Albert Foley, Jr. v. State

Opinion

NUMBER 13-09-00473-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ALBERT FOLEY, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 329th District Court of Wharton County, Texas. ____________________________________________________________

CONCURRING MEMORANDUM OPINION

Before Justices Yañez, Garza, and Benavides Concurring Memorandum Opinion by Justice Yañez

Although I agree with the majority=s disposition of appellant=s complaint of

ineffective assistance of counsel, I write separately to express my view regarding one of

his complaints. Accordingly, I respectfully concur with the majority=s disposition.

By a sub-issue, appellant complains that his trial counsel rendered ineffective

assistance by, among other omissions, only visiting him once in the jail before trial. Appellant=s trial counsel, Richard L. Manske, submitted an affidavit in which he states, in

relevant part, that he Amet with [his] client at least once in the jail and several times in

court when [appellant] made various appearances.@

Although the majority falls short of endorsing such a practice, it declines to find that

a trial counsel=s failure to meet with a client more than onceCnot counting during court

appearancesCconstitutes performance so deficient that it falls below an objective

standard of reasonableness.1 I disagree. Conferring with a client immediately prior to,

or during, a court appearance cannot provide the privacy and confidential circumstances

necessary to develop an effective strategy. I would therefore not presume that counsel=s

failure to meet with appellant more than onceCother than at court appearancesCfell

within the wide range of reasonable professional assistance.2

However, I agree with the majority that even assuming, as I do, that counsel=s

conduct fell below the objective standard of reasonableness, appellant failed to establish 3 that a different result would have occurred had his counsel acted differently.

Accordingly, I would overrule his issue.

LINDA REYNA YAÑEZ, Justice

Publish. TEX. R. APP. P. 47.2(b). Concurring Memorandum Opinion delivered and filed the 21st day of December, 2010.

1 See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

2 See id. at 813.

3 See id. at 812.