In Deleon's case, the defense counsel called a local probation officer as a defense witness during sentencing. It appears from the appellate opinion that the defense counsel, pursuing a probation sentence, called this witness to testify primarily that
when sex offenders are placed on probation, they receive treatment to learn to control their behavior, including 'on how to push away any type of temptations or desires' and 'to remove themselves from high-risk situations.'Okay. That seems like reasonable testimony that one might want to elicit in hopes of gaining a probation sentence. However, the wily prosecutor turned the defense tactic against them. On cross-examination of the probation officer the prosecutor asked:
Q. Now rehabilitation of sex offenders: Are they ever rehabilitated to the point where the risk is gone?Not much chance the jury is going to award probation after hearing that! And that's exactly what happened; the jury awarded Deleon 14 years confinement. After such a blunder, naturally, Deleon argued on appeal that his counsel was ineffective for calling the probation officer and for failling to object during the prosecutor's cross-examination. The 14th District Court of Appeals (Houston) agreed, holding
A. No. Absolutely not. The risk will always be there. It may be minimized or lessened, but the risk will always remain because we don't know—I don't know what anybody here is thinking. We can never assume that we know what a sex offender is thinking. The risk is this: they were sex offenders before they committed the offense. So we don't know what he is thinking, what they're planning. We can give them treatment, we can do all the things that are required by law; but we can't see up here,so we can never truly predict what is going to happen from day one to day two. You have got to assume all the risk because you have heard story after story, 'I never thought he would do this; I never thought my grandfather would do this; I never thought my dad would do this.' So you never, ever push out the risk. You always assume the risk is great. As long as you assume the risk is great, then hopefully that is going to create enough protection to prevent other children from being impacted one way or the other. You just don't know. I can have guys that do everything perfectly, but up here they're still having sexual fantasies of molesting two-year-old girls or two-year-old boys. Just because you succeed well in probation does not remove the risk.
appellant's trial counsel was deficient in failing to object to the highly inflammatory testimony and for calling [the probation officer] to the stand in the first place. See Mares v. State, 52 S.W.3d 886, 892-93 (Tex. App.—San Antonio 2001, pet. ref'd) (holding counsel was deficient where counsel called probation officer as witness and then failed to object when she opined that a person in the defendant's situation would not make a good candidate for probation). Counsel should have known how Russ was going to testify on these matters. There could have been no strategic reason for producing and permitting such damning testimony.Case remanded for a new punishment proceeding. Perhaps the defense counsel should have spent a little more time in the ole woodshed with his witness prior to calling him to the stand.
Justice Christopher dissented, and would conclude that there were legitimate and professionally sound reasons for counsel's conduct in calling Russ as a witness. As the dissent points out,
A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).I'm with the dissent on this one. You never know what it going to happen at trial and you have to expect the unexpected. Of course, it appears the defense counsel could have prepared better for this witness, but he had a certain trial tactic and he employed it. It just so happened in this case that the State was better prepared. That's trial! It's never perfect and the appellate courts should be extremely hesitant to second guess the tactical decisions by the participants.