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NUMBER 13-05-567-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG FRANCISCO PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Kleberg County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion by Justice Garza Appellant, Francisco Perez, was convicted by a jury of attempted capital murder, sentenced to 60 years= imprisonment, and assessed a $10,000 fine. See Tex. Pen. Code Ann. '' 15.01 (a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp. 2005). In a single issue, appellant argues that he was denied effective assistance of counsel. For the reasons that follow, we affirm the conviction. I. Standard of Review This Court uses the two‑pronged Strickland test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex. App.BCorpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show (1) his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.BCorpus Christi 2000, no pet.). Our review of counsel's representation is highly deferential; appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Munoz, 24 S.W.3d at 434. AIn the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.@ Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.BCorpus Christi 1996, no pet.). II. Ineffective Assistance of Counsel In his sole issue, appellant argues he was provided ineffective assistance of counsel because his trial counsel (1) failed to file a verified motion to transfer venue, (2) failed to secure a ruling on the motion to transfer,[1] (3) failed to introduce appellant=s mental health records at the hearing on the motion to suppress and at the punishment phase of trial,[2] and (4) failed to hire a psychiatrist to assist him during the hearing on the motion to suppress appellant=s confession and during the punishment phase of trial.[3] Even assuming, arguendo, that trial counsel=s representation fell below an objective standard of reasonableness, appellant has not alleged or developed any argument as to how the outcome of his trial would have been different had his lawyer filed an adequate motion to transfer venue, introduced his mental health records, and hired an expert witness to assist in his defense. Appellant states only that Atrial counsel=s representation, taken in its totality, fell far below the standard of reasonable, legal representation,@ and Athe legal work that was not performed for the appellant, causes any reasonable person to have serious doubts regarding the fairness of the appellant=s trial@ and Aregarding the fairness of punishment.@ Appellant has not shown how trial counsel's failure, if any, to perform the complained-of legal work undermines confidence in the outcome of his trial. See Tex. R. App. P. 38.1(h), 44.2(a); see also Strickland, 466 U.S. at 693. Appellant=s issue is overruled. We affirm the trial court=s judgment. _______________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 18th day of May, 2006. [1] With respect to appellant=s first and second arguments on appeal, the record reflects that appellant=s trial counsel filed a motion to transfer venue, but failed to include the affidavit as required by article 31.03 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 31.03 (Vernon 1989). However, the record also reflects that appellant=s trial counsel abandoned the motion to transfer venue. The record further reflects that the State urged its own motion to transfer venue. When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably. See Mallett v. State, 65 S.W.3d 59, 62‑63 (Tex. Crim. App. 2001); see also Ortiz v. State, 93 S.W.3d 79, 88‑89 (Tex. Crim. App. 2002) (en banc) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."). [2] With respect to appellant=s third argument on appeal, the record reflects that the substance of the records appellant complains should have been introduced (that appellant had an eighth grade education, had been a patient at the center for Mental Health and Mental Retardation in the past and had been prescribed medication by the doctors at the center) was admitted via appellant=s own testimony and the testimony of his mother at the hearing on the motion to suppress, at the guilt-innocence phase, at the punishment phase of trial, and at the hearing on appellant=s motion for new trial. [3] In particular, appellant argues that his trial counsel should have offered expert testimony to assist the jury in determining the voluntariness of his confession and to assist during the punishment phase of trial. Generally, trial counsel's failure to call witnesses is irrelevant unless appellant shows that such witnesses were available and would have provided beneficial testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.BAustin 2000, pet. ref'd). When an appellant complains of trial counsel's failure to call an expert witness, he must show that the expert would have testified in a manner beneficial to him. See Cate v. State, 124 S.W.3d 922, 928 (Tex. App.BAmarillo 2004, pet. ref'd); McCain v. State, 995 S.W.2d 229, 246 (Tex. App.BHouston [1st Dist.] 1999, no pet.). Nothing in this record shows that any expert would have been willing to testify as appellant desired. Although we can assume, given appellant=s treatment at the MHMR center, that such testimony may exist, it is mere speculation whether or not such a mitigation expert existed or whether there was testimony that would have benefitted appellant. We will not engage in such speculation. The record does not substantiate appellant's claim that he received ineffective assistance of counsel with regard to the issue of the expert. | ||
Thursday, July 17, 2008
When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel
Tuesday, June 10, 2008
one court concluded that “Can I ask for a lawyer now?” was not an unambiguous request for counsel, while another held that “Can I call my attorney?” w
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IN THE SUPREME COURT OF TEXAS
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No. 06-0005
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In the Matter of H.V.
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On Petition for Review from the
Court of Appeals for the Second District of Texas
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Argued April 12, 2007
Chief Justice Jefferson, joined by Justice Wainwright and Justice Green, and joined by Justice Hecht as to parts I, III, and V, concurring and dissenting.
We cannot construe H.V.’s statement that he “wanted his mother to ask for an attorney” without first addressing the considerable body of precedent on this subject. If we were writing on a clean slate, I would agree that the statement invokes his right to counsel. But the Supreme Court has held that anything short of an unambiguous request will not suffice. Davis v. United States, 512 U.S. 452, 459 (1994)(“[A] statement either is such an assertion of the right to counsel or it is not.”). “Maybe I should talk to a lawyer” is not an unambiguous invocation of right to counsel. Davis, 512 U.S. at 462. Nor does one invoke the right by saying “I think I need a lawyer,” or “I can’t afford a lawyer but is there anyway I can get one?” ___ S.W.3d ___, ___ (citing Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000); Lord v. Duckworth, 29 F.3d 1216, 1219-21 (7th Cir. 1994)). In light of these precedents, H.V.’s statement was ambiguous, and the magistrate properly attempted to clarify H.V.’s wishes. Once she did so, it became clear that H.V. declined counsel. Because the Court concludes otherwise, I respectfully dissent from part III of its opinion.
I
In Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995), the Third Circuit concluded that an adult defendant’s “request to call his mother ‘to inquire about . . . possible representation’ . . . was insufficient to trigger Edwards under the Supreme Court’s decision in Davis.” Then-Judge Alito, writing for the court, concluded:
[T]he [Davis] Court held that Edwards applies only if a defendant ‘unambiguously’ requests counsel. ‘If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,’ Edwards does not come into play. Here, Flamer’s request to telephone about possible representation ‘failed to meet the requisite level of clarity’ that Davis demands.
Id. (citations omitted). Although Flamer involved a request made at an arraignment, rather than prior to custodial interrogation, the court’s analysis of Davis and Edwards would be equally applicable in either context.
The precedent in this area is muddled,[1] but the Supreme Court’s directive seems relatively clear, and lower courts have followed suit. It is hard to see a distinction between Flamer’s request to call his mother “to inquire about . . . possible representation” and H.V.’s statement that he “wanted his mother to ask for an attorney.” Id.; see also Davis, 512 U.S. at 459; State v. Hyatt, 566 S.E.2d 61, 71 (N.C. 2002) (defendant’s request to speak to his father and statement that his father wanted him to have an attorney present “[did] not, as a matter of law, constitute an unambiguous request for counsel”). The Court has enumerated examples of statements that courts have held are insufficient to invoke the right to counsel as well as examples of those that sufficed. The statement here is more like the former examples[2] than the latter. As Davis held, interrogations need not cease in the face of an ambiguous or equivocal reference to an attorney that “might” invoke the right to counsel. Davis, 512 U.S. at 459; see also Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (“An invocation must be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without more, does not automatically invoke the right to counsel.”). Unless a suspect actually requests an attorney, questioning may continue. Davis, 512 U.S. at 462.
The magistrate appropriately attempted to clarify H.V.’s ambiguous statement. Davis, 512 U.S. at 461 (holding that, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney” but declining to adopt a rule requiring clarifying questions). She testified that, before administering the warnings, she asked the investigating officers to leave the room, and her conversation with H.V. was private. She advised him of his rights and “made sure that he understood” them and that he “understood the English language and spoke it and read it. I made sure he understood what he was there for.” H.V. said he understood his rights. He then asked to talk to his mother. The magistrate testified:
Magistrate: I explained to him that at that time that we were here in the, we were here down at the facility and that Detective Carroll was asking for him to make a statement and that he had essentially three options at that time: That he could ask for an attorney, that he could make a statement to Detective Carroll, or he could choose not to make any statement.
Ass’t D.A.: Did you inform him he had the right to hire an attorney if he chose to do so?
Magistrate: I did.
Ass’t D.A.: Did you inform him he had the right to have counsel appointed for him if he couldn’t afford one?
Magistrate: I did.
Ass’t D.A.: What was his response to this information?
Magistrate: He said he wanted to talk to his mother and wanted her to ask about an attorney.
Ass’t D.A.: And what was your response as a magistrate to that question?
Magistrate: I told him that at this time his mother was not present, that we needed to finish up what we were doing there, and that meant that he needed to make a decision about asking for an attorney or making a statement or not making a statement; that those were the three things at that point that we could take care of at that point.
. . .
Ass’t D.A.: Knowing that, what did you do after the Respondent asked about talking to his mother about an attorney?
Magistrate: I told him, we also had a brief conversation, he asked, well, I explained to him that if he chose not to make a statement at that time, that was fine, that he was currently being held in custody for tampering with physical evidence, and that he was being under investigation for murder, and that if he wanted to speak to his mother, that he would be taken back down to the Juvenile facility at that time. I said, I don’t know what timeframe would be involved as far as your being able to see your mother.
Ass’t D.A.: Once you briefed him on those rights, what was his response?
Magistrate: That he wanted to make a statement to Detective Carroll.
Ass’t D.A.: Did he mention anything about his age?
Magistrate: He did say I’m only 16, and I said, I understand that, H., but I think you’re very well-educated and articulate, and you understand everything, and if you want to ask for an attorney, I think you can do that. I mean, you have the right to do that for yourself.
. . .
Ass’t D.A.: And what was his response?
Magistrate: That he would talk to Detective Carroll.
Ass’t D.A.: And were you fully convinced that that was his intention at that time?
Magistrate: If I hadn’t been fully convinced that that was what he wanted, I wouldn’t have let him do it.
Her notes reflected the following:
[H.] was very articulate and appeared well-educated. He was very aware of his circumstances and the charges. After reading the first mag warning, I explained that he could ask for an attorney, choose not to make a statement, or choose to speak to Detective Carroll. He stated he wanted to call his mother. I told him that at this time that was not an option. He said he wanted his mother to ask for an attorney. I explained to him that he would have to be the one to ask for an attorney. He stated, but I’m only 16. I said yes, but if he wanted an attorney, he would have to ask for one. I again told him he had three options: Ask for an attorney, make a statement to Detective Carroll, or not to make a statement. At that time, he said he would speak to Detective Carroll.
Thus, by the end of the exchange, H.V. made it clear that he wanted to speak to law enforcement officers and thereafter gave a statement. He again met privately with the magistrate, who read his statement and listened as H.V. subsequently read it aloud. He made a single correction—adding the word “shoes” where it had been omitted—and signed the statement. At no time during this process did he unambiguously invoke his right to counsel.
II
H.V. admits that he knew of his rights, having been advised of them earlier in the day, but contends that he did not know how to invoke them. He urges the Court to examine the “totality of the circumstances,” including his age, when deciding whether his requesting his mother to seek counsel should be construed as his own request. The Court, however, sidesteps the issue, noting only that because it agrees with the court of appeals’ ultimate conclusion, it “need not decide in this case whether the court of appeals erred in considering H.V.’s age.” By failing to decide whether H.V.’s age may be considered, however, the Court does a disservice both to H.V. and to future litigants: the Court does not explain why taking H.V.’s age into account would apparently not affect the outcome here,[3] nor does the Court provide any guidance to courts grappling with this issue in future cases.
While I agree that it is “not entirely clear which rule applies,” ___ S.W.3d at ___, I would hold that a juvenile’s age may be taken into account when deciding whether he invoked his right to counsel. In Fare v. Michael C., 442 U.S. 707, 725 (1979), the Supreme Court held that courts evaluating a juvenile’s waiver of his Miranda rights must examine the totality of the circumstances, including a “juvenile's age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”
Davis, decided after Fare, established an objective test for invoking those rights. Davis, 512 U.S. at 459. One of the driving forces behind Davis’s objective test, however, was the desire to provide a clear rule for police officers during interrogations. The Supreme Court balanced the Edwards test with an adult suspect’s invocation of his rights and concluded:
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule — questioning must cease if the suspect asks for a lawyer — provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Id. at 461. But under Texas law, magistrates, not law enforcement officers, give Miranda warnings to juveniles.[4] Tex. Fam. Code § 51.095. To be admissible in evidence, statements given by juveniles must be signed in the presence of the magistrate, generally without any law enforcement officers or prosecuting attorneys present.[5] Id. § 51.095(a)(1)(B)(i). In contrast to warnings administered by police officers during the heat of interrogation, then, juvenile warnings administered before police questioning ever begins, by an experienced magistrate who is obviously aware of the juvenile’s age, do not raise the same concerns cited by the Davis court. In this context, a magistrate’s consideration of a suspect’s age would not “unduly hamper[] the gathering of information.” Davis, 512 U.S. at 461.
Moreover, Yarborough v. Alvarado, 541 U.S. 652, 666 (2004), in which the Supreme Court held that a suspect’s age or experience need not be considered in determining whether he is in custody, does not necessarily foreclose consideration of a juvenile’s age when determining whether he invoked his right to counsel. Yarborough did not overrule Fare, and at least one Justice who joined Yarborough noted that age could be considered as part of the objective custody inquiry.[6] See Yarborough, 541 U.S. at 669 (O’Connor, J., concurring) (noting that, despite objective nature of inquiry, “[t]here may be cases in which a suspect’s age will be relevant to the ‘custody’ inquiry under Miranda”); see also People v. Roquemore, 31 Cal. Rptr. 3d 214, 223 (Cal. Ct. App. 2005) (applying Fare factors but nonetheless concluding that eighteen-year-old’s statement “Can I call a lawyer or my mom to talk to you?” was not an unambiguous request for counsel); Dinkins, 894 S.W.2d at 351 (applying Davis but nonetheless concluding that “[w]hen reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances”). While Davis, silent on whether Fare’s factors should come into play, gives somewhat mixed signals on this point, I would hold that age should be considered when evaluating a juvenile’s invocation of his right to counsel, particularly in light of the statutory warning procedure required for juveniles in Texas.
III
But even if age is a pertinent consideration, the circumstances of this case—H.V.’s youth, his Bosnian extraction, and his lack of prior experience with the police—do not compel a different result. The magistrate testified that H.V., then three months shy of his seventeenth birthday, was “very articulate and appeared well educated.” Cf. Yarborough, (O’Connor, J., concurring) (noting that “17 1/2-year-olds vary widely in their reactions to police questioning, and many can be expected to behave as adults”). She noted that he read and understood the English language and was a junior at a local high school. He had earlier that day been taken into custody for another interrogation, and, after having his rights explained to him at that time, chose to waive them. In this case, then, none of these factors weigh in favor of a conclusion that H.V. invoked his right to counsel.
One can imagine circumstances, however, in which a defendant’s youth would be significant. Here, H.V. was near majority. What if he had been six years old? See Barry C. Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 Minn. L. Rev. 26, 99 (2006) (noting that while juveniles aged sixteen and older exhibited an understanding of Miranda warnings on a par with adults, juveniles under fifteen frequently misunderstood warnings). Ignoring this fact would lead to the ironic result that the younger the accused, the less likely he would be to invoke his constitutional rights. Davis drew a “bright line” between suspects who might be asking for a lawyer and those who actually do, but that test leaves room for consideration of a juvenile’s age.
IV
Finally, both H.V.[7] and the Court erroneously conclude that H.V.’s age “at least hindered if it did not prevent him from [hiring private counsel] himself.” ___ S.W.3d at ___. We have long recognized (and never disavowed)[8] that minors may retain counsel in criminal proceedings, and such contracts are neither void nor voidable. Askey v. Williams, 11 S.W. 1101, 1101 (Tex. 1889) (“The contracts of an infant for necessaries are neither void nor voidable, and we are of opinion that the services of an attorney should be held necessary to an infant, where he is charged by an indictment with crime. His life or his liberty and reputation are at stake, and it would be unreasonable to deny him the power to secure the means of defending himself.”); see also Johnson v. Newberry, 267 S.W. 476, 478 (Tex. Comm’n App. 1924, judgm’t adopted) (noting that “‘reasonable attorney fees in defense of a criminal action brought against an infant are necessaries’” but if agreed-upon price is excessive, contract is enforceable only to the extent of “‘a just compensation for the necessaries received by him’”) (quoting Askey, 11 S.W. at 1101). In any event, it is not necessary to revisit our established caselaw, because the particular warning given here advised H.V. (as mandated by the Family Code) that he had a right to appointed counsel if he was “unable to employ an attorney.” Tex. Fam. Code § 51.095. Thus, even if H.V. believed that his age prevented him from hiring private counsel himself, he was told that he could speak with a court-appointed attorney.
V
I agree that we have jurisdiction over this case and join parts I and II of the Court’s opinion. I would not reach the suppression issue decided by the Court in part IV. Because H.V. did not unambiguously invoke his right to counsel, I would reverse the court of appeals’ judgment suppressing the statement and the gun and therefore dissent from that part of the Court’s judgment that holds otherwise.
______________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: April 11, 2008
[1] For example, one court concluded that “Can I ask for a lawyer now?” was not an unambiguous request for counsel, while another held that “Can I call my attorney?” was. Compare Loredo v. State, 130 S.W.3d 275, 284-85 (Tex. App.—Hous. [14 Dist.] 2004, pet. ref’d) (deciding that party’s “question about a lawyer was not an unambiguous invocation of his right to counsel”), certificate of appealability denied, Loredo v. Quarterman, No. H-06-2138, 2007 U.S. Dist. LEXIS 63208, 49-51 (S.D. Tex. Aug. 23, 2007) (concluding, on habeas review, that Texas state court’s decision did not violate “established Supreme Court precedent or constitute[] an unreasonable determination of the facts in light of the evidence presented in state court”) with United States v. De la Jara, 973 F.2d 746, 752 (9th Cir. 1992) (holding that question “clearly invoked the right to counsel”).
[2] To those, I would add: Clark v. Murphy, 331 F.3d 1062, 1066 (9th Cir. 2003) (holding that “I think I would like to talk to a lawyer” was ambiguous; thus, on habeas review, Arizona court’s determination neither violated Supreme Court precedent nor was objectively unreasonable); Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (concluding that “I think I want a lawyer” and “[d]o you think I need a lawyer” were ambiguous within the meaning of Davis); United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (noting that defendant's question, “Do I need a lawyer” or “Do you think I need a lawyer” did not “rise to the level of even an equivocal request for an attorney”).
[3] The Court’s conclusion that H.V.’s age “at least hindered if it did not prevent him” from retaining private counsel suggests that, in fact, the Court does take his age into account to conclude that he invoked his right to counsel. ___ S.W.3d at ___.
[4] Thus, the standard must be one of a “reasonable magistrate,” not a “reasonable police officer.” That is, the Davis test for juveniles in Texas must be whether the statement is “sufficiently clear[] that a reasonable [magistrate] in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459.
[5] A magistrate may require the presence of a bailiff or a law enforcement officer if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer does not carry a weapon in the presence of the child. Tex. Fam. Code § 51.095(a)(1)(B)(i).
[6] The Fare court explained at length why, contrary to the California Supreme Court’s conclusion, a request to speak to his probation officer did not invoke a juvenile’s right to counsel; if the juvenile’s age had been irrelevant to the inquiry, certainly the Supreme Court would have said so. Fare, 442 U.S. at 723-24 (“[S]ince a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney.”) (emphasis added).
[7] H.V. asserts that his statement to the magistrate was “an effort to explain . . . that, while he desire[d] counsel, he [was] incapable of obtaining an attorney being merely a sixteen year old.”
[8] It is curious that the Court, citing only court of appeals and federal district court opinions, questions whether Askey is still good law. Not only is Askey precedent from our Court, but we reaffirmed the rule thirty-five years later in Johnson v. Newberry, and leading commentators cite Askey as accurately stating the Texas rule. See William V. Dorsaneo III, et al., 14 Texas Litigation Guide § 210A.04 (2007); 1 Barry P. Helft & John M. Schmolesky, Texas Criminal Practice Guide § 1.101 (2008); John D. Montgomery, et al., 3 Texas Family Law: Practice & Procedure U2.03 (2d ed. 2007). And the venerable policy the rule promotes is as forceful today as it was in 1889. Thus, it is unclear why a minor’s constitutional right to counsel, recognized by the Supreme Court in 1967, would weaken, rather than strengthen this rule. Nor is this tenet affected by a parent’s duty to pay for such necessaries. See Joseph M. Perillo, 7 Corbin on Contracts § 27.8 (rev. ed. 2002) (noting that “[a]n infant is liable in quasi contract for necessaries furnished the infant” and “[t]he basis of this liability is thus considerably different from the liability of parents for necessaries furnished their children”).
IN THE SUPREME COURT OF TEXAS
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No. 06-0005
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In the Matter of H.V.
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On Petition for Review from the
Court of Appeals for the Second District of Texas
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Argued April 12, 2007
Chief Justice Jefferson, joined by Justice Wainwright and Justice Green, and joined by Justice Hecht as to parts I, III, and V, concurring and dissenting.
We cannot construe H.V.’s statement that he “wanted his mother to ask for an attorney” without first addressing the considerable body of precedent on this subject. If we were writing on a clean slate, I would agree that the statement invokes his right to counsel. But the Supreme Court has held that anything short of an unambiguous request will not suffice. Davis v. United States, 512 U.S. 452, 459 (1994)(“[A] statement either is such an assertion of the right to counsel or it is not.”). “Maybe I should talk to a lawyer” is not an unambiguous invocation of right to counsel. Davis, 512 U.S. at 462. Nor does one invoke the right by saying “I think I need a lawyer,” or “I can’t afford a lawyer but is there anyway I can get one?” ___ S.W.3d ___, ___ (citing Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000); Lord v. Duckworth, 29 F.3d 1216, 1219-21 (7th Cir. 1994)). In light of these precedents, H.V.’s statement was ambiguous, and the magistrate properly attempted to clarify H.V.’s wishes. Once she did so, it became clear that H.V. declined counsel. Because the Court concludes otherwise, I respectfully dissent from part III of its opinion.
I
In Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995), the Third Circuit concluded that an adult defendant’s “request to call his mother ‘to inquire about . . . possible representation’ . . . was insufficient to trigger Edwards under the Supreme Court’s decision in Davis.” Then-Judge Alito, writing for the court, concluded:
[T]he [Davis] Court held that Edwards applies only if a defendant ‘unambiguously’ requests counsel. ‘If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,’ Edwards does not come into play. Here, Flamer’s request to telephone about possible representation ‘failed to meet the requisite level of clarity’ that Davis demands.
Id. (citations omitted). Although Flamer involved a request made at an arraignment, rather than prior to custodial interrogation, the court’s analysis of Davis and Edwards would be equally applicable in either context.
The precedent in this area is muddled,[1] but the Supreme Court’s directive seems relatively clear, and lower courts have followed suit. It is hard to see a distinction between Flamer’s request to call his mother “to inquire about . . . possible representation” and H.V.’s statement that he “wanted his mother to ask for an attorney.” Id.; see also Davis, 512 U.S. at 459; State v. Hyatt, 566 S.E.2d 61, 71 (N.C. 2002) (defendant’s request to speak to his father and statement that his father wanted him to have an attorney present “[did] not, as a matter of law, constitute an unambiguous request for counsel”). The Court has enumerated examples of statements that courts have held are insufficient to invoke the right to counsel as well as examples of those that sufficed. The statement here is more like the former examples[2] than the latter. As Davis held, interrogations need not cease in the face of an ambiguous or equivocal reference to an attorney that “might” invoke the right to counsel. Davis, 512 U.S. at 459; see also Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (“An invocation must be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without more, does not automatically invoke the right to counsel.”). Unless a suspect actually requests an attorney, questioning may continue. Davis, 512 U.S. at 462.
The magistrate appropriately attempted to clarify H.V.’s ambiguous statement. Davis, 512 U.S. at 461 (holding that, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney” but declining to adopt a rule requiring clarifying questions). She testified that, before administering the warnings, she asked the investigating officers to leave the room, and her conversation with H.V. was private. She advised him of his rights and “made sure that he understood” them and that he “understood the English language and spoke it and read it. I made sure he understood what he was there for.” H.V. said he understood his rights. He then asked to talk to his mother. The magistrate testified:
Magistrate: I explained to him that at that time that we were here in the, we were here down at the facility and that Detective Carroll was asking for him to make a statement and that he had essentially three options at that time: That he could ask for an attorney, that he could make a statement to Detective Carroll, or he could choose not to make any statement.
Ass’t D.A.: Did you inform him he had the right to hire an attorney if he chose to do so?
Magistrate: I did.
Ass’t D.A.: Did you inform him he had the right to have counsel appointed for him if he couldn’t afford one?
Magistrate: I did.
Ass’t D.A.: What was his response to this information?
Magistrate: He said he wanted to talk to his mother and wanted her to ask about an attorney.
Ass’t D.A.: And what was your response as a magistrate to that question?
Magistrate: I told him that at this time his mother was not present, that we needed to finish up what we were doing there, and that meant that he needed to make a decision about asking for an attorney or making a statement or not making a statement; that those were the three things at that point that we could take care of at that point.
. . .
Ass’t D.A.: Knowing that, what did you do after the Respondent asked about talking to his mother about an attorney?
Magistrate: I told him, we also had a brief conversation, he asked, well, I explained to him that if he chose not to make a statement at that time, that was fine, that he was currently being held in custody for tampering with physical evidence, and that he was being under investigation for murder, and that if he wanted to speak to his mother, that he would be taken back down to the Juvenile facility at that time. I said, I don’t know what timeframe would be involved as far as your being able to see your mother.
Ass’t D.A.: Once you briefed him on those rights, what was his response?
Magistrate: That he wanted to make a statement to Detective Carroll.
Ass’t D.A.: Did he mention anything about his age?
Magistrate: He did say I’m only 16, and I said, I understand that, H., but I think you’re very well-educated and articulate, and you understand everything, and if you want to ask for an attorney, I think you can do that. I mean, you have the right to do that for yourself.
. . .
Ass’t D.A.: And what was his response?
Magistrate: That he would talk to Detective Carroll.
Ass’t D.A.: And were you fully convinced that that was his intention at that time?
Magistrate: If I hadn’t been fully convinced that that was what he wanted, I wouldn’t have let him do it.
Her notes reflected the following:
[H.] was very articulate and appeared well-educated. He was very aware of his circumstances and the charges. After reading the first mag warning, I explained that he could ask for an attorney, choose not to make a statement, or choose to speak to Detective Carroll. He stated he wanted to call his mother. I told him that at this time that was not an option. He said he wanted his mother to ask for an attorney. I explained to him that he would have to be the one to ask for an attorney. He stated, but I’m only 16. I said yes, but if he wanted an attorney, he would have to ask for one. I again told him he had three options: Ask for an attorney, make a statement to Detective Carroll, or not to make a statement. At that time, he said he would speak to Detective Carroll.
Thus, by the end of the exchange, H.V. made it clear that he wanted to speak to law enforcement officers and thereafter gave a statement. He again met privately with the magistrate, who read his statement and listened as H.V. subsequently read it aloud. He made a single correction—adding the word “shoes” where it had been omitted—and signed the statement. At no time during this process did he unambiguously invoke his right to counsel.
II
H.V. admits that he knew of his rights, having been advised of them earlier in the day, but contends that he did not know how to invoke them. He urges the Court to examine the “totality of the circumstances,” including his age, when deciding whether his requesting his mother to seek counsel should be construed as his own request. The Court, however, sidesteps the issue, noting only that because it agrees with the court of appeals’ ultimate conclusion, it “need not decide in this case whether the court of appeals erred in considering H.V.’s age.” By failing to decide whether H.V.’s age may be considered, however, the Court does a disservice both to H.V. and to future litigants: the Court does not explain why taking H.V.’s age into account would apparently not affect the outcome here,[3] nor does the Court provide any guidance to courts grappling with this issue in future cases.
While I agree that it is “not entirely clear which rule applies,” ___ S.W.3d at ___, I would hold that a juvenile’s age may be taken into account when deciding whether he invoked his right to counsel. In Fare v. Michael C., 442 U.S. 707, 725 (1979), the Supreme Court held that courts evaluating a juvenile’s waiver of his Miranda rights must examine the totality of the circumstances, including a “juvenile's age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”
Davis, decided after Fare, established an objective test for invoking those rights. Davis, 512 U.S. at 459. One of the driving forces behind Davis’s objective test, however, was the desire to provide a clear rule for police officers during interrogations. The Supreme Court balanced the Edwards test with an adult suspect’s invocation of his rights and concluded:
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule — questioning must cease if the suspect asks for a lawyer — provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Id. at 461. But under Texas law, magistrates, not law enforcement officers, give Miranda warnings to juveniles.[4] Tex. Fam. Code § 51.095. To be admissible in evidence, statements given by juveniles must be signed in the presence of the magistrate, generally without any law enforcement officers or prosecuting attorneys present.[5] Id. § 51.095(a)(1)(B)(i). In contrast to warnings administered by police officers during the heat of interrogation, then, juvenile warnings administered before police questioning ever begins, by an experienced magistrate who is obviously aware of the juvenile’s age, do not raise the same concerns cited by the Davis court. In this context, a magistrate’s consideration of a suspect’s age would not “unduly hamper[] the gathering of information.” Davis, 512 U.S. at 461.
Moreover, Yarborough v. Alvarado, 541 U.S. 652, 666 (2004), in which the Supreme Court held that a suspect’s age or experience need not be considered in determining whether he is in custody, does not necessarily foreclose consideration of a juvenile’s age when determining whether he invoked his right to counsel. Yarborough did not overrule Fare, and at least one Justice who joined Yarborough noted that age could be considered as part of the objective custody inquiry.[6] See Yarborough, 541 U.S. at 669 (O’Connor, J., concurring) (noting that, despite objective nature of inquiry, “[t]here may be cases in which a suspect’s age will be relevant to the ‘custody’ inquiry under Miranda”); see also People v. Roquemore, 31 Cal. Rptr. 3d 214, 223 (Cal. Ct. App. 2005) (applying Fare factors but nonetheless concluding that eighteen-year-old’s statement “Can I call a lawyer or my mom to talk to you?” was not an unambiguous request for counsel); Dinkins, 894 S.W.2d at 351 (applying Davis but nonetheless concluding that “[w]hen reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances”). While Davis, silent on whether Fare’s factors should come into play, gives somewhat mixed signals on this point, I would hold that age should be considered when evaluating a juvenile’s invocation of his right to counsel, particularly in light of the statutory warning procedure required for juveniles in Texas.
III
But even if age is a pertinent consideration, the circumstances of this case—H.V.’s youth, his Bosnian extraction, and his lack of prior experience with the police—do not compel a different result. The magistrate testified that H.V., then three months shy of his seventeenth birthday, was “very articulate and appeared well educated.” Cf. Yarborough, (O’Connor, J., concurring) (noting that “17 1/2-year-olds vary widely in their reactions to police questioning, and many can be expected to behave as adults”). She noted that he read and understood the English language and was a junior at a local high school. He had earlier that day been taken into custody for another interrogation, and, after having his rights explained to him at that time, chose to waive them. In this case, then, none of these factors weigh in favor of a conclusion that H.V. invoked his right to counsel.
One can imagine circumstances, however, in which a defendant’s youth would be significant. Here, H.V. was near majority. What if he had been six years old? See Barry C. Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 Minn. L. Rev. 26, 99 (2006) (noting that while juveniles aged sixteen and older exhibited an understanding of Miranda warnings on a par with adults, juveniles under fifteen frequently misunderstood warnings). Ignoring this fact would lead to the ironic result that the younger the accused, the less likely he would be to invoke his constitutional rights. Davis drew a “bright line” between suspects who might be asking for a lawyer and those who actually do, but that test leaves room for consideration of a juvenile’s age.
IV
Finally, both H.V.[7] and the Court erroneously conclude that H.V.’s age “at least hindered if it did not prevent him from [hiring private counsel] himself.” ___ S.W.3d at ___. We have long recognized (and never disavowed)[8] that minors may retain counsel in criminal proceedings, and such contracts are neither void nor voidable. Askey v. Williams, 11 S.W. 1101, 1101 (Tex. 1889) (“The contracts of an infant for necessaries are neither void nor voidable, and we are of opinion that the services of an attorney should be held necessary to an infant, where he is charged by an indictment with crime. His life or his liberty and reputation are at stake, and it would be unreasonable to deny him the power to secure the means of defending himself.”); see also Johnson v. Newberry, 267 S.W. 476, 478 (Tex. Comm’n App. 1924, judgm’t adopted) (noting that “‘reasonable attorney fees in defense of a criminal action brought against an infant are necessaries’” but if agreed-upon price is excessive, contract is enforceable only to the extent of “‘a just compensation for the necessaries received by him’”) (quoting Askey, 11 S.W. at 1101). In any event, it is not necessary to revisit our established caselaw, because the particular warning given here advised H.V. (as mandated by the Family Code) that he had a right to appointed counsel if he was “unable to employ an attorney.” Tex. Fam. Code § 51.095. Thus, even if H.V. believed that his age prevented him from hiring private counsel himself, he was told that he could speak with a court-appointed attorney.
V
I agree that we have jurisdiction over this case and join parts I and II of the Court’s opinion. I would not reach the suppression issue decided by the Court in part IV. Because H.V. did not unambiguously invoke his right to counsel, I would reverse the court of appeals’ judgment suppressing the statement and the gun and therefore dissent from that part of the Court’s judgment that holds otherwise.
______________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: April 11, 2008
[1] For example, one court concluded that “Can I ask for a lawyer now?” was not an unambiguous request for counsel, while another held that “Can I call my attorney?” was. Compare Loredo v. State, 130 S.W.3d 275, 284-85 (Tex. App.—Hous. [14 Dist.] 2004, pet. ref’d) (deciding that party’s “question about a lawyer was not an unambiguous invocation of his right to counsel”), certificate of appealability denied, Loredo v. Quarterman, No. H-06-2138, 2007 U.S. Dist. LEXIS 63208, 49-51 (S.D. Tex. Aug. 23, 2007) (concluding, on habeas review, that Texas state court’s decision did not violate “established Supreme Court precedent or constitute[] an unreasonable determination of the facts in light of the evidence presented in state court”) with United States v. De la Jara, 973 F.2d 746, 752 (9th Cir. 1992) (holding that question “clearly invoked the right to counsel”).
[2] To those, I would add: Clark v. Murphy, 331 F.3d 1062, 1066 (9th Cir. 2003) (holding that “I think I would like to talk to a lawyer” was ambiguous; thus, on habeas review, Arizona court’s determination neither violated Supreme Court precedent nor was objectively unreasonable); Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (concluding that “I think I want a lawyer” and “[d]o you think I need a lawyer” were ambiguous within the meaning of Davis); United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (noting that defendant's question, “Do I need a lawyer” or “Do you think I need a lawyer” did not “rise to the level of even an equivocal request for an attorney”).
[3] The Court’s conclusion that H.V.’s age “at least hindered if it did not prevent him” from retaining private counsel suggests that, in fact, the Court does take his age into account to conclude that he invoked his right to counsel. ___ S.W.3d at ___.
[4] Thus, the standard must be one of a “reasonable magistrate,” not a “reasonable police officer.” That is, the Davis test for juveniles in Texas must be whether the statement is “sufficiently clear[] that a reasonable [magistrate] in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459.
[5] A magistrate may require the presence of a bailiff or a law enforcement officer if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer does not carry a weapon in the presence of the child. Tex. Fam. Code § 51.095(a)(1)(B)(i).
[6] The Fare court explained at length why, contrary to the California Supreme Court’s conclusion, a request to speak to his probation officer did not invoke a juvenile’s right to counsel; if the juvenile’s age had been irrelevant to the inquiry, certainly the Supreme Court would have said so. Fare, 442 U.S. at 723-24 (“[S]ince a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney.”) (emphasis added).
[7] H.V. asserts that his statement to the magistrate was “an effort to explain . . . that, while he desire[d] counsel, he [was] incapable of obtaining an attorney being merely a sixteen year old.”
[8] It is curious that the Court, citing only court of appeals and federal district court opinions, questions whether Askey is still good law. Not only is Askey precedent from our Court, but we reaffirmed the rule thirty-five years later in Johnson v. Newberry, and leading commentators cite Askey as accurately stating the Texas rule. See William V. Dorsaneo III, et al., 14 Texas Litigation Guide § 210A.04 (2007); 1 Barry P. Helft & John M. Schmolesky, Texas Criminal Practice Guide § 1.101 (2008); John D. Montgomery, et al., 3 Texas Family Law: Practice & Procedure U2.03 (2d ed. 2007). And the venerable policy the rule promotes is as forceful today as it was in 1889. Thus, it is unclear why a minor’s constitutional right to counsel, recognized by the Supreme Court in 1967, would weaken, rather than strengthen this rule. Nor is this tenet affected by a parent’s duty to pay for such necessaries. See Joseph M. Perillo, 7 Corbin on Contracts § 27.8 (rev. ed. 2002) (noting that “[a]n infant is liable in quasi contract for necessaries furnished the infant” and “[t]he basis of this liability is thus considerably different from the liability of parents for necessaries furnished their children”).
Friday, March 14, 2008
not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the chal..
NUMBER 13-02-218-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 257th District Court of Hidalgo County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez and Baird Footnote
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote
I. Self Defense and Defense of Third Person.
Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.
A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.
The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).
Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.
According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.
For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).
Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.
II. Ineffective Assistance of Counsel.
Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.
1.
The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”
We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.
2.
The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).
The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.
3.
The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.
4.
The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.
Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.
In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.
B. The Punishment Phase.
The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.
1. The Erroneous Instruction.
Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See id. (emphasis added).
However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.
2. The Improper Argument.
After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:
The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.
For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.
So you know parole does exist in reality.
And so that will help you understand those issues.
(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.
The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).
Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.
Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).
Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).
Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.
In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.
Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.
Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.
In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.
The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).
_________________________
CHARLES BAIRD,
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 12th day of August, 2004.
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 257th District Court of Hidalgo County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez and Baird Footnote
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote
I. Self Defense and Defense of Third Person.
Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.
A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.
The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).
Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.
According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.
For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).
Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.
II. Ineffective Assistance of Counsel.
Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.
1.
The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”
We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.
2.
The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).
The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.
3.
The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.
4.
The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.
Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.
In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.
B. The Punishment Phase.
The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.
1. The Erroneous Instruction.
Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See id. (emphasis added).
However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.
2. The Improper Argument.
After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:
The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.
For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.
So you know parole does exist in reality.
And so that will help you understand those issues.
(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.
The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).
Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.
Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).
Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).
Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.
In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.
Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.
Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.
In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.
The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).
_________________________
CHARLES BAIRD,
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 12th day of August, 2004.
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