Duncan v. State

717 S.W.2d 345, 1986 Tex. Crim. App. LEXIS 790
CourtCourt of Criminal Appeals of Texas
DecidedJuly 2, 1986
Docket968-82
StatusPublished
Cited by36 cases

This text of 717 S.W.2d 345 (Duncan 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
Duncan v. State, 717 S.W.2d 345, 1986 Tex. Crim. App. LEXIS 790 (Tex. 1986).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant was convicted of the offense of burglary of a habitation. Punishment was [346]*346assessed at fifty years’ confinement. On direct appeal to the Corpus Christi Court of Appeals, appellant argued that he had received ineffective assistance of counsel at trial. In a published opinion, the Court of Appeals rejected this contention and affirmed appellant’s conviction. Duncan v. State, 714 S.W.2d 15 (Tex.App. — Corpus Christi 1982).

In two grounds for review, appellant asks us to examine the Court of Appeals’ finding that he was accorded effective assistance of counsel. He argues that his trial counsel was ineffective in that he allowed the introduction of an inadmissible oral confession, he allowed the introduction of a long series of inadmissible prior offenses and acts of misconduct including some juvenile offenses, he failed to point out or argue the alibi defense produced by the State’s witnesses, and he failed to provide any defense whatsoever. We have reviewed the record in detail and find that appellant’s claims are without merit.

On the morning of August 29, 1978, the victim was leaving her motel room in Kingsville around 6:50 a.m. As she left her room, she was grabbed by the appellant, who poked a sharp object into her side and forced her back into her motel room. The appellant then raped the victim and robbed her of approximately $100.00. On the basis of the witness’ description, appellant was arrested several hours after the offense.

A review of the trial record indicates that appellant is correct in his assertions that an inadmissible oral confession was admitted into evidence as well as a number of extraneous offenses. Appellant is also correct that counsel failed to develop any kind of alibi defense. However, it is also apparent from the record that this trial strategy was followed against counsel’s advice and at the insistence of appellant himself. Appellant did not wish to contest his guilt (although he did plead not guilty). Rather he wished for the jury to think of him as a sexually frustrated young man, suffering from immense emotional problems who had had a life of crime and drug abuse but who was now asking for a chance for rehabilitation. This strategy included appellant taking the witness stand during the punishment phase of the trial against the advice of counsel, furnishing counsel with a list of questions and areas to delve into upon direct examination, with the end result being appellant himself confessing his guilt to the instant offense and testifying to most of the extraneous offenses about which he now complains. This strategy is clearly pointed out in appellant’s own testimony on his motion for new trial.

(Questioning by defense counsel)

“Q. In this case, Mr. Mettey, in your first ground in your motion for new trial, there is alleged that you were denied effective assistance of counsel in that you yourself insisted in bringing out aspects, over my objection, of your past, which were prejudicial to you. Could you describe to us your condition, your reasoning for doing so?
“A. Well, I was confused. The only thing I could think of was I wanted to get up here and tell things like it was. . I didn’t — I didn’t allow anything, I guess, if you said to negative side of taking the stand having effect on me.
“Q. Although you were aware that saying such things might worsen your position? Were you aware—
“A. Not really. Like I said, I wasn’t even thinking about that, I didn’t let it—
“Q. In fact, you insisted on it?
“A. Taking the stand?
“Q. On taking the stand?
“A. Yes.
“Q. To tell your story, to have your day in Court without regard to the consequences?
“A. Yes, sir.
“Q. Is that true?
“A. Yes.
[[Image here]]
“Q, In our conversation prior to trial, you were advised of my negotiation with the State?
“A. Yes.
[347]*347“Q. And of my recommendation to you?
“A. Yes.
“Q. And you refused that recommendation?
“A. Yes.
“Q. -Although it was, and I believe in your own words, probably the best thing to do, you wanted your day in Court?
“A. Yes, sir?
“Q. Why was that? Had you previously been denied appearance or opportunity?
“A. The time in Florida I never had a chance to say anything. They gave me a deal to plead guilty to probation and it turned out otherwise and I just got it in the longrun (sic).
“Q. And, in fact, you insisted on appearing?
“A. Yes.
“Q. And on going to the Jury so that you could express to the Jury the things you wanted to tell them?
“A. Yes.
“Q. And you decided those things yourself—
“A. Yes.
“Q. —what you describe to the Jury?”

On cross-examination, appellant testified as follows:

“Q. Isn’t it a fact that, Mr. Mettey, in your considered opinion, you thought it would be best to get up and put your whole life before this Jury, tell them everything, give the Jury the impression that, here, I’m telling you everything, we get it all out in the open, and ask for your mercy, this is what your thinking was, wasn’t it?
“A. Yes, sir. I figured about time I started telling people the truth about things, opening up instead of hiding things.
[[Image here]]
“Q. So you would feel better about it. This was a personal feeling of yours and you therefore ignored the advice of your attorney and went ahead and did it so you would feel better about the whole thing, making a clean breast of your whole life, didn’t you?
“A. Right.
“Q. Isn’t that what it amounts to?
“A. Right.
[[Image here]]
“Q. You understood what your attorney was telling you, didn’t you?
“A. More or less.
“Q. You knew his advice not to get on the stand but you wanted to tell your story, isn’t that right?
“A. Yes.”

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Bluebook (online)
717 S.W.2d 345, 1986 Tex. Crim. App. LEXIS 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-state-texcrimapp-1986.