Jaubert v. State

MEYERS, J.,

filed a dissenting opinion.

DISSENTING OPINION

In accordance with Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App.1999), the majority applies Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to determine whether applicant’s counsel rendered effective assistance at the punishment phase of his trial. I dissent because Strickland can have no meaningful application in noncapital sentencing proceedings, and Hernandez is, therefore, unworkable. Hernandez should be overruled in favor of the standard we articulated in Ex -parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980).10

At bottom, the problem with applying Strickland in the context of noncapital sentencing proceedings, and hence, the problem with Hernandez, is that sentencing in a noncapital case is philosophically and procedurally distinct from the guilt/innocence and capital sentencing proceedings to which the Supreme Court originally applied its two-prong test. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. The Court explained the distinction thus:

We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and stan-dardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision ... that counsel’s role in the proceeding is comparable to counsel’s role at trial — to ensure that the adversarial testing process works to produce a just result under the standards governing decision.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (citations omitted).11

*17That “ordinary,” noncapital sentencing proceedings are distinct from capital sentencing proceedings is certainly borne out in Texas law. For example, under our capital sentencing scheme, the sufficiency of the evidence supporting a finding of future dangerousness is judged by the standard of beyond a reasonable doubt, the same inquiry that we employ in judging the legal sufficiency of evidence supporting a conviction. We do not measure the legal sufficiency of the evidence supporting a noncapital sentence, because noncapital sentencing takes place within a range of punishment. Therefore, although there must be a certain measure of correspondence between the punishment imposed and the legal sufficiency of the evidence in a capital sentencing, Texas law does not require the same correspondence in a non-capital sentencing. In addition, in the punishment phase of a noncapital trial, the court may admit evidence on “any matter the court deems relevant to sentencing.” Tex.Code Crim. Proc. art. 37.07 § 3(a). While the language governing admissibility of evidence in the punishment phase of a capital trial is of similar effect, it is not as broad as that governing admissibility in the noncapital sentencing context. See Tex.Code Crim. Proc. art. 37.071 § 2(a). Moreover, capital sentencing proceedings are unique in that, as a matter of federal constitutional law, the jury’s discretion may not be unfettered or unguided. See Penry v. Lynaugh, 492 U.S. 302, 327-28, 109 S.Ct. 2934, 2951-52, 106 L.Ed.2d 256 (1989).

The distinction initially seized upon by the Supreme Court in Strickland stems directly from the manner in which the Court defined prejudice. Specifically, to make out a showing that he has been prejudiced by counsel’s deficiencies, a defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. at 2068. In the context of a conviction or death sentence, this analysis may realistically be implemented. As the Supreme Court explained:

When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer.... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

466 U.S. at 695, 104 S.Ct. at 2068-69. However, the Strickland prejudice analysis defies application in the context of a noncapital sentencing proceeding because the considerations that inform the factfin-*18der’s determination in a noncapital sentencing proceeding transcend the outcome-oriented analysis of the Strickland prejudice prong.

Factfinding is an inherently subjective process. This is particularly true in the sentencing context, where the bases for decision making are moral and ethical more than they are scientific or concrete. However, capital sentencing proceedings resemble the guilt/innoeence portion of a trial in that they are formalized and there is only one outcome to review: the imposition or non-imposition of a death sentence. In the context of noncapital sentencing, the factfinder weighs subjective considerations and arrives at a sentence that may be configured in an endless variety of ways. So in applying Strickland, what outcome is a court to evaluate in determining whether a defendant was prejudiced? Do we look to whether the defendant was sentenced to imprisonment rather than community supervision, as we are asked to do in this application? Do we simply decide whether a defendant would have been punished less severely had his counsel rendered effective assistance, as the court did in Milburn v. State, 15 S.W.3d 267, 270, 271 (Tex.App.-Houston [14th Dist.]), pet refd (applying Strickland’s prejudice prong to an ineffective assistance of counsel claim and finding “appellant has demonstrate prejudice in this case, even though it is sheer speculation that character witnesses in mitigation would have in fact favorably influenced the jury’s assessment of punishment”) (citation omitted)? Indeed, is it ever possible for an applicant to make out a successful claim that the “outcome” of his case would have been different if “outcome” can be defined in an infinite variety of ways?

I contend that it is not possible under current law. As this case illustrates, there is simply no way to know what factors led the judge to deny community supervision, or to what extent applicant’s sentence would have had to be impacted to demonstrate “prejudice.”

Finally, I dissent to the result that the majority reaches because counsel in this instance did not render reasonably effective assistance. Applicant complains of trial counsel’s failure to call two additional punishment witnesses. The majority holds that such failure does not equate to deficient performance by trial counsel. Ex parte Miller, No. 74,211, slip op. at 3-4 (Tex.Crim.App. March 20, 2002). In this regard, the majority explains that counsel decided the testimony of the four witnesses he called at punishment would be sufficient to support applicant’s request for community supervision and holds “we do not conclude that counsel’s conduct cannot be considered sound trial strategy.” Id. at 4. This conclusion, as well as the majority’s assertion that “[cjounsel cannot give a reason and then conclude he had no reason” both suffer from the mistaken assumption that any reason is a constitutionally acceptable reason, and. that while the “distorting effects of hindsight” may not be used to unnecessarily castigate defense counsel, they may always be used to benefit the prosecution. Here, hindsight protects .the integrity of applicant’s sentence despite testimony from counsel himself that he had no strategic reason for failing to call the witnesses. See id. at 2, n. 2. In this case, applicant entered an open plea of guilty and threw himself on the mercy of the trial court for punishment. By failing to call the police officer to whom applicant confessed and the psychotherapist who later examined him, counsel deprived applicant of a meaningful opportunity to present his sole defense.12 The psyeho-*19therapist and the officer were the only witnesses that would have enabled applicant to demonstrate that disinterested parties viewed him worthy of community supervision. Accordingly, I dissent to the majority’s reasoning and result.

. This Court has expressed a willingness to overrule case law that is unworkable or inconsistent. See Medrano v. State, 67 S.W.3d 892, 901-902 (Tex.Crim.App. 2002) (Meyers, J., not participating); Standefer v. State, 59 S.W.3d 177, 180-81 (Tex.Crim.App.2001); Hernandez, 988 S.W.2d at 772; Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

. When the Court in Hernandez overruled the Duffy standard of "reasonably effective assistance of counsel” and replaced it with *17the two-prong Strickland test, it predicated its decision on the notion that the Duffy standard was inconsistent with federal constitutional law and, therefore, the Court had "no choice” but to overrule Duffy. Hernandez, 988 S.W.2d at 771. To the extent that the Supreme Court has spoken to the issue, it has continually emphasized the unique correlation between capital sentencing proceedings and the guilt/innocence portion of a trial. See Monge v. California, 524 U.S. 721, 731-32, 118 S.Ct. 2246, 2252, 141 L.Ed.2d 615 (1998) ("[t]he penalty phase of a capital trial is undertaken to assess the gravity of a particular offense and to determine whether it warrants the ultimate punishment; it is in many respects a continuation of the trial on guilt or innocence of capital murder"); see also Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948, 955, 127 L.Ed.2d 236 (1994) (noting that Strickland "left open the question whether the [.Strickland} test would apply to noncapital cases”).

. Denial of this opportunity alone demonstrates applicant was prejudiced by counsel’s *19shortcomings.