efense responsibility counsel has a a determining validity defendant’s potential wit interview seek out and claim ineffective assistance Cabana, nesses^]”); Nealy v. 764 F.2d judicial highly review deferen must be Watkins, 1173, 1177 692 F.2d (citing Bell v. tial to trial counsel and avoid the deleteri (5th Cir.1982), 999, v. hindsight. Ingham v. and Rummel ous effects of See 1009 (5th Cir.1979)). 503, Estelle, State, 103, (Tex.Crim.App. 590 F.2d 104 679 S.W.2d 509 1984). corollary to that rule is The obvious investigated counsel has the facts once Generally, the trial record will not be theory, “has developed defensive sufficient to establish an ineffective assis professional duty present all available Thompson tance of v. counsel claim. See support testimony and other evidence to (Tex.Crim. State, 808, 9 S.W.3d 813-14 Thomas, 768 the defense of his client.” App.1999). normally This is true because Butler, 336-37; at at 716 S.W.2d S.W.2d presump a silent record cannot rebut the State, 526, 48; v. 841 527 Shelton S.W.2d performance tion that counsel’s was the Ev pet.); no (Tex.App Worth . —Fort result of sound or reasonable trial strate State, erage (Tex.App. 219 v. Strickland, gy. See 466 U.S. at 104 'd). 1995,pet. —Houston ref [1st Dist.] State, 2052; S.Ct. Stafford (Tex.Crim.App.1991). present S.W.2d no duty defense is However, may pre notion, present a defendant rebut the ability transient sumption by providing a record from in both the all available evidence is secured appellate may determine which court States and Texas Constitutions United conduct was not compulsory trial counsel’s based provide right for the which (“In upon strategic or tactical decision. See Const. Amend. VI process. See U.S. 771-72 Jackson prosecutions, criminal accused shall all (Tex.Crim.App.1994). may compulsory This record be ... enjoy right to have case, as in the provided, obtaining instant via favor process for witnesses (“In Const, I, hearing.7 ”); § new trial all motion for art. Tex ... the accused ... shall prosecutions criminal B. Deficient Performance wit- compulsory process obtaining ”) in his favor ... also first decide whether counsel nesses See We must Tex. Ann. art. 1.05. The Tex- performance by failing Code rendered deficient Peoc. Ckim. statutory has enacted a presence Legislature Hearn’s trial. to secure Coun to effectuate these constitutional duty potential has the to interview scheme sel Tex.R.App. required P. 21.2 A new trial is when See motion for necessary to adduce facts not in the record. guarantees. See Tex.Code Gkim. PROC. sions and had assured him she would be Ann. Ch. 24. of these Because constitu- available for trial. While the witness and statutory provisions guarantee- tional may have led to believe that a present ing right defendants the to their subpoena unnecessary was to secure testimony, defensive the Court of Criminal attendance, appellant must ulti- be held Appeals permit does not defense counsel mately responsible for his failure to seek depend upon promise a witness’ or as- compulsory process for a im- witness as appear Instead, surance to at the trial. [], portant to his case as even if had she defense counsel must exercise due dili- proved cooperative reliable and in gence securing testimony pro- of past. spective through the witnesses issuance of added). See id. at (emphasis subpoena. State, See Drew v. 207, (Tex.Crim.App.1987) S.W.2d 228 n. 17 Not surprisingly, several have courts Tex.Jur.3d, 25, (citing Law, Vol. Criminal found counsel ineffective for se- failing to (“It 370-371) § pp. is no excuse for cure the attendance of witness. But- In subpoena the failure to issue a that the ler, defendant was promise defendant relied on the witness’ charged with aggravated robbery. His attend.”). identification of a testimony rested single eyewitness. presented He de-

This court has followed dictates of fenses of Al- alibi and misidentifícation. Appeals Court of Criminal in this area. though defense counsel called one witness (Tex. Rodriguez In 21 S.W.3d 562 to advance theory, this defensive 'd) counsel App. pet [14th Dist.] ref — Houston failed to call other witnesses who could (opinion on we rehearing) considered the complainant’s have cast doubt on the iden- trial court’s denial motion for of a continu ance when a did tification and establish an alibi. appear witness The Court as promised. In of Criminal found dealing obligation Appeals counsel defi- of presence defense counsel cient and to secure reversed. witnesses, we stated: Shelton, In the defen- Because a witness is a missing risk charged dant was with sexual of a assault case, every inherent in party almost child. His conviction initial was reversed seeking present the witness must ex- he was tried second time. At re- diligence protect ercise reasonable trial, attorney call defendant’s failed to against that a possibility witness will as an alibi witness the defendant’s great- appear promised. Taking appro- niece, trial, who had testified at the first (i.e., priate arranging measures for the testimony and whose directly have timely issuance and service of a subpoe- complainant. contradicted the It was Ibid. compel na to appearance the witness’s established the niece would been trial) is especially critical when the wit- trial, available to testify the second but ness is material to the case. Failure to attorney the defense never contacted her. the necessary steps take to secure at- strong language, Id. at 527. In Port key tendance witness demonstrates Appeals Worth Court held diligence. Here, lack reasonable ineffective and the conviction: reversed appellant argues he entitled to a neglected present When counsel avail notwithstanding

continuance his failure support able arrange subpoe- for the of a Shelton’s issuance defense, alibi professional na for the he failed missing witness because she Ybarra, appeared voluntarily prior duty parte occa- to his client. See Ex witnesses, testimony or rebuttal pretrial (Tex.Crim.App. 629 S.W.2d complainant’s] 1982). not hear attorney’s jury [the to advance did failure The alone com- prior testimony that Jenkins to apparently one defense available they If had heard this his inef the theft. clearly made assistance mitted Shelton acquitted fective, jury may have incompetent. testimony, See Ex not (Tex. guilt. of theory parte Duffy, appellant, 607 S.W.2d under either fact, Crim.App.1980). no that In evidence actions, he have of would knew Jenkins’ Ibid. as matter to a acquittal entitled been Similarly, Everage, in a 893 S.W.2d law. complainant testified prosecution, theft Id. at 224. accompanied by an- Everage, that at trial Jenkins, individual, Thomas, out

other Marcus filled in Finally, name of a third application a err in credit trial court did not court held the person, purchased and then television trial based on for new granting motion at person. third Id. 220. the name where the of counsel ineffective assistance rested, Everage’s After the State counsel theory was showed the defensive record call requested a recess in order to to counsel’s fully not advanced due trial witnesses, Mayfield, Kimberly Jenkins and and call certain wit- failure to interview allegedly sign who saw Jenkins friend Id. at 337. nesses. The trial court de- application. credit hearing, trial trial At the motion for new requested nied the and ordered recess he of Hearn counsel testified was aware to counsel call witnesses. When counsel spoken apartment with her at an witnesses,” stated, “We don’t have Coun- before trial. complex weekend noted, Id. “Both court sides rest.” testimony have sel stated Hearn’s would phase, Mayfield punishment At the appellant because it would benefitted Everage that accompanied testified she testimony Germany’s Ava corroborated they Jenkins. City Circuit where met support appellant’s alibi/misidentifica- store, Jen- Mayfield While observed Although tion he believed defense. kins, fill Everage, appli- the credit out testimony important, Hearn’s was sign him the name cation did not see subpoena to secure did not issue a counsel Id. party. of the third at 222. Instead, presence her trial. Appeals First held counsel Court Hearn, Germany, arrangements made failing May- was ineffective for to secure coun- to meet trial mother phase presence guilt at the of trial. field’s location and then four sel at a certain Mayfield’s testimony The court found Hearn did to trial. When proceed Jenkins, time, would have tended show that Germany appointed appear at the Everage, guilty than of theft. rather was appellant’s mother informed counsel Further, testimony would have Mayfield’s The Box Hearn at the Jack In complainant corroborated However, not in- counsel did restaurant. hearing in a pretrial which indicated nonappear- of Hearn’s form the trial court Jenkins, pri- Everge, than continuance, rather ance, or issue request court mary actor. The stated: presence. There- subpoena secure fore, authority cited witnesses, with the to call consistent counsel failed Because above, Hearn’s despite I would hold that Mayfield’s testimo- did not hear counsel failed exer- promise appear, committed the ny that Jenkins alone seeking compulsory diligence cise due Because counsel failed obtain theft. process for Hearn product whom counsel deemed strategy. reasoned trial Id. at Drew, important permitted witness. See 743 632 n. 4. This affidavit the Court (counsel S.W.2d at 207 must exercise due of Appeals Criminal to determine the fail diligence testimony in securing pro- request the of ure to the instruction was not the spective through product witnesses the strategy. issuance of of trial subpoena); Rodriguez, a 21 at S.W.3d 566 ease, The record in the instant like that (“Failure necessary steps to take the Varelas, in contains admission trial key secure attendance of a witness demon- complained that counsel the of conduct was strates a of diligence.”). lack reasonable strategic. This is self evident from appellate counsel’s letter to counsel Strategy.

C. Hearn, informing her about and trial coun- Strickland, Under the first of prong the testimony sel’s at motion for new trial remaining question is this lack whether of admitting he hearing “dropped had diligence strategic was the result deci securing presence ball” in not Hearn’s at part sion on the of trial counsel. An attor Varelas, trial. Consistent with I cannot ney’s strategic to call failing decision strategy attribute to deficient conduct that witness will only be reversed if there was pursued counsel admits was not for strate- plausible failing no call basis for Therefore, gic purposes. I would hold the Velasquez See witness the stand. v. presence failure to secure Hearn’s was State, 303, (Tex.App.— 941 S.W.2d 310 strategic. 1997, pet.

Corpus ref'd)(citing Christi State, (Tex. 675, v. 866 Brown S.W.2d 678 D. Conclusion Of Strickland’s 1993, App. Prong Analysis. pet. [1st Dist.] First — Houston 'd)). Further, ref the failure to call a wit earlier, As noted trial counsel testified may support ness an ineffective assistance he unable locate two was individuals only of counsel claim if it is shown the at who were with and Hearn witness was available and the defendant robbery. time Hearn would have testimony. benefitted was two one witnesses who could State, (Tex. King 42, See 44 S.W.2d supported appellant’s misidentifica- Crim.App.1983). Although defense. he clear- tion/alibi Appeals ly importance

The Court of Criminal consid aware of of Hearn’s subpoena parte testimony, ered similar situation Ex Vare failed las, (Tex.Crim.App.2001), 45 S.W.3d 627 Hearn. And when counsel learned capi day proposed testimony where the defendant of her Hearn was convicted that tal murder and raised a claim of no at- appear, ineffective failed to counsel made appeal. tempt presence assistance of counsel direct to secure Hearn’s at trial. Appeals The Court of Criminal affirmed The evidence is uncontradicted that Hearn pur later her testimony conviction and the defendant was both available and that appellant. sued ineffective assistance via habeas would have benefitted See corpus. at 44. coun- King, The issue was whether trial coun 649 S.W.2d When trial sel in failing request was deficient sel learned that Hearn would not volun- jury appear, instruction on a lived tarily defensive issue con he knew where Hearn Moreover, theory sistent the defendant’s of the and where she worked. clearly gave testimony case. Trial counsel uncontradicted counsel’s own establishes testimony plausible failing basis for by affidavit that the failure to there was no Velasquez, instruction not the to call Hearn See request as a witness. functioning of the proper dermined Accordingly, at 310. 941 S.W.2d to secure trial cannot be process trial counsel’s failure hold adversarial presence consequent at trial and just Hearn’s result.” produced having relied on as present support failure to Butler, Lock at 54. See also 716 S.W.2d de- misidentifieation/alibi Fretwell, 506 U.S. hart objective pro- fell standards of fense below (1993); 122 L.Ed.2d 180 S.Ct. Butler; 716 conduct. See fessional (Tex. 835, 837 Young v. 991 S.W.2d 526; Shelton, 48; Ever- 841 S.W.2d at (Second of the Strick part Crim.App.1999) Thomas, 219; age, showing that counsel’s “requires land test prong at The first of S.W.2d Strick- to the deprive were so serious as errors has land been established. trial, a trial of a fair whose defendant reliable.”) Strickland, (quoting result is Prong The of Strickland E. Second 687, 2052, S.Ct. 80 L.Ed.2d 466 U.S. at 104 Supreme explained Court has that The 674.). prong advising that the harm While probability” un the “reasonable standard is outcome determina of Strickland prong der the second is not an “outcome- test, Supreme tive Court nevertheless is, a determinative” test: that defendant or conclusion observed that “a verdict probable not show that it is more need weakly supported by the record is more than not that the would have arrived by errors than likely have been affected to at a different verdict had the errors support.” overwhelming with record one Strickland, 693, occurred. U.S. at See 466 696,104 S.Ct. at 2069. 466 U.S. at 2068; 104 v. 697 S.Ct. Snow 663, (Tex.App. [1st 668 — Houston upon the sound- The case rested State’s Dist].1985) pet. 794 S.W.2d 371 dism’d of identification of complainant’s ness (“A may (Tex.Crim.App.1987) probability objective An com- appellant. review of the though be reasonable even it does not ques- plainant’s raises serious preponderance evi constitute a of the The com- tions about that identification. dence.”). also, Collins, See Bouchillon years age, had seen plainant, thirteen (5th Cir.1990) (“reason 907 F.2d 595 complex apartment appellant around probability” than able standard is lower occasions, six had approximately but standard); “preponderance evidence” him. to spoken According with never and, Cabana, Nealy F.2d the two sud- complainant, when robbers Cir.1985) (5th (The Supreme 1178-1179 denly apartment, into the their faces burst Court found “outcome determinative” pulled over were covered with t-shirts heavy standard was too a burden on defen heads, exposing only eyes. their The their appropriate. dants and that its use was not only couple seconds complainant had Instead, is is question “the whether there wearing who was black to see the robber that, probability absent reasonable being pushed ground to the t-shirt before errors, have had a fact-finder would light- The dragged the bathroom. guilt.”). respecting doubt reasonable dim, apartment consisting ing was Thus, probability” merely is “reasonable dining light light only of one room one confi that sufficient undermine Driver, set. from the television Kenneth proceeding. dence the outcome also at the time present who was Strickland, See U.S. S.Ct. robbery, identify the rob- was unable to Accordingly, “[t]he at 2068. benchmark being their black other than two bers of ineffectiveness judging claim males. whether counsel’s conduct so un must be

Appellant’s cy memory de- of her of the date on which alibi/misidentification appellant.8 she was with presented solely through fense was girlfriend testified that shortly who before Following argument, the jury delib- offense, she, appellant, and another erated for several hours and even indicat- talking friend were outside the common ed that was deadlocked hopelessly be- area, approximately 500 feet from the com- being fore deliberating ordered continue plainant’s apartment. Appellant ultimately reaching was its verdict. See n. wearing supra. evening. white t-shirt offense, Shortly Germany before went failing present harm from corrob- the complainant’s apartment check up to the oration evidence sole witness estab- her, determining and after she lishing appellant’s misidentification/alibi

fine, speak went to with a standing friend is self Germany’s defense evident. testi- dumpster parking a trash lot. mony complain- irreconcilable with Germany had a view of the apartment testimony. ant’s in order to location, appellant, speaking jury necessarily and while convict Thus, friend, Germany. to disbelieve the instant she observed two black males case to a “swearing boiled down classic complainant’s apartment. enter the Ger- complainant match” between the and Ger- many testified that neither individual was many. Counsel’s failure to secure testimo- appellant. Germany ap- then returned to ny in from neutral witness resulted the pellant who was now even farther from the jury being to the weigh credibility forced complainant’s apartment than before. complainant against of Germany the who Nothing appeared out of ordinary. the in of arguably appellant. biased favor Germany robbery later learned of the and testimony complainant, The of the Tra- appellant both she and went to what see de, is Germany undisputed that Hearn had occurred. present night robbery. on the the cross-examination, sought On the State testimony ap- Her have could established in Germany’s to establish bias favor of the pellant’s presence at a location more than defendant, and that she was incorrect re- away complainant’s feet from the garding provid- the date on which she was apartment robbery when the occurred. ing appellant. alibi for The State Germany’s Hearn could have corroborated questioned Germany robbery whether the account of two enter com- seeing men 29th, July occurred attempting 28th or plainant’s apartment. And Hearn could portray Germany to the events to which complainant’s have emo- established having happened day testified as on a oth- robbery. tional after the The corro- state day of robbery. During er than the testimony from such a disinterest- borative closing argument, its the State attacked ed witness have had the two-fold Germany’s credibility resulting from her independently appel- effect of establishing defense, relationship and the accura- lant’s misidentification/alibi argument plainant's apartment subsequently 8. The State contends “neutral- went any probative Germany’s complainant following ized value alibi testi- to console the that mony by establishing robbery. could have had that lone the State’s conten- closing argument Germany what witnessed did not even tion its occur that neutralized robbery.” evening probative Germany’s testimony It clear actu- that value of complainant ally proposition Germany's that was robbed once. It is bolsters the equally robbery testimony clear occurred on the needed the corroboration which night provided. Germany saw men could two enter com- Hearn supporting Germany’s credibility. well as

And from the affidavits we know cases, in trying inherent taking risks is jurors three would not have voted least effectively, and doing in so particularly presented addi- convict trial counsel risk does not render the element of supporting appellant’s de- testimony tional assis- ineffective plausible strategy trial fenses of alibi and misidentification in which in the instances tance of counsel happens prove unsuccessful. hold trial counsel’s

Accordingly, would its re- support evidence to Secondly, as performance in to secure failing deficient on testi- versal, majority opinion relies failure to presence Hearn’s at trial counsel at the mony appellant’s testimony support appel- present her in new trial. The hearing on the motion for is suf- lant’s defense misidentification/alibi opinion majority does indicate ficient to undermine our confidence hearing, [FN2] at that or Hearn testified verdict, supported by weakly which is how, according specify even Strickland, prong record. The second involved Hearn was has been established. testimony or what underlying facts such expected give. Without Hearn IV. Conclusion information, rudimentary no basis exists 41.2(c) by rule majority violates testimony would conclude that Hearn’s granting rehearing en banc the instant have corroborated alibi/misidentifica- proceeds ignore case. It then all of the appellant’s girlfriend tion or appellant’s trial, evidence from and uses other beneficial effect. justify pro- that factual basis to insufficient Moreover, if information had even such legal viding analysis no of the first appellant’s trial provided by been is, majority opinion error. The banc en impres- hearsay I that the do not believe therefore, jurisprudence oriented at result what an lawyer sions of a can establish its Accordingly, worst. I dissent. really would have testified absent witness subjected to placed under oath and Appendix A without cross-examination. hearing at testimony of Hearn actual Justice, EDELMAN, H. RICHARD trial, I motion new appellant’s on for dissenting. for ineffective not reverse the conviction opinion appel- failing to sub- majority reverses assistance trial counsel testify trial. poena Hearn to lant’s conviction due as- ineffective failing trial sistance of his counsel in instances, Indeed, par- FN1. some subpoena testify Hearn testimony might be ticular witness’s for reasons. disagree behalf trial. two prose- to the defense where the beneficial First, subpoena counsel’s decision not to opportunity prepare has had no cution plausi- could have Hearn been based on or rebuttal. As sole cross-examination weight credibility of the judge strategy disclosing ble trial to avoid evidence, trial was within its court prosecution identity Hearn’s discretion to disbelieve hope prosecution would remain why he that he didn’t know unprepared of her and thus be unaware Hearn. subpoena failed to or her effectively cross-examine rebut tes- many Like timony Somehow, at trial. important [FN1] Hearn was so FN2. strategies, subpoena this is calculated risk will the failure to a witness that assistance, However, ineffective but was always prove successful. at trial was important not so a witness as to warrant subpoena

issuing for her to at the testify

hearing the motion for new trial.

Panel consists of Justices Amidei and

Edelman. Joseph BERRY, Appellant,

Samuel Texas, Appellee.

The STATE of

No. 03-01-00392-CR. Texas, of Appeals

Court Austin. Barina, Killeen, Bobby appellant. D. for Nov. Russell, Asst., Belton, T. Admin. James Appellee. ABOUSSIE,

Before Chief Justice Justices B.A. SMITH and PURYEAR. PURYEAR, DAVID Justice. Appellant Joseph Berry Samuel was in- aggravated dicted sexual assault and contact. See indecency by with a child 21.11(a)(1), §§ Tex. Pen.Code Ann. (West 22.021(a)(l)(B)(i), (2)(B) Supp.2001).1 plea bargain, to a aban- Pursuant State appellant plead- doned first count and indecency ed with a child. The guilty punishment imprison- court assessed for eight years ment and a fine. $1500 Appellant contends court erred re- Although parties agree purposes opin- first section 22.021. For the purported aggravated allege ion, assume, count sexu- parties, we will do the assault, al the State concedes that the conduct felony alleged degree one a first count alleged-contact complainant’s of the sexual alleged degree felony. count two second organ appellant’s hand-does violate notes numeri jury’s into the inquiry trial court’s not use tools he did ineffective because division, inappropriate, cal even de- the alibi to corroborate disposal Accordingly, appellant’s error. reversible clearly trial defense fense. While point of error is overruled. seventh corroborating subpoenaed should match, swearing very in this close witness Cumulative Error so. he failed to do point ninth of error contends Appellant’s that this case my disagreement Beside forego- of the that the overall combination mentioned consideration merits en banc during jury ing actions the trial court below, opinion ig- majority believe effect on those deliberations had coercive argument final part of the state’s nores thereby deprived appel- deliberations and the record. Be- clearly outside which was previously, of a fair trial. As noted lant state’s nature of the cause of the tenuous of errors could be although a number case, argument of seems to me the effect, in their found harmful cumulative making up conversations prosecutor, not, may in their cumulative non-errors evidence, own to the state’s contradiction Chamberlain, effect, produce error. reversal. requiring error was harmful has Because S.W.2d at 238. to the boils down In this case essence court, by the trial demonstrated no error In a girl. old thirteen-year aof harm. can no cumulative error or there be seconds, swears she of several she matter Therefore, appellant’s ninth of error a man with a T-shirt identify did could and overruled, judgment of the is is made This identification his head. over court is affirmed. eyes only appellant’s seeing on the basis present could Other adults and shoes. ANDERSON, YATES, Justices Against identify appellant. did not FOWLER, HUDSON, join in and FROST stands identification young teenager’s Majority Opinion. appellant’s girlfriend, testimony of appel- other than Ava two men Ava. saw filed a Justice WITTIG Senior about the time apartment lant enter Opinion. Dissenting Concurring jury no wonder robbery. It they the trial court advised repeatedly BAIRD filed a Judge Former a note sent out were deadlocked. Opinion, in which Senior Chief Dissenting “We, 12th, a.m., stating: February at 11:00 and Former Justice MURPHY Justice At 5:18 reach a verdict.” cannot jury, join. AMIDEI

Case Details

Case Name: Melancon v. State

Court Name: Court of Appeals of Texas

Date Published: Feb 21, 2002

Citation: 66 S.W.3d 375

Docket Number: 14-98-00204-CR

Court Abbreviation: Tex. App.