Jackson v. State

766 S.W.2d 504, 1985 Tex. Crim. App. LEXIS 1414, 1985 WL 8

• Court: Court of Criminal Appeals of Texas
• Decided: July 24, 1985
• Docket: 115-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction for delivery of heroin, a first degree felony. See Art. 4476-15, § 4.03(b), V.A.C.S. Punishment, enhanced by proof of a prior felony conviction, was assessed by the jury at twenty-five years confinement in the Texas Department of Corrections.

This appeal arises from appellant’s second trial for the same offense. At the first trial, appellant was convicted of delivery of heroin, found to be a repeat offender, and punishment was assessed by the court at the statutory minimum allowable upon proof of a prior felony conviction, fifteen years confinement in the Texas Department of Corrections. See V.T.C.A. Penal Code, § 12.42(c). Pursuant to former Art. 40.09(12), V.A.C.C.P., however, the trial court subsequently granted appellant a new trial.

In January, 1981, appellant was retried and again convicted of delivery of heroin. Appellant pled true to the enhancement allegation and elected to have the jury assess punishment pursuant to Art. 37.07, § 2(b)(2), V.A.C.C.P. Punishment, enhanced by proof of a prior felony conviction, was assessed by the jury at twenty-five years confinement in the Texas Department of Corrections.

On direct appeal, appellant attacked the sufficiency of the evidence and, in three grounds of error, alleged trial counsel had rendered ineffective assistance. On June 30,1982, the San Antonio Court of Appeals held that the evidence was sufficient to sustain the conviction, but abated the appeal in order that an evidentiary hearing might be held to develop facts regarding appellant’s first ground of error. Jackson v. State, 640 S.W.2d 323 (Tex.App.=—San Antonio 1982, pet. ref’d.). Appellant’s first ground of error alleged that trial counsel had rendered ineffective assistance by failing to sufficiently advise him as to the consequences of electing to have the jury assess punishment.

On August 26,1983, an evidentiary hearing was held, developing facts germane to appellant’s claim of ineffective assistance. The instructions from the court of appeals, as read to the parties by the trial judge, were:

“A hearing should be conducted in the trial Court to establish whether objective information could have been made [sic] to the trial court which might have resulted in the imposition of a more severe punishment than the 15 years assessed at the first trial, and thereby determine whether there was a reasonable basis for trial counsel’s action.” [Emphasis supplied]

The State had full opportunity at that hearing to present all “objective information” it could, including a continuance to bring an additional witness.

On November 9, 1983, with one justice dissenting as to the remedy, the San Antonio Court of Appeals held that appellant’s trial counsel had rendered ineffective assistance of counsel and reversed the conviction. Jackson v. State, 662 S.W.2d 74 (Tex.App.—San Antonio 1983). The court of appeals noted that because appellant was sentenced by the court at his first trial, absent objective information concerning identifiable conduct on the part of the appellant occurring after the time of the original sentence, the trial judge could not impose a more severe sentence than the minimum of 15 years under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. By electing to have the jury assess punishment, however, appellant exposed himself to the full range of punishment applicable to a repeat offender (15 to 99 years, or life). See Chaffin v. Stynchcombe, 412 , 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). Upon reviewing the record of the evidentiary hearing, the court of appeals held that there was no objective information concerning identifiable conduct of the appellant which would have allowed the trial judge to impose a more severe sentence; that appellant’s trial counsel failed to sufficiently advise him as to the consequences of electing to have the jury assess punishment; and that, even though effectiveness of counsel is to be judged by the totality of the representation, this single error so permeated the proceedings that appellant’s counsel was ineffective as a matter of law.

We granted the State’s petition for discretionary review to examine the court of appeals’ holding that a single error may constitute ineffective assistance as a matter of law and to review the State’s contention that there was a tactical reason for appellant’s election because there existed objective information of identifiable conduct by appellant occurring after his first trial sufficient to authorize a more severe sentence by the trial judge. We affirm the decision of the court of appeals.

In North Carolina v. Pearce, supra, a defendant, whose conviction was reversed on appeal, received a longer sentence from a judge on retrial than that originally imposed by a judge in the first trial. The Supreme Court held that it would be a violation of the Due Process Clause of the Fourteenth Amendment for a trial court to impose a harsher sentence upon a recon-victed defendant for the explicit purpose of punishing a defendant for successfully attacking his original conviction. Noting the difficulty in proving a retaliatory motive and actual vindictiveness in any given case, the Court found it necessary to establish a prophylactic rule to protect a defendant from the reasonable apprehension of vindictiveness that could deter him from appealing his conviction:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” (Footnote ommitted.)

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

Id., 395 U.S. at 725-26, 89 S.Ct. at 2080-81. Since its inception, this Court has frequently applied the doctrine of Pearce. Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1976); Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975); Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971).¹ See also, Palm v. State, 656 S.W.2d 429 (Tex.Cr.App.1981).

In Chaffin v. Stynchcombe, supra, the Supreme Court reaffirmed the doctrine of Pearce where the punishment on retrial is assessed by the judge, but held that a higher punishment assessed by a jury at a second trial does not “offend the Due Process Clause so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness.” Id., 412 U.S. at 35, 93 S.Ct. at 1987. Both before and after Chaffin this Court has reached the same result. Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974); Atkins v. State, 515 S.W.2d 904 (Tex.Cr.App.1974); Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Fuery v. State, 464 S.W.2d 666 (Tex.Cr.App.1971); Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970); Gibson v. State, 448 S.W.2d 481 (Tex.Cr.App.1970); Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969).

Applying these constitutional principles to the case at bar, certain important considerations arise applicable to the punishment phase of appellant’s trial. Under the presumption of vindictiveness established in Pearce, supra, if appellant elected to have the trial judge assess punishment on retrial, the maximum he could receive would be fifteen years confinement absent “objective information concerning identifiable conduct on the part of the [appellant] occurring after the time of the original sentencing proceeding.” Under the rationale of Chaffin, supra, if appellant elected to have the jury assess punishment on retrial, upon proof of a prior felony conviction, the absolute minimum punishment he could receive would be fifteen years confinement under V.T.C.A. Penal Code, § 12.42(c), yet he would be exposing himself to possible confinement for life, or a term of not more than 99 years. Thus, absent identifiable conduct by appellant occurring after his original sentence, the minimum punishment which the jury could have imposed was the maximum punishment the trial court could have imposed. Appellant asserts that his trial counsel rendered ineffective assistance because he failed to sufficiently advise him of the consequences of electing to have the jury assess punishment. We agree.

At the evidentiary hearing held pursuant to the order of the court of appeals, appellant testified that, after he had been granted a new trial, he had heard from another inmate “that one of them [the judge or jury] would have to, if they was [sic] to find me guilty again, that one of them couldn’t give me more time than that I had ... I forgot which one it was, and that’s what made me ask my attorney.” Appellant testified that he asked his attorney about this subject on more than one occasion, both before and during trial. Appellant testified that his attorney responded that he didn’t know which one could give increased punishment, but that he would check on it. According to appellant, his attorney advised him to elect the jury for punishment because the trial judge was new and was trying to make a name for himself. Appellant testified that he elected the jury for punishment because his attorney advised him to go to the jury because the judge was new.

Appellant’s trial counsel testified at the evidentiary hearing. He denied having discussions with appellant regarding whether the judge or the jury would be bound by the prior punishment. Appellant’s counsel testified that the decision to have the jury assess punishment came about as follows:

“Q. Okay. How did the conversation come about; do you remember?

“A. Before we started the trial we had to make an election as required, and we discussed it back and forth as to what would be the best way to go.. And at that time the decision was made to go to the jury.

“Q. Did you advise Mr. Jackson to go to the jury specifically?

“A. Specifically, no. I remember discussing it with him. If I recall, it was during the time of the Judge’s election campaign, and I believe we discussed the fact that the Judge would be harsher on him, perhaps, than the jury would, and because of headlines, and what have you, that would arise out of the trial. And the decision was made to go to the jury.

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“Q. Okay. Did you at any time — do you remember telling Mr. Jackson that you didn’t know which it would be better to go to for sentencing? In other words, did you feel confident with your suggestion to go to the jury?

“A. Yes.

“Q. Why did you recommend going to the jury?

“A. I just explained it.

“Q. For the election reasons?

“A. Yes.

“Q. Can you think of any other reason why you would have advised him to go to the jury?

“A. No.

“Q. Did Mr. Jackson ever mention to you that he had heard that Judge Barrera had a reputation for handing out heavy sentencing because he was trying to make a name for himself?

“A. It was discussed at that time.” (Emphasis added.)

The judge presiding at appellant’s second trial also testified at the evidentiary hearing. He testified that since appellant elected the jury to assess punishment, he never received a presentence investigation report and that, although he knew appellant had a prior criminal record, he did not know the extent of the record, nor did he recall being made aware of any arrests of appellant between the two trials. The trial judge recalled a discussion occurring before the bench by appellant, his attorney, and the prosecutor regarding appellant’s election at the time of trial, and it was his “impression that for whatever reason, [appellant] did not want the Court to assess punishment in this case but the jury.” (Emphasis added.)

The standard of “reasonably effective assistance of counsel” is used to test the adequacy of representation afforded an accused by retained as well as appointed counsel when the performance is to be judged by the Sixth Amendment right to assistance of counsel made applicable to the states by the Fourteenth Amendment and by the “right to be heard” provision of Article I, Section 10, Bill of Rights, Constitution of Texas. Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). Fully stated, the standard for effective counsel is “counsel reasonably likely to render and rendering reasonably effective assistance.” Id. at n. 14, quoting MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960). In applying this standard, the adequacy of counsel’s service on behalf of an accused must be gauged by the totality of the representation. Ex parte Raborn, 658 S.W.2d 602 (Tex.Cr.App.1983); Archie v. State, 615 S.W.2d 762 (Tex.Cr.App.1981). Thus, the constitutional right to counsel does not mean errorless counsel. Ex parte Robinson, 639 S.W.2d 953 (Tex.Cr.App.1982); Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981).

In the case at bar the court of appeals concluded, from the facts that were adduced in the trial court, that appellant’s counsel’s failure to correctly advise appellant of the consequences of electing the jury instead of the judge to assess punishment caused the appellant to be denied effective assistance of counsel as a matter of law.

As this case demonstrates, whether counsel has rendered reasonably effective assistance of counsel is a mixed question of law and fact. See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674, 700 (1984). Of necessity, a claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case. Ex parte Raborn, supra; Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977). While we hesitate to designate any error as per se ineffective assistance of counsel as a matter of law (and we therefore retreat from any such inference in the language employed by the court of appeals), we hold that the record supports the result the court of appeals reached; that the single error of omission by appellant’s counsel constituted ineffective assistance.

We have recognized the very practical consideration that the criminal defense lawyer controls the progress of a case while the client confronts only three personal decisions: his plea to the charge, whether to be tried by a jury, and whether to testify on his own behalf. See Burnett v. State, 642 S.W.2d 765, n. 8 (Tex.Cr.App.1982). Clearly, the Art. 37.07, § 2(b)(2) election is a choice belonging to the defendant, encompassed within the personal decision of whether to be tried by a jury.²

In Ex parte Dunham, 650 S.W.2d 825 (Tex.Cr.App.1983), we considered a claim of ineffective assistance of counsel based upon an attorney’s advice persuading an accused to waive his right to jury trial in order to avoid preparing for voir dire. Among the factors considered in assessing this claim were: (1) whether advice was given which would promote an understanding of the law in relation to the facts, (2) whether the advice was reasonably competent, and (3) whether the advice permits an informed and conscious choice. In Dun-ham, supra, we sustained the contentions of ineffective assistance noting:

"... Applicant’s counsel convinced applicant to waive his right to a jury trial, even though such a waiver would not be advantageous to the applicant in any way, and would probably be sure to be disadvantageous. It is clear that applicant was not given competent advice and thus applicant was prevented from making an informed and conscious choice regarding his right to a jury trial.”

We believe this analysis should also apply to the very valuable statutory right of election under Art. 37.07, § 2(b)(2), V.A. C.C.P. For the Texas statutory right of election to be meaningful, it must be an informed decision, intelligently made, with full knowledge of the circumstances, options, and consequences. The impact of Pearce, supra, is certainly relevant to an informed and conscious choice regarding appellant’s right of election on retrial.

A criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance to his client. Ex parte Lilly, 656 S.W.2d 490 (Tex.Cr.App.1983); Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982); Ex parte Duffy, supra. The responsibility of having a firm command of the facts of the case as well as governing law in order to assist and advise one criminally accused is not one placed on the State. See Wooldridge v. State, 653 S.W.2d 811, n. 7 (Tex.Cr.App.1983). See also Ex parte Duffy, supra. We must, therefore, charge appellant’s attorney with knowledge of the constitutional principles applicable to punishment on retrial and the duty to advise appellant of the impact and consequences of electing to have the jury assess punishment in this case.

Appellant’s attorney did advise him about the punishment attitudes and reputation of the trial judge in this case, a very important factor to consider in the election decision. The record clearly shows, however, that appellant’s attorney failed to advise him regarding the prophylactic protections of Pearce applicable to the trial judge and the contrasting wide open punishment discretion vested in the jury.³ Thus, the advice did not promote an understanding of the law in relation to the facts and the advice did not permit an informed and conscious choice.⁴ As a result, appellant made a decision which resulted in a sentence ten years greater than he would have received had he gone to the court for punishment. Considering the court of appeals’ finding that there was no objective information concerning identifiable conduct of the accused between the two trials and that, therefore, the trial judge was locked into giving the minimum sentence of 15 years, there is more than a reasonable probability that, but for counsel’s advice, the result of the proceedings would have been different (i.e. the sentence would have been 10 years less). Strickland, supra at 694, 104 S.Ct. at 2068.⁵

We have held that an accused may be denied effective assistance of counsel because of errors occurring solely in the punishment phase of trial. See Ex parte Scott, 581 S.W.2d 181 (Tex.Cr.App.1979) (failure to investigate the circumstances underlying convictions used for enhancement). See also, Vela v. Estelle, 708 F.2d 954 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). We have also recognized that, as a practical matter, some isolated omissions may so affect the outcome of a particular case as to undermine the reliability of the proceedings. See May v. State, 722 S.W.2d 699 (Tex.Cr.App.1984) (failure to have defendant’s application for probation sworn). See also, Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir.1979) (“Sometimes a single error is so substantial that it alone causes the attorney’s assistance to fall below the sixth amendment standard.”). In this case, we must agree with the court of appeals that the failure of appellant’s attorney to sufficiently advise him as to the consequences of electing to have the jury assess punishment permeated the entire proceeding and rendered counsel’s assistance ineffective.⁶

As the court of appeals held, since the jury assessed punishment, upon reversal the proper remedy is to remand for a new trial. Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977), rev’d on other grounds, 665 F.2d 1347 (5th Cir.1982), vacated, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983).⁷

The judgment of the court of appeals is affirmed,

WHITE, J., not participating.

1 . Recently, in McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1984) (Opinion on Rehearing), cert. granted 472 U.S. 1007, 105 S.Ct. 2699, 86 L.Ed.2d 716 (1985), we reaffirmed our decision in Miller, supra, holding that the presumption of vindictiveness established by Pearce, when a greater sentence is imposed following retrial, is applicable where a jury assesses punishment at the first trial, and a judge assesses punishment upon retrial.

2 . Article 37.07, § 2(b), V.A.C.C.P., provides in pertinent part:

"(b) Except as provided in Article 37.071 [Procedure in Capital Case], if a Ending of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided however, that... (2) in ... cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury." (Emphasis added.)

3 . The dissent complains about the non-final decision of this Court in Castleberry v. State, 704 S.W.2d 21 (Tex.Cr.App., No. 166-83, delivered July 18, 1984), and its relationship to the Pearce holding. The unique facts and limited holding of Castleberry do not control the instant case. In Castleberry, the defendant wrote a letter to the trial judge six days after his conviction complaining he had gotten a "bad deal.” In the instant case, appellate briefs had been filed before the trial court granted a new trial. Certainly, under our former appellate procedure, if the trial court granted a new trial after the filing of appellate briefs, Pearce has application. See Art. 40.09, § 12, V.A.C.C.P. (1965) (The record on appeal — trial court’s duty). In any event, Castleberry is pending rehearing and as such is not yet authoratative.

The court of appeals in this case held that counsel's error demonstrated an “obvious lack of knowledge of the applicable legal principles governing punishment on retrial." Nothing in this record rebuts that conclusion. The dissent’s suggestion that counsel may have interpreted Pearce as applicable only to reversals upon appeal by a higher court is surprising in light of the dissenter’s strong belief in staying within the record.

4 . The State asserts, and the dissent as much as argues, that inasmuch as the record reflects appellant had been arrested for theft subsequent to his first sentencing proceeding, the trial judge was not bound by Pearce and electing the jury was the result of trial strategy. We need not consider today the State's contention that an arrest is "identifiable conduct" within the meaning of Pearce, nor do we consider whether an arrest is an “event” within the meaning of Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), sufficient to overcome the presumption of vindictiveness and justify an increased sentence. The relevant inquiry here is whether appellant’s attorney counseled him on these matters and gave him advice which was the product of trial strategy. The record, including the State’s complete cross examination of appellant, his attorney, and the trial judge at the evidentiary hearing ordered by the court of appeals, clearly indicates that nothing except "the [judge’s] election reasons" were considered in electing the jury in this case. See also footnote 5.

5 . The dissent surprisingly ignores the record of the hearing ordered by the court of appeals in a paragraph beginning: "Turning to the objective information about identifiable conduct on the part of the appellant after the time of the original sentencing, ...’’. The hearing, ordered specifically to develop such evidence if it existed, revealed none. After review of the evidentiary hearing, ordered to establish whether appellant engaged in intervening identifiable conduct, the court of appeals held there was no identifiable conduct by appellant which would have allowed increased punishment by the trial court. That this holding is correct cannot seriously be disputed. The dissent would point to "evidence" in the record that appellant failed to appear for a trial setting and was surrendered by the sureties on his bond. We decline to elevate same to the status of “evidence” because same were never developed as a factual matter at appellant’s trial or at the evidentiary hearing ordered by the court of appeals. Nor has this “evidence" been alleged or briefed as identifiable conduct before the court of appeals, or before this Court on the State's petition for discretionary review, either by the locally affected district attorney or the State’s prosecuting attorney. As is obvious from the record, the parties to this protracted litigation do not rely upon this "evidence’ as identifiable conduct. Likewise, the evidentiary value of appellant’s arrest, as it bears upon the issue of identifiable conduct, is nil. This is especially true since appellant denies committing the offense, has never been prosecuted for the crime, and no testimony was offered at the evidentiary hearing to even indicate appellant did commit the offense. Additionally, absolutely no legitimate inference can be drawn from the prosecutor’s unanswered inquiry about five arrests "for such things as aggravated assault, felony theft...,’’ because nothing in the record even supports the question. In short, any argument that appellant engaged in conduct sufficient to remove the presumption of Pearce, or was concerned that evidence of identifiable conduct might be introduced by the State at the punishment phase, is speculative, unfounded and outside the record.

6 . The dissent concludes with tin accusation that today we set the stage for a multitude of claims of ineffective assistance of counsel based on one error. The stage for reversal due to a single error of counsel, so severe in its consequenses that it permeates the entirety of his representation, has long been set. "Sometimes a single error is so substantial that it alone causes the attorney’s assistance to fall below the Sixth Amendment standard.” Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir.1979) (emphasis supplied). Last year, in May v. State, 722 S.W.2d 699 (Tex.Cr.App.1984), this Court considered "whether counsel’s failure to have [the defendant’s] motion for probation sworn to constituted ineffective assistance of counsel.” Without discussing counsel’s overall representation at trial, we noted that this error was "not the result of trial strategy” and held counsel had not rendered effective assistance of counsel. Thus, in May, a single error of omission occurring at the punishment phase of trial, for which there was no trial strategy, and which might have caused the result of the proceedings to be different (i.e., the jury might have granted probation) and therefore materially harmed the accused’s, constituted ineffective assistance of counsel. In the case at bar, a single error of omission occurring at the punishment phase of trial, for which there was no trial strategy, and which did unquestionably cause the result of the proceedings to be different (i.e., an almost two-fold increase in punishment) materially harmed the appellant, and constituted ineffective assistance of counsel.

Fortunately, history shows that single errors of such magnitude are rare. However, to ignore such a single error simply because it is single, while granting relief where multiple errors cumulatively reach the same magnitude, seems contrary to the very reasons that caused the creation of the doctrine of effective assistance of counsel.

As for the dissent’s reliance on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it is cogent to note that in outlining practical considerations for the application of its two-pronged test for ineffective assistance of counsel, the Supreme Court stated that "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” The prejudice standard, as constructed by the Supreme Court, requires that:

“The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

104 S.Ct. at 2068.

Can it be said that appellant has failed to demonstrate prejudice? Is not counsel’s error the "but for” cause of appellant’s increased punishment? Are we confident in the outcome of the proceedings?

The sockdolager is simply this:

“[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results."

104 S.Ct. at 2069.

7 . In a supplemental brief to the State’s petition, the State's attorney argues that since the election decision belongs solely to the appellant, he could simply elect to have the jury assess punishment in the event of further retrial, and if assessed punishment in excess of fifteen years, could again allege ineffective assistance of counsel and obtain still another reversal. We disagree. While it is true that the Art. 37.07, § 2(b)(2) election decision belongs solely to the accused, the relevant inquiry is whether he makes an informed and intelligent choice with knowledge of the relevant factors. As noted above, we reject the notion of "automatic” ineffective assistance of counsel. In this vein we note, however, that a careful counsel or trial judge should ensure that the record reflects an accused’s awareness of the exposure to greater punishment on retrial if the jury is elected.