Israel VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
No. 1095-90.
Court of Criminal Appeals of Texas, En Banc.
Jan. 15, 1992.
830 S.W.2d 948
A. Right.
*
*
*
Q. [BY DEFENSE COUNSEL]: Mr. Gauthier, I, once again, I think we‘re all- And like you say, we‘re asking the same question, different ways, and you‘re agreeing with both of us. If you are on this juror-or on this jury, as a juror, and these questions are presented to you, and you achieve the point, or you‘ve gotten to the point where you must vote on these issues, Mr. Middleton asked you whether or [sic] personal feelings would govern your ultimate decision, and, then, when I asked you, you‘re saying your ultimate decision would be-your final decision, would be governed by the evidence, and that evidence shows you that it should be “Yes“, then, you‘re telling me that you would vote “Yes“. Is that correct?
A. What I was saying is that I could, but I didn‘t really say I would.
Q. No. Neither one of us can ask you to commit yourself. All we can ask you is whether you can consider it, and if the evidence proves to you, beyond a reasonable doubt, then you can answer the questions, “Yes“? Is that right?
A. Yes.
*
*
*
...
Q. [BY THE STATE]: Your Honor ... [the venireperson] told Mr. DeLee very plainly, on the last part of the question that, sure, he could consider it, but he could never do it, and, ultimately, that is the question. When it came down to rendering any decision, he could not render it. I think that‘s what this juror says-
Q. [BY THE COURT]: Is that what you‘re saying?
A. [BY THE VENIREPERSON]: Yes, sir.
John B. Holmes, Jr., Dist. Atty., Carol M. Cameron and Joe King, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
Appellant was convicted of the offense of possession of a firearm by a felon. His offense was enhanced with two prior convictions; the jury sentenced him to ninety-nine years in the penitentiary. His conviction was affirmed. Vasquez v. State, 796 S.W.2d 555 (Tex.App. - Houston [1st] 1990). Appellant petitioned this Court for discretionary review and we granted review to decide whether the Court of Appeals erred in holding that appellant received effective assistance of counsel.
Appellant asserted in the Court of Appeals and urges herein that “his trial counsel was ineffective because he failed to research the law regarding [the] defenses available, ... pursued a defense that was unavailable [(self-defense)], and did not urge the only defense raised by the evidence, namely, the defense of necessity.” Vasquez, at 558. Specifically, appellant argues that his counsel should have requested the trial court to instruct the jury on the defense of necessity. We agree.
The proper standard by which we review the adequacy of representation at the guilt-innocence stage of a trial is that articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). See also Ex parte Walker, 777 S.W.2d 427, 430 (Tex.Cr.App.1989).
Strickland requires a two-step analysis. First, the reviewing court must decide whether trial counsel‘s performance failed to constitute “reasonably effective assistance.” Put another way, the question is whether the attorney‘s representation fell below an objective standard of reasonableness under prevailing professional norms? Id. If the attorney‘s performance did fall below the accepted standard, it must then be decided whether there is a “reasonable probability that the result of the trial would have been different,” but for counsel‘s deficient performance. Id. Strickland defines a “reasonable probability” as “probability sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Chapter Nine of the Texas Penal Code provides that “[i]t is a defense to prosecution that the conduct in question is justified under this chapter.”
conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prescribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
The legislature has not excluded the justification of necessity as a defense to the offense of possession of a firearm by a felon. See
The facts of this case do raise the issue of necessity. Appellant testified that he had been a “building tender” in the Texas Department of Corrections1 while he was in prison in the period prior to the Ruiz2 litigation. Further, he stated that as a result of his being a building tender while incarcerated, he was still in danger of being killed by ex-members of prison gangs even though he no longer resided within the prison walls. Specifically, appellant testified that shortly before the events in this case, he was in Ben Taub Hospital, recovering from a ruptured disk he had sustained as a result of having been kicked in the back by a released prison gang member. He claimed that he was kidnapped from Ben Taub Hospital by ex-members of a prison gang, and was being held captive at the time of this offense. He stated that he escaped from his kidnappers when the man guarding him was distracted so that appellant was able to grab a gun and escape. Subsequent to taking the gun, appellant walked through a convenience store parking lot. He was observed by a bystander who informed a police officer that there was a man with a gun at the convenience store. Appellant was subsequently arrested. While sitting in the arresting officer‘s patrol car appellant told the officer that “someone” was “out to get him.” He also told the officer that two men with machine guns were at the convenience store and would shoot him if they saw him.
Appellant‘s trial counsel did not request a special instruction on necessity, nor did he object to the court‘s charge. The State argued that this did not constitute ineffective assistance of counsel because necessity is not a defense to this crime.
The Court of Appeals found that the defense of necessity is available in a prosecution for possession of a firearm by a felon, under appropriate facts. The Court of Appeals held, however, that “[i]n the absence of case law at the time of trial holding that necessity is a defense to [this] offense ... and in view of the totality of the representation of appellant ... we find that appellant was afforded reasonably effective assistance of counsel.” As to those defenses which are not recognized by statute, the Court of Appeals’ opinion is correct,3 but incomplete. In this case there is a specific statute to be considered.
We distinguish affirmatively “urging” a defense from simply recognizing that a defense has been raised by the evidence. Counsel should have recognized that appellant‘s testimony was sufficient to raise the defense, and that appellant had nothing to lose by requesting a defensive instruction. Without giving the jury an opportunity to consider a defense, conviction was, as Justice Cohen notes, “a foregone conclusion....” Vasquez, at 562 (Cohen, J., dissenting).
Under the facts of this case, it would have been error for the trial court to refuse such an instruction, had one been requested. Counsel‘s performance in not seeking the instruction was clearly deficient.4 Appellant‘s ground of review is sustained.
As discussed above, Strickland requires a two-step analysis by the reviewing court.
Because the evidence did raise the defensive issue of necessity, and because appellant‘s counsel failed to request a jury instruction on the issue, the jury was precluded from giving effect to appellant‘s defense. That in itself undermines our confidence in the conviction sufficiently to convince us that the result of the trial might have been different had the instruction been requested and given.
Accordingly, we reverse the judgment of the Court of Appeals; the defendant is remanded to the custody of the Sheriff to answer the indictment herein.
BENAVIDES, Judge, dissenting.
I dissent because I do not believe that a direct appeal can adequately explore the complete circumstances of the ineffective assistance claim presented. In this case, I would affirm the conviction without prejudice to the appellant to develop his ineffective assistance claim in a habeas corpus proceeding. Given the implausibilty of the appellant‘s trial testimony, defense counsel may have intentionally opted not to request and argue a necessity defense to the jury which was also to determine punishment. By addressing the issue on direct appeal, we shall never know, and the State has been denied the opportunity to develop, the circumstances surrounding counsel‘s failure to request an instruction on necessity.
MCCORMICK, P.J., and WHITE, J., join.