Lead Opinion
OPINION
delivered the opinion of the Court
. A jury found Appellant guilty of sexual assault and sentenced him to 20 years’ confinement and a fine of $8,000. He claimed on appeal that his attorney was ineffective during the punishment phase of trial for calling three witnesses who gave damaging testimony on cross-examination. The Fourteenth Court of Appeals agreed and remanded the case for a new punishment hearing. Prine v. State,
1. When the record.is silent as to defense counsel’s reasons for calling witnesses in support of probation, has the presumption of reasonable strategy been rebutted?
2. If the reasonableness presumption was rebutted, did defense counsel render ineffective assistance in calling witnesses who presented' favorable evidence but also opened the door for damaging evidence?
We reverse the judgment of the court of appeals and affirm that of the trial court.
Background
The evidence in the guilt phase of trial showed that during an alcohol-fueled celebration at the end of a trail ride in Dayton, Texas, the 54-year-old Appellant sexually assaulted the unconscious 19-year-old complainant. He was, caught in the act by his friend, the complainant’s boyfriend. Appellant tried to flee in his own pick-up while pulling his horse trailer, but a police officer caught him a short distance from the scene of the crime.
In the punishment phase, the State presented the testimony of the complainant and rested on a Friday afternoon. But over the weekend, the prosecutor notified the defense attorney that he had just learned and intended to prove that, some 27 years earlier, Appellant had fathered a child with his children’s 15-year-old babysitter.
When the trial resumed on Monday morning, the defense called three witnesses to the stand: a probation officer and Appellant’s aunt and sister. The testimony of each was a mixed bag for Appellant. The probation officer testified to Appellant’s eligibility for probation and the strict supervision afforded sex offender probationers, but he opined on cross-examination that Appellant did not deserve probation. Appellant’s aunt testified that he had been helpful to her and had always worked and supported his family until suffering multiple strokes and heart attacks. On cross she testified that he had fathered a child some 27 years earlier with his family’s under-aged babysitter. Appellant’s sister testified about his health problems and resulting physical limitations, his abstention from alcohol since his arrest and his life-saving support for her after her own rape and impregnation by their father. On cross she acknowledged Appellant’s sexual relationship with the babysitter.
The majority below held that counsel was deficient in (1) calling the probation officer “without first determining whether [he] would testify in a harmful way” and (2) failing to object to his opinion testimony. Prine,
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington,
Counsel’s performance is deficient if it falls below an objective standard of reasonableness. Strickland,
To defeat this presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State,
Analysis
In holding that the trial attorney was ineffective, the court of appeals made a number of assumptions.
It first assumed that the defense attorney called the probation officer to the stand without determining whether his testimony might harm the defense. Prine,
The court of appeals criticized the defense attorney for failing to object to the probation officer’s opinion that Appellant did not deserve probation, but he did object, at least initially. Instead of ruling on the objection, however, the trial court prompted the prosecutor to rephrase the question in a particular way.
Moreover, the court of appeals did not determine that the probation officer’s opinion was inadmissible. The failure to object will not support a claim of ineffective assistance unless the trial judge would have erred in overruling the objection. Ex parte Martinez,
Even assuming that the probation officer’s opinion was inadmissible, the decision to call him as a witness was a strategic choice that involved weighing the risks, and benefits of his testimony. Evaluating such risks and benefits “is exactly the type of strategic decision that .ordinarily requires courts to evaluate an attorney’s explanations before concluding counsel was ineffective.” Prine,
With respect to the extraneous offense evidence testified to on cross-examination by the aunt' and sister, the court of appeals suggested that the defense attorney could have prevented its admission if he had refrained from calling them to the stand. Prine,
Appellant argues that the defense attorney should have abandoned the effort to prove probation, called no witnesses in the punishment phase and advised the aunt and sister “to stay away from the courthouse” so that the prosecution could not call them to the stand. But if trial counsel had acted accordingly, then Appellant could have claimed ineffective assistance for failing to prove his probation eligibility and guaranteeing him a prison sentence. Bone v. State,
The defense attorney faced a dilemma in the punishment phase of this case. The facets-of that dilemma are not fully revealed by the record before us. Thus it is impossible to say that his decision to call these witnesses and suffer, their cross-examination was so- unreasonable that - no other attorney would have made the same decision. Without a' more fully developed record, the court of appeals erred to hold that the trial attorney was ineffective as a matter of law. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court’s judgment and sentence.
Notes
. The judge instructed the prosecutor, “Rephrase your question. ‘In your opinion based on the limited amount of interview time you have had with the defendant.' ”
Dissenting Opinion
DISSENTING OPINION
filed a dissenting opinion.
This is an extreme case of ineffective assistance of counsel. Trial counsel called -witnesses to the stand in the punishment phase of a sexual assault trial thrdugh whom evidence was introduced that a probated sentence was inappropriate and that Alvin Wesley Prine, Jr., appellant, had previously sexually assaulted a child. Nothing that trial counsel could or would say to explain his performance could justify this extreme misfeasance. Despite the silent record as to counsel’s rationale for his conduct and despite the presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, I would hold that, under an objective standard of reasonable performance, counsel rendered ineffective assistance of counsel. I, therefore, would affirm the court of appeals’s judgment reversing the punishment phase of appellant’s trial on the grounds of trial counsel’s ineffectiveness. See Prine v. State,
I. Background
Appellant, a fifty-four year old man, was eonvicted of sexual assault based on evidence that he had sexual intercourse with the nineteen-year-old complainant who was passed out in the back seat of a truck after a trail ride. In the punishment phase of trial, the State presented the complainant’s testimony and rested its case on punishment. After that, prosecutors learned that appellant had previously had a sexual relationship with a fifteen-year-old girl, and they disclosed that information to trial counsel before counsel began presenting his punishment evidence.
Despite having knowledge about appellant’s prior sexual misconduct, trial counsel presented three witnesses in the punishment phase of trial, each' of whom was then asked about his .pfior sexual misconduct against a child. First, trial, counsel called a probation officer to describe appellant’s suitability for probation. The State cross-examined the witness by asking whether he had “heard that' [appellant] had knocked up a 15-year-old girl when he was already married and had children.” The trial court sustained trial counsel’s objection to that question. After that, the State’s attorney questioned the probation officer about appellant’s suitability for a suspended sentence given the circumstances of the instant offense for which the jury had just convicted him. The State informed the witness about the circumstances underlying the instant offense, and the witness opined that he did not believe appellant deserved probation in this case,
The second and third witnesses who testified were appellant’s aunt and sister. In response to questioning by trial counsel, appellant’s aunt said that appellant had never been convicted of any crimes and that the sexual assault for which he had just been convicted by the jury was “very out of character/’ During cross-examination, the aunt acknowledged that appellant had a child- with a babysitter who “was young” when he impregnated her. Appellant’s sister testified similarly that appellant had never been convicted of any crimes but that he had a child with a fifteen-year-old girl whom he had hired as his child’s babysitter.
■The jury sentenced appellant to the maximum term in prison at twenty years’ confinement and almost the maximum fine at $8,000. On appeal, in a split decision, the court of appeals reversed the punishment phase of trial on the grounds of trial counsel’s ineffective representation in presenting the three witnesses’ testimony. See Prine,
II. Analysis
It is true that ordinarily this Court requires evidence from trial counsel as to his rationale for his actions or inactions before finding him ineffective. But this is not always the case. Sometimes, when the record shows that no reasonable attorney would have engaged in a particular course of conduct, an appellate court will find counsel ineffective, even with a silent record. See Andrews v. State,
Even if trial counsel had been permitted to testify in a motion for new trial about his reasons for calling the three witnesses to the stand, nothing that trial counsel could say could justify his decisions in this case that permitted the State to introduce evidence that appellant’s instant offense was unworthy of a probated sentence and that he had previously committed a prior sexual assault of a child. Presumably, trial counsel would have said that his strategy in calling these three witnesses was to prove that a suspended sentence was a possible option for the jury and that appellant was eligible to receive such a sentence based on his lack of prior criminal convictions. But that type of rationale would be lunacy in this case. It is pure fantasy to believe that any reasonable jury would grant a suspended sentence to a defendant who had sexually assaulted a nineteen-year-old young lady who was passed out, who had previously sexually assaulted a child, and whose offense was considered to be inappropriate for a suspended sentence according to a probation officer. Thus, despite appellant’s eligibility for a suspended sentence due to the absence of any prior criminal convictions, it would be inconceivable that a jury would grant him a suspended sentence under the circumstances in this case in which the witnesses chosen by trial counsel to establish appellant’s eligibility for probation came with excessively prejudicial baggage. Calling the three witnesses to the stand prejudiced appellant not only because the jury apparently easily decided to deny him a suspended sentence but also because the jury then assessed the maximum prison term against him.
Had trial counsel not introduced the evidence from these three witnesses, the jury would only have known the fact that appellant took advantage of a heavily intoxicated girl after a trail ride with her boyfriend and friends. Certainly, that is reprehensible conduct deserving of a term in prison. But the jury would not have known that a probation officer did not believe appellant’s offense to be a good choice for a suspended sentence, and it would not have known that appellant had a prior history of engaging in similar conduct against a child. In all likelihood, the jury would have sentenced appellant to less than the maximum prison term allowed under the law, which is what appellant received in this case. See Ex parte Lane,
I disagree with this Court’s continued presumption of competent performance that seems to suggest that we should defer to counsel’s subjective reasons for his decisions. It is improper to defer to trial counsel’s subjective beliefs about his performance. See Okonkwo v. State,
This Court’s majority opinion suggests that, had trial counsel not called the relatives to the stand, then appellant would be asserting ineffective assistance of counsel for failing to present any evidence to prove his eligibility for probation. This is a red herring. Assuming that he could complain about ineffective assistance on that rationale, appellant would not be able to show prejudice on the basis of a fantastical belief that a reasonable jury would be more likely to consider granting him a lesser or even a probated sentence based on a record that showed that those witnesses would' have testified about not only his sexual assault of a young lady but also his prior commission of sexual assault of a child or, in the case of the probation officer, would have testified that appellant should not be awarded a suspended sentence. This Court should not deny a valid claim of ineffective assistance of counsel by reasoning that a defendant could have mistakenly asserted an invalid claim of ineffective assistance of counsel had counsel performed adequately.
This Court’s majority opinion suggests that the State could have introduced the evidence about appellant’s prior sexual assault of a child even if trial counsel had not called the witnesses to the stand. I disagree. The State already had rested its punishment evidence at the point that trial counsel called the witnesses to testify. Had trial counsel rested without presenting evidence, then the State would have had to ask the trial court to reopen its evidence, even assuming that it actually had a witness through whom that evidence could have been introduced. An appellate court should not go to extreme lengths in speculating about whether a trial court would have permitted the State to reopen its case in chief to introduce evidence that it had not introduced earlier during its case-in-chief in the punishment phase of trial. Here, based on this record, and based on a review of what .an objectively reasonable attorney would have done under these circumstances, this appellant has shown that his attorney provided ineffective assistance in the punishment phase of trial,
III. Conclusion
Because the proper focus should be on whether a trial attorney’s performance was objectively unreasonable, a silent record as to counsel’s subjective reasons for his actions, as here, nonetheless may suffice to establish that he rendered ineffective assistance of counsel. Here, nothing counsel could possibly say would change the fact that his performance was so outrageous that no competent attorney would have engaged in it. Therefore,- trial counsel performed deficiently and, in doing so, prejudiced appellant. Like the court of appeals, I would grant appellant a new punishment trial. Because this Court’s majority opinion reverses the proper decision by the court of appeals that held that trial counsel rendered ineffective assistance in the punishment phase, I respectfully dissent.