Derrick v. State

773 S.W.2d 271, 1989 Tex. Crim. App. LEXIS 37, 1989 WL 16463
CourtCourt of Criminal Appeals of Texas
DecidedMarch 1, 1989
Docket68969
StatusPublished
Cited by23 cases

This text of 773 S.W.2d 271 (Derrick v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derrick v. State, 773 S.W.2d 271, 1989 Tex. Crim. App. LEXIS 37, 1989 WL 16463 (Tex. 1989).

Opinions

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.

The appellant was convicted of intentionally causing the death of Edward Sonnier in the course of committing and attempting to commit the offense of robbery. In eight related points of error, appellant argues that he was denied effective assistance of counsel. In points of error one and two, appellant argues that his trial counsel failed to object to an improper hypothetical scenario used by the State during voir dire. In points of error three through six, appellant argues that trial counsel allowed the State to misstate the law in such a way as to create reasons for excusing five potential jurors for cause. Point of error seven argues that unspecified procedural defaults by trial counsel prejudiced appellant. And, in his eighth point of error, appellant argues that trial counsel was ineffective because he opened the door to introduction of prejudicial evidence by the State. We will affirm appellant’s conviction.

Appellant does not argue the evidence at trial was insufficient; therefore, only a brief recitation of the facts is necessary. On October 11, 1980, the nude body of Edward Sonnier was discovered in the bedroom of his Houston apartment. His throat had been cut, and his chest and back were penetrated by approximately fifteen deep stab wounds, any one of which could have been fatal. Five days later, Sonnier’s car was discovered in Buna, Texas, stripped and abandoned. A police investigation eventually led to the arrest of Marshall Derrick, appellant’s brother, in August of 1981. At the time of Marshall’s arrest, appellant was serving a sentence in the Texas Department of Corrections on an unrelated conviction. Marshall’s wife wrote to appellant and told him of his brother’s arrest. Appellant wrote to the Harris County District Attoney’s office, confessing that he, and not Marshall, was responsible for the murder and robbery. Houston homicide detectives interviewed appellant and obtained a number of confessions to the crime. Further investigation substantiated appellant's statements.

The proper standard for reviewing appellant’s claim of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Cr.App.[273]*2731986) (adopting the Strickland test for ineffective assistance of counsel claims under the Texas Constitution). In order to reverse a conviction for ineffective assistance of counsel, we must find that an appellant has shown: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Hernandez, supra at 55 (quoting from Strickland, supra).

In his first two points of error, appellant complains of his trial counsel’s failure to object to a hypothetical used by the State during voir dire. The prosecutor posited a situation in which a person robs someone and then kills the victim. Under this scenario, the prosecutor would suggest to a juror that such conduct would be both “intentional,” within the meaning of V.T.C.A. Penal Code, § 19.02(a)(1), and “deliberate,” within the meaning of Art. 37.071(b)(1) V.A.C.C.P. Next, the prosecutor would introduce a hypothetical “getaway driver.” The prosecutor would explain how party culpability could be applied to the driver to make him responsible for “intentionally” killing the victim, although the driver would not have “deliberately” killed him. Appellant does not argue that this hypothetical misstated the law. C.f. Lane v. State, 743 S.W.2d 617 (Tex.Cr.App.1987). Instead, appellant asserts that because the issue of party liability, as expressed in the hypothetical, was not present in appellant’s case, the hypothetical had the potential of confusing or prejudicing the jury to appellant’s detriment.

In support of the contention that the State’s repeated reliance on this hypothetical was error, appellant cites Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980). Contrary to appellant’s characterization of Esquivel, [prohibiting a defense attorney from voir diring a juror on his understanding of the terms “deliberate” and “intentional,”] that case merely holds that it was not an abuse of discretion for a trial judge to disallow voir dire on this issue. Id. at 525. Appellant cites no other authority for the proposition that it would be error to allow this hypothetical to be presented to a venireman.

Appellant does, however, argue that a juror might have been lead to believe that a finding of intentional conduct will inevitably lead to a finding of deliberate conduct in all cases except those closely matching the “wheel-man/trigger-man” hypothetical. We reject this contention. Nothing that the prosecutor said indicated that his hypothetical scenario exhausted the distinction between intentional and deliberate conduct. Absent even a hint from the prosecutor to the jury that it should automatically answer the first special issue affirmatively, we will not assume that the jury made this unjustified inferential leap. Appellant’s counsel could well have made a tactical decision to refrain from alienating a venireman [by objecting to the hypothetical], knowing that there was no firm legal basis on which to object and that the prejudicial effect of the hypothetical was, at best, speculative. Appellant’s attorney may have hoped to gain greater latitude in the scope of his voir dire by allowing the State to use the hypothetical. Finally, by listening to the jurors’ responses to the hypothetical, appellant may have received information and insight useful in the exercise of his peremptory challenges.1 This Court will not use hindsight to second guess a tactical decision made by a trial attorney which does not fall below the objective standard of reasonableness. Butler v. State, 716 S.W.2d 48, 54 (Tex.Cr.App.1986). We find that allegations made in points of error one and two do not satisfy the first prong of the Strickland test; consequently, these points of error are overruled.

In points of error three through six, grouped by appellant, appellant argues that his trial attorney allowed the prosecu[274]*274tor to misstate certain constitutional rights granted to the appellant in such a way to allow the State to “manufacture” grounds for excusing veniremen Ramirez, Philio, Sherrod, Daniels, and Wells for cause, thus effectively providing the State with an additional five peremptory challenges. Appellant does not argue that this procedure constituted prosecutorial misconduct nor does he claim as error the trial judge’s exclusion of any of the venireman.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Desmond Ledet v. State
Court of Appeals of Texas, 2013
Frank Leon Farmacka v. State
Court of Appeals of Texas, 2007
Hernandez v. State
988 S.W.2d 770 (Court of Criminal Appeals of Texas, 1999)
Taylor v. State
947 S.W.2d 698 (Court of Appeals of Texas, 1997)
Chambers v. State
903 S.W.2d 21 (Court of Criminal Appeals of Texas, 1995)
Motley v. Collins
3 F.3d 781 (Fifth Circuit, 1993)
McFarland v. State
845 S.W.2d 824 (Court of Criminal Appeals of Texas, 1992)
Miniel v. State
831 S.W.2d 310 (Court of Criminal Appeals of Texas, 1992)
Black v. State
816 S.W.2d 350 (Court of Criminal Appeals of Texas, 1991)
Gentry v. State
806 P.2d 1269 (Wyoming Supreme Court, 1991)
Francis v. State
801 S.W.2d 548 (Court of Appeals of Texas, 1990)
Derrick v. Collins
741 F. Supp. 126 (S.D. Texas, 1990)
Solis v. State
792 S.W.2d 95 (Court of Criminal Appeals of Texas, 1990)
Toney v. State
783 S.W.2d 740 (Court of Appeals of Texas, 1990)
Russeau v. State
785 S.W.2d 387 (Court of Criminal Appeals of Texas, 1990)
Lavigne v. State
782 S.W.2d 253 (Court of Appeals of Texas, 1989)
Martinez-Villareal v. Arizona
493 U.S. 874 (Supreme Court, 1989)
Derrick v. State
773 S.W.2d 271 (Court of Criminal Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
773 S.W.2d 271, 1989 Tex. Crim. App. LEXIS 37, 1989 WL 16463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derrick-v-state-texcrimapp-1989.