Rosales v. State

(Tex. (no the County Attorney County, El Paso Cr.App.1990) S.W.2d 321-22 against Judge provision retired District Edward authorizing appeal law state’s Marquez (“Respondent”). cases). We conditional- in bond forfeiture ly grant mandamus relief. Prior decisions this Court also hold Respondent is a retired former elected bond are forfeiture cases criminal na- judge 65th District Court of El Paso respondent ture so the to erred remove County. He to sit by assign- continues from pur- himself the bond forfeiture cases ment the Presiding Judge made 74.053(b). Sellers, to suant Section See Sixth Region. Administrative Judicial 790 S.W.2d at 321. This Court has jurisdiction its exercised mandamus in a respondent

The sitting three involving a similar bond case to an forfeiture cases in the 65th District V.T.C.A., 95-2187, assigned under judge Gov’t Court —cause numbers 74.053(d). Code, The Section surety 95-2193. defendant ob- See v. Lanford jected respondent sitting Appeals, to the in these Fourteenth Court respondent cases. (Tex.Cr.App.1993). The concluded Under our signed bond forfeiture cases civil and reasoning Lanford, are since Section 74.053(b) removing hearing from orders himself afford defendant not V.T.C.A., pursuant these cases to Govern- right” “a surety legal respon- clear to have Code, 74.053(b), pro- ment Section dent remove himself from the bond forfei- assigned hibits an judge hearing from a cases, relator ture then the is entitled to civil party if “a case to civil case files [the] respondent mandamus have relief to a timely objection assignment.” vacate his orders himself from removing Lanford, these cases. Cf. 847 S.W.2d at retired,

The relator assigned claims (relator judge entitled assigned to may a bond forfeiture case not because, pursuant authority among remove to mandamus relief himself other 74.053(b) granted litigants civil in Section respondent state had no “clear things, le- because a bond forfeiture case is criminal. gal right” to remove relator under Section respondent 74.053(d)). relator maintains the vio- duty by lated a ministerial removing him- custom, As is our we withhold issuance self from the bond forfeiture cases op- writ and accord respondent 74.053(b) adequate Section and he has no portunity to conform his actions to this remedy to seek from but mandamus relief Only opinion. if such action is taken this directing respondent Court va- will the writ of mandamus issue. removing cate his orders himself from these cases.

To obtain from mandamus relief (1) Court,

this relator show: usually “clear” right relief when ROSALES, Appellant, Michael F. judicial question conduct violates (2) duty, no adequate “ministerial” remedy at the alleged law redress harm. STATE Texas. Harmon, See Buntion No. 73163. (Tex.Cr.App.1992). The relator meets Texas, required showing the second prong Appeals of Criminal primarily has no right State En Banc. appeal in bond cases. Arti forfeiture See 13, 1999. Oct. (not 44.01(a), V.A.C.C.P., cle authorizing Rehearing Nov. Denied cases);

state appeal bond forfeiture V.A.C.C.P., 44.42, (authorizing Article appeal bond cases); Sellers,

forfeiture State

OPINION McCORMICK, P.J., delivered the opinion of the Court which MANSFIELD, KELLER, HOLLAND, KEASLER, JJ., WOMACK and joined. is capital

The offense murder and the sentence is death. Appellant raises seven points of error. We affirm.

Appellant voluntarily confessed mur- elderly dering victim the course of a burglary of apartment. Appellant’s her police confession came after the confronted him photographs bloody with of his cloth- ing. Shortly appellant after the murder apartment went to bed in another apartment complex. Appellant acted sus- piciously during police crime-scene in- vestigation. police He later led bloody weapons murder knife with a —a four-and-a-half-inch blade that was bent upward, a two-pronged kitchen fork with tongs backward, bent bloody pair of pliers. needle-nose A forensic pa- thologist testified the victim died multi- ple patholo- stab wounds the head. The gist testified the twenty- victim suffered wounds, one twenty-eight stab incised or wounds, cut thirty-four cutaneous blunt wounds, injury force thirty-one punc- ture appellant’s wounds. The blood on clothing was with consistent the victim’s blood. Other evidence showed bloody shoes made prints two shoe at the crime scene. point error, his first

claims the is legally insufficient to support his conviction. The evidence out lined to support above is sufficient substantive elements offense. See Malik v.

(Tex.Cr.App.1997) (evidentiary sufficiency against measured “the elements the of Duncan, Jr., Lubbock, David T. ap- fense”). pellant. Appellant nevertheless he claims Jackson, Atty., Wade Asst. Dist. Lub- acquittal to an appellate entitled

bock, Paul, Austin, Atty., Matthew State’s alleged the indictment killed the victim he for the State. “by stabbing with a [her] knife striking object-the [her] with hard exact nature of which is unknown to the error, appellant In his second failed to prosecution jury,” and the assis- the effective was denied “in claims he de grand jury used due 1) his counsel of counsel because: tance alleged of an termining the exact nature ” aon venire- strike peremptory wasted Hicks v. object.’ generally See ‘hard challenged have he should member 419, 424 (Tex.Cr.App. 2) object to the trial failed to he 1998): charge authorized court’s alleges that the an indictment “[W]hen or struck if stabbed convict inflicting inju- manner and means of victim, the indictment whereas ry the evidence at trial is unknown and proved guilty State weapon type not establish does struck the victim. appellant stabbed and used, prima showing is facie made disposition our weapon grand was unknown one, is merit. the latter claim without (Citation However, Omitted). if jury. reviewing The standard object at trial shows what evidence claim is of counsel ineffective assistance injury, then the was used to inflict Washington, 466 v. set out in Strickland prove State must 2052, 668, U.S. S.Ct. attempting as- used due (1984). Strickland, a defendant Under (Citation weapon used. certain attorney performance must deficient show Omitted).” Strickland, 466 prejudice. prosecution satisfied the “due de 687, requires This 104 S.Ct. 2052. proved diligence” requirement when it preponderance of fendant jurors one through grand of the represen that trial counsel’s the evidence jury find what was unable to out objective standard of tation below fell injuries. In caused the various ad prevailing profes reasonableness disjunc dition, jury charged (deficient attorney perfor sional norms sup tive and the is sufficient to evidence mance) performance that this deficient appellant killed the port finding un proceeding rendered result knife. victim with a See Kitchens Id.; Lock see also (prejudice). reliable (Tex.Cr.App.1991), Fretwell, 364, 113 S.Ct. 506 U.S. hart cert.denied, 504 U.S. (1993) 838, 842-43, (preju 122 L.Ed.2d 180 (when (1992) returns 119 L.Ed.2d 230 defi showing that counsel’s requires dice guilty on an indictment general verdict performance the defendant deprived cient of commit charging alternative theories trial, of “a a trial whose result is fair offense, if ting the same the verdict stands rehable”). law re Federal constitutional any of supports the theories al prejudice to assess appellate courts quires leged). addition the rule cases like performance counsel’s deficient from longer light no viable our Hicks underlying Amendment’s the Sixth Malik, 953 S.W.2d decision Malik. See determination purpose making reliable at 239-40. truth the Sixth Amendment of counsel is to effective assistance trial court argues own but for recognized “for its sake” disjunc- jury in charging erred making determina this rehable sake disagree. See White v. tive. We tion of the truth. (al- (Tex.Cr.App.1994) peremptory” regard to the “wasted may allege manner and With though indictment claim, ap- assistance of counsel the con- ineffective committing offense in means Michael pellant that veniremember may in the dis- asserts junctive, jury charged be challenged Carley have been method should junctive any and a conviction on “clearly that he indicated sup- cause because upheld will the evidence it). [ajppellant’s consider improperly one overruled. would ports Point error testify put failure to or on A lawyer evidence.”1 photo- to take measurements and review of the record reveals that after graphs. parties questioning finished Carley, Appellant primarily relies on Ake v. State commented that the veniremember Oklahoma, acceptable. Defense then counsel said (1985), L.Ed.2d 53 support his claim. no legal challenge had for cause However, Alee not apply does here because peremptory challenge. and exercised a it deals with when trial court is constitu break, After during a ten minute tionally required psychiatric to appoint ex time apparently defense counsel realized also, perts to assist the defense. See Rey had meant to Carley for (Tex.Cr.App. cause, the judge trial called the parties 1995). Moreover, on fail this record we together and allowed counsel to make his how perceive the trial court’s denial of challenge. thereafter denied to accompany motion his law challenge. Because counsel did chal- yer prejudiced to the crime scene or lenge the venireperson for appel- appellant. harmed Point error three is lant’s assertion that he was ineffective overruled. this basis fail. Point of error two

overruled. through error four points of sev en, appellant complains the trial error, court

In his third appel denying challenges erred in his for cause lant claims was process he denied due four To venirepersons. pre law different the Fifth and Fourteenth issue, appellant serve on this Amendments to the United States error Consti tution and of must to the assistance demonstrate on the record that he counsel under the Sixth and clear specific challenge Fourteenth asserted a for judge Amendments when the trial denied that he used a peremptory chal his motion to view the crime scene with his lenge on complained-of venireperson, Appellant counsel. argues the denial peremptory that all his challenges were his motion him tool denied a basic of his exhausted, that for request his additional defense which would have been available denied, strikes an objectiona was were he not indigent. juror State, jury. ble sat on the Green v. 92, 105 (Tex.Cr.App.1996), The appellant record reflects filed a mo- denied, 1200, 1561, cert. 520 U.S. 117 S.Ct. “requesting

tion be he allowed to ac- (1997). 137 L.Ed.2d 707 company attorney his crime attorney to assist his taking scene The record in the instant case shows measurements, photographs and otherwise that, accepted parties after the the elev- assisting attorney’s investigation his juror, appellant his enth exhausted fif- Appellant lawyer scene.” and his had ac- challenge. peremptory teenth photographs, videotapes, cess to all audio requested and two then received additional tapes, drawings, diagrams charts and challenges. using challenges, After those made prosecution police and the again requested appellant additional chal- regard to the crime except scene work lenges, request but was denied. The product. trial judge pros- ordered juror shortly was twelfth seated thereafter turn ecution to over its work product appellant’s objection. over if appellant lawyer was his not allowed the trial errs in prosecu- access to the crime When scene. The “open overruling challenge against tion also had an file” for cause policy. who, venireperson, on anyone,

record is silent if is harmed living apartment only peremptory former uses a strike to victim’s he go venireperson appellant when asked to there with his remove the and thereafter issue, Carley equivocated supports 1. The State claims on this record this assertion.

233 able, jurors “Prospective be from the ‘must suffers a detriment loss sense, both of a situation to conceive S.W.2d strike. Demouchette 731 penalty denied, minimum would be which the 75, cert. 482 (Tex.Cr.App.1986), in which of a situation appropriate 3197, 96 L.Ed.2d 685 107 S.Ct. U.S. ap- would be maximum punishment

(1987). reflects that Because the record Omitted). (Citation What propriate.’ strikes ad received two extra (citation omitted) meant we stat granted dition to the fifteen to ac- jurors must be able prospective ute, of two he did not suffer loss that, question, cept for the offense Hence, to demon strikes. will legal ap- be punishment minimum error, thus, and, harm reversible

strate circumstances and the some propriate on challenges for cause must show ap- will legal punishment maximum were least three different veniremembers circumstances. propriate some erroneously Penny denied. words, jurors prospective must be other denied, (Tex.Cr.App.), cert. respect mind with keep open able L.Ed.2d 116 S.Ct. hear the evi- punishment until (1995); Martinez being tried.” dence in the case cert. denied, (Tex.Cr.App.1988), during question- The record shows (1994). defense coun- venireperson by ing sel, Mojica asked if he “would have counsel error, his fourth sitting you’re where problems his for cause appellant asserts murder, which asked to consider the lesser juror Mojica prospective Manuel against five [sentence] carries bottom Mojica granted should have been that he would years?” Mojica responded stated that he could not consider certain have with scenario. problem not a mitigating. of evidence to be This types thereafter, Shortly defense counsel asked held on numerous Court has occasions Mojica giving could consider five- he entitled to voir dire not felony for the of year sentence offense jurors on whether could prospective “No, proba- Mojica responded, murder and types particular mitigating consider of evi court, by Upon not.” bly questioning during capital sentencing phase. dence could consider Mojica confirmed See, State, e.g., Raby S.W.2d punishment. full Given the range — denied, cert. (Tex.Cr.App.1998), answers, the trial judge veniremember’s -, 119 S.Ct. denying not abuse his discretion (1998). Furthermore, if a does allow on this is- cause appellant’s juror questions prospective Johnson, at 405-406. sue. partic states that he would not consider four overruled. Point mitigating, that type ular of evidence as pro- submits point, In his fifth juror be removed for prospective cannot juror Jo Ann was chal- spective Womack Hence, on that the trial cause basis. Id. would be able to lengeable because she appellant’s overruled chal properly court types of evidence consider certain Mojica on this issue. lenge appellant was not en- Because mitigating. types questions, these titled to ask asserts that Mo- overruling appel- did not err trial court he could

jica challengeable on this basis. challenge for cause lant’s range punishment full not consider the See, at 3. Point of e.g., Raby, 970 S.W.2d trial, In a both offenses. criminal of lesser error five is overruled. the defendant and State have the trial court did not full Because we hold jurors range believe in the to have who of the regarding its two abuse discretion punishment. Johnson challenges, appellant eomplained-of four (Tex.Cr.App.1998). S.W.2d cannot show harm on appeal. Penry, su- doubt be taken having some as prece- Therefore, pra. we need not address dential value. its offering reason third points error six and seven pertaining overruling error, point of prospective jurors Hallenbeck and Farm- the Court disavows rule set forth er. Id. (Tex.Crim.App.1998), Hicks v. denied, t. cer 1227, judgment of the trial court is af- 129 L.Ed.2d 848 firmed. (1994), longer as no viable light of re op. cent case law. Majority at MEYERS, J., filed concurring opinion; rule forth in quoted set Hicks is verbatim WOMACK, J., filed concurring opinion from an earlier opinion appellant, cited KELLER, JJ., which MANSFIELD and (Tex. Matson 819 S.W.2d 839 joined; JOHNSON, J., filed concurring There, Crim.App.1991). Presiding Judge PRICE, J., opinion; concurs result. McCormick, writing majority for a MEYERS, J., delivered this concurring Court, set forth the rule when an opinion. indictment alleges the manner and means utilized to inflict the un injury is The majority resolves of error one known to the jury, but the evidence by addressing argued by the merits appel trial shows what was used to lant. Majority op. at 231 (concluding injury, inflict then the State has to prove proved State “due diligence” under case did not know the manner argued law by appellant as controlling). means and used due in at majority addition,”

Then the says, “in Matson, tempting ascertain it. there is appel another reason to overrule Presiding Judge McCor (because lant’s of error. Id. mick, again writing majority for a disjunctive, charged suffi Court, single now disavows in a sentence cient victim killed with named Matson, forth in rule set weapon). Finally, majority gives yet represents nearly one years hundred third appellant’s point reason to overrule case law: (rule of error. argued controlling as merits “is longer light no viable” in rule in addition the cases like Hicks

Malik). Having resolved the issue [and Matson no longer ] is viable argued by merits as appellant, the Court’s of our in decision Malik. second and third reasons for overruling op. 231. Majority explana- at No further necessary the of error are not to the tion given is for the sweeping Court’s disa- resolution of the case and therefore dicta. vowal of case law. Matson/Hicks Brabson, 182,186

E.g., State v. 976 S.W.2d appears its are assume actions (Tex.Crim.App.1998)(referring to dicta as by its obvious reference to Malik. “unnecessary [the Court’s] ultimate dis case).1 position of’ the Malik, erroneously trial court the I am constrained to comment some of in jury charge on included the instruction dicta, majority’s however, the it will as no on legality the deten- defendant’s J., See abo Blanco v. (Tex.Crim.App.1987)(McCormick, (Tex.Crim.App.1998)(defending Court’s deci concurring dissenting)(referring and to Sec against charge by saying sion that was it dicta opinion "totally tion of majority III as unnec Court's actions were “essential to determina essary to the instant resolution of the case” hand”); tion of the case in Brooks opinion" advisory stating and "an that and (Tex.Crim.App. appellant’s petition since merits of can "[t]he 1997)("[d]ue holding prior to its that the con disposed inquiry be of without an as [the offense, viction was an element its III], issue addressed in ... all the Section of holding alternative that enhancements must opin language majority III of the Section alleged be in the could be viewed indictment pure totally advisory”). ion is dicta and dicta”); Angel as mere do not line of cases tion, alleged neither a matter which was Matson/Hicks jury charge “mere error in deal with nor the indictment which the State was deal with error They do not submitted.” required establishing the ele- at cases jury charge in the all. These charged. Overruling crime ments of the proof allegations the State’s address of law in which we measured former case They stand for the indictment. made in jury sufficiency by alleges the State that when proposition given, suffi- charge actually we held that that the manner and in the indictment ciency of the evidence thereafter be would of the crime was means of the commission jury by “hypothetically a correct measured jury, there be grand unknown to the charge”: trial —2 allegation this proof support Hence, sufficiency of the evidence should proof just any as must be element there by measured the elements of be alleged in the in- consequence or fact of by the hypothetically offense as defined Because these cases address dictment. allegations in the jury charge proof

correct for the case. Such failure State’s indictment, behind made in the the reason charge accurately would be one that sets are not Court’s declaration law, by the out the is authorized indict- Malik, nothing which had viable ment, unnecessarily not increase does consequence alleged in to do with facts of proof or unneces- the State’s burden of indictment, exactly not clear. crystal lia- sarily restrict State’s theories of Perhaps manner and the Court views bility, adequately par- describes the alleged in the indictment to means when ticular offense which the defendant jury, grand as some- be unknown to was tried. not in the thing either should be Malik, emphasized S.W.2d at We or, indict- indictment if it is new standard would ensure ment, in- some reason not be should for judgments acquittal would be reserved charge.3 correct hypothetically cluded in “in which there is an actual situations charge Perhaps that a the Court means proof failure the State’s crime manner and means unknown would jury indictment,” rather than a mere error even by “authorized indictment, though alleged submitted.” or such charge grand alleges jury 2. When the shows that the fact indictment manner trial proof in- means unknown and the at trial is person or could know the name means, to the conclusive as manner diligence, have ascertained reasonable prima showing facie is made that manner However, nothing [citations omitted] where grand jury. and means unknown developed suggest investi- trial to But when the evidence at trial establishes gation could have ascer- means, prove the the State has to manner from whom a defendant received tained attempting due used property, prima there facie show- stolen reasoning ascertain manner and means. The name, ing party the from whom that consequence to of cannot be said that fact property was the received the grand jury defendant the unless have been unknown to ascertaining diligence jury, thereby sup- it it. used due to unknown the consequence facts of are sometimes Other in the indictment. porting such averment pled grand jury, as unknown to the and sub- 911; see also Cunningham, 484 S.W.2d reasoning. ject Matson to similar rule and State, 136 Manley v. 138 Tex.Crim. State, Cunningham v. relied on State, (1940); 131 Hunnicutt v. S.W.2d 613 case, (Tex.Crim.App.1972). the In that (1936); 97 S.W.2d 957 Tex.Crim. alleged person from whom indictment 153 S.W. Williams v. 69 Tex.Crim. property un- received stolen was 1136(1913). grand jury. ex- to the The rule was known plained: By presented extending Malik the context fatal variance results where the indict- [A] case, appears majority to have in this alleges person whom ment that the from “hypothetically correct indictment” created a property the stolen the defendant received proof at doctrine. unknown to the and allegation should not be in comments, included “the majority. these With I proof though State’s even concur judgment. crime[J” alleged the indictment.4 WOMACK, J., concurring filed a opinion rate, anyAt all of is inconsequential this KELLER, in which MANSFIELD and

to this case because the line Matson/Hicks JJ., joined. of cases need apply not even for the here gives second reason the support join I opinion of the Court. overruling of appellant’s point of error. Today we broach the issue of reconsid- Alternative manner and means are our ering treatment of the allegation in the indictment —a manner and means indictment that the offense was committed (knife) (hard object known and unknown by means to the grand jury.” “unknown the exact nature of which was unknown to past requirement See ante 231. Our grand jury). In these circumstances allegation proved this be at trial is not manner and means unknown is neces justified. rights The substantial of sary proving appellant’s guilt since the could defendant that be denied prove State could either the known or allegation rights an are the to indictment unknown manner and means. Lawton See grand jury in a felony case1 and to (Tex.Crim. notice the nature and cause of the accu- App.1995)(State plead is allowed to alter requirements sation.2 These are for the native theories of manner and means pleading, State’s which are appropriately conjunctive proof theory and under one and raised decided before trial.3 rem- conviction), denied, will suffice for cert. edy grand jury’s for the lack discovering alleging and the means com- (1996); Scott sustain mitting the would an offense be (Tex.Crim.App.1987)(where indictment al exception to the indictment. notion theories, leged alternative and manner of fact allegation creates issue means unknown and named manner and proved trial jury be is close to

means, proof of either means suffi bizarre. cient). But the majority case law the now says is defunct did not address alternative JOHNSON, J., concurring filed a Thus, pleadings. majority’s disavowal opinion. rule context Hicks/Matson essentially upon instant case is dicta I points concur the first three error is, disavowing dicta. That of the rule join the majority opinion. otherwise (which is offered as an holding alternative one, appellant alleges of error dicta), it presented renders facts legally that the evidence was insufficient to inappli the instant case render rule every prove each element the of- (also dicta). anyway rendering cable it beyond Specifi- doubt. fense a reasonable

Appellant’s first cally, complains should be the state obli- by gated overruled the second reason stated that the victim was struck 1.14(b) Judge requirement (objec- Womack views 3. See Tex.Code Proc. arts. Crim. allegation proved be indictment at trial as tion to before date indictment must raised Concurring op. "close to bizarre.” at 230. If of trial or is waived forfeit- bizarre, anything the State contin- ed), 28.01, 1(4) (pre-trial hearing § shall be to allege in ues to the indictment that man- the indictment), 28.01, exceptions to determine Certainly ner and means were unknown. § (preliminary 2 matters not raised seven require pleading. do not such Matson/Hicks days pre-trial hearing before will not thereaf- allowed, shown), except good for ter be cause I, § 1. Tex. art. Const, may (testimony be obtained on matters 28.03 VI; I, 2. U.S. Const, Const, amend. Tex. art. pleadings). involved in written § 10. point asserts under object exact nature of a hard the “with was because jury” as the evidence insufficient grand unknown to the which is alleges appellant com- alleged in the indictment. He asserts the indictment ... “by stabbing it failed murder proof capital failed in the state its mitted by striking diligence used a knife and grand jury to the due FELDER with show ...,” object (emphasis the nature of hard to ascertain with a attempting [her] added) charge allowed convic- object in whereas the question. the striking her stabbing or tion for Felder 839, State, v. 819 S.W.2d Matson the object. Appellant asserts that an with we stated (Tex.Crim.App.1991), that: thereby charge the disjunctive language alleges that the When an indictment proof. the state’s burden lowered utilized to inflict manner or means unknown and the injury is evidence occasions held on numerous We have object type trial does show what that, may allege an indictment although used, exists prima showing was facie committing capital differing methods object the the was unknown to conjunctive, proper it is murder the If, grand jury. [Citations omitted.] disjunctive jury charged in the to be however, what evidence at trial shows alleged any method conviction object injury, used inflict the to upheld supported by if it is will be respect issue is raised with to whether 69, State, v. evidence. White information, it jury had when grand v. (Tex.Crim.App.1994); Kitchens indictment, down the as to handed (Tex.Crim.App.1991), Only object [Citation omitted.] used. denied, 958, 112 cert. case, the State prove (1992). A review of 119 L.Ed.2d 230 jury know manner grand did not favorable to most evidence injury or that the inflicting means indicates that a rational trier verdict used in its at- due essential ele fact could have found the or tempts to ascertain the manner beyond reasonable ments of the offense means. 443 U.S. Virginia, doubt. Jackson v. (1979).

See also McFarland 845 S.W.2d 99 S.Ct. Therefore, judgment de as to (Tex.Crim.App.1992), cert. I concur nied, 2937, 124 113 S.Ct. of error one. (1993). to Appellant points L.Ed.2d 686 two, appellant claims which he contends record the effective assistance that he was denied object” pair that the “blunt was a shows counsel wasted of counsel because his to, testimony appellant refers pliers. on a veniremember peremptory strike

however, merely recov concerns officers’ challenged and be- should have crime. ery of items used several object the trial court’s he failed to cause used among That were items pliers con- charge which authorized mean were necessarily does not if he or struck vict stabbed injuries. inflict item the blunt force used victim, the indictment whereas more, was not nothing the state Given proved appel- if the guilty state prove that the required under Matson to struck the victim. lant stabbed and or the manner grand jury did not know Washington, inflicting injury or whether Under Strickland means of 2052, 80 L.Ed.2d 674 attempts diligence in its to ascer U.S. used due Nevertheless, (1984) Hernan (adopted this Court manner or means. tain the (Tex.Crim.App. S.W.2d 53 grand jurors dez put one of the state did 1986)), ineffective assis that the order testify generally on the stand counsel, an must first what tance of jury was unable find out perfor- that his trial counsel’s demonstrate injuries. the blunt force caused Secondly, three, manee was deficient. error must appellant claims his perfor- show that that counsel’s deficient he was denied due process of law so prejudiced mance was serious under the Fifth and his Fourteenth Amend- defense, ments to United rendering the States trial unfair and the Constitution Strickland, and the to the suspect. verdict assistance of counsel Sixth Fourteenth Amend- words, 104 S.Ct. at 2064. In other ments when trial denied his appellant must prove that trial counsel’s motion to view scene of the offense representation objective fell below an stan- argues with his Appellant counsel.1 dard of prevailing reasonableness under the denial of his motion him a denied basic professional norms and that this deficient tool of his defense would have been performance rendered the result of the Id, indigent. Appellant available he not were proceeding unreliable. at 687-88 104 Oklahoma, cites to Ake v. strong S.Ct. at 2064. There presump- is a (1985), sup- L.Ed.2d tion that counsel’s fell within actions port his claim. wide range professional reasonable as- sistance. Id. S.Ct. at 2065. The defendant in requested ap- Ake pointment psychiatrist aof to assist the With regard to the “wasted perempto- sanity defense on the issue of his at the ry,” appellant asserts that veniremember time of Supreme the offense. The Carley Michael should have been chal- explained process due requires access lenged for cause he “clearly indi- to the integral raw materials the build- cated that he improperly would consider ing of an defense. Id. at effective [ajppellant’s testify put failure to or on that, S.Ct. at Court held while A evidence.” review of record reveals “purchase the state for an need indi- parties that after the questioning finished gent all the assistance that his Carley, the state commented counterparts might buy,” it wealthier acceptable. veniremember was Defense provide present him the basic tools to his legal counsel then said that had no system. defense within our adversarial challenge for per- cause and exercised a following The Court forth the set three emptory challenge. After ten-minute factors as relevant considerations deter- break, during which time defense counsel mining what tool” “basic constitutes apparently realized that he had meant to under required what conditions the state is challenge Carley for the trial judge provide indigent defendant with ac- parties together called the and allowed cess the tool: challenge. counsel to make his The judge private that will first is interest challenge. thereafter denied the Because affected the action of State. counsel venireperson governmental The second is the interest cause, appellant’s that he assertion safeguard will be affected ineffective basis fails. provided. proba- to be The third is the ble the additional substitute value of or For the reasons discussed above as to procedural safeguards sought, that are one, has also failed deprivation of an the risk erroneous performance show deficient of counsel if those safe- the affected interest failing disjunctive guards provided. are not wording charge. Based on the I concur in foregoing, judgment as providing expert psy- to Id. the context of assistance, point of error two. Supreme chiatric Court de- However, deprived claims that he was fails to his motion. Therefore, rights of his to due of law course and the brief his claims. I do not state law assistance of counsel “under Constitution address them. and laws of the State of Texas” denial above, the the defendant’s of first cussed a to each the only paragraph voted the factored into interests must be that an state’s The Court stated two factors. case, in In this as accuracy analysis in in of a each case. interest the

individual’s Ake, capital mur- with liberty charged at appellant, his life or proceeding where der, accuracy of the in interest in the weighs heavily” an stake “obvious has obvious and that interest “is analysis. proceedings at at 1093. the Id. 105 S.Ct. heavily” analysis. The in the weighs state maintains an and

Given that the also verdict, interest the maintains an legitimacy of the state likewise interest in the result, although this case the accuracy the Court could Supreme the interest on the heavy a interest identify weighs presents an accused’s against safety maintaining public the part outcome is state’s interest accurate custody. Howev- judicial economy. Id. and keeping state’s concern er, interest 78-79, weight appellant’s given at The the at 105 S.Ct. 1093-94. Court the fact that in an result and judi the interest accurate concluded that state’s during his substantial, constantly guarded “not could be economy cial scene, inter- the time the crime interest of both State at compelling heavily more than weighs est somewhat disposi and the individual in accurate 79, 105 at 1094. tions.” Id. at S.Ct. the state’s. greatest Supreme placed The Court impor Addressing the third and most factor, emphasis discussing on the third analysis, the Ake tant in the consideration importance psychiatric testimony that a must make Court held defendant to the factfinder an understand- conveying sanity his showing that preliminary ing of defendant’s mental state and its trial. significant factor” at “likely to be potential impact his behavior at 1091-1092, 82-83, 86, 105 at Id. S.Ct. at 79-82, time of the crime. at S.Ct. Mississippi, 1098. Caldwell at that the 1094-96. Court concluded 1, 105 n. high risk of an inaccurate verdict was (1985), Supreme n. L.Ed.2d 231

where the defendant was not assisted petitioner’s Court declined entertain “help psychiatrist determine whether more Ake “offered little claim where he viable, present insanity defense is re undeveloped than assertions testimony, preparing and to assist be beneficial.” quested assistance would psychiatric cross-examination a State’s Here, at Rey, 897 339. See also at Id. at 105 S.Ct. witnesses.” presence that his appellant simply asserts Ake further stated where counsel might give at scene his the crime sanity likely is clear that the defendant’s actually unique insight into how events factor, may significant to be a “a defense no presents He transpired. psychi- of a be devastated absence analysis or in crime scene special expertise testimony; with atric examination and would be any subject knowledge assistance, might have of a helpful development defensive at chance of success.” Id. reasonable Furthermore, probable it is theory. 82-83, Rey v. may any insight he have of special (Tex.Crim.App.1995), we S.W.2d 333 to his coun be communicated crime could Ake non- analysis include extended just effectively through discussions sel as experts. psychiatric dia photographs of scene reviews Indeed, appel Rey, grams. any communication the defendants Ake and Unlike crime counsel lant had with his in the instant case did not seek confidential, probably not be (e.g., a scene would appointment expert of an crime safety would nevertheless, public demands of expert); his as the scene or forensic constantly of the state be require agent within request can still reviewed nearby. decision. As dis- framework of Ake more, appellant

Without has failed to a sufficient showing pres-

make that his at the crime

ence scene was a “basic tool”

to which he was entitled Ake. did not err in overruling

motion, and this ruling deprive process due and the assistance

of counsel.

Based I foregoing, concur as to

judgment point of error three. HINOJOSA, Appellant,

Richard

The STATE of Texas.

No. 72932. Appeals Criminal Texas.

Oct.

Case Details

Case Name: Rosales v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 13, 1999

Citation: 4 S.W.3d 228

Docket Number: 73163

Court Abbreviation: Tex. Crim. App.