IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-73,965-04
EX PARTE SAMUEL RICHMOND WALKER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 943669-B IN THE 351ST DISTRICT COURT
FROM HARRIS COUNTY
Alcala, J., filed a dissenting statement in which Johnson, J., joined.
DISSENTING STATEMENT
Rather than employing a Rube Goldberg-type analysis to uphold a conviction at all costs, a habeas court should grant relief when a defense attorney’s clearly deficient trial performance prejudicially impacted a defendant’s case. This is such a case. It is clear that defense counsel’s errors resulted in the jury hearing testimonial and hearsay evidence that linked Samuel Walker, applicant, to the complainant’s stolen property, and that this evidence heavily prejudiced applicant because, without it, the State’s case consisted solely of a shaky single eyewitness identification by a child. In this application for a writ of habeas corpus, applicant contends that, during his second trial for aggravated robbery, his defense counsel rendered ineffective assistance by permitting the introduction of harmful, inadmissible evidence linking applicant to the complainant’s recovered stolen property. See Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052 (1984). I agree. I would hold that defense counsel rendered ineffective assistance, and I, therefore, respectfully dissent from the Court’s denial of this application for a writ of habeas corpus.
I. Background
A. The Facts
On a summer morning in 2002, Matilde Delgado, the complainant, was in her car in a parking lot with three of her children when she was approached by a black male who pointed a gun at her and threatened to kill her if she did not give him her purse. Delgado, a native Spanish speaker, had to turn away for several seconds to have the robber’s words translated to her by her then-thirteen-year-old son Erik, who sat in the front passenger’s seat during the incident. The man took her purse and returned to a red car that quickly drove away. A police officer who responded to a call made by bystanders obtained a partial license-plate number from Erik and his brother. Although Erik was absolutely positive that the plate number was correct, police officers were unable to find any vehicle in the police database with that number or any variations of the number.
Two days later, during an unrelated arrest for public intoxication, Deidre Dangerfield was found in possession of the complainant’s stolen purse, which contained some of its original contents and a handgun. Because she possessed the complainant’s property, Dangerfield was interviewed in jail by Detective Parinello, the sheriff’s officer investigating the robbery. While questioning Dangerfield about her knowledge of the robbery, Parinello learned that “Low Down” and “Pocahontas” had given her the complainant’s property. Parinello entered the aliases into the Gang Task Force police computer database, which revealed that these were the nicknames of applicant and Noralva Ramos, respectively. Parinello acquired their photographs for use in photo spreads that he showed to the complainant and her sons Erik and Edgar. Only Erik identified applicant as the perpetrator. When the photo spreads were shown to her, Dangerfield identified applicant as “Low Down” and Ramos as “Pocahontas.”
B. Applicant’s First Trial
At applicant’s first trial, Parinello testified over applicant’s former defense counsel’s objection on confrontation grounds that Dangerfield had identified applicant as “Low Down” and Ramos as “Pocahontas,” and that Dangerfield had received the complainant’s stolen property from “Low Down.” Dangerfield did not testify at that trial. Applicant was convicted by the jury and sentenced to forty-five years’ imprisonment. On direct appeal, the court of appeals reversed and remanded for a new trial because Dangerfield’s unavailability at trial and her testimonial jailhouse statements resulted in constitutional error that violated applicant’s confrontation right under the Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36, 57–60, 124 S. Ct. 1354 (2004). See Walker v. State, 180 S.W.3d 829, 836 (Tex. App.—Houston [14th Dist.] 2005).
C. Applicant’s Second Trial
At applicant’s second trial, Dangerfield again did not appear to testify. The State introduced evidence that, although different in form, was the same in substance as the evidence introduced at the first trial. This evidence came before the jury, initially through back-door hearsay introduced by the State, and later through questioning by defense counsel, who elicited Dangerfield’s specific testimonial hearsay statements. First, during the State’s questioning of Parinello, the State introduced back-door hearsay about “Low Down’s” connection to this offense without any objections from defense counsel asserting that the evidence violated applicant’s rights under the Confrontation Clause, and with only two hearsay objections that were ineffectually lodged at inappropriate times. Parinello’s testimony indirectly implicated applicant by establishing that his investigation focused on applicant only after speaking to Dangerfield about a person named “Low Down.” Second, through his own questions posed to Parinello during cross-examination, defense counsel elicited Dangerfield’s specific hearsay statements that she had personally received the stolen property from “Low Down.”
During closing argument, the State relied heavily on the hearsay testimony from Parinello to corroborate Erik’s identification testimony. The prosecutor effectively argued that the probability that applicant had committed this offense was four million to one because there was only one “Low Down” in the police database for Houston. The prosecutor’s closing argument, in relevant part, stated,
So, what you have is your credible witness. Find the amount of credibility in [Erik’s] certainty. That’s all you need, folks. That’s all you need under the law. But you have more. What do you have? You have the victim’s address, you have the address of the offense, you have the address of the defendant, all in the same part of town. You have the complainant’s property found two days later not more than four blocks from that spot, found on [Dangerfield], who we didn’t have the benefit of hearing in this case. But what we do know is from the officer’s visit with her, they came into information of [sic] a Low Down. And out of a city of 4 million people, they only find one Low Down. And Detective Parinello went forward with the knowledge that Low Down and the defendant, Samuel Walker, are the same person.
The record shows that the jury was heavily persuaded by the testimony and closing argument linking “Low Down” to the stolen property and applicant. After retiring to deliberate, the jury requested and was permitted to review Parinello’s testimony that the computer database matched applicant to “Low Down.” The jury retired again before convicting applicant, who was sentenced to forty-five years’ imprisonment.
On direct appeal, the court of appeals affirmed applicant’s conviction, explaining that counsel waived his claim against “backdoor hearsay” because “he brought out sufficiently similar evidence in his cross-examination of Parinello.” Walker v. State, No. 14-07-00461-CR, 2008 Tex. App. LEXIS 3360, 2008 WL 1991774, at *6 (Tex. App.—Houston [14th Dist.] May 8, 2008). Because applicant did not assert that his rights under the Confrontation Clause had been violated, the court of appeals did not address that matter on direct appeal. At some point after applicant’s trial, counsel was disbarred for events unrelated to this case.
D. This Post-Conviction Application
In his hand-written writ application, applicant challenges the effectiveness of his counsel on the grounds that counsel failed to timely object to inadmissible hearsay evidence and “failed to protect applicant’s federal rights to Confrontation.” The State submitted a responsive brief acknowledging its understanding that applicant was complaining of his counsel’s ineffectiveness in failing to object to the hearsay evidence offered by the State and in eliciting the improper evidence during counsel’s questioning of Parinello. The State noted that “applicant appears to be claiming . . . that trial counsel should have objected to the testimony of Detective Parinello . . . and further, counsel should not have elicited testimony from Parinello regarding his dealings with Dangerfield.” The State contends that counsel’s “actions were the product of a strategic decision” and that applicant, therefore, had failed to prove both prongs of Strickland.
The trial court did not have an evidentiary hearing on the merits of the application but instead reviewed the record, the State’s response, and counsel’s two affidavits submitted on applicant’s writ. In those affidavits, counsel invoked strategy as his reason for not objecting to the hearsay testimony:
First, I wanted no ambiguity. I fear blank spaces in evidence. If the detective was simply to testify that his investigation led him to the Defendant, the jury might fill in the gaps on their own. I am never comfortable with that type of ambiguity. I think juries are inclined to believe that the detective simply followed some routine procedure and found the Defendant. I wanted the detective to identify and discuss the witness that led him to Defendant. Secondly, and closely tied to the first reason, is that the person who identified Defendant gave a ridiculous story and I find it amazing that both the police and the jury believed it. She was arrested in possession of property stolen in the crime. She matched the description of one of the two people who robbed the victims and when questioned about where the property came from, she said, she got it from “Low Dog.” There was no further description of this “Low Dog” and the fact that the police failed to realize that she matched the description of one of the robbers and followed her rabbit trail was amazing to me.
Counsel’s affidavits, however, also indicate that he knew before trial that the State could not produce Dangerfield to testify:
I knew before trial that the State was unable to produce the witness that would directly prove the link between Defendant and the crime scene at trial.
Explaining that he was “wrong” not to object to the inadmissible evidence, counsel falls on his sword, stating,
I made the choice to let in that evidence because I erroneously believed that it helped exonerate my client and because I wanted to eliminate ambiguity that may have been construed in favor of the State. And I was very, very wrong. After the conviction, I spoke with at least two jurors who told me that this particular testimony was the deciding factor in convicting him.
After making findings of fact, the trial court concluded that defense counsel’s performance was not deficient and that he did not render ineffective assistance, and it recommended that this Court deny relief.
II. Applicant’s Defense Counsel Rendered Ineffective Assistance
This Court applies Strickland’s ineffectiveness standard that requires an applicant to prove by a preponderance of the evidence that (A) counsel’s performance “fell below an objective standard of reasonableness under prevailing professional norms,” and (B) the applicant was so prejudiced by counsel’s errors that a “reasonable probability” exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687–88,694; Ex parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011). Applying this standard, I conclude that counsel was ineffective.
A. Counsel’s Performance Fell Below an Objective Standard of Reasonableness
In evaluating counsel’s performance, I determine that the trial court would have erred by overruling a proper and timely defense objection to Parinello’s testimony and that counsel’s actions in failing to properly object were objectively unreasonable. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (to establish ineffectiveness based on defense counsel’s failure to properly object to evidence, defendant must show that trial court would have erred by overruling objection).
1. Trial Court Would Have Erred By Overruling Objection
Had defense counsel objected to the back-door hearsay elicited at trial by the State, the trial court would have erred by permitting the evidence. An “out-of-court ‘statement’ [under Texas Rule of Evidence 801] need not be directly quoted in order to run afoul of the hearsay rules.” Head v. State, 4. S.W.3d 258, 261 (Tex. Crim. App. 1999) (citing Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989)); see Tex. R. Evid. 801(a), (d). Under the Texas Rules of Evidence, the statutory definition of a hearsay “statement” includes “proof of the statement whether the proof is direct or indirect.” Id.; see 2 Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, Texas Practice Series: Guide to the Texas Rules of Evidence § 801.2 (3d ed. 2013). Indirect hearsay appears “[w]here there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom,” although it further depends on how strongly the content of the out-of-court statement, in context, supports an inference that the State was “attempting to do indirectly what it could not do directly.” Head, 4 S.W.3d at 261 (quoting Schaffer, 777 S.W.2d at 114); see Poindexter v. State, 153 S.W.3d 402, 408 n.21 (Tex. Crim. App. 2005). By asking parallel questions to Parinello whether his investigation focused on “Low Down” prior to and after speaking to Dangerfield, the prosecutor strongly indicated the content of the out-of-court statement by Dangerfield to Parinello. See Head, 4 S.W.3d at 261 (“Whether the disputed testimony violates the hearsay prohibition necessarily turns on how strongly the content of the out-of-court statement can be inferred by the context.”). Had counsel objected to this indirect hearsay evidence, the trial court would have erred by admitting the testimony.
Furthermore, but for defense counsel’s introduction of Dangerfield’s out-of-court statements during his cross-examination of Parinello, the trial court would have erred by permitting the introduction of that evidence, which violates the Confrontation Clause of the Sixth Amendment. Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005) (citing Crawford, 541 U.S. at 59); see U.S. Const. amend. VI. In Crawford, the Supreme Court observed that “[s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard” and “fall squarely within [the] class” of testimonial hearsay. Crawford, 541 U.S. at 52-53. The Court later refined Crawford by holding that a statement given during police interrogation is testimonial “when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266 (2006).
In this case, Dangerfield was interviewed in jail by a police officer about her knowledge of the robbery because she was found in possession of the complainant’s stolen property. The circumstances objectively indicate that, at the time Dangerfield made her statement to the police officer, there was no ongoing emergency, and the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal proceedings. See Davis, 547 U.S. at 822. Because the admission of Dangerfield’s out-of-court statements violated the Confrontation Clause, the trial court would have erred by permitting them into evidence had counsel not asked his own questions designed to introduce the same evidence.
2. Counsel’s Actions Were Objectively Unreasonable
Having determined that the trial court would have erred by admitting Dangerfield’s statements over a proper defense objection, I next explain why I conclude, (a) applying the appropriate legal standard to this case, that (b) the record shows that counsel’s actions objectively demonstrate deficient performance. Furthermore, I also note that (c) the trial court’s findings of fact and conclusions of law are ineffectual in this case.
a. The Appropriate Legal Standard is Objective Reasonableness
I recognize that a court indulges a “strong presumption” that counsel’s conduct “falls within the wide range” of reasonable professional assistance and that “under the circumstances, the challenged action might be considered sound trial strategy.” Martinez, 330 S.W.3d at 900 (quoting Strickland, 466 U.S. at 689). When, however, “no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for [his actions].” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (reviewing court looks to “the totality of the representation and the particular circumstances of each case” to evaluate effectiveness of counsel). In reviewing whether an attorney was ineffective, great deference is given to those who have conducted substantial investigations, made informed decisions, and exercised professional judgment. The Supreme Court has explained,
If counsel conducts such substantial investigations, the strategic choices made as a result “will seldom if ever” be found wanting. Because advocacy is an art and not a science, and because the adversary system requires deference to counsel’s informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment.
Strickland, 466 U.S. at 681. An objective examination of the record shows that, here, rather than showing the exercise of professional judgment, this now-disbarred attorney, through his actions and omissions, permitted inadmissible evidence that provided the sole non-eyewitness link between applicant and the offense, thereby undermining the whole point of the adversary system by substantially bolstering the strength of the State’s case.
b. The Record Objectively Demonstrates Deficient Performance
Although he has invoked a subjective claim of strategy in his habeas affidavit by claiming that he laid out all his cards for the jury so that there would be no “blank spaces in evidence,” the record shows that counsel initially ineffectually attempted to exclude this evidence and, only after the evidence was admitted over his untimely and improper objection, did counsel decide to let the jury hear the otherwise inadmissible evidence. The record shows the following exchange during Detective Parinello’s direct examination:
[Prosecutor]: Now, during the pendency of your investigation, did you learn any aliases of [applicant]?
[Defense counsel]: Objection, calls for hearsay.
[Trial Court]: Overruled. That’s a yes-or-no question.
[Parinello]: Yes, I did.
[Prosecutor]: And what was that alias?
[Parinello]: Low Down.
[Prosecutor]: What is it you did with that, Detective?
[Parinello]: Well, I started researching our computers regarding a Low Down and I could not find anything in our computer system.
. . . .
[Prosecutor]: At any point during your investigation, were you provided information that led you to a Norvala[sic] Ramos?
[Parinello]: That’s correct.
[Prosecutor]: And during your investigation, did you learn of any aliases of Norvala[sic] Ramos?
[Parinello]: Well, yes. Do you want me to give you the name?
[Defense counsel]: Objection. Calls for hearsay.
[Prosecutor]: Did you learn of an alias?
[Parinello]: Yes, I did. I’m sorry.
[Prosecutor]: What was that alias?
[Parinello]:Pocahontas.
Had counsel really had a strategy to leave no blanks for the jury, he would not have objected to the State’s questions asking about the aliases of applicant and Ramos. Rather, based on counsel’s objections to that evidence, the record conclusively demonstrates that counsel’s decision to lay all his cards out on the table came only after he was too unskilled in the law to lodge the appropriate objections to exclude the evidence. Once his inadequate objections failed to exclude the inadmissible evidence, counsel then apparently decided to go further himself by asking questions to elicit additional evidence that would otherwise have been inadmissible. As had occurred at the first trial, Detective Parinello was the only witness to make any mention of “Low Down.” Counsel’s mid-trial decision to lay out all his cards for the jury only after ineffectually attempting to exclude the evidence cannot objectively be characterized as the result of engaging in strategic choices, making an informed decision, or exercising a reasonable professional judgment.
Additionally, in light of the jury’s questions asking for specific testimony during their deliberations, the record indicates that the jury gave significant weight to Dangerfield’s statements that “Low Down” gave her the complainant’s stolen property. My assessment here does not rest on post-conviction statements by jurors who indicated that this hearsay evidence was the deciding factor in convicting applicant. I agree with the concurring opinion’s observation that it is improper for courts to consider that type of evidence. See Ex parte Parra, No. AP-76,781, 2013 WL 5221110, at *4 (Tex. Crim. App. Sept. 18, 2013) (citing Tex. R. Evid. 606(b)). But that is a different matter from, in analyzing whether certain evidence was material to the jury’s verdict, considering that the jury did submit a question to the trial court requesting that testimony be read back to them by the court reporter. See, e.g., Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (deciding whether record showed egregious harm by examining jury’s question asking that certain evidence be read back to them). Here, the request that testimony about “Low Down” be read back to the jury shows that the jury was concerned about this matter in its deliberations and that this topic affected its decision, particularly because the evidence about “Low Down” supplied the sole non-eyewitness identification evidence linking applicant to the offense.
Although the concurring statement suggests that my analysis is based on the benefit of hindsight, my analysis is instead based on a review of counsel’s performance at the time of the trial. An objective assessment of counsel’s performance in this case reveals that no effective attorney would have engaged in actions permitting this highly prejudicial evidence to be admitted into evidence. Even this attorney initially attempted to keep out this evidence, but he was so unskilled in the law that he was unable to do so. The State ran with this hearsay, essentially arguing in its closing statement that the probability that applicant did not commit this offense was one in four million. Counsel’s actions in allowing evidence linking applicant to the property was objectively unreasonable, therefore, because the evidence substantially strengthened the State’s case from one based on the testimony of a single shaky eyewitness to one in which a computer gave the odds that the applicant did not commit the offense at one in four million.
c. The Habeas Court’s Fact Findings and Conclusions of Law Are Ineffectual
Although it purported to make findings of fact in this case, the habeas court’s first two findings merely describe the existence of applicant’s conviction and the last three findings are actually conclusions of law. See State v. Sheppard, 271 S.W.3d 281, 292 (Tex. Crim. App. 2008) (noting problem of “mixing the apples of explicit factual findings with the oranges of conclusions of law”). The trial court did, however, factually state that he found defense counsel’s affidavit “true and credible,” but this finding is immaterial because even though the habeas court believed that counsel subjectively invoked a strategy, that does not answer the question whether that strategy was objectively reasonable. See Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007) (“[A]n attorney’s cited strategy does not prevent us from determining whether a specific act or omission was ‘outside the wide range of professionally competent assistance.’”). Furthermore, although this Court ordinarily defers to findings of fact by the trial court, this Court is the ultimate fact finder in applications for writs of habeas corpus. See Ex parte Flores, 387 S.W.3d 626, 634–35 (Tex. Crim. App. 2012). I would hold that, contrary to the trial court’s determination, applicant has shown counsel’s actions fell below an objective standard of professional reasonableness.
Applying an objective standard to this case, defense counsel should have known that, under the applicable law, this evidence was inadmissible both as back-door hearsay and as a violation of applicant’s constitutional right to confront witnesses, and he should have precluded the admission of this highly prejudicial, inadmissible evidence by timely and properly objecting and by not himself introducing the evidence. See Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999); Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) (defense counsel’s misunderstanding of law governing probation eligibility constituted ineffective assistance of counsel). I would hold that counsel was objectively unreasonable in his subjective strategy to play possum while inadmissible evidence was presented to the jury.
B. Defense Counsel’s Actions Prejudiced Applicant
I conclude that absent the inadmissible evidence that Parinello’s investigation focused only on “Low Down” after talking to Dangerfield and that Dangerfield had received the complainant’s stolen property from “Low Down,” there is a reasonable probability that applicant would not have been convicted. A “reasonable probability” means one “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The elimination of Dangerfield’s identification of applicant would have left only the single eyewitness identification of a child, Erik. Although Erik was certain about the identification of applicant, he was also certain about the license-plate number, which was proven to be incorrect. The police officer who obtained the license-plate number from Erik and his brother noted that he tried multiple variations of the number and none of them were accurate according to the police computer. This heavily undermines Erik’s testimony because he was as certain about the identification of applicant as he was in the mistaken license-plate number. And absent the inadmissible evidence about “Low Down,” the jury would have been left solely with Erik’s shaky identification. The importance of Dangerfield’s hearsay statements is evident in that their admission led to the reversal of applicant’s first conviction because of their prejudicial impact on the trial.
Without Dangerfield’s statements, at best, this case comes down to the unreliable testimony of a single eyewitness, which is similar to many of the other cases that have led to the release of wrongly convicted innocent people. According to the Innocence Project, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in nearly seventy-five percent of convictions overturned through DNA testing. Furthermore, that source suggests that more than 300 innocent people have been released from prison nationwide largely due to faulty identifications. I discuss this source, not to suggest that these numbers are precisely correct, but rather to show that today’s jurors are aware of the large numbers of people who have been released from prison based on misidentification. Absent the inadmissible evidence linking applicant to the property, there is a reasonable probability that the jury, aware of the problems of misidentification, would have found the shaky identification by a single child-eyewitness an inadequate basis upon which to convict applicant.
III. Conclusion
I would hold that counsel rendered ineffective assistance by permitting the introduction of evidence that was inadmissible as back-door hearsay and violated applicant’s Confrontation rights. I respectfully dissent from the Court’s denial of this application for a writ of habeas corpus.
Filed: March 12, 2014
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