*4 (Tex.App.— is v. DUGGAN, Before HUTSON-DUNN and *5 ref'd). 1988,pet. Counsel [1st Dist.] Houston O’CONNOR, JJ. may all inferences from the record that draw
OPINION
“reasonable, fair,
legitimate.”
and
All
are
(Tex.Crim.App.1988),
State,
146,
ridge
762
156
v.
S.W.2d
DUGGAN, Justice.
denied,
1040,
t.
489 U.S.
cer
delivery
jury
appellant guilty
A
found
of
(1989).
1176,
L.Ed.2d
109 S.Ct.
103
238
grams
at
400
of cocaine and
least
assessed
punishment
75-years
at
confinement and a
Any
due to im
error committed
$250,000
Appellant
points
fine.
asserts two
by
proper jury argument
generally waived
is
appeal.
affirm.
of error on
We
timely objection.
proper
to make a
and
failure
error,
point
State,
first
asserts
379,
742
389
Bri ddle
v.
S.W.2d
phase
prosecutor’s punishment
argument
the
denied,
(Tex.Crim.App.1987), cert.
488 U.S.
parole
regarding application of the
law con-
543,
(1988);
986,
573
109 S.Ct.
102 L.Ed.2d
fundamental error.
stituted
(Tex.
State,
33,
v.
760
37
Urbano
S.W.2d
argument
ref'd).
Prosecutorial
1988,
App.
pet.
[1st Dist.]
exception
general
An
rule occurs when
During closing arguments
punish-
at the
trial,
prejudicial that no in
prosecutor
the statement
is so
phase
the
made the
part of the
following statement about that
struction could have cured the harm. Green
charge containing
parole
good
State,
court’s
the
and
271,
(Tex.Crim.App.1984),
295
v.
682 S.W.2d
by
mandated
time instruction
denied,
Tex.Code
1034,
rt.
470 U.S.
105 S.Ct.
ce
(Vernon
37.07, §
Supp.
art.
CRim.P.Ann.
(1985);
1407,
L.Ed.2d 794
Johnson v.
1993):
State,
(Tex.App
734 S.W.2d
. —Hous
charge
good
talks about the award
ref'd).
example,
pet.
For
ton [1st Dist.]
prisoner
conduct time to a
who exhibits
improper jury argument is reversible error
you
good
parole. To caution
behavior and
whole,
if,
it
light
in
of the record as a
is
now,
off, you
guess or
first
can’t
extreme,
manifestly improper, violative of
good
time
anything about
conduct
estimate
statute,
injects
mandatory
or
into the
your
for
parole
guy.
or
to this
This is
proceeding new facts harmful to the accused.
information,
you
for
to know that whatever
(Tex.Crim.App.1990),
State,
397, 406
787 S.W.2d
Jacobs
years in a
that a defen-
term of
case
denied,
t.
498 U.S.
cer
to,
in
gets
his time
dant
sentenced
(1990).
231,
ics’ of
tantamount
pet.
[1st Dist.]
refd).
telling
jury
disregard
charge
applicable
court on the
apply
law and to
summary,
objectionable argu-
In
unlike the
parole
contrast,
By
laws.” Id.
Jones, Clay, Wheatly,
pros-
ments in
prosecutor in our case did not contradict the
constitutionally
spoke
ecutor’s comment
to a
charge.
jury they
court’s
He told the
“can’t
instruction,
mandated
did not state that
guess
anything
good
or estimate
con- good
parole
always
conduct time and
parole,”
duct time or
and did not make a
operate
to reduce a sentence
a certain
good
definite statement as to
time credit
amount,
attempt
did not
to have the
(“let’s say you get
days
every
three
credit for
figure
parole
operate in
how the
laws would
serve”).
one
case,
appellant’s
suggest
pun-
and did not
In Wheatly,
post-IBose,pre-consti-
another
parole
application
ishment to offset the
law’s'
decision,
tutional amendment
Appellant’s complaint
or effect.
not in-
when the
stated
error,
curable
and was waived
lack of
punishment hearing argument:
objection. Appellant’s
point of error
first
is
assessing punishment
fits the
overruled.
crime, you’re
Charge,
free to look at the
error,
point
second
specifically page three.
the law
Under
attorney
he
that his
contends
was ineffective
applicable in this
ease
the defendant is
specific
in nine
instances. The constitutional
imprisonment
sentenced to a term of
he’ll
right
to counsel does not mean errorless
eligible
parole
not become
until actual
competency
counsel or counsel whose
equals
time served
one-third of the sen-
judged by hindsight.
Holland
imposed
years,
tence
or 20
whichever is
(Tex.Crim.App.1988).
Rath
along
less. You’re free to read that
with
er,
to effective assistance of counsel
everything
Charge.
else
Will not
reasonably likely
means counsel
to render
eligible
become
until actual time
*7
reasonably effective assistance. Strickland
equals
served
one third of the sentence
668, 687,
Washington,
v.
466
104
U.S.
S.Ct.
imposed
years,
or 20
whichever is less.
2052, 2064,
(1984);
parte
659 prelim- (1) during proper a testimony, and arose performance was so defi that counsel’s background. inary into witnesses’ functioning inquiry as the cient that counsel was not amendment; possible Carrillo, It is at 916. guaranteed by the sixth 566 S.W.2d counsel (2) that, have linked jurors might probability a that the there is reasonable these state- of performance, organized the result to crime because but for the deficient however, not shown ments; appellant has proceeding have different. of been by Strickland, 687, 104 inference prejudicial at possibility 466 at that the of U.S. S.Ct. proba- substantially outweighs
The standard review effectiveness testimony. background gauged by totality rep tive value of counsel is Cniz, a addition, object to could be parte failure resentation of accused. Ex counsel’s 58; objection might parte Duffy, strategy; 739 Ex 607 sound trial S.W.2d to (Tex.Crim.App.1980). serve attention statements S.W.2d Mere to draw witnesses, object an instruction to disre- ly showing an even with isolated failure to improper procedural gard. certain mistakes evi dence not constitute ineffective assis does that his Appellant also claims Ingham
tance counsel. in limine filed motion counsel should have (Tex.Crim.App.1984). jury. The this from the exclude evidence prevent in limine is to purpose of motion “orga- Failure to to references to irrelevant, inadmissible, prej admission of nized crime” trial, it is into the but udicial evidence Appellant a contribut contends that ruling final on the evidence. Bifano ing ineffectiveness was his factor counsel’s (Tex.App Young, . —Cor police failure to officers’ testi n.r.e.). pus refd Even Christi writ mony assigned the Harris were limine, granted motion counsel had been County Organized Narcotics Task Crime prevented have admission he could not organized Force. The references to crime evidence, prelimi was proper this because it testifying occurred when three of officers backgrounds. nary inquiry into the witnesses’ employment. their questioned were on urge motion in limine Failure to Each which officer indicated law enforcement introductory was not ineffective assis matter from, agency and that he was as he tance of counsel. signed the task force. Appellant relies on Dexter v. Appellant seems to claim that (Tex.Crim.App.1976), for objected rule on should mentioning proposition that the witnesses’ grounds probative value because can organized link crime entitle jury knowing belonged witnesses Dexter, However, prose- a to mistrial. Organized Narcotic Force was Crime Task when he cutor violated a trial court order danger substantially outweighed “organized file placed a cabinet labeled *8 unfair prejudice. See Tex.R.CRIM.Evid. jury. and this crime” in front of the Dexter However, a trial can informa court receive comparable, appellant’s reli- case are not proper inquiry preliminary tion from into misplaced. ance is on it jury background to to enable witness’s object also to testimony Defense counsel failed weight given be assess the to in voir dire credibility. prosecutor’s to statement the witness’s and to evaluate (Tex. drug task assigned that to the force 149 he was Williams cases,” “major which prosecute to narcotics Crim.App.1980); Camilo to ineffective as (Tex.Crim.App. Op.] appellant claims contributed [Panel However, judge 1978); Rougeau v. 738 S.W.2d sistance of counsel. also see denied, jury prosecutor that the informed the (Tex.Crim.App.1987), cert. attorney’s office to assigned by the L.Ed.2d 901 district 108 S.Ct. U.S. addition, (1988). prosecute “cases of this nature.” task force The references to the credibility dire examination and voir assessing indictment were relevant in- and defense given prosecutor both weight them the officers jury formed the that person this case involved deliv- knew or was related to a witness or ery grams of over prosecutor, cocaine. presumption On these and about the facts, because willingness the information was cumula- innocence and to make the State tive, objection and because a prove beyond defense to this its case a reasonable doubt. prosecutor statement might Id. at 24. Miles also that: stated it, jury’s drawn appellant attention to possible itWhile is that counsel who ask prejudiced by was not attorney’s failure questions the basic noted as above Thus, object. counsel’s failure may provide reasonably effective assis- object regard- to file a motion in limine beginning stage, tance at this one who asks ing the witnesses’ identification of their em- questions really provided has no assis- ploying agency, object prosecu- or to to the times, tance .... At a short examination assignment, tor’s identification of his may good strategy; may be a it even be support constitute ineffective assistance of But, very adequate. we know of no strate- counsel. gy permits ques- which counsel to waive all jury panel. tions to a prosecutor’s explana- Failure to tion of a bifurcated trial Id. Appellant acknowledges that Miles, single counsel failed to ask a prosecutor range is entitled to discuss the of question. 644 at 24. in our Counsel available, long as as he does not specifically anyone case did not if ask knew a jury
tell the
that
the defendant had been witness,
anyone
but he
ask if
did
was related
However,
previously
convicted.
to an individual in law enforcement. The
prosecutor
rule,
claims the
violated this
prosecutor
previously
anyone
if
had
asked
attorney’s
failure to
contributed to
prior
had
drug expe-
relatives or friends with
ineffective assistance of counsel. We do not
Although
riences.
defense counsel did not
argument
reach the merits of this
because
specifically question
pre-
on
venire
we
find
tell the
innocence, he,
sumption
prosecutor,
jury
any prior
prose
convictions. The
judge
questioned
and the
all
the venire on
cutor said:
they
require
whether
could
the State to
If
guilty,
proceed
he is found
then we
prove
beyond
its case
a reasonable doubt.
phase
the second
...
get
the trial
You
judge
presump-
The trial
had discussed the
evidence,
any,
to hear additional
there is
if
tion
appel-
of innocence with the
before
is,
good person
to show
what a
he
opportunity
Appel-
lant had the
to do so.
is,
person
what a bad
he
if he
ex-
lant’s counsel also asked the venire members
convict,
ex-convict,
if he is not an
if he has
they
any preconceived
if
had
notions about
get
ever been
trouble before. You
cocaine,
delivery
they
could distin-
during
all
pun-
hear
that information
guish
opinion,
between fact and
and if
phase.
ishment
could
them
base
decision on the facts rather
added.)
giving
weight
police
than
more
or to
(Emphasis
This statement did not
judge
the defendant. The
jurors
prior
inform the
had
both
with the
convictions,
discussed
the defendant’s
and defense counsel’s failure to
testify.
prosecutor’s
exten-
object did not constitute ineffective assis-
questions
sive voir dire included
about the
tance of counsel.
officers,
credibility
police
par-
the law of
*9
adequate
Failure to conduct
voir dire
ties,
Thus,
range
punishment.
and the
of
Appellant
heavily
prosecutor,
questions
judge,
relies
on Miles v.
from
the trial
State,
himself,
(Tex.App.
661 argues that counsel However, appellant Appellant also defense none of the cases cites Al- throughout voir dire. was incoherent support claim that voir dire the by appellant’s statements though several inadequate a con examination was and factor garbled on cold in voir dire the counsel seem tributing In ineffective two to assistance. record, appellate appellant not claim does appellant finding cases cites ineffective assis to were unable under- that venire members tance, defense counsel’s voir dire examination meaning counsel’s statements. stand the of at angered least one member of the venire. facts, dire On defense counsel’s voir these (Tex. State, 133, Miller 134 to find- preclude examination sufficient a was 1987, refd); App. pet. [14th Dist.] — Houston ing of counsel on of ineffective assistance San 681 874 Roman S.W.2d issue. refd). (Tex.App. pet. Paso In — El par- understanding law of the of Counsel’s Miller, defense counsel’s manner was abusive ties throughout in voir and the trial. dire Roman, at
S.W.2d 134. San defense alleges trial that his Appellant rape counsel in a into several “entered mem questioned should venire counsel love,” peculiarities regard with sex and concerning parties, to dem bers law and question additionally venireper- ignorance in summation failed onstrated his his doubt, parties. proof, application of the law of Accord sons on reasonable burden of ing appellant, inef both contributed they wei’e related to in whether individuals Welborn, parte fectiveness. In Ex enforcement, law or whether had been (Tex.Crim.App.1990), court S.W.2d 391 crime victims. S.W.2d at reasonably held that counsel must have Hutchinson v. understanding governing a firm of the law pet. [1st Dist.] effectively case he can counsel before refd) appellate court found that the voir Welborn, be client. Id. at 393. In counsel dire examination contributed ineffective client, charged lieved his who was under why. but not assistance of counsel did state parties, law could not be convicted unless support None of these cases contention pharmacist identify person could him as was he counsel ineffective because passed forged prescription. who Id. had fully develop not his voir dire other as as parties, may the law of defendant Under have, merely might counsel but asked rele if physically present convicted he is questions. vant expressly implicitly encour offense (Tex. In Brown v. Obviously, ages the Id. identifica offense. App. pet.), no [14th person Dist.] who tion of the defendant as the - Houston the court found that a voir dire examination conducted the actual act element only offense, relationship “the that covered and counsel’s belief Wel- a dis personnel, veniremen to law that this was a defense showed enforcement bom concerting knowledge. testi lack veniremen’s inclination believe the police non-police mony of over that of officers however, case, de- In the instant counsel’s witnesses, ability pre veniremen’s theory was that had fense was “in sume that the defendant innocent” apartment to have dinner come over to way indicative of ineffective assistance of drug nothing pending and knew about the Although appellant counsel.” Id. at 687. were, people apartment sale. The “readily distinguish claims that this case is fact, grill. To cooking on their obtain able,” explain he how. Defense does parties, the law of the State conviction under asked the same the instant case the defendant must convince Brown, questions as were asked in other Thus, encouraged offense. presumption of than about innocence. only visiting the had believed Instead, dinner, asked whether venire members he he not have been to have house prove require parties. Appel- its ease could State convicted under law *10 was These not a case where counsel beyond a reasonable doubt. two cases lant has cited he because did effective- thus more similar than dissimilar. found ineffective are ly explain law, underlying but tried the A: I brought by believe it was in that case theory. under a valid defensive This man. does not contribute to ineffective assistance Q: you You believe it but don’t know for of counsel. sure; is that correct? object hearsay testimony Failure to brought A: I’m sure he it in. Appellant contends his trial coun added.) (Emphasis specific
sel’s failure to to a instance of alleged hearsay supporting is a factor Hutchinson, Appellant cites 663 S.W.2d at allegation of ineffective assistance. Detec proposition for the that cross-examina- tive Caro special investigation worked for the against tion that bolsters the case the defen- division of the department Dallas Sheriffs of dant can contribute to ineffective assistance drug During enforcement. direct examina Hutchinson, In counsel. we found that tion, witness, why asked appel- is obvious from the “[i]t record that Dallas, who was from became involved in the present any lant’s never intended to investigation in Houston. The witness stated drug charge.” defense to the Id. The court that he had received information from an could not find instance where the cross- informant, he, in informant Dallas that challenged prosecution’s examination wit- purchased had frequently cocaine from a res context, In nesses. that the total failure of in idence Houston. challenge prosecu- defense counsel to statement,
Hearsay is a tion’s case constituted ineffective other than one assistance mean, made testifying the declarant while counsel. Id. This does not at the howev- er, every that hearing, or offered in counsel is ineffective time a prove evidence to responds the truth of witness in the matter Tex. cross-examination in a asserted. 801(d). way prosecution’s that bolsters the The informant’s state- case.
R.CRIM.Evid. place heavy ment This would prove offered to burden on all attor- the infor- neys purchased cocaine, questions mant to ask explain adverse witnesses but to Caro, why officer, only they Detective are sure how the Dallas witness will us, respond. in In drug involved the case before transaction Houston. defense Therefore, objection theory bring .an was that to the informant’s apartment, grounds statement on cocaine into the because hearsay he had only improper, questioning come over for dinner. and the failure to is not witness, contributing clearly trying factor to counsel was ineffective assistance of investigators establish that counsel. were uncer- appellant brought tain that in the cocaine. opinion Counsel elicited the officer’s Unfortunately appellant, the witnesses appellant brought apart- cocaine to the brought stated were sure about who bag containing cocaine. This did not Appellant contends his counsel contribute to ineffective assistance of counsel. was ineffective because he elicited from Offi Caro, cross-examination, testimony cer on addition, appellant states that appellant brought that Caro was sure laya express opinion witness cannot apartment. cocaine to the Defense counsel’s guilt parties. belief as to the See cross-examination the officer cited as inef However, Tex.R.Crim.Evid. it is clear fective assistance of counsel is: excerpt from the that the witness testified Now, Q: have an occasion later appellant brought that he was sure that on to search Mr. car? Valencia’s bag containing lay cocaine. A witness A: I did not. testify opinions is entitled and infer Q: Did one of the other officers do that? rationally percep ences that are based on his A: I’m not sure. helpful tion and to the trier of fact. See id.
Q:
basically you
saying you
testimony
But
are
don’t The
of the witness was based on
already
perception
proper
know whether the
cocaine was
witness’
and was
subject
apartment
brought
man?
examination.
*11
prosecu-
object
punishment
failed
when
at
Counsel
summation
Counsel’s
argued
incorrectly
improperly
that
inadequate
tor
stage was
eligible
parole
person
for
a
could become
Appellant contends that counsel’s
40-year
years
on a
sentence
two
phase
was in
punishment
summation at
error,
urged
point
in his
of
Appellant
first
adequate
argue ap
because he continued to
fundamental
that the
committed
innocence,
pellant’s
request leniency,
not
did
punishment
error in his summation at the
“keep in mind
jury
and asked the
how
could be-
hearing by arguing
person
that
many
off.”
kids would have been turned
years
on a 40
eligible
parole
come
two
is
When a claim made of ineffective assis
year
urges
point
second
He
in his
sentence.
punishment phase
tance of
at
counsel
of
not
fundamental
of error that we do
find
trial,
non-capital
is
offense
this Court
error,
that counsel’s failure
but decide
judge
by single
the effectiveness of counsel
object
the merits of
waived consideration of
reasonably effective assistance of
standard of
was a
complaint, then counsel’s omission
Cruz,
parte
at
counsel. Ex
739 S.W.2d
57-
contributing
as-
to ineffective
further factor
showing
requires a
of
58. This standard
sistance of counsel.
alleged
harm due to
ineffective assis
point
deciding
of error one
found
We
tance.
751 S.W.2d
Stone
argument was
fun-
prosecutor’s
that
not
(Tex.App.
pet.
[1st Dist.]
— Houston
error,
and that because
damental
refd).-
allegedly im-
attorney
to the
argument, he
proper portion of the State’s
Appellant’s trial counsel indicat
Briddle, 742
preserved nothing for review.
“[wjhether
jury that
be
ed to the
it would
one
Urbano,
389;
Counsel’s conduct as trial
enter the
car-
Caro saw
bedroom,
rying bag,
open
a
into the
walk
point, appellant alleges
the final
that
it. Caro testified that
the contents of the
consistently
counsel’s conduct was so
bad
bag
The
looked like several kilos of cocaine.
strategy.
that it cannot be considered trial
Ap-
apartment.
officers then
into the
broke
Basically, appellant
previous
summarizes his
pellant
allege
does not
that counsel could
However,
point.
in
claims
this
as discussed
prevented
hearing any
from
previously, many
objections appellant
of the
testimony.
allegations ap-
this
Most of the
claims counsel should have made would have
pellant
support
claim
makes to
of ineffec-
addition, appellant
been
overruled.
ar-
tive assistance of counsel involve collateral
gues
theory
that
appellant
the defense
that
Thus,
appellant
that
has
issues.
we find
had
come to the house to have dinner
to
that
is a
failed
show
there
reasonable
bring
and did not
in the cocaine was inconsis-
probability that
the outcome of the case
parties.
tent with the law of
the con-
On
appellant’s
would be different. We overrule
trary,
theory
is a valid defense to the law
point
second
of error.
parties,
prove
because it tends to
appellant
knowledge
had no
of and did not
judgment.
trial
We affirm the
court’s
crime,
encourage plan
a
to commit a
which is
required
proved
to be
for a conviction under
O’CONNOR, J., dissenting.
parties.
points alleged
the law of
Other
here
O’CONNOR, Justice, dissenting.
points previously
are also cumulative of
dis-
cussed; nothing alleged,
than
other
the fail-
appellant
get
I
a fair
dissent. The
prosecutor’s parole argu-
ure to
to
represented by
trial because he was not
ef-
ment, contributed to ineffective assistance of
fective counsel.1
counsel.
appellant’s
There are
two versions
Conclusion
gave
in
role
the events that
rise to the indict-
To establish ineffective assistance of coun-
that an
ment.
State’s evidence was
sel, appellant
proving
has the burden of
a
apartment
an
undercover officer went to
that,
probability
reasonable
exists
but for the
cocaine;
purchase
purchase
he discussed the
performance,
counsel’s deficient
the result of
Hurtado,
with
who made a number of tele-
the trial would have been different. Strick-
calls;
phone
people
present in
other
were
land,
2. On which prosecutor’s argument, agree strengthened I the ma- with that his counsel was ineffective jority it. that we should overrule The error overruling point error one—because our because, appellant fundamental, if counsel not fundamental argument not the error objected and had asked for instruction important more for counsel to it became all the any jury disregard, would miscon- it have cured object. ceptions. laws, application parole organized
of the of the is as a connect the with crime. matter organized of law ineffective assistance of coun- Because a connection with crime majority’s ruling encourage sel. The will I prejudice appellant, cannot prosecutors application to misstate the any strategy justify envision that would law, particularly when a defendant is requesting object- a motion limine or represented counsel the thinks ing type testimony. to this error, might catch often in cases appointed. where the trial counsel is adequate Failure to conduct an voir dire his counsel was contends Failure to to references during dire a reason- ineffective voir because “organized crime” *14 ably competent felony counsel in a case appellant The contends his counsel was (a) prospective jurors they: if are should ask during guilt/innocence stage ineffective of willing apply presumption of innocence the trial because he did not to the require and the State to meet its burden of police stating they assigned officers were (b) doubt; proof beyond a reasonable have County Organized the Harris Narcot- Crime crime; (c) any ever been the victim of a ic’s Task Force. He also contends that coun- (d) enforcement; involvement with law know objected prosecutor sel should have to the witnesses; prosecution’s or stating assigned drug he was to the task (e) and, punish- minimum can consider the prosecuted “major force and narcotics cases.” agree. I ment. agree. I Dexter appellant’s only 12 counsel asked (Tex.Crim.App.1976), prosecu- questions, questions on voir dire. those Of tor, expressed in direct contravention of an five related to irrelevant matters. For ex- court, attempted order of the trial to connect ample, any person counsel asked whether on appellant “organized with crime” panel prejudiced against person was throughout pros- of course the trial. The Heights; any panel from the whether mem- placed ecutor a file cabinet with an attached son, wife, daughter; he ber knew his his his sign “organized that said crime” front of any panel of the were “into asked members argued during closing and that the heavy of voir rock.” Some his dire was organized defendant was connected to crime. simply unintelligible.4 example: For at 427. Id. The court held that the conduct prosecuting attorney prevented of the what trial. This is is called bifurcated receiving impartial defendant from a fair and part will and the First facts second trial. Id. at 428. part punishment. be the And will really guilty punish can’t him organized The references to crime find guilty plus I believe him not testifying case arose when three of the offi- find it. questioned employ- their cers were ment. Each officer identified which law en- from, agency forcement he was and that he people saying You hear on television of assigned Organized Nar- Crime hang guy, things give like let’s a fair cotic’s Task Force. in the go trial and on. We don’t have that necessary It the officers to was not that in United States and we don’t have they part Organized state were of Crime yet. Texas preliminary inqui- Narcotic’s Task Force as a trial, background. hearing At the on the motion for new
ry into them The references to necessary appellate counsel elicited from the the task force were not assess credibility weight that he found it difficult to of the officers or to be the admission appellant’s trial counsel’s testimony. understand the given the officers’ The references pronunciation of his words. “organized to the crime task force” served always produces jury panel his palsy, he could not control 4. Trial counsel has Bell’s which paralysis, temporary and caused his facial says. voice or what he During speech impaired. dire he told to be voir Tyson, counsel appellate counsel Incoherent From established competent that a counsel defense should appellant contends counsel panel perception question the about its of the the trial because throughout ineffective innocence, presumption any whether mem- expla- gave irrelevant counsel incoherent panel or relative had been victim ber war on members on the nations to the venire crime, any member or relative whether doubt, and on the bifurcat- drugs, reasonable agency, worked for a law enforcement wheth- further system. trial He asserts ed credibility any give member more er would meaningful cross- conduct a counsel failed to testimony police officer to a of a than any witness. examination citizen, any private whether member of the trial, During counsel panel require testify, During confusing statements. made some the minimum and whether could assess trial, objec- following made the counsel option. Tyson’s opinion, the trial sentence tion, reasonably compe- conduct honor, anything num- Your I tent voir dire. photograph ber [a process designed to The voir dire is ensure picture other which defendants] alert, intelligent, disinterested, *15 every- my on trial client such as because as jury duty impartial perform assigned will the yet thing doing people to other we are State, 480, to it. Salazar v. 562 S.W.2d any- to do this man has not been shown should, therefore, (Tex.Crim.App.1978). We any thing introduce of these felons and to vigorously protect accused’s to a my prejudicial to would —it’s jury fair trial untainted or bias man. to all case in of this I defense prejudice. pictures. Generally, expected defendant’s counsel is saying to irrelevant The Court: You are any juror prospective to determine either people that are these other there? any knew or was related to the No, say prejudicial. I That Counsel: sir. of the State’s witnesses. Miles gone people all these have either to trial 23, 1982, 24 (Tex.App. Paso no — El pled what guilty and that introduce Also, pet.). inquire counsel should about jury man is back in of this to this from jurors apply pre
willingness of the fair trial for man. making sumption willingness them innocence and evidence the record There is no require to meet its burden of State coun- attempted counsel to obtain substitute proof. Merely telling panel Id. these time ask continuance until such sel or for a provisions inquiring of the law without clearly. disciplinary speak that he The could giving full panel them effect does not lawyer withdraw rules that a should state normally expected meet standards of one physical material- from a case if his condition diligently represents who his clients. Id. represent ly impairs lawyer’s fitness to jury elects for the When defendant Supreme Texas, client. Court State questions punishment, the critical assess (Texas 10, Disciplinary § Rules art. Bar involving delivery of prosecution narcotics Conduct) Rule Rules of Professional to an undercover officer concern relation (located 1.15(a)(2) (1989) part pocket ship persons and law between venire enforce of the Texas Government Code Volume 3 person’s personnel, a venire inclination 2, § app., following 83.006 in title subtitle G police testimony officers to believe Code). of the Government The witnesses, non-police that of over under- was difficult to admitted that counsel presume person’s ability venire therefore, stand; likely it was that the Brown v. is innocent. defendant understanding The difficulty had counsel. (Tex.App. [14th recognize disciplinary that there comes rules pet). Dist.] should be- a time counsel withdraw when ability to affects his impairment cause his appellant was de- I would hold that trial represent I would hold the his client. a fair dire. prived of voir two, lawyer’s speech point reverse impairment contributed to I sustain of error court, judgment his ineffective assistance as counsel for the and remand appellant. for a new trial.
Counsel’s summation
stage inadequate contends that counsel’s sum punishment phase
mation at the was inade
quate argue because he continued to innocence,
appellant’s request lenien and,
cy, “keep he asked the in mind many how kids off.” would have been turned Johnny CONNER, Appellant, Lee a claim When is made of ineffective assis punishment phase tance of at the of a trial, non-capital offense this Court Texas, Appellee. The STATE of
judge by single effectiveness of counsel reasonably standard of effective assistance of 01-93-00839-CR. No. Cruz, parte counsel. Ex 739 S.W.2d 57- Texas, Appeals of Court of (Tex.Crim.App.1987). This standard re (1st Dist.). Houston quires showing of harm due to the ineffec tive assistance. Stone v. June [1st Dist.] 582-83 - Houston ref'd). 1988, pet. jury, trial counsel told the *16 year
Whether it would be one or a hundred
years, long any man of to that’s a time for recovery are
make from. So when your discussing
doing argument or
punishment, make the some-
thing practical, please. that is disagreed that he also stated years. legislature’s
with the assessment of 15
Conclusion during conduct most of the trial
Counsel’s Washington,
was ineffective. Stickland 2052, 2064, 668, 686, 104 S.Ct. U.S. Cruz, (1984); parte
L.Ed.2d 674 Ex at 57-58. Counsel’s failure to con dire, adequate voir his failure
duct limine, his failure to
request a motion crime,
object organized his to references discussion of
failure to State’s law, failure to parole application of the misstatement of the
State’s law, speech im compounded by his light representation,
pairment, in of his total in ineffective assistance of counsel
resulted appellant’s trial counsel’s appellant. it violated
performance was so deficient that to counsel. Amendment Sixth
Strickland, 687, 104 at 2064. 466 U.S. S.Ct.