"Use Caution When Calling Someone Ineffective"

Last week, Justice Quinn of the 7th District Court of Appeals (Amarillo) very thinly masked his disgust in a three-page opinion (designated for publication) aimed at an appellant and his attorney who claimed that the trial defense counsel had been ineffectice.  A shot across the bow to other would-be appellate attorneys who might be considering an ineffective assistance challenge, Justice Quinn warns "It ain't a game folks; it's real lives we are dealing with."

The opinion (HERE) is short enough to read in about two minutes so I won't reprint much of it, but here is, IMO, the best paragraph:

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done. Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact. Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective. Those before us today should heed that admonishment when next they think about invoking the theory. Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are dealing with.

My Witness or Yours?

During trial you should generally expect your opponent to call witnesses who will provide testimony damaging to your case.  That's their job.  But what you do not expect is that one of the witnesses you decide to call will be the most damaging of all.  That was the experience of Jose Armando Deleon's trial defense counsel during the sentencing portion of his trial for child sexual assault.

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?

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.

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

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.

Keeping a Promise

I'm up to my ears in published cases from the various Texas Courts of Appeals.  Maybe I never should have promised to post about every published case.  Or maybe I shouldn't have taken such a long break when baby #2 came along last month.  Regardless, I promised and now I need to do a bit of housecleaning in order to keep pace with all of the recent published opinions.  Here are a few from last week:

Wilson v. State, Tex. Crim. App. (Delivered  June 9, 2010) - CCA upheld Court of Appeals decision even though the Court of Appeals based its holding on a Penal Code section under which Appellant did not preserve error, but was closely related to the section for which he did preserve error.  To remand the case and end up with the same result, would have been an exercise in futility, so it appears the Court based its ruling more on judicial economy than law.

Rivera v. State, 7th Dist - Amarillo (Delivered June 8, 2010) - Explaining that Appellant had the burden to prove his counsel was ineffective, the Court held that trial defense counsel is not required to make arrangements for the defendant to view and/or listen to electronically recorded evidence prior to his guilty plea.  A good quote from this Per Curiam opinion:

Doing that which may be considered laughable, silly, unintelligent or insulting need not be done for counsel to be effective, and deciding whether to tender witnesses willing to say that appellant can be a good guy when he is not selling drugs and assaulting people seems to fall within that realm.

Griffith v. State, 11th Dist - Eastland (Delivered June 10, 2010) - Court affirmed manslaughter conviction.  Appellant acted recklessly when he drove his vehicle while intoxicated.  A defendant need not be aware of the specific risk of another's death to be guilty of manslaughter.

Steadman v. State, 11th Dist - Eastland (Delivered June 10, 2010) - The Court upheld the ruling of the trial court allowing a police officer to testify that the defendant "neither admitted nor denied" that he committed the offense during pre-arrest/pre-interrogation interview with police.  The Court had to stretch for this opinion, but here's what it came up with:

We hold...that pre-arrest silence of a defendant who has not received any Miranda warnings “is a constitutionally permissible area of inquiry.” We further hold that Steadman‟s pre-arrest/pre-Miranda silence was not the result either of interrogation or of his being compelled to be a witness against himself. Our holding is not to be taken to address those situations that involve comments upon a defendant‟s post-arrest/pre-Miranda silence or those involving silence during interrogation. We issue no holdings in connection with those issues.

Okay, there's a few cases.  I may have to do a couple more posts like this one to catch up.  Please bear with me.

Bad, But Not Bad Enough

Having found Appellant's trial defense counsel's performance deficient, the Texas Court of Criminal Appeals, in Perez v. State (a published opinion) focused on the 2nd prong of the Supreme Court's ineffective assistance standard as laid out in Strickland - whether Appellant was prejudiced by his counsel's performance.  As the Court put it:

To succeed under the prejudice component, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

In Perez, the Appellant failed to establish prejudice because the putative alibi witness' testimony would have been ambiguous at best and may not have changed the outcome of the trial at all.  Accordingly, the Court affirmed Appellant's conviction.  This opinion provides good and concise analysis on the prejudice prong of Strickland - a recommended read for ineffective assistance issues.

On a side note - I apologize for the thin and sporadic posting as of late.  We recently welcomed a new baby into the family and my primary efforts have been elsewhere.

No Current Confinement Necessary: Habeas Relief Available for Collateral Consequences

On May 26, 2010, the Texas Court of Criminal Appeals released its opinion in Ex parte Harrington, which has the potential to substantially increase habeas corpus litigation in Texas.  In Harrington, the Court was faced with the question:

[W]hether a person who has discharged his sentence prior to filing an application, but who continues to suffer collateral consequences arising from the challenged conviction, is entitled to seek post-conviction habeas relief under Article 11.07.

 The basis for applicant's petition was that due to his confinement for felony DWI, he suffered collateral consequences, namely, he lost his long-time job with the Texas Workforce Commission.  The applicant argued that but for his counsel's ineffective assistance in failing to investigate his prior DWI conviction, he would not have plead guilty for felony DWI and, in turn, would not have been sentenced to confinement.

In 1987, the CCA answered this question in the negative, holding:

an applicant who alleges only that he is under “restraint,” but who is not “in custody” at the time of filing, is precluded from seeking relief under Article 11.07.  [U]nless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.

However, in 1995, the Code of Criminal Procedure was amended.

Article 11.07, § 3(c), now explicitly provides that “confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Thus, a showing of a collateral consequence, without more, is now sufficient to establish “confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual physical custody of the government at the time of filing does not preclude his application nor deprive the trial court of jurisdiction to consider it.

Holding that the Court indeed has jurisdiction to entertain Applicant's petition regarding relief from the collateral consequences of his confinement, the Court granted relief and remanded the case back to the trial court for resentencing as a Class A misdemeanor.

Nothing New in Ineffective Assistance Case

Sorry for the delay in posting.  There have been several published opinions about which I have yet to post, but I've been out of pocket for the last few days.  I'll do my best to catch up.

HERE's a case from the 1st District Court of Appeals (Houston) that was issued on May 20th.  In Gavin v. State, the court considered whether Appellant was provided ineffective assistance of counsel.  As in any ineffective assistance opinion, the Court discussed the Supreme Court standard as articulated in Strickland v. Washington.  I have to say, I'm not so sure why this opinion was designated for publication (Gavin, that is, not Strickland).  Most published opinions offer some new analysis on criminal law issues - not so in this case - old law and nothing really interesting about the facts.  Below is an excerpt from the Court's opinion - I wouldn't waste my time reading any more of this opinion.

     The standard of review for claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). To prevail, Gavin must first show that his counsel‘s performance was deficient.  Specifically, appellant must prove, by a preponderance of the evidence, that his counsel‘s representation fell below the objective standard of professional norms.  Second, appellant must show that this deficient performance prejudiced his defense, meaning that Gavin must show a reasonable probability that, but for his counsel‘s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is one sufficient to undermine confidence in the outcome.  Thus, the benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.  

     There is a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy.  To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  When determining the validity of an ineffective-assistance-of-counsel claim, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  The record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance-of-counsel claim.  Based on such a record, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court.  When the record is silent as to trial counsel‘s strategy, we will not conclude that defense counsel‘s assistance was ineffective unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.

Cell Phone Video Falls Under "Plain View" Exception

Can a cell phone video (e.g. Child Pornography) fall under the "plain view" exception to the 4th Amendment prohibition against unreasonable searches and seizures?  Maybe.  Well, what if the defendant voluntarily hands his phone over to the police officer?  Still maybe.  Just like every other 4th Amendment case, if the officer plainly views the evidence from a lawful vantage point, there is no search.  But what if the officer has to push a few buttons on the cell phone?  Search? Well...

Last week, the 2nd District Court of Appeals (Fort Worth), held in Deaver v. State, that under the "plain view" doctrine, an officer's viewing of a child pornography video on a defendant's cell phone was not a search. 

The State asserts, in part, that the record does not provide sufficient evidence that Offier Shipp searched Deaver's phone.  We agree with the State.  A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.  If an item is in plain view, neither its observation nor its seizure involves any invasion of privacy.  An object is seized in plain view if three requirements are met.  First, law enforcement officials must lawfully be where the object can be "plainly viewed."  Second, the "incriminating character" of the object in plain view must be "immediately apparent" to the officials.  Third, the official must have the right to access the object.

How the State satisfied those 3 requirements in this case, I know not.  In this case, while the defendant was searching through his phone for a person's contact information to give to the officer, the officer snatched his phone out of his hands.  Yes, the defendant was about to voluntarily give the officer his phone, but by snatching the phone, the officer may have jumped the gun.  Requirement 1 - Lawful vantage point?  Perhaps, but I would argue no. 

Next, as the computer experts pointed out in the case, "there is no pornography on the first frame of the video at issue, so the pornographic nature of the video would not be immediately discernable if someone was just scrolling through the various videos on Deaver's phone.  In other words, to find that the video contains pornography, it must actively be played."  Requirement 2 - Immdeiately apparent? No way! (Unless, of course, you engage in the kind of mental gymnastics performed by the court and say that perhaps the defendant began playing the video (with the cop standing right there!) and when the cop retrieved the phone, the porn was on the screen.)

Lastly, the defendant only gave the officer access (arguable access, that is) to the phone so that he could retrieve a phone number listed therein - not to access any other media.  Requirement 3 - Right to access?  Nope.

But it really doesn't matter what I say, as I am not an elected appellate justice - here's what the Court held:

If Officer Shipp was initially justified in gaining control over Deaver’s phone forsafety reasons (Deaver has not argued that he was not), and if Officer Shippimmediately saw the pornographic video upon controlling the phone (as may or may not have happened based on the limited, unclear record), then a motion tosuppress would not have succeeded because the video was in plain view, no invasion of Deaver’s privacy could be shown, and no search could have therefore occurred.  Because Deaver therefore cannot demonstrate, on this ambiguous record, that his counsel’s motion to suppress would have been successful, we overrule his sole issue of ineffective assistance.

Caveat:  This was an IAC case, so the standard of review was much more deferential to upholding the search than it would have been had the trial defense counsel moved to suppress the evidence during trial.