*1 5(а). § legisla- Appellate Proc. art. 42.12 amend Rule of Procedure Crim. gives judges authority year trial speak specifically ture to later to to adjudication, sentence, majоrity defer but the denies in which there no for cases judges authority grant trial to a new in purposes calculating time deadlines proceed- trial if mistakes were made in the impose suspend such case the term ings. community imposing sentence shall include supervision. disagree majority’s
I conclusion that a motion for new trial is not autho- I dissent. respectfully adjudicаtion after deferred proceed- rized Therefore, I ings. respectfully dissent.
WOMACK, J., dissenting opinion filed a JOHNSON, J., joined.
in which Rule of Court holds because says Procedure 21 a motion
Appellate may new trial filed later than be MITCHELL, Appellant, William sentence,1 days after the date of and must days be decided within 75 after the date of sentence,2 new may sought no trial be STATE Tеxas. in granted any at time in a case I gives there is no sentence. believe this No. 1485-00. weight
more to the rule than it will bear. Texas, Court Criminal The most that can be said about the rule is En Banc. it is silеnt about time deadlines I cases which there is no sentence. Jan. would not be bound to infer such pro- silence that the rule-makers made and availability
mulgated any rule about the triаl in in which no new a case there was
sentence. parties
Rather than force the and the go through agonizing deci-
courts involved in procedures
sions and needless
obtaining a sentence order come deadline-rule, say I this:
within would nothing permits,
There is in the law that
forbids, for, provides deаdlines new tri- in criminal in which there
als cases is no through legisla- people,
sentence. The govern-
tive and executive branches of
ment, given authority have Court new tri- procedures granting
establish can
als criminal cases.3 Until the Court TexR.App. 21.4(a). § Tex Code 22.108. See P. 3.See Gov’t id.,
2. R. 21.8. *2 Antonio, Raign, ap-
Michael S. San pellant. Marshall, Att., St. Mat-
Betty Assist. Austin, Paul, Attorney, thew State’s stаte.
WOMACK, J., opinion delivered KELLER, Court, P.J., in which and KEASLER, PRICE, JOHNSON, HOLCOMB, COCHRAN, JJ., joined. case is whether question his claim that appellant has established was denied effective assistance of counsel fense. This mеans must attorney permitted because his him to that, probability show a reasonable but for wear, dire, at the start of voir shirt errors, unprofessional his counsel’s the re- incriminated him. The record does not sult the proceeding would have been *3 support his claim. A different. reasonable probability is a probability sufficient to undermine confi-
This case is before us a
time.
second
in the
dence
outcome.7
appeal,
On
a
of the
panel
Fourth Court of
Appeals
the
reversed
conviction because of
Generally the
on
record
direct
the claim of ineffective assistance.1 We
will not
appeal
be
to show
sufficient
that
granted review, reversed the judgment of
representation
counsel’s
so
was
deficient
the
Appeals,
Court of
and remanded the
as to meet the first
the
part of
Strickland
case to that court so that it could deter-
The
standard.8
reasonableness of coun
mine
appellant
whether the
had affirma-
sel’s choices often involves facts that do
tively
prejudice.2
demonstrated
On re-
not
appear
appellate
the
record. A
mand,
Appeals
the Court of
en bane held
petition
corpus
for writ of
usually
habeas
that
appellant
by
the
was prejudiced
his
appropriate
is
invеstigate
the
vehicle to
error,
counsel’s
a judgment
entered
of
case,
In
ineffective-assistance claims.9
this
petitioned
reversal.3
State
The
for discre-
however, we
оnly
are concerned
with the
review,
tionary
granted.
we
We
step of
analysis,
second
the
whether the
shall reverse and remand.
by
appellant
prejudiced
was
his attorney’s
All аgree
legal
standard
error.
record
this case is sufficient
provided by
was
the United States Su
resolve the
us to
issue.
preme
Washington,4
Court in Strickland.-v.
that
argues
State
the court
First,
appellant
the
must
that his
show
of
erred
that
appeals
by
appel
the
holding
performance
counsel’s
was deficient.5 This
lant’s trial counsel was deficient because
appellant
means that the
prove by
must
the
that
record does not show
his action
preponderance of the evidence that his
was not
tactical
counsel’s
decision.
State is
representation objectively fell be
low
professional
raising
argument
the standard of
foreclosed
that
at
norms.6
Second, the appellant
stage
process.
must show that the
of the
In its petition
performance prejudiced
deficient
discretionary
his de-
the
review of
first deci-
State,
161,
(Tex.
507, 512-13,
Ex parte
Mitchell v.
974
Duffy,
S.W.2d
167
8. See
607 S.W.2d
1998)
App.-San
(presuming prejudice
Antonio
(Tex.Cr.App.1980)(noting
alleged
517-18
that
assistance).
from ineffective
require explanation
errors of omission often
record);
beyond that contained in the
see also
State,
747,
2. Mitchell v.
989 S.W.2d
748-49
State,
808,
Thompson v.
9 S.W.3d
813-14
(Tex.Cr.
1999).
App.
(Tex.Cr.App.1999).
State,
582,
3. See Mitchell v.
23 S.W.3d
588-89
2000).
(Tex.App.-San
apply
general
Antonio
9. We
do
the
doctrine that
raising
corpus
forbids
a claim on habeas
after
668,
2052,
4. 466 U.S.
104 S.Ct.
80 L.Ed.2d
rejected
appeal
it
on
was
situation.
(1984).
674
claims, a
"In most ineffective
writ
assistance
corpus
gathering
is
the
habeas
essential
Strickland,
sion
the Court of
was
he
arrested in the shirt was
performance
conceded that counsel’s
that
was
the
deci-
it in
independent
wearing
deficient.10 Our revеrsal of
first
of his
evidence
because the Court of
sion was
venire. Officer McGhee testi-
front
the
deficiency
incorrectly presumed that
when
wearing
was
that shirt
fied
he
too late for the
prejudicial.11
was
It is
arrested,
Ward, who
was
and Detective
he
position on the defi-
station,
State to reverse its
interviewed the
at
ciency-of-performance рart
the Strick-
wearing
also testified that
was
Only
prejudice part
land standard.
of prop-
Ms.
custodian
Spiegel,
shirt.
today.
is
us
standard
before
detainees,
brought
jail by
erty
*4
to
to
and testified
brought the
court
shirt
the
Appeals
The
of
held that since
Court
intro-
custody.
of
The shirt was
its chain
shirt,
appellant in the
the
venire saw the
objection.
duced into evidence without
so
error
entire trial was
infected
the
any
not
to
appellant
object
The
did
of
of
was
presumption
that
the
innocence
testimony,
all this
could have
and
evidence
the beginning.12
tainted from
The State
in
he wore the shirt
come whether
not
argues
the record fails to
that because
the
proved
have
that
to court. This would
the
the proceeding
reflеct that
outcome of
a
like
was known to wear
shirt
appellant
er-
would have been different without the
the
When “the same evidence
ror,
robbers.
by
court
the
holding
the
erred
that
source,
introduced from another
without
appellant
prejudiced.
appellant
The
was
position
in
objection,
is not
the defendant
the
responds that
record is sufficient to
appeal.”13
similarity
The
complain
to
on
prejudicial,
show
ineffective assistance
appellant
the
question
turns
between the shirt
prejudice
counsel. The
the
shоwn in the
the
that
was arrested and
shirt
on
facts
the record shows.
well
the
videotape
robbery,
the
as
as
The
undoubtedly
appellant was
harmed
confession,
weigh against
also
аppellant’s
by proof
he
wear
like
that
chose to
a shirt
to
finding
prejudice
appellant
the
wore,
by
jury’s
the robber
and
the
wearing the shirt before the venire.
seeing
court-
him with thе shirt on in the
But
the
the
room.
record shows that
appellant
came
court
the shirt
to
independent
proof
appellant’s
was
of the
clothes
his
he had no other
than
because
court,
the shirt
and that coun-
wearing
uniform,
the
was
jail
State’s action
wearing
have prevented
sel could not
the
avoiding
prejudicial
the
effect
directed
the
in the
shirt
сourtroom.
jail
But if he
appearing
garb.14
of his
uniform,
if
had
jail
come in
he
crucial
had
his
appel
fact is that the
clothes,
have
other
the State could
wearing
by
lant
the shirt
his own had
was
he
before the
day
robbery
required
choice the
after the
when
him wear the shirt
Mitchell,
Mitchell,
("In
at 588.
10.
at 588
the
12.
23 S.W.3d
discretionary
the
petition for
State’s
review
State conceded that:
'The error in the instant
Hughes
878
S.W.2d
may
"egregious,”
may
case
have been
Cr.App.1992).
timely
but it was ineffective to not notice and
object
appearing for trial in
to the defendаnt
Mitchell,
(“any
S.W.2d at 748
state
14. See
of-
T-shirt
wore to commit the
same
pre-
case was
toward
action
directed
do
in the
fense.
... We
believe
error
standing
jail
venting appellаnt from
trial in
”).
was
instant case
harmless.’
clothes.").
Mitchell,
avoided the harmful wearing effect of
shirt even if he had come to court in other
clothes.
That jury saw in the during
shirt voir dire does not show probability
reasonable the result of
the proceeding would have been different
but for his performance. counsel’s
appellant has failed to affirmatively show
that he was prejudiced by his counsel’s
performance.
We vacate judgment of the Fourth
Court of and remand this cause
for consideration of appellant’s remain-
ing points of error.
HERVEY, J., did not participate.
MEYERS, J., dissenting note.
I respectfully dissent in accordance with
my dissenting State, opinion Mallett v. (Tex.
Derrick Lamone
v.
The STATE of Texas.
No. 73765.
Court of Criminal Appeals of Texas. 30,
Jan.
1992,
State,
ref'd);
15. Taylor
App.-Austin
pet.
v.
Timothy
E. Tra-
vers, Annotation,
(Tex.Cr.App.1971)("And
it has been held
Propriety
Requiring
Crim
proper during
require
trial to
the defendant
Self,
inal
to Exhibit
Defendant
Perform
stand,
hat,
put
Act,
glasses
on a
Demonstration,
remove his
Physical
Participate
footprint
purpose
make a
for the
identifica
During
Jury,
Trial and in Presence
tion”);
§