Opinion issued December 29, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00998-CR
JARED LLOYD SHANKLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 941654
DISSENTING O P I N I O N
I respectfully dissent. I agree with the majority that appellant is entitled to a new hearing on punishment. However, I do not see how the jury could appropriately assess punishment without retrial of the merits, particularly when appellant’s trial counsel took the strategically risky route of failing to seek an instruction on manslaughter, a lesser included offense supported by the record that has a much lower punishment range than murder. I find it impossible to say with any degree of certainty that the jury would have convicted appellant of murder, as opposed to manslaughter, and sentenced him to 60 years in prison when the jury was offered neither the opportunity to consider the lesser included offense nor any of the mitigating evidence available to the defense. I believe appellant’s trial counsel’s strategy, if any, was unreasonable as a matter of law at both the trial and the punishment stage.
In addition, I believe the trial court erred in admitting the prosecutor’s affidavit as evidence of appellant’s trial counsel’s competence at the hearing on appellant’s motion for new trial and that appellant carried his burden of proving his entitlement to a new trial at the hearing. Therefore, I would hold that appellant satisfied the Strickland test with respect to the trial as a whole and that the trial court abused its discretion in failing to order a new trial on the basis of appellant’s counsel’s ineffectiveness. I would reverse and remand for a new trial.
Ineffective Assistance
Lesser Included Offense of Manslaughter
Because appellant’s trial counsel’s requested instructions addressed only murder, defense of a third party, and self-defense, the jury could only have (1) convicted appellant of murder, (2) found that he acted in defense of himself or of a third party and acquitted him, or (3) found him not guilty and acquitted him. The jury could not have found him guilty of the lesser included offense of manslaughter or any other lesser included offense and assessed punishment commensurate with that offense. This strategy, as the majority points out, is known as an all-or-nothing strategy. See Lynn v. State, 860 S.W.2d 599, 603 (Tex. App.—Corpus Christi 1993, pet. ref’d). The majority, citing to Ex Parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004), holds that “[d]efense counsel does not act deficiently in failing to request a lesser included offense if he was pursuing an all-or-nothing trial strategy.” I disagree that Ex Parte White can be read so strongly.
I read Ex Parte White as holding that defense counsel does not act deficiently in failing to request a lesser included offense only if it is reasonable for him to pursue an all-or-nothing trial strategy under the circumstances of the case. See Ex Parte White, 160 S.W.3d at 55–56 (strategy was reasonable when trial counsel asserted that he discussed instructions on lesser-included offenses with defendant and deferred to defendant’s decision not to request them); see also Lynn, 860 S.W.2d at 603 (all-or-nothing strategy, although risky, was not so unreasonable under facts of case as to deprive defendant of fair trial when focus of case was on absence of any evidence of intent). Requiring a jury to opt between murder and acquittal, although risky, is sometimes successful. Lynn, 860 S.W.2d at 603. Moreover, Texas law presumes that counsel’s actions and decisions are reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). I challenge that presumption, however, by asking whether it was, in fact, reasonable for appellant’s counsel not to request an instruction on the lesser included offense of manslaughter under the circumstances of this case.
I agree with the majority that, at the hearing on appellant’s motion for new trial, the trial court could have disbelieved appellant’s counsel’s affidavit that he was not employing a reasoned strategy in failing to request an instruction on the lesser included offense of murder. Discounting the affidavit, the majority reasons that appellant’s counsel could conceivably have had an all-or-nothing strategy and that such a strategy was reasonable under the circumstances of this case. I disagree. Even if appellant’s counsel actually had an all-or-nothing strategy, as the majority concludes, there is additional evidence in the record that such a strategy was unreasonable.
A person commits murder if he “intentionally or knowingly” causes the death of an individual; an offense is a first degree felony punishable by five to 99 years in prison. Tex. Pen. Code Ann. § 19.02, 12.32. A person commits manslaughter if he recklessly causes the death of an individual; an offense is a felony of the second degree, hence punishable by two to 20 years in prison. Tex. Pen. Code Ann. §§ 19.02, 12.33. Self-defense and defense of a third person are complete defenses that, if found, justify the use of deadly force require acquittal. Tex. Pen. Code Ann. §§ 2.03, 9.31, 9.32, 9.33.
The jury was instructed that it could consider a punishment range of five to 99 years or life for the charge of murder or that it could acquit if it found that appellant used justifiable force in self-defense or in defense of a third person. Depending on the answers to these questions, appellant faced either acquittal or punishment ranging from 5 years to life in prison. If an instruction on manslaughter had been sought and the jury had convicted him of that offense, appellant would have faced a penalty of 2 to 20 years in prison. A charge of manslaughter thus would have offered the jury the opportunity to find that, although the deadly force he used was not justified, appellant did not knowingly and intentionally kill the complainant; thus, the jury could have found a lower level of culpability than murder and assessed a lower range of punishment commensurate with such culpability. There were sufficient facts to support such a finding.
The trial testimony establishes that appellant and the complainant, Michael Gaddis, were part of a group who had begun arguing in a club. As the club was closing and people were exiting the club into the parking lot, the group continued their argument, by shouting, pushing, and shoving, and a fight began. A full beer bottle was thrown at appellant and hit him in the leg. There was testimony from several witnesses that three people standing next to appellant’s friend, Darrell Willis, including the complainant, Gaddis, jumped Willis and began beating him. Willis had had a stroke, was unable to speak articulately, and was weak on one side. Appellant testified that he shot into the group around Willis to stop the fight and to protect Willis, and Willis testified that he needed protection. There was testimony from Willis and appellant that appellant had taken the gun away from Willis shortly before this occurred.
There was also testimony that Gaddis’s friends got him away from the fight and into a truck, but he continued arguing, got back out, and rushed towards appellant; that Gaddis and appellant exchanged more words; and that appellant shot him. There was also conflicting testimony from one witness that appellant got the gun from his truck and came back shooting at the crowd as Gaddis’s friends tried to get him to let the argument go and leave.
Several shots were fired, and Gaddis was shot twice at close range, once at the side of the face and once in the abdomen. An officer who had been called to the scene testified that appellant told him Willis was unable to take care of himself because he had had a stroke and had less strength than the others in the crowd, that appellant was trying to protect him, and that he had taken Willis’s gun from him earlier “because he didn’t want Mr. Willis to do anything stupid is what he told me.”
Unlike the defendant in Ex parte White, who rejected a lesser included offense instruction, appellant testified by affidavit at the motion for new trial hearing, “I told Mr. Richardson [appellant’s trial counsel] from the very beginning that when I fired in the direction of the individuals whom I believed were assaulting Darrell Willis, I did not intend to kill anyone but to merely scare them and to get them to scatter.” He further stated that he thought his counsel “was going to ask me what my intent was when I testified at trial but I now know that he did not” and that if he had known that his testimony entitled him to jury charges on the issues of aggravated assault or manslaughter, he would have asked his counsel “to make sure that the jury had these options instead of just murder or not guilty.” Nor was the focus of the trial on the complete absence of intent, as in Lynn, but on appellant’s act of shooting in the direction of a group of men who were hitting his friend.
There was evidence from which the jury could have decided (1) that appellant did not intend to kill Gaddis, but fired recklessly into the quarreling group in the parking lot to scare him or the persons in the group around Willis and stop the fight, in which case it could have convicted him of manslaughter; or (2) that appellant fired intending to kill Gaddis to protect himself or Willis, in which case the jury could have acquitted him; or (3) that appellant intentionally and knowingly killed Gaddis, in which case the jury could have convicted him of murder, as it did. Appellant’s counsel’s failure to request an instruction on manslaughter deprived appellant of the opportunity to be convicted on a lesser charge that comported with the testimony of several witnesses, that was otherwise supported by the record, and that would have established a lesser degree of culpability and imported a lesser range of punishment than murder. Instead, under the charge given, the jury could only convict appellant of murder or acquit him. Thus, I would conclude that appellant’s counsel’s failure to request an instruction on the lesser included offense of manslaughter was unreasonable under the circumstances of this case.
The majority finds the all-or-nothing strategy it attributes to defense counsel to be reasonable because “the facts were more consistent with an intentional killing in defense of self and others.” But the question is not whether this Court thinks that the facts were more consistent with an intentional killing than with a reckless killing, but whether the jury would. Appellant’s counsel’s acts and omissions denied his client the opportunity to have a jury determine whether the evidence better supported a manslaughter conviction than a murder conviction when either could have been supported by the facts and a manslaughter conviction would necessarily have resulted in a much lighter sentence than the 60-year prison sentence appellant received.
The only rational basis the majority can construct for appellant’s counsel’s not giving a manslaughter instruction is that it would have been inconsistent with the all-or-nothing strategy the Court attributes to defense counsel, both prongs of which required a finding of intentional killing. That, to my mind, is no reason not to request a manslaughter instruction, because the purpose of that instruction is to let the jury know that it can find a lesser mens rea than intentional killing and can decide on a lesser punishment. A strategy that abandons a lesser-included-offense theory and offers the jury a choice between murder and self-defense does not become reasonable because a reviewing court thinks the facts fit better with self-defense than with manslaughter or that manslaughter has a different men rea. The whole point of instructing the jury on manslaughter is to allow it to determine what it—not this Court—believes the defendant’s state of mind to have been on the basis of the facts presented in evidence. That is the factual determination the jury should have been allowed to make here and was not, and it was a determination critical to the result of the trial.
Failure to Elicit Testimony
The majority opinion is not made stronger by its rejection of appellant’s argument that his trial counsel provided ineffective assistance by not eliciting testimony regarding appellant’s lack of intent to kill. The majority acknowledges appellant’s assertion in his affidavit that his trial counsel knew before trial that he did not intend to kill anyone when he fired his gun, but it excuses trial counsel’s failure to elicit this testimony at trial because it would have been inconsistent with a self-defense theory. This is a boot-strap argument. If it was not reasonable for defense counsel to put all of appellant’s eggs in one defensive basket, that strategy is not made more rational by lopping off facts that benefit appellant by supporting a theory of manslaughter on which he might have had better luck in order to maintain the consistency of a presumed all-or-nothing strategy.
The fact that defense counsel refused to elicit testimony regarding a fact critical to appellant’s manslaughter defense—his lack of knowing intent to kill—does not support the view that appellant’s representation was professionally reasonable and strategically sound. It supports the conclusion that appellant’s counsel’s strategy was unreasonable because he presented what can best be described as an extremely risky all-or-nothing case on behalf of his client, even though he knew critical facts that would offer his client a less risky alternative. Moreover, appellant’s counsel himself had testified that he had no strategy at all. Even the risky strategy attributed to him is this Court’s own construct.
Punishment
Finally, while I agree with the majority that appellant’s trial counsel’s performance was deficient at the punishment phase for the reasons the majority states, I find it impossible to say that a properly instructed jury would have convicted appellant of murder in the first place, much less sentenced him to 60 years in prison. And I can find no basis for determining that appellant’s lengthy punishment was due merely to his counsel’s ineffectiveness at the punishment stage rather than to his combined ineffectiveness at both the trial and punishment stages.
I believe appellant satisfied both prongs of the Strickland test—he proved by a preponderance of the evidence that his counsel’s representation fell below professional standards and that the result of the trial would have been different had he received reasonably effective assistance. See Strickland, 466 U.S. at 688–92, 104 S. Ct. at 2064–67; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Therefore, I would sustain appellant’s first and second points of error and would remand this case for a new trial as to both guilt and punishment.
Admission of Evidence at Motion for New Trial Hearing
I also disagree with the majority’s opinion that the prosecutor’s affidavit was properly admitted as evidence in opposition to appellant’s motion for new trial. Nor do I agree that appellant failed to preserve his objections to that affidavit under Rules 701 and 702. I would hold that appellant preserved his objections to the affidavit under Rules 401, 402, 602, 701 and 702 and that the affidavit was inadmissible under all of those rules. Without the prosecutor’s affidavit there was no evidence to support the trial court’s denial of a new trial. I would hold that the trial court erred in admitting the affidavit, that appellant carried his burden of proving his entitlement to a new trial by a preponderance of the evidence, and that the trial court erred in denying appellant a new trial.
In her affidavit, the prosecutor opined, “I do not agree with the assertions of the defense lawyer in this case contained in the defense affidavit and I believe that he is not being candid with the court in his admissions to ‘alleged’ ineffective assistance.” She further opined,
I believe that it was sound trial strategy on his part not to request the lesser offenses. Lee Richardson [appellant’s trial counsel] did request and receive charges of self-defense and defense of third party. It would have been viewed as contradictory to have asked the jury to find him not guilty and then state that if they find him guilty, they should find him guilty of the lesser offense only. After all, self-defense applies to all defensive theories so that would have been the better request (to the exclusion of the lesser).”
The prosecutor then asserted that appellant’s counsel “did stand up and object to the specific unintentional mistake that I made”—namely, that a third party has a duty to retreat. “However, the charge correctly explained the law to the jury.” She excused defense counsel for not making a more specific objection in response to her own “mistake,” opining that error was committed by the trial judge in precluding a more specific objection, but concluding, “since the correct wording was in the charge, no harm was done to either party.” She then opined that it was “sound trial strategy to not have further objected because Lee Richardson did not want to draw attention to the issue in front of the jurors and the charge was correct on the issue.”
Finally, the prosecutor offered her opinion that this “was a particularly bad case in that several people could have been hurt in addition to the death of the victim,” and she speculated that, had appellant’s witnesses been called at the punishment phase, “I would have impeached their testimony with his terrible criminal and probation record.” She summed up:
It is my opinion that this additional testimony on punishment would have been extremely detrimental to the defense and that is why Lee Richardson may not have called these witnesses. For instance, they all would have either testified that they did not know all these outrageous facts or if they knew about these facts, they were unable to assist him in altering his criminal ways. Either way, this testimony would have reflected poorly upon the defendant. Such evidence is rarely given much credibility by a jury and, in my experience, is often used against defendants. Lee Richardson knew of this information based on his research into the case and I believe that it was sound trial strategy for him to decide to not call these witnesses.
As the majority states, appellant asserted the following objection to the affidavit:
[U]nder Rules 401 and 402, certainly Ms. Hartman’s affidavit is irrelevant in the sense that it makes no fact more or less likely as a consequence to this proceeding. She has no personal knowledge of any of the operative facts that impact the consideration of the issues before the Court today to the extent that she asserts that trial counsel is, quote, not candid, close quote, about his assertion.
The Court is well aware that in Schutz v. State, and 50 other cases, it is improper for one witness to give his or her opinion to the truthfulness of another witness’ testimony. It is clearly speculative.
Her testimony as to Mr. Richardson’s purported trial strategy is, again, without foundation. Certainly it makes no fact at issue more or less likely and doesn’t even provide a nudge in that direction, which is the standard review for relevancy. I would object to it under those bases, Your Honor.
The trial court overruled appellant’s objections.
The majority holds that appellant preserved his objections under rules 401, 402, and 602, but not under rules 701 and 702. “The purpose of an objection is two-fold: (1) to notify the trial judge and the State of the complaint. . .; and (2) to preserve a complaint for appellate review.” Ex parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994) (citations omitted). An objection may be phrased in any manner that sufficiently apprises the judge and opposing counsel of the nature of the complaint; no particular form is required. Id. I would hold that appellant’s objection was sufficient to apprise the judge of his complaints under Rules 701 and 702, as well as under rules 401, 402, and 602.
Rules 401 and 402 permit the admission of evidence only if it is relevant, i.e., if it tends to make the existence of a fact consequential to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401, 402. Rule 602 prohibits a witness from testifying about a matter of which the witness has no personal knowledge. Rule 701 prohibits opinion testimony by a lay witness unless it is rationally based on the witness’s own perception or helpful to understanding the witness’s own testimony or to determining a fact in issue. Tex. R. Evid. 701. Rule 702 permits testimony by expert witnesses, but only if they are qualified “by knowledge, skill, experience, training, or education” to testify in the form of an opinion or otherwise. Tex. R. Evid. 702. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997), and its progeny, cited by appellant’s counsel in his objection to the admission of the prosecutor’s affidavit, are the leading cases on the improper admission of expert testimony under rules 602, 701, and 702. Therefore, I would conclude that appellant’s objection was sufficient to notify the trial judge and the State of his complaints under Rules 401, 602, 701, and 702 and to preserve those complaints for appellate review.
I agree with appellant that the prosecutor’s affidavit should have been excluded from evidence under all of the foregoing rules. Virtually all of the prosecutor’s affidavit testimony consisted of her speculation and lay and expert opinion as to her opponent’s knowledge, strategy, and credibility, the behavior of juries, and the prosecution of the trial under different factual circumstances, and her legal opinion as to the trial court’s rulings, the court’s charge, and the ultimate legal question of her opponent’s effectiveness. As the Court of Criminal Appeals stated in Charles, “Statements in affidavits of interested witnesses concerning their own state of mind are ‘uncontrovertible’ because ‘the mental workings of an individual’s mind are matters about which adversaries have no knowledge or ready means of confirming or controverting.” 146 S.W.3d at 210 (emphasis added). How much less controvertible, therefore, is a self-interested prosecutor’s testimony about the workings of her opponent’s mind—matters as to which a fortiori he or she can “have no knowledge or ready means of confirming or controverting”? See Charles, 146 S.W.3d at 210. Rule 602 expressly prohibits a fact witness from testifying about a matter of which he has no personal knowledge. Thus, I would conclude that the prosecutor’s affidavit was inadmissible under Rule 602.
Likewise, Rule 701 prohibits opinion testimony by a lay witness that is not rationally based on the witness’s own perception or helpful to understand the witness’s own testimony or to determine a fact in issue. Tex. R. Civ. P. 701. The prosecutor’s affidavit purports to testify to matters necessarily outside her own perception and purportedly helpful only to understand her opponent’s testimony and to determine legal issues left to the determination of the court. Thus, I would conclude that the trial court erred in admitting the prosecutor’s affidavit over appellant’s objection under Rule 701.
In addition, the prosecutor’s affidavit is replete with speculative references, not only as to the workings of defense counsel’s mind and strategy, but also as to what would have happened had her opponent represented his client differently, e.g., had he conducted the investigation of 20 witnesses that he attested he did not conduct and had he called those witnesses to testify in mitigation of appellant’s punishment: “For instance, they all would have either testified that they did not know all these outrageous facts or if they knew about these facts, they were unable to assist him in altering his criminal ways.” The prosecutor could not have had any factual basis for these assertions. I would, therefore, conclude that her affidavit is inadmissible under Rule 602 in this regard as well. Moreover, because such speculation has no tendency to make any relevant fact more or less probative, it is inadmissible under Rule 401. See Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991) (evidence is relevant under Rule 401 if it “influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case”).
Nor was the prosecutor’s affidavit admissible as expert testimony under Rule 702. The threshold determination in admitting expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Schutz, 957 S.W.2d at 59; Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992); Perkins v. State, 902 S.W.2d 88, 93 (Tex. App.—El Paso 1995, pet. ref’d). The use of such testimony must be limited to those situations when the expert’s knowledge and experience are superior to those of the average juror. Yount v. State, 872 S.W.2d 706, 710 (Tex. Crim. App. 1993); Perkins, 902 S.W.2d at 93. In Yount, the Court of Criminal Appeals, analyzing the admissibility of expert testimony on child behavior under Rule 702 in an aggravated sexual assault case, stated that “the threshold determination for admitting expert testimony is whether such testimony ‘if believed, will assist the untrained layman trier of fact to understand the evidence or determine a fact in issue.’” 872 S.W.2d at 708 (quoting Duckett v. State, 797 S.W.2d 906, 908 (Tex. Crim. App. 1990)). The court “cautioned that expert testimony which assists the jury in determining an ultimate fact is admissible, but expert testimony which decides an ultimate fact for the jury, such as ‘a direct opinion on the truthfulness of the child,’ crosses the line and is not admissible under Rule 702.” Id. (citing Duckett, 797 S.W.2d at 914, 918–19).
“[E]xpert testimony must aid—not supplant—the jury’s decision.” Schutz, 957 S.W.2d at 59; Perkins, 902 S.W.2d at 93. Thus, “direct testimony as to a witnesses’ credibility is inadmissible under Rule 702 because it does not concern a subject upon which the testimony of an expert would assist the trier of fact.” Yount, 872 S.W. 2d at 709 (emphasis in original); Perkins, 902 S.W.2d at 93. Such evidence does more than assist the trier of fact to understand the evidence or determine a fact in issue; it impermissibly decides an issue for the trier of fact. Yount, 872 S.W.2d at 709; see also Schutz, 957 S.W.2d at 59; Perkins, 902 S.W.2d at 93. Nor is a witness’s opinion admissible to interpret the meaning of the acts, conduct, or language of another. See Rodriguez v. State, 903 S.W.2d 405, 410 (Tex. App.—Texarkana 1995, pet. ref’d).
The prosecutor’s affidavit testimony was not designed to assist an untrained layman to understand the evidence or to determine facts in issue. Nor did it help the visiting trial judge understand the evidence or determine any fact as to appellant’s counsel’s effectiveness. Rather, the expert opinion testimony offered went entirely to the legal conclusions to be drawn by the court as guided by the prosecutor—a witness who had an interest in the outcome of the hearing, who was not qualified at trial or in her affidavit as an expert witness on the law, who had no personal knowledge of defense counsel’s mental workings or strategy or the possible testimony of witnesses who were not interviewed or called, and who was in no better position than the trial judge—even the visiting trial judge who conducted the motion for new trial hearing—to assess whether or not defense counsel’s representation of his client met professional standards of representation.
Not only did the prosecutor’s affidavit not assist the trier of fact, it directly supplanted both the role of the trier of fact in assessing the ultimate fact issue of defense counsel’s strategy and the role of the judge himself in determining the ultimate legal issue of the effectiveness of appellant’s representation, based on the prosecutor’s asserted legal expertise. It was, in fact, nothing more than the legal opinion of counsel presented as evidence. Trial courts may not consider the legal conclusions of witnesses on ultimate questions of law as competent evidence; such questions are matters to be decided by the courts themselves on the basis of the facts presented in the evidence. See Fort Worth Neuropsychiatric Hosp., Inc. v. Bee Jay Corp., 600 S.W.2d 763, 765 n.4 (Tex. 1980).
I would hold that the prosecutor’s affidavit was inadmissible under Rule 702 as well as under Rules 602, 401, and 701. Indeed, I think the majority sets a dangerous precedent by allowing a conflicted prosecutor in a criminal proceeding with a personal interest in sustaining a conviction she has obtained on behalf of her client, the State, to turn around and appear both as a fact witness and as an expert witness against the defendant in sustaining that conviction. I think this practice implicates fundamental due process concerns, and I would not lend the gloss of legality to it.
Because appellant presented evidence at the motion for new trial hearing from which the trial court could reasonably have concluded (1) that his counsel’s representation at trial fell below an objective standard of reasonableness and (2) that the result of the proceeding would have been different but for his counsel’s deficient performance, and because the State presented no admissible countervailing evidence at that hearing, I would hold that appellant established his right to a new trial by a preponderance of the evidence at that hearing. Accordingly, the trial judge’s denial of a new trial was not “supported by any reasonable view of the record evidence” and was an abuse of discretion. See Charles, 146 S.W.2d at 210.
I would sustain appellant’s third point of error.
Conclusion
I would conclude that appellant’s defense counsel provided ineffective assistance of counsel during both the guilt-innocence and punishment phases of appellant’s trial and that the trial judge abused his discretion in denying appellant’s motion for new trial. I would, therefore, reverse the judgment of the trial court and remand the cause for a new trial.
Evelyn V. Keyes
Justice
Justice Keyes, dissenting.
Publish. See Tex. R. App. P. 47.2(b).