Smith v. State

reservations, join I With these opinion.

Court’s Wayne SMITH, Appellant, Gerald The STATE of Texas.

No. PD-0777-08. of Texas. Appeals Court of Criminal June order, violating criminal-contempt read the or who not to read chooses conviction for reasonably application specific order notice and is "the wilful intent Rhodes, order”); Chambers, hearing.”); attend the but to violate the see (an at 740 element of a constructive Kuchera, Waco,

John A. Appellant. John Messinger, R. Asst. Criminal Dis- Waco, Atty., trict Jeffrey horn, L. Van Atty., Austin, State’s for State.

OPINION

PRICE, J., the opinion delivered WOMACK, JOHNSON, Court which KEASLER, COCHRAN, HOLCOMB and JJ., joined. granted

We petition State’s for dis- whether, cretionary review to determine order to obtain a on a motion for new trial when the basis of the motion is counsel, ineffective assistance of a defen- dant must establish a probabili- reasonable ty that the outcome would have been dif- ferent in order to demonstrate reasonable grounds for granting relief. now hold We that for the movant to demonstrate rea- sonable for relief when alleging counsel, ineffective assistance of he must establish both prongs,1 Strickland which includes a showing probability (if that but for counsel’s a any) different result would have occurred. light of the appellant’s failure to establish a reasonable probability that he could demonstrate prejudice, we reverse appeals, court of affirm the trial court’s denial of the appellant’s for new trial without a hearing, and remand for review of the second appellant issue the initially raised which appeals declined to address.

FACTS AND PROCEDURAL POSTURE In the Trial Court The appellant was indicted for sexual assault, offense, a second-degree-felony al- Washington, (1984). 1. Strickland v. 466 U.S. S.Ct. 80 L.Ed.2d 674 true, one, three, four to be allegations on Novem- committed have been leged to guilty for the adjudicated On December ber offense, and sen- sexual-assault plea original pursuant pled guilty years prison. twenty tenced him to placed him the trial court agreement, com- deferred-adjudication years’ ten a mo- Subsequently, filed supervision. munity re- accompanied tion for new appellant’s mo- 1, 2006, quest hearing. later, November Eight years rendered alleged tion trial counsel al- adjudicate, filed motion the State by failing to inform ineffective assistance appellant’s of the four violations leging right testify to at the of his appellant the allegations The community supervision. adjudicate to hearing on the State’s motion (1) to ordered report failure included: into to medical records failing submit and January and between October affi- supporting The appellant’s evidence. (2) 2002; in court- participate failure to davit stated: 2002; counseling in ordered sex-offender (3) attorney going go me was to My offense told I subsequent commission I to on when went court. family probation on Octo- back violence deadly of conduct (4) to not true and not just say He told me 17, 2006; and commission ber say given I was never anything to else. on terroristic threat subsequent offense of anything my to on behalf. say a chance allegations, 2006. To these October true,” “not and a hear- pled the appellant Thus, that appellant the asserted February 2007. At the held on was right of failed to advise him his counsel supervi- probation the hearing, appellant’s advised, ap- testify. Had he been the so failed to appellant the sor testified maintained, he have testi- pellant would participate in the sex-offender report and fied, by the rebutting statements made his claims that despite and program victim, sheriff, proba- and his deputy the being due to hos- report he was unable supervisor. appellant argued The tion surgery, appellant the had pitalized after all were untruthful three witnesses any excuse for not provided testimony her with and misleading in their and group or thera- reporting participating testimony his have re- claimed that would Additionally, probation supervisor concerning the py. the futed their statements 17th, the suspected appellant she shooting spinal testified that sur- on October The abusing prescription drugs. medication. and of prescription gery, of his abuse deadly the claims that the Additionally, appellant the conduct and terroristic victim of Holt, records, deputy which counsel threat, and the omitted medical Jonathan file, call, both would have corroborated responded had sheriff who gun testimony undergone spinal that he had pointed a appellant testified taking medi- Holt, surgery prescription and was attempting and Holt was when leave, appellant’s The pain. all of his cation for severe shot four appellant on the daughter requested testi- new appellant’s car’s tires. adjudicate point a State’s motion to because fied while the Holt, about which the no one was in the vehicle information gun at “may testified well have result- out the tires. Fol- would have when her father shot The appel- ed in a different outcome.”2 hearing, the trial court found lowing the records would have for trial itself nor the omitted medical 2. Neither the motion adjudication changed pro- the outcome accompanying affidavit makes further ceeding. testimony and mention of how a new trial was denied for holding lant’s motion for that relief hearing. granted.”5 without a should be The court appeals reasoned that the motion was Appeal On a hearing sufficient warrant because argued that appeal, On claimed ineffective assistance of counsel (1) failing by trial court erred to conduct a failing right to advise him his trial; his motion for new testify to introduce his medical by right process violated his due evidence, records into sup- because his adjudicating guilt, part, on stale alle- porting alleged affidavit that the excluded 2, 2008, On in an gation. April unpub- testimony and evidence would have rebut- opinion, Appeals lished the Tenth Court of ted the State’s witnesses concerning the held that court abused its discre- 17th, events of October history, his medical holding hearing appel- tion prescription and his drug Reject- abuse.6 lant’s claim of ineffective assistance ing the State’s contention that the appel- addressing counsel.3 Without the second lant’s conclusory affidavit was and insuffi- issue, appeals the court of remanded the cient, appeals explained the court of that hearing the to hold cause to trial court a required the is not to a establish the appellant’s on motion.4 case, that held trial prima “[t]he facie result, reaching In this the court of ap- hearing court should have held a on [the a peals “[ajlthough stated that defendant appellantj’s motion so that he could have right’ not a does have an ‘absolute to hear- fully developed the factual basis for his trial, a motion for new a trial court ineffective assistance claim.”7 a a hearing must hold when defendant a granted raises matter ‘not determinable from the the State’s for petition We ” record,’ as long discretionary as “the defendant ... review to examine its conten a provide[s] showing affidavit tion supporting was not to entitled 358, 3.Neither new trial 60 (Tex.App.-Houston motion for itself nor 361 [14th State, ref’d); accompanying Dist.], affidavit Smith v. No. pet. Amaro v. 10-07-00045-CR, 906787, 172, 1998, 2008 WL 2008 (Tex.App.-Fort pet.). 173 Worth no Tex.App. (Tex.App.-Waco Apr.2, LEXIS 2358 (Tex. See also Bahm 2008) (not designated publication). for In its (motion Crim.App.2007) for new trial can be argued appeal, brief on the State be adjudicate taken after a to determination appeals cause the court of at that time lacked court, guilt, ruling a trial when on motion jurisdiction relating to consider claims to the trial, required proce for new must follow all proceed trial court's determination to with an dures, including holding evidentiary hear adjudication guilt, of see former Tex.Code warranted). ing when one The State does 42.12, 5(b), § prior Crim. Proc. art. to amend holding petition this in its for contest 2007, 1308, 5, Leg., § ment Acts 80th ch. review, discretionary express opin and we 4397, 2007, p. eff. June it also therefore respect ion with to that issue here. jurisdiction appellant's lacked to consider failing claim that trial court erred in to *1, Id. 2008 WL Tex.App. 4. at grant hearing. adjudication a new The court LEXIS at *6. appeals disagreed, holding of that it was not deprived jurisdiction pre because the issue at n 3. *1, 5. Id. at Tex.App. LEXIS appeal sented on was whether the trial court failing hearing erred in to hold a on the *3, Id. at Tex.App. LEXIS at *3- 6. appellant’s a motion for which is post-adjudication proceeding that does not proceed arise from the determination to to *3, 7. Id. adjudication. Tex.App. LEXIS at *4- appeals in Other courts of Tex similarly. Buerger have held See motion for new trial hearing on his be- THE LAW in pleading he did not establish cause Hearing for New Trial Motion probability there was reasonable that would have been differ- that the outcome a hearing on a purpose as to ent so demonstrate (1) is to: motion for new trial “deeid[e] relief. that grounds granting We hold whether the cause shall be retried” plead a prima movant does not have presenting a record for issues on “prepare case, allege but must at least facts facie in is de appeal the event show reasonable believe op have held nied.” While we prongs prevail that he could under both portunity appellate a record for prepare for ineffective assistance of coun- the test on a motion for hearing review makes Strickland.8 the instant9 sel under stage, new trial a critical we have also held case, because motion and a hearing that such is not an absolute facts failed raise to establish affidavit hearing required right.12 “[A] when prevail under the that he could Strickland in the matters raised the motion for new appeals prejudice prong, the court erred from subject being are determined holding the trial court abused its Conversely, judge the record.”13 a “trial failing hold a discretion abuses discretion hold motion for new trial. Ac- on a motion for new trial [when] cordingly, we will reverse the court of that raises matters which are not [motion] respect to judgment ap- with appeals’s record, [citations determinable from the pellant’s first issue remand the cause deny To hold otherwise would appeals omitted]. the court of to to address meaningful issue.10 the accused rev appellant’s appellate second (.his Court, Washington, supra. lionary in 8. Strickland v. review we declined to grant review that issue because there is no on State, 223, (Tex. appeals "decision" from the court for this v. 169 S.W.3d 9. Johnson 235 State, Stringer E.g., v. 241 Court review. (noting Crim.App.2005) that "this Court has 52, (Tex.Crim.App.2007). S.W.3d 59 duty a held trial court no inform a has defendant, counsel, represented by testifying Gonzalez, 692, v. right testify,” 11. State 855 S.W.2d 695 not to nor does a trial his (cit (plurality opinion) duty (Tex.Crim.App.1993) court have a to inform defendant about State, 938, ing testily). Trevino v. 565 S.W.2d 941 right to It his is criminal defen 1978)). (Tex.Cr.App. right testify on dant's constitutional Arkansas, 44, v. own behalf. Rock 483 U.S. 2704, State, 51-52, 812, (1987); (Tex. 107 97 L.Ed.2d Reyes S.Ct. 37 12. v. 849 S.W.2d 815 Johnson, 1993). State, right Crim.App. 169 S.W.3d at 232. Such a See v. 74 Martinez 19, ("The knowingly voluntarily only (Tex.Crim.App.2002) 21 can be waived defendant, Emery hearing fully develop purpose not v. his counsel. Johnson, (5th motion.”). Cir.1997). F.3d 198 raised in the 139 issues issue, (citing appellate Reyes, In his second 13. 849 S.W.2d at 816 McIntire 10. State, right (Tex.Crim.App. claimed that the court violated his 698 S.W.2d State, 1985)). process by adjudicating guilt Darrington also to due See 1981) (no allegation. part (Tex.Crim.App. on stale Because the appeals motion remanded the cause abuse discretion overrule for hearing appellant's hearing court for on the new trial without a when "there were presented appellant’s for new it declined to his second motion for address issues Although proof appellant attempted required new trial which to be devel issue. record”). ground oped for raise his second issue as a discre- outside the iew.”14 component legally required to establish’ relief.” “[I]t is sufficient if a fair read “[R]ecogniz[ing] that an unre ing of it gives rise to reasonable grounds requirement stricted of a hearing on mat in support of the claim.”18 But affidavits not ters determinable from the record ” that are conclusory in nature unsup lead to ‘fishing expeditions,’ could we ported by facts do not provide the requi have also held that even a defendant who site notice of the basis the relief has raised such not matters is entitled to a claimed; thus, no hearing is required.19 hearing on his motion for new trial unless he “establishes the existence of ‘reasonable When examining a trial court’s grounds’ showing that the defendant ‘could ”15 denial of a hearing on a motion for new

be entitled to relief.’ require, Thus we trial, we review for an abuse of discret a prerequisite to a when the ion.20 In so doing, “we ‘only reverse the motion are based on mat when the trial record, judge’s already ters not in the decision was so clearly affidavit, wrong as supported by motion be an to lie either outside that zone else, within which specifi persons defendant or someone might dis ”21 cally setting agree.’ out factual basis for the And “in the absence of [such] claim.16 affidavit need establish a abuse of discretion this Court would not “ case, prima or even every justified ‘reflect be in reversing the judgment.”22 facie Reyes, 849 S.W.2d at 816. abuse its discretion in to hold a hear- appellant’s motion for new trial be- 816; Reyes, 849 S.W.2d at Wallace v. cause the bare assertions (Tex.Crim.App.2003). 106 S.W.3d establish facts which would entitle him to a See also Lucero v. 246 S.W.3d trial); Jordan v. (trial (Tex.Crim.App.2008) court did not (affidavit (Tex.Crim.App.1994) declining abuse its discretion in to hold a conclusory in nature is "not put sufficient to new trial motion be- judge on notice that reasonable presented cause the record no reasonable grounds to believe represen- ] counsel’s existf grounds alleged jury to believe that the mis- ineffective”). may tation have been verdict). jury's affected conduct Wallace, 20. 106 S.W.3d at 106. See also Gon Dawson, George 16. E. Dix & Robert O. 43A zalez, ("Both granting 855 S.W.2d at 696 Texas Practice: Criminal Practice and Proce- denying and the of a motion for new trial rest (2d ed.2001), § 41.23 at 181. The affi- dure court, within the discretion of the trial requirement grounded davit for claims appellate ordinarily courts will not reverse appellate product facts outside record ais that decision unless the trial court has abused law and case is not a creature of statute or discretion.”). its State, 391, rule. Bahm v. 219 S.W.3d 395 (Tex.Crim.App.2007). Gonzalez, 4, 21. 855 S.W.2d at n. 695 696 (adding that it reviewing is not the court’s Reyes, (quoting 17. 849 S.W.2d at 816 McIn place judgment to substitute its tire, 658, S.W.2d at 698 which states that the court, trial but to determine whether its deci supporting defendant's motion and affidavits sion arbitrary). was unreasonable or See also merely grounds "must reflect that reasonable State, 204, (Tex. Charles v. 146 S.W.3d 208 holding exist for that such relief could be Crim.App.2004) (clarifying that trial "[a] added)); Wallace, granted” (emphasis see also only abuses its discretion when no rea State, (quoting 106 S.W.3d at 108 v. Martinez sonable view support of the record could 19, 74 (Tex.Crim.App.2002)). S.W.3d 22 ruling”). court's Dawson, 41.24, supra, § 18. Dix & at 182. Gonzalez, 22. (citing 855 at S.W.2d 696 Griz State, 556, State, 362, E.g., King 19. v. 29 S.W.3d 568 v. 164 Tex.Crim. 298 zell S.W.2d (trial 816, (1956); State, (Tex.Crim.App.2000) Bryan court did not 821 v. 406 S.W.2d 340 v. Washington, land review, however, seeking a defendant is to the trial limited

Our representation must challenge of whether the de- counsel’s judge's determination (1) performance counsel’s grounds that are both establish that his has raised fendant deficient-, prejudiced from the rea- was his def record and undeterminable “the sonable, meaning they entitle the ense.25 To show could prove preponderance a to relief. This the must defendant is because representation judge’s only discretion extends to de- evidence that his counsel’s trial pro these two are the standard of ciding requirements objectively whether fell below judge preju If the trial finds that the And to show satisfied. fessional norms.”26 criteria, dice, met the has he has a defendant “must show there is fact, a hearing. to withhold but discretion for his probability errors, judge circumstances trial under such the result unprofessional counsel’s discretion to hold been proceeding abuses his would have differ 27 hearing.23 probability” ent.” “Reasonable to undermine confi “probability sufficient Assistance of Ineffective Counsel outcome,” meaning dence in “counsel’s deprive as to Initially we note that “ineffec errors were so serious trial, fair a trial may of counsel be raised defendant of a whose tive assistance Strick new trial.”24 result Before will be motion for reliable.”28 Under 210, State, granting (Tex.Cr.App.1966); for new in the of motion Hill (Tex.Cr.App.1972); justice, Etter v. interest of based on ineffective assis (Tex.Cr.App. claim). 679 S.W.2d tance counsel 1984)). Strickland, 25. at 466 U.S. S.Ct. 816; Wallace, Reyes, at 849 S.W.2d 2052; 68 S.W.3d Mitchell at 108. A on the motion for McFarland, parte (Tex.Crim.App.2002); Ex only mandatory new trial is when the trial (Tex.Crim.App. 163 S.W.3d 753-54 judge that a determines defendant has assert- 2005). grounds ed reasonable for relief and that the supporting facts those are not deter- 642; Mitchell, McFarland v. 68 S.W.3d judge A from the record. is not minable 1996). (Tex.Cr.App. required to hold a on the motion if he McFarland, parte See Ex 163 S.W.3d at 753 determines that the defendant has failed to (explaining that counsel's conduct was defi But, requirements. or both of these show one " reasonably if 'a cient he failed to act as noting that in which it is worth cases in one competent attorney’ have would under the lacking, judge may requirement is circumstances”). Trial counsel's conduct discretion, still, hearing in his conduct a be- during representation, evaluated a his granting denying fore or the motion. It whole, presumed to fall within the wide is never, however, would amount to an abuse of range professional of reasonable assistance. not to. discretion 808, (Tex. Thompson v. S.W.3d 9 813 Thus, Crim.App.1999). the burden on the Hill, Reyes, S.W.2d at 24. 849 815. See 480 appellant by preponderance prove, a (noting person S.W.2d at 202-03 that a evidence, performance that his trial counsel's placed adjudication on deferred and later fac was ineffective. Id. adjudication proceeding right has counsel, by to be assisted which includes the Strickland, See, assistance). 27. 466 U.S. at 104 S.Ct. right reasonably effective (Tex. 2052. e.g., 277 Moore h.) App.-Houston pet. [14th Dist.] no 687, 694, (addressing merits of a new trial Id. at 104 S.Ct. 2052. See also motion for counsel); Mitchell, (appellant ineffective at 644 failed to based on assistance of 68 S.W.3d perform- Kelley, (Tex.App. prejudiced 20 S.W.3d show was counsel's State h.) (affirming pet. ance he did “not show Texarkana because reasonable to a on his motion for new claim is not record, entitled determinable from the of coun alleging ineffective assistance must we decide whether his motion and sel, defendant sufficient allege must facts affidavit show grounds reasonable which reasonably a trial court could from so, could entitle him to relief. To do conclude both that counsel failed to act as appellant allege must facts that would rea- attorney that, reasonably competent sonably show that his counsel’s representa- failure, counsel’s is a but for there reason tion fell the standard of professional below likelihood that the outcome of his trial able norms and that there prob- have been different.29 would ability conduct, but for his counsel’s the result proceeding would have ANALYSIS been different.32 motion, appellant al that his trial was leged counsel ineffective Alleged Deficiency Counsel’s appel because he failed both to inform the In his motion for new adjudica of his at his right testify lant complained that defense counsel was defi- tion and to introduce medical cient two respects; directing the into evidence. Because rea “[t]he records just “to say not true and not to choices sonableness of counsel’s often in say anything else” and “never giv[ing the appear facts volves that do not appellant] a record,” say chance anything on generally the record will appellate behalf,” (2) in neglecting [his] be sufficient offer “not to show counsel’s into evidence representation so deficient as to medical rec- was meet ords, which that he part the first of the Strickland stan indicated had under- spinal gone surgery The same in the and had pre- dard.” is true instant been case; pain. whether failures in scribed medication for severe counsel’s fact We a deficiency that have said that “defense prejudiced ap show counsel shoulders pellant’s primary responsibility defense is not determinable from the to inform the the appellant’s Thus, the record.31 Because right testify.”33 defendant probability proceeding support that the that an result affidavit in of an ineffective have but for would been different counsel’s spell assistance of counsel claim must out performance”). how the outcome be different would but for counsel). the ineffectiveness of 29.See, Jordan, e.g., 883 S.W.2d at 664-65 (finding that Jordan's motion not show Mitchell, 642; Jackson v. prejudice, or and therefore failed (Tex.Crim.App. give notice that reasonable existed 1998). relief); King, him to to entitle S.W.3d at (finding failed to demon appel- 31. The State does not contest that the prongs); either of the strate Strickland Buer lant's claims are determinable from the ger, (finding 60 S.W.3d at 362-63 trial record. trial had not abused its discretion in not holding appellant's on motion for Strickland, 687, 32. 466 U.S. at 104 S.Ct. appellant explain trial because "failed to new significance or demonstrate that the of [his actions, true, attorney's] if were deficient or State, 223, State, him”); 33. Johnson v. 169 S.W.3d they 235 how harmed Cooks v. 240 906, (deem (Tex.Crim.App.2005) (noting (Tex.Crim.App.2007) that "this Court 912 duty has held that a court has no conclusory an affidavit it trial to because failed to defendant, testifying represented out inform set what the omitted evidence “would counsel, reasonably right testify,” of his to have revealed that could have nor does a case," changed implying duty trial the result of the thus court have a to inform a defendant

342 out his naked to bear the record seem counsel in this by defense

any shortfall assertion. perform- deficient may constitute regard of Strickland. prong the first ance under alleges but in which the State In a case that defi- Additionally, recognized we have motion to support of its single ground of commission or can be the result ciency a bare assertion adjudication, to proceed act, to including failing of an omission at the ad- alleged that counsel’s evidence, that no other relevant present be prejudicial might hearing was judication regard as sound attorney would reasonable to a hear- the defendant enough to entitle that no If it can be said strategy.34 trial, if the his motion for ing on attorney have failed to would reasonable the record. evident on prejudice seems testify, right to case, inform the of his court found But this so, and introduced the four urged him to do three of the committed records, per- then the in the State’s motion alleged medical appellant’s violations may that “one long counsel have held appellant’s adjudicate. We formance sup- would ground norms. for revocation professional fallen below sufficient well have revoking” com- However, the trial court’s order port assuming even such deficiencies Thus, to be entitled munity supervision.36 exist, that the motion appellant’s we find for new hearing on his motion to a do not supporting provide affidavit facts to show present must that he can grounds reasonable believe exist to overturn Strickland; satisfy prejudice prong findings of trial court’s three each of the therefore, whether we need not determine (1) failure adjudication: true that led to his satisfy and affidavit appellant’s motion (3) committing the offense report, deficiency prong of Strickland.35 violence, family deadly conduct terroristic committing the offense Prejudice and affida- threat. The testimony prejudice prong, vit contend addressing medical records would and the omitted merely alleged that “the appellant’s motion supervisor’s probation rebutted his he would have have information about which failure to re- concerning his in a statements may well have resulted differ- testified the basis of the State’s which was attempt port, ent outcome.” He made no Thus, if taken revocation. ground for might so. Nor does first explain how this be inquiry if defendant makes right testify). It a criminal nents about his one"). showing right testify defendant's constitutional insufficient Arkansas, U.S. own behalf. Rock v. his 44, 51-52, L.Ed.2d 37 107 S.Ct. 193-94 571 S.W.2d 36.Jones Johnson, (1987); 169 S.W.3d at 232. Such (Tex.Crim.App.1978). Gobell v. See also voluntarily right knowingly can be 1975) (trial (Tex.Crim.App. S.W.2d 223 defendant, only by the not his counsel. waived probation was of Gobell's court's revocation Johnson, (5th Emery F.3d because, contentions were proper even if his Cir.1997). correct, on two of- revocation was based one); challenged only Ross v. fenses and 687, 689, Strickland, 466 U.S. at S.Ct. (Tex.Crim.App.1975) Louisiana, (citing Michel v. 350 U.S. (State’s pro- report allegation of failure to (1955)); 100 L.Ed. 83 Ex 76 S.Ct. to revoke Ross's officer was sufficient bation McFarland, parte 163 S.W.3d at 753. showing any of despite probation, alleged in the Strickland, two violations in the other 466 U.S. at 104 S.Ct. 35. See revoke). (courts compo- motion to need "address both true, proffered the appellant’s daughters, evidence lant’s and a friend were all vitiate might the revocation within the immediate area surrounding the of allegation based on the first failure to vehicle. The sheriffs deputy testified that But four report. grounds three and he appellant arrested the deadly con- revoke, true, State’s motion to if found duct because and Holt a friend “were in a to support remain sufficient which vehicle was shot at by appel- [the proceed an adjudica- court’s decision to a projectile lant] could ricochet and hit the appellant’s guilt. tion of Even assum- them,” in placing potential them danger of ing successfully the appellant that could bodily injury. Removing serious Holt and violation, the challenge report failure to the friend from the inside of the vehicle justified the revoking was in potential does not alter the danger deferred-adjudication community supervi- which the placed actions them. sion. fact, In if the parties standing were out- vehicle, side the then there arguably is an Grounds three and four of the State’s even greater potential projectile for a adjudicate alleged that the ap- ricochet and Taking hit them. the parties pellant deadly the of committed offenses out only during vehicle the incident threat, respective- conduct and terroristic alters the section under appel- which the ly. Both offenses were alleged generally; conduct, deadly lant guilty the making therefore, all provided theories under the appellant 22.05(a), culpable under Section corresponding statutes available were 22.05(b)(2). instead Section Therefore, the trial court. the trial court’s threat, finding allegations Alternatively, true on three and terroristic Section four be justified any theory Code, can 22.07 of the Penal provides, enu- Texas pertinent part: merated the respective penal provi- code conduct, Deadly sions. Section 22.05 of (a) A person commits an if offense Code, provides: Texas Penal any threatens to commit offense involv-

(a) person A ing any person commits offense if he violence to or property recklessly engages in conduct with intent to: places another in danger imminent

serious bodily injury. ^{[*] [*]} n (b) person A commits an offense if he (2) place any person in fear of immi- knowingly discharges a firearm at or in bodily nent serious injury, the direction of: (3) prevent interrupt occupa- or (1) individuals; one or or more ... tion or use of [an] automobile[.]38 habitation, building, or vehicle A threat can be both verbal and nonverbal. as to reckless whether the habi- affidavit, maintains tation, building or vehicle is occu- gun that he did not point at Holt. Assum-

pied.37 true, appel- this contention to be contends, Even assuming, as the arguably guilty lant is of terroristic 22.05(a)(2). one was inside the vehicle threat ap- when under section tires, nevertheless, out appel- pellant’s shot daughter, testified lant gun admits that he fired during ap- the revocation Holt, vehicle and he did while the appel- pellant pull so he did shoot gun § 22.05. § Tex. Pen.Codb 22.07. Tex Pen.Code [Holt, judge the to hear and sure that his trial is allowed the “to make out tires that any might could leave.” consider relevant evidence the not daughter, friend] Essentially, justify a sentence.”39 dep- himself admitted to the reduced The the that the omitted testi appellant argues that he shot the tires. Holt uty sheriff appel- mony and were material to the times that the evidence also testified several him, length to the any- judge’s not determination as going told “You’re lant original of the offense. assuming the his sentence for Consequently, even where.” true, accept appellant’s premise the While we to be he could appellant’s contentions presented adjudication that evidence the to have have been found committed still threat, hearing might be relevant to the trial also Section under terroristic decision, we do 22.05(a)(3), punishment court’s not be pre- by threatening violence to him lieve that this fact alone should entitle the interrupt or use of automobile. vent hearing to a on his for trial. motion new Therefore, failing successfully by chal- frequently “We have observed that community supervision vio- lenge all three setting length con particular task of the trial judge, lations found true prescribed within range finement affidavit not sup- motion and do punishment essentially a ‘normative’ conclusory proclaiming statement port * n * Indeed, judgment. we have de testimony “may well have resulted scribed the sentencer’s to im discretion ap- in a outcome.” The court of different pose any punishment prescribed within the peals holding erred in the trial ”40 essentially range to be ‘unfettered.’ hold abused its discretion Similarly, punishment the decision of what for hearing on the motion adjudicating to assess after the defendant trial. guilty purely process, is a normative not Prejudice Punishment factbound, intrinsically and is left to the appellant argues The even if judge. unfettered discretion of the trial medi proposed testimony Only and omitted judge in this case could have directly addressing records short cal fall known what factors he took into consider alleged original all the the State’s assessing punishment, violations ation in to adjudicate, only should and he would know how the defen allowed, hearing testimony, might to a motion dant’s if have still be entitled on his hearing a revocation is effec affected assessment. When the trial “[b]ecause tively sentencing hearing,’ judge hold a ‘second declined to [and] Brief, Chavez, (Tex. Appellant's parte at 13-14. 40. Ex 213 S.W.3d may (noting argues Crim.App.2006) are that the trier of fact consider the that there “a few adjudication range specific punish where presented evidence at the hear- instances deciding adjudicate depends upon the both in whether to ment determination of dis instances, determining pun- being guilt appropriate crete facts” and that those factbound, intrinsically applicable do involve a ishment to be assessed within the nor State, process); Sunbury range. if his mative v. 88 S.W.3d Even trial counsel's ineffective- adjudi- (Tex.Crim.App.2002); make a in the Mendiola v. ness difference decision, State, argues, (Tex.Crim.App. it cation still could have 2000); adversely Rogers respect him with to the v. 991 S.W.2d affected assessment, (Tex.Crim.App.1999); punishment and he should have Miller-El 1990); develop (Tex.Crim.App. been allowed to the evidence of inef- 895-96 (Tex.Crim. Murphy fective of counsel at a assistance only pur- App.1988) (plurality opinion new trial if this on State's mo his motion for for rehearing). tion pose. for appellant’s pre appellant’s motion new we the motion for new trial. knew the Accordingly, sume that he from affidavits judgment of the Court of testimony appellant’s reversed, what the at a Appeals hear is the trial court’s denial be, ing assuming any affirmed, would even of the motion for is reliable, testimony such to be accurate and the cause is remanded to the court of knew that it would not have his appeals influenced address the second judgment. ultimate normative In that right issue—violation of process. to due event, concluded, the trial court could have necessity

without the hearing, of a MEYERS, J., a dissenting opinion. filed any prejudice suffered no from KELLER, P.J., J, HERVEY, deficiency on his trial part counsel’s with concurred. respect punishment to the of assessment for the offense. original MEYERS, J., opinion. filed dissenting Hernandez, majority overruled CONCLUSION the “reasonably effective assistance of motion for new trial and counsel” standard from Ex Duffy Parte supporting affidavit a matter not raised requirement favor of Strickland’s that a record, from namely, determinable defendant show he prejudiced by was that trial failing counsel was ineffective for attorney’s performance.1 deficient of right testify inform him his on his more, the majority What’s in Hernandez own behalf and to enter certain medical gave reason abandoning Duffy for However, records into evidence. despite standard, only stating: perceive no “[W]e determinable having matter not raised why valid reason apply, Strickland cannot record, from the failed or a different why rule should apply, grounds establish reasonable to believe noncapital sentencing Her- proceedings.” Strickland, could, that he under prevail nandez, 988 S.W.2d at 772. The obvious his claim of ineffective assistance coun- applying reason different rule to sel, him entitling adjudication to a new involving claims ineffective assistance at proceeding. Specifically, failing to ex- punishment is that stan- Strickland plain unprofession- how allegedly counsel’s dard a barrier that cannot be met this al changed errors would have context. finding court’s all true on three viola- tions in the State’s to adjudicate, years In the ten we from since switched failed to show that but for Duffy’s “reasonably effective assistance of standard, counsel’s result the hear- counsel” to the we Strickland adjudicate guilt granted would have have in a single been not relief case different. Consequently, appellant raising ineffective assistance of counsel at present adequate punishment. facts sen- Basically, long demonstrate rea- as the sonable exist to within punishment believe could tence is the normative prove say ineffective defen- range, assistance counsel the Court can Thus, evidentiary hearing. dant if a Under these cir- has shown harm. even cumstances, the represen- trial court did not abuse defendant receives substandard tation, its impossible discretion in to hold to a for him to it show Washington, 1. See 988 S.W.2d 770 466 U.S. 104 S.Ct. Hernandez 1999); (Tex.Crim.App. Duffy, 674 (1984). Ex Parte 80 L.Ed.2d 1980); (Tex.Crim.App. S.W.2d 507 Strickland be different if his coun- would his sentence deficient.

sel had not been Hernandez, joined Judge I Price’s majority’s application dissent to noncapi- standard to prejudice Strickland writing Now sentencing proceedings. tal Judge perpetuates majority, Price Therefore I standard. that unworkable respectfully dissent. JOHNSON, Appellant

Ivan of Texas. The STATE No. PD-1187-07. Appeals of Texas. of Criminal Court June

Case Details

Case Name: Smith v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 17, 2009

Citation: 286 S.W.3d 333

Docket Number: PD-0777-08

Court Abbreviation: Tex. Crim. App.