Kendrick v. State

729 S.W.2d 392, 1987 Tex. App. LEXIS 7426
CourtCourt of Appeals of Texas
DecidedMay 14, 1987
Docket2-85-212-CR
StatusPublished
Cited by4 cases

This text of 729 S.W.2d 392 (Kendrick v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kendrick v. State, 729 S.W.2d 392, 1987 Tex. App. LEXIS 7426 (Tex. Ct. App. 1987).

Opinions

[394]*394OPINION

HILL, Justice.

Gregory Franklin Kendrick appeals his conviction by a jury of the offense of sexual assault. TEX. PENAL CODE ANN. sec. 22.011 (Vernon Supp.1987). The judge assessed his punishment at twelve years in the Texas Department of Corrections. He presents four points of error.

We affirm.

In point of error number one, Kendrick contends, through his counsel on appeal, that he was denied reasonably effective assistance of counsel at trial.

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, a defendant must show that counsel’s performance was deficient; second, a defendant must show that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

With regard to a defendant’s contention that his counsel was not functioning as the “counsel” guaranteed him by the sixth amendment of the United States Constitution, judicial scrutiny of counsel’s performance must be highly deferential. See id., 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. There is a strong presumption that counsel’s performance falls within the “wide range of professional assistance,” and a defendant bears the burden of proving that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. See Kimmelman v. Morrison, 477 U.S.-,-, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305, 323 (1986). The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. See id., 477 U.S. at-, 106 S.Ct. at 2586-87, 91 L.Ed.2d at 327; see also Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App.1986).

Concerning the second prong of Strickland, this requires a showing that counsel’s alleged errors were so serious as to deprive a defendant of a fair trial, a trial whose result is reliable. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. It is not enough for a defendant to show that the errors had some conceivable effect on the outcome of the proceeding, id., 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697; he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See id., 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id.

Basically, the question for our review is whether there is a reasonable probability that absent the alleged errors, the fact-finder would have had a reasonable doubt respecting guilt. See id., 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. In making this determination we must consider the totality of the evidence before the jury, and the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. See id.

We first examine counsel's performance. In his argument under this point of error, Kendrick lists numerous alleged errors on the part of his trial counsel. We do not feel it necessary to repeat those here. We will refer to those actions or omissions on the part of trial counsel which we feel to be the most pertinent to the question before us.

Kendrick was charged with the sexual assault of J_M_, a Dallas resident, at the Dallas-Fort Worth Airport upon her return from Chicago. The State’s case was based, upon the eyewitness identification of him by the injured party. The defense was alibi.

Kendrick’s counsel appears to have a good trial record in another state from which he had recently moved to Texas prior to trial. Although he is licensed to practice law in Texas, his performance was to some [395]*395extent impaired by his lack of a thorough knowledge of Texas law at the time of trial. Extensive testimony concerning counsel’s representation was taken at the hearing on Kendrick’s motion for new trial. We here take note of some problems which we have with the representation afforded Kendrick by counsel in the case.

1. Although he felt that the lineup was unfair, counsel told another attorney that he did not know he could file a motion to suppress after the trial had begun. When the attorney suggested that he write the motion out on a yellow legal pad, he said he was not sure how to do that. The attorney wrote out the motion for him.
2. Counsel apparently was unfamiliar with the appropriate procedure for the preservation of error. He occasionally received prompts and advice on the matter from the lawyer just mentioned, who offered occasional assistance during the trial, and from the investigator whom the court appointed to assist in Kendrick’s defense. When the State improperly asked Kendrick’s mother, at the guilt-innocence stage, if he were on probation, counsel objected, and the court sustained the objection, but counsel did not ask for an instruction to the jury to disregard the question, nor did he move for a mistrial. The following day, after an overnight recess, counsel moved for a mistrial.
3. In what he says was an effort to show openness and candidness on the part of the defendant, counsel admitted into evidence the criminal record of every member of Kendrick’s family, showing that his mother and brother were both on probation and that his other brother had erroneously been arrested for murder. Furthermore, since he introduced this information without careful checking of its basis, he allowed Kendrick’s mother to testify that her charge for tampering with government documents had been dismissed because the charge had to do with food stamps and she had never received any. The State was able to show that she had actually pled guilty to the charge, which was for the alteration of a registered nurse’s license, and had been assessed a fine and probated sentence. Since Kendrick’s mother presented the only real alibi evidence he had, the State in its closing argument was able to emphasize the above events to show her total lack of credibility.

Although the effect of these errors was negative with respect to the jury’s perception of Kendrick and his family, including those who were witnesses in his alibi defense, having reviewed the entire record of the case, we are unable to say that there is a reasonable probability that, but for the errors, the result of the proceeding would have been different. We believe that in view of the positive identification of Kendrick by the victim, coupled with the fact that he was known to be in the airport area at or about the time of the offense, dressed in a way similar to that of the attacker, having been fired from his job at the airport, by a woman supervisor, shortly before the attack, and given the fact that his only significant alibi witness was his mother, we believe that the reasonable probability is that the result would have been the same in this case even in the absence of the errors complained of, including those we have not enumerated. We overrule point of error number one.

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Kendrick v. State
729 S.W.2d 392 (Court of Appeals of Texas, 1987)

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729 S.W.2d 392, 1987 Tex. App. LEXIS 7426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kendrick-v-state-texapp-1987.