*1 appeals For all these reasons the court of declining suspend
did not err Rule
31(e)(3) judgment in this cause. The
court of is therefore affirmed.
WHITE, J., participating.
MALONEY, J., dissents. VAUGHN, Appellant,
Brenda Cantrell Texas, Appellee.
The STATE of
No. 234-95. Texas, Appeals
Court of Criminal
En Banc.
Sept. *2 Vaughn conviction. affirmed the
claim and (Tex.App . —Houston petition for discre In her Dist.] [1st challenges the court appellant tionary review claim, contend appeals’ disposition of this ignored Fifth Circuit case- ing the court contrary. granted review law to appeals erred the court of determine whether was not holding appellant’s ineffective.
I. guilt-innocence Appellant testified testimony Her raised of trial. of a third and defense issues of self-defense jurors to believe or party. The were entitled testimony, and it is clear that disbelieve her justi- actions were they did not find that her claimed. At the fied as she again hearing jury, appellant took before the again inno- and maintained her the stand by the State: cence when cross examined you accept “Q. Vaughn, do Miss jury’s verdict? Yes,
A.
I have to.
took
Q. During
you
denied what
jury found to be true.
place and what the
you
admit to the members
And do
now
place?
jury that that took
Dickson, Houston,
appellant.
Lewis
No,
I
was absolute
A.
what
told the
Curry,
Attorney,
Alan
Assistant District
truth,
truth,
was the
what
what
believe
Houston,
Paul,
Atty., Aus-
Matthew
State’s
happened was the absolute truth.”
tin, for State.
closing argument
punishment,
In his
foregoing
prosecutor
ex-
referred
change:
ON APPELLANT’S
OPINION
know,
gentlemen,
one
‘You
ladies
PETITION FOR DISCRETIONARY
things
has to do when
the first
REVIEW
their
they
to rehabilitate is to admit
want
PER CURIAM.
they
Admit the
Admit what
did.
crime.
felony of-
Appellant was convicted of the
they
an-
injustice
harm
caused to
and the
aggravated assault. V.T.CA. Penal
fense of
up
here
But we didn’t hear
other.
appel-
§ 22.02. After the
found
Code
They
not admitted
today.
[sic]
had have
indictment,
guilty
charged
as
lant
admitting to
They are not
anything.
term,
year
punishment at a six
assessed her
you
guilty
them
of. That’s
what
found
$5,000
probated, and a
fine.
step anybody has to take
rehabilita-
first
possible
it. A
They haven’t done
Appeals,
tion.
appeal
On
to the First Court
it, they
alia,
for them to do
appellant argued, inter
reason could be
that she was
admit
get on the stand and
assis-
would have to
effective
reasonably
denied
thing
they
us. But the
you
lied to
punishment phase of
tance of counsel at the
that is the
I,
they
admitting
it and
§
are
Art.
10 of the Texas Consti-
trial under
step to rehabilitation.”
first
tution. The court of
overruled
Appellant’s
trial counsel did not
to this
dined to fault counsel for
to raise a
questioning
argument.
rejected
claim
less-than-well-settled
point
judgment
affirm
error. We will
review,
ground
In her
con-
appeals.2
of the court of
tends that counsel was ineffective because of
*3
object. According
appel-
this failure to
to
II.
lant,
questions
argument put
the State’s
and
“Catch-22,” i.e.,
her in a
a situation with
A.
equally
prejudicial
undesirable and
alterna-
determining
The test
for
whether
Specifically, appellant argues
tives.
that the
counsel rendered ineffective assistance of
State violated the Due Process Clause of the
punishment phase
noncap-
counsel at the
of
Fifth Amendment to the United
Con-
States
adopted by
ital trial is that
the Court
Ex
by forcing
stitution
her to choose between
Duffy,
(Tex.Cr.App.
Parte
would
reasonably
defendant received
effective assis
charges.
§
See V.T.C.A. Penal Code
37.03.
Langley,
of counsel. Ex Parte
tance
Such an admission would also waive a review
141, 143
(Tex.Cr.App.1992).
S.W.2d
There
sufficiency
of the
of the evidence and all
requirement
preju
no
that a defendant show
during
error that occurred
the
inno-
performance
dice—that but for counsel’s
phase.
cence
DeGarmo v.
proceeding
outcome of the
would have been
(Tex.Cr.App.1985);
McGlothlin v.
required
different —as is
under
second
short,
(Tex.Cr.App.1995).
Appellant argues that
trial counsel was
would have committed error
overruling
objection. Vaughn,
objecting
for
dilemma
such an
ineffective
not
Appellant cannot meet
by
prosecutor.
The court of 888
at 74.
created
S.W.2d
below,
of,
dispositive
As we discuss
there is
found no caselaw
or
this burden.
clearly supporting appellant’s
addressing,
even
this claim. The court de-
no caselaw
improvidently
Response
underlying
to the
claim was
1. Nowhere in her "Brief in
202(k). First,
Granting
Discretionary Re-
granted. Tex.R.App.Pro.,
of her Petition for
Rule
appellant
any
cite
statute or Federal
view” does
disposition
present
the ineffective assis-
our
of
provision
that was violat-
State constitutional
that the caselaw on
tance claim is to the effect
alleged
say that the
ed
error. She does
predi-
the substantive issue was too uncertain to
Hobson’s choice she faced violated "Due Pro-
Second,
assistance claim.
cate an ineffective
I, §
cess” but does not elaborate. Article
19 of
appellant
issue on
did not raise the substantive
speaks in terms of "due
the Texas Constitution
appeal. Finally,
it is not even clear that
reason,
appel-
we
course of law.” For this
take
appeals reached the substantive issue so
court of
argu-
"Due Process" to be an
lant’s invocation of
just pointed out the lack of
much as it
brought
under the Fifth Amendment
authority. Vaughn,
will
deciding
stand at
whether to take the
dant
phase
simply con
punishment
of trial is
B.
consequences
more
fronted with
momentous
Having chosen
at
to take the stand
vague
perjury prosecu
than the
threat of a
offense,
guilt
deny
appel
committing
Indeed,
testimony
gives
if a
tion.
defendant
lant
cornered into
was
a difficult decision
punishment which
with tes
at
is inconsistent
prosecutor
again
once she
stand
took the
guilt
timony given
at the
of the same
punishment.
necessarily
But it
at
does not
provided
he has
the State with evidence
appellant’s rights
follow that
violated.
were
constituting
prima
aggravated
facie case
Though
punish
guilt
an admission of her
at
A.
perjury against the defendant. See V.T.C
to aggravated perjury,
ment would amount
§§ 37.03 and 37.06.
Penal Code
§ 37.03,
A Penal Code
and a waiver of
V.T.C
McGlothlin,
rights,
appellate
supra, and De
to avoid
Appellant wants to be able
Garmo, supra,
it is unclear that
there is
yet
prosecution,
to be
such a
she also wants
anything
putting ap
unconstitutional about
leniency
jury by
to seek
from the
“com
able
pellant
a choice
between these conse
However,
testify
privilege to
ing clean.”
quences.
Cantu
in one’s own defense “cannot be construed
Cf.
(Tex.Cr.App.1987)
(putting defendant
right
perjury.”
Har
include
commit
testify
hard choice of whether
or not does
York,
222, 225,
ris v. New
S.Ct.
U.S.
process
his due
rights).
not violate
(1971).
643, 645,
That she will
access courts elected Equal protesting does not violate the Protection Clause her innocence at the ap- Appel prosecutor phase. of the Fourteenth Amendment. Id. The cross-examined allege argument pellant lant waiver of a and made a does how her reasonable her. sufficiency review and trial error under on the he elicited from all based answers way appellant testify. 3. There is one can avoid her co- not to nundrum, she can invoke her Fifth Amend- viz:
Appellant
subject
gov-
prosecutor’s questions
argument
same rules
erning
punishment hearing
cross-examination as
other wit-
did in fact violate her
open
impeach-
process rights.
ness. She was therefore
due
As the court of
issues,
noted, “[ajppellant
ment on all relevant
a factor which
has cited no Texas author-
undoubtedly
ity
supports
made the decision to take the
...
her contention that the
question
stand a difficult one. But we are inclined to State’s
were harmful
agree
Vaughn,
with the
that “[n]o
State
error.”
and her counsel.4 The fallout of this choice The most that can be said about the state of seems to us no different than appellant’s underlying that attendant the caselaw as to unclear, to a defendant’s decision whether or claim if not to is that not silent result, guilt-innocence altogether. ruling take the stand at “... and be sub- As a ject array potentially appellant’s hypothetical objection there to the broad [would be] *5 impeaching say, they extremely Vaughn, sources. That is to are uncertain.” 888 S.W.2d just likely most factors which should inform a at 74.
proper, strategy. well-founded trial caselaw, Given the indefinite state of the appeals we cannot fault the court of
III. concluding appellant’s that trial counsel was But we need not reach the merits of not ineffective for prosecutor’s questions pun- substantive claim. Even if we resolved at favor, appellant
that issue in her
appellant’s willingness
would still
ishment about
to ad-
Moreover,
not have
guilt.
ques-
established ineffective assistance of mit her
the State’s
Appellant’s
arguments
counsel.
claim of
manifestly
ineffective as
tions and
were not so
sistance of
compel
counsel would fail even were we
appeals
error as to
the court of
today
to announce for the
despite
first time
that the
find ineffective assistance of counsel
States,
941,
jury system may
4. That our
result in the convic-
5.
v.
Thomas United
368 F.2d
945
Cf.
(5th
States,
persons
Cir.1966);
tion of innocent
is not a factor in our
Bertrand v. United
467
appellant's
jury
901,
(5th Cir.1972);
consideration of
claim. The
ver-
F.2d
902
United States v.
system.
dict is the
302,
(5th Cir.1974);
most accurate result under our
Rodriguez, 498 F.2d
312
truth,
Though we can never know the absolute
Laca,
922,
(5th
v.
United States
499 F.2d
927
accept
jury
we must have confidence in and
Cir.1974);
214,
Wright,
United States v.
533 F.2d
possible
verdict as the best
answer and as the
(5th Cir.1976).
216
contemplation
truth in
law.
must
persuasive authority,
Fifth Circuit caselaw is
finality
defer to and afford
verdicts. We
binding
but it is not
State,
on this Court. Stewart v.
question
jury’s
proce-
decline to
verdict if the
118,
(Tex.Cr.App.1984);
686 S.W.2d
121
resulting
dure
in that verdict was within consti-
State,
(Tex.Cr.App.
Flores v.
the absence of necessarily implausible strategy. See judgment Accordingly, we affirm the claim. (Tex.Crim.App.1992), appeals. court of Hathorn t. denied U.S. cer 744; L.Ed.2d MALONEY, J., concurs. Johnson
MEYERS, Judge, concurring. opinion). (Tex.Crim.App.1981)(panel To this agree least, I reason extent, afforded agree at with the Court’s ably in this assistance counsel effective disposition. according applicable standard. case me, however, is disturbs the Court’s What (Tex.Crim. parte Duffy, 607
Ex S.W.2d 607 apparently general application holding of App.1980). agree But I do not assistance of counsel “[a]n ineffective attorney interpose failure a defense alleged on error of claim cannot based objections or at trial can novel debatable evaluating when case law coun- counsel fall of reason never below threshold level in that instance sel’s actions and decisions every representation to which able Op. definitive.” nonexistent or not liberty Ac trial for his life is entitled. opinion of the Court’s 568. Read context join cordingly, opinion of the I cannot whole, evidently proposition is as a Court. challenge any successful meant to foreclose Appellant faced a difficult choice at upon to the trial effectiveness of penalty of her trial this case. Hav- act the law basis of his omission to whenever which, true, if ing earlier testified facts supporting action “unclear” arguably such her, acquitted knowing that would have Op. or “less-than-well-settled.” testimony, she did not believe her options have regarded *6 must all her available position, support the In of this extreme hand, equally On as unattractive. the one Davis, only parte Court cites Ex story repeat gave during she the the same (Tex.Crim.App.1993), in we which adjudication undoubtedly phase of trial would attorney that a was not ineffec held defense unrepentant jury. have made seem her object merely he chose not to tive because denying toYet confess her after earlier pun prosecutor argued during the when the surely opened it under oath would have phase capital murder trial that of a ishment course, perjury prosecution. to a she Of terms “intentional” “deliberate” the testify altogether. could have declined argument, thing. That al mean the same But, by testimony offering personal no at all objec by this Court to though later held be mitigation punishment, might in of her she tionable, interpretation plausible lenity from well have lost her best chance at Indeed, made. the law at the time it was jury. the urged attorney in that ease himself defense objection the accept, from the without choices, it is that Given these little wonder different, equally plausible, others, prosecutor, but par- she now there had wishes been “deliberate,” word interpretation the ticularly at the that she could have testified by this subsequently also held being subjected to which was punishment phase without objectionable. that We observed culpability to be any inquiry regarding her Court further end, “certainly the arguments this were within charged for the crime. To achieve both objective and that prospec- realm of reasonableness” might it is conceivable that she have merely against on the basis subse tively privilege to hold otherwise claimed a self-incrimi- developments in the case law taking quent the But such would nation before stand. best, hindsight, a ex by method have been at
maneuver would awkward disapproved by any the United States probably counterproductive pressly event. case, Washington, Supreme there- Court Strickland Given circumstances this 2065-2066, fore, say to main- I cannot decision 466 U.S. Davis, (1984). at 80 L.Ed.2d
tain her innocence even than further phase of trial rather to refuse view, my
In Davis object does not stand for onstrate his failure could not general proposition concerning plausible of law of a product have been the trial on, duty attorney representing strategy. go of an I criminal would not as the Court does, objec- adopt defendant to or unnecessary make novel debatable dubious proposition lawyers tions of his client. I trial competent defense As under- nev- case, stand our obligation rationale in it was not er have a make attorney objections, pursue because a or rights, strategies defense need never antici- assert pate change progress or contend for or which are less than well-settled. decisional law that we considered counsel’s reasons, For concur in judg- these I
performance adequate, but to be rather be- only. ment of the Court attorney’s performance cause a defense by judged contemporary must be condi- BAIRD, Judge, dissenting. tions, including contempo- condition of Believing trial counsel was ineffective in rary-jurisprudence, by subsequent devel- manifestly to the State’s opments in the law. case improper closing argument punish- By reckoning, the instant cause comes respectfully dissent. significantly posture to us in a different than Davis. did this ease there have been no I. important developments affecting in the law A. novel or likelihood that a controversial objection one such as the thinks Appellant guilt/innocence testified at her counsel made at should have trial would phase assaulting complain- and admitted Accordingly, be sustained. she is not con- ant, justified using but contended she tending performance that his should be protect against force to or herself another
judged hindsight with improved of law- complainant’s attempted use use of yers Rather, from the future. she claims See, unlawful force. Tex. Penal Code Ann. that, only objection had he she made now §§ jury rejected appel- 9.31 and 9.33. The made, thinks he should have he would have lant’s of third de- self-defense/defense requested been entitled to relief under guilty. fense and returned a verdict existing law. punishment phase, appellant again At the Court, I am Unlike the inclined to think testified and on cross-examination *7 that there are instances in which com- some exchange following State the occurred: attorneys petent defense do not meet their you Q: accept jury’s Vaughn, Ms. do the constitutionally obligation to render effective verdict? they objec- assistance of counsel unless raise Yes, A: I have to. pursue strategies concerning tions or other Q: trial, you During denied what took the entirely which the law is not well-settled. jury place found to be and what elaborating length, Without this view at you true. now admit to And do likely obligation seems to me that such an members of the that that took objec- exists where under circumstances place? widely tion or is strategy other discussed and A: I No. What told the was the attempted throughout legal often commu- truth, I absolute what believe was the nity attorney practices, in which the is clear- truth, happened was the what absolute ly advantageous defendant or to the is the truth. available, promising strategy most defensive During jury argument punishment its significant disadvantages and has few or no argued: phase of the State agree for the I with defendant. While know, gentlemen, not decide You ladies and one of Court that we need whether the objection has attorney things her trial the first to do when thinks they to should in this of want to rehabilitate is admit their have made case was such a kind, they did. Admit only I to decide it crime. Admit what would decline be- injustice they to an- persuasively cause not and the harm caused the record does dem- Though of up an admission other. But we hear that here ... didn’t punishment aggravated to would amount today. They any- have to not admitted appellate perjury, and a waiver of her thing. They admitting you what are not anything is there rights, it unclear that is step guilty found That’s the first them of. putting appellant about unconstitutional anybody has take rehabilitation. consequences. these choice between possible A They done it. reason haven’t reasons, it, following at 567. For Ante they could be them to do would have disagree. get you the stand and admit to they they thing lied to us. But the are II. admitting it step and that is the first determining The standard for ineffective rehabilitation.1 of counsel at assistance non-capital of a trial was established in B. (Tex.Cr.App. Duffy, Ex parte S.W.2d appeal, appellant contended the On direct 1980). for ef Under this standard test questioning argument objec- above were is, first, coun of counsel whether fectiveness attorney’s tionable and that her trial failure reasonably likely sel effective was render object of rose to level ineffective assis- second, and, rea assistance whether counsel Appeals af- tance counsel. The Court of sonably Craig rendered effective assistance. State,
firmed: (Tex.Cr.App. 825 S.W.2d 1992). instant threshold case the In order for trial counsel’s failure to argument was issue is whether State’s question argu- to the State’s objectionable. argument proper If the assistance, to have been ineffective was not ineffective if appellant must he demonstrate objection inquiry lodge an and our is com objected, judge had would have plete. refusing error in to sustain his committed permissible objection. Appellant categories There are four cannot meet (1) jury argument: summation the evi questions burden. We believe (2) dence; from reasonable deductions represent proper themselves were no (3) evidence; argument answer more than the usual risk defendant as- (4) counsel; plea en opposing or for law sumes when he she takes the stand to State, Campbell v. forcement. most, testify. any error At would have and, Alejandro (Tex.Cr.App.1980); improper jury argument been (Tex.Cr.App S.W.2d State. .1973). argument The does not fit instant say cannot that the trial would permissible four into areas have committed error had he overruled an argument. Wages v. objection closing. to the State’s remarks on (Tex.App [14th Dist.] 740-741 . —Houston precedent There is no that con- definitive im Consequently, the trols; precedent *8 indeed the lack of ... was, therefore, objectionable. proper and ruling appellant’s hypothetical makes a on is in to The second issue whether objection extremely uncertain. object, reasonably rendered ef- (Tex. State, 62, Vaughn v. 74 888 S.W.2d fective assistance. The Sixth Amendment App. [1st Chief Dist.] Jus — Houston everyone many rights guarantees to valuable dissented, believing a tice Oliver-Parrott de including right to a trial to determine the punished exercising not fendant should be for guilt. rights further question of These are right to trial rather the constitutional stand in of and defined our Code enumerated Id., plead guilty. than 77. great in which sets forth Criminal Procedure Today, majority accepts a this Court in a of the manner which trial shall be detail Oliver-Parrott, premise presumed to be persons of Justice but All are Chief conducted. Proc. Ann. art. innocent. Tex. Code Grim.
nevertheless holds: emphasis supplied unless indi- cated. 1. All is otherwise
572
plea
guilty
38.03. A
of
denial
every
paragraph
is a
of
enhancement
lie.”
was “a
The
allegation
indictment,
material
Tex.
plea
proper
require
was
to
to
the State meet
27.17,
Proc.
upon
Code Crim.
Ann. art.
and
proof
range
its burden of
to enhance the
of
plea,
such a
the State bears the burden of
(Tex.
punishment. Wages,
In
736
S.W.2d
proving
guilt beyond
the defendant’s
a rea-
1985),
App.
[14th Dist.]
the State
— Houston
358,
Winship,
In
sonable doubt.
re
397 U.S.
argued
jury
had been
to
summoned
ser
1068,
(1970); and,
Amendment.). Several cases are illustrative
guilt.
not confessed her
We condemned the
State,
point.
Lopez
In
v.
argument, noting:
(Tex.Cr.App.1973),
this Court found
error
reversible
was committed when the
A defendant
a criminal ease under our
prosecutor argued the
had lied
defendants
plea
laws has
of not
enter
they
pleas
guilty.
when
entered
of not
See
guilty
probation,
file a motion
also,
(Tex.
Anderson
573
Thomas,
States,
(quoting, United
F.2d at 945
F.2d
368
v. United
368
tion.
In Thomas
Toteo,
(5th Cir.1966),
F.Supp.
214
567
judge
the
asked
States v.
941
trial,
defendant,
Thus,
guilty
(S.D.N.Y.1963)).
Circuit
pled not
at
the Fifth
who
plea
guilt
his
before
a
judge may
his
and admit
not induce
defen
recant
a trial
held
you
“If
sentencing.
judge
dant,
guilty following
The trial
stated:
a
been found
who has
of
clean
will
clean and make a
breast
guilt prior
come
by
his or her
jury, to confess
trial
all, the
will
thing
also,
for once and for
Court
this
sentence. See
imposition
of
length
of sen-
that into account
take
216
Wright, 533 F.2d
v.
United States
Thomas,
F.2d at
imposed.”
tence to be
(5th Cir.1976);
Rogers, 504
v.
United States
profess
his
continued
944. The defendant
(5th Cir.1974);
v.
States
United
F.2d 1079
judge imposed
trial
innocence and the
(5th Cir.1974);
Laca,
United
F.2d
re-
sentence.4 The Fifth Circuit
maximum
(5th
Rodriguez,
announced pros- pleads guilty,
and if he there substantially To
pect of reduced term. upon
impose
such alternative
defendant
law.
as a matter
amounts to coercion
suggests the
216.
If the record
4.
has
im-
533 F.2d at
Fifth Circuit
held
sentence
The
statutory
authority
posed
sentencing
may ac-
possibility
did not have to he the maximum
rights to
cooper-
for a defendant’s Fifth Amendment
tually
term
refusal to
have taken defendant’s
Wright,
Fifth