Jackson v. State

877 S.W.2d 768, 1994 Tex. Crim. App. LEXIS 64, 1994 WL 232373
CourtCourt of Criminal Appeals of Texas
DecidedJune 1, 1994
Docket535-93, 536-93 and 537-93
StatusPublished
Cited by2,556 cases

This text of 877 S.W.2d 768 (Jackson 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
Jackson v. State, 877 S.W.2d 768, 1994 Tex. Crim. App. LEXIS 64, 1994 WL 232373 (Tex. 1994).

Opinions

OPINION OF STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A jury found appellant, Melvin Leon Jackson, guilty of three counts of robbery. See Tex.Penal Code § 29.02(a)(2). After appellant pleaded true to two enhancement allegations, the trial court assessed punishment at 55 years imprisonment. The Thirteenth Court of Appeals reversed, holding that appellant was denied his Sixth Amendment right to the effective assistance of counsel. Jackson v. State, 850 S.W.2d 834 (Tex.App.—Corpus Christi 1993). We granted the State’s petitions for discretionary review,1 pursuant to Texas Rule of Appellate Procedure 200(c)(3), to determine whether the court of appeals erred in holding that appellant’s trial counsel was ineffective due to his failure to challenge a venire member who eventually was seated on the jury.

The evidence at appellant’s trial showed that, on three separate occasions in 1991, appellant entered a convenience store in Houston. On each occasion, appellant told the clerk he had a gun, filled a box with multiple cartons of cigarettes, and then left the store.

During voir dire, the trial judge asked the venire members whether any of them had been robbery victims. In response to the judge’s question, venire member John Supin-ski stated that he had been the victim of a robbery. Supinski elaborated:

Someone broke into my house while we were sleeping. And I had a litter of Sheep puppydogs and they stole one of them. We were not actually confronted but that break-in while we were there—

After the trial judge explained the legal difference between a robbery and a burglary, the following exchange occurred between the judge and Supinski:

THE COURT: So my question to you is, would the fact of having an assailant in your home while you were asleep, is that going to impact on your impartiality in this trial?
Supinski: I would have to say it probably would.

Appellant’s trial counsel did not challenge Supinski for cause, nor did he use a peremptory challenge against Supinski. As a result, Supinski eventually was seated on the jury, in the twelfth and last slot.

Another venire member, Helen Hartsfield, told the trial court:

I was involved in an armed robbery. I was held at gunpoint. So this is a sensitive issue for me.

The following exchange then occurred between the trial judge and Hartsfield:

THE COURT: So you’re talking about the nature of the indictment is such that you don’t feel that you would be fair in this case, though you would be fair in some other type of unrelated offense?
Hartsfield: Yes.

Appellant’s trial counsel neither peremptorily struck Hartsfield nor challenged her for cause. However, because Hartsfield was situated 29th in the array of venire members, and because of duplicate strikes by appellant’s trial counsel and the prosecutor, she missed being seated on the jury by one slot.

A third venire member, Kathleen Deltoro, told the trial court that her car had been stolen and that her father’s car had been stolen at gunpoint. In response, the trial [770]*770court asked Deltoro whether those incidents might impact her impartiality as a juror. Deltoro’s first response was equivocal. When pressed for a “yes” or “no” answer, she replied:

To be fair to [appellant], I’d have to say no then, because it was pretty recent that it happened.

Appellant’s trial counsel later questioned Deltoro about the incidents which she had related to the trial court, and asked her whether she could be fair and impartial in spite of them. Upon asking her that question, appellant’s trial counsel was reminded by the trial court that Deltoro had previously stated that she would not be able to be fair and impartial. Deltoro was later removed for cause, although the record does not indicate whether she was removed upon motion of one of the parties, or whether the trial court removed her sua sponte.

The court of appeals held that the failure of appellant’s trial counsel “to strike jurors who expressed bias that weighed against appellant, coupled with the impaneling of [Su-pinski],” rendered his assistance ineffective under the Sixth Amendment. The court of appeals cited the relevant test for determining claims of ineffective assistance, that found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After citing Strickland, however, the court of appeals stated that “[t]he thought occurs to us that perhaps we have so often used these standards to judge ineffective assistance of counsel claims that we have come to regard these as pegs to hang our hats on in our hesitance to find representation to be ineffective.” Jackson v. State, 850 S.W.2d at 837. The court of appeals then stated that “there is such a thing as ‘ineffective assistance of counsel’ and, while we should tread softly in finding it to exist ... we should adopt an attitude expressed by one United States Supreme Court justice who observed concerning obscenity, ‘I can’t define it but I know it when I see it.’ ” 2 Id. at 837-38.

The court of appeals also distinguished Delrio v. State, 840 S.W.2d 443 (Tex.Crim.App.1992), in which we held that a trial counsel’s assistance was not ineffective when he failed to strike or challenge, in a trial for cocaine possession, an ex-narcotics officer who knew the defendant and stated that he could not be impartial. The court of appeals cited as distinguishing characteristics of Del-rio the fact that the unchallenged venire member and the defendant in that case were of the same race, and the possibility that, as an ex-narcotics officer, the unchallenged ve-nire member might have been more favorable toward the defendant in assessing punishment.

The State now argues, in its petition for discretionary review, that the court of appeals erred in its analysis of appellant’s ineffective assistance claim. The State argues that the court of appeals misapplied Strickland. Specifically, the State argues that the court of appeals improperly shifted the burden of proof for demonstrating ineffective assistance from appellant to the State, by requiring “the State to establish a valid strategic decision [for not striking venire member Supinski], rather than requiring the defense to show the lack of one.” The State also argues that the court of appeals improperly distinguished the instant case from Del-rio.

The State Prosecuting Attorney argues that the court of appeals essentially abandoned the Strickland test in favor of the “amorphous ‘standard’ of T can’t define it but I know it when I see it.’ ” The State Prosecuting Attorney also argues that the court of appeals misapplied Delrio in distinguishing it from the instant case. Finally, the State Prosecuting Attorney argues, like the District Attorney, that the court of appeals placed the burden for showing ineffective assistance on the wrong party.

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Cite This Page — Counsel Stack

Bluebook (online)
877 S.W.2d 768, 1994 Tex. Crim. App. LEXIS 64, 1994 WL 232373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-texcrimapp-1994.