Milburn v. State

15 S.W.3d 267, 2000 WL 280289
CourtCourt of Appeals of Texas
DecidedApril 13, 2000
Docket14-96-00260-CR
StatusPublished
Cited by129 cases

This text of 15 S.W.3d 267 (Milburn 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
Milburn v. State, 15 S.W.3d 267, 2000 WL 280289 (Tex. Ct. App. 2000).

Opinions

OPINION ON REMAND

LESLIE BROCK YATES, Justice.

A jury convicted Appellant, Kim Allen Milburn, of the first degree felony offense of possession of 400 grams or more of cocaine, with intent to deliver. The jury sentenced appellant to forty years’ imprisonment and assessed a fine of $75,000. On original submission, this court found that appellant received ineffective assistance of counsel at the punishment phase of trial and we remanded the case for a new punishment hearing. See Milburn v. State, 973 S.W.2d 337 (Tex.App.-Houston [14 th Dist.] 1998), vacated and remanded, 3 S.W.3d 918 (Tex.Crim.App.1999). Because our previous opinion did not analyze whether counsel’s errors at the punishment phase were so prejudicial as to deprive appellant of a fair trial, the Court of Criminal Appeals remanded this case to us for the sole purpose of performing such an analysis in light of its decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Crim. App.1999). See Milburn v. State, 3 S.W.3d 918, 919 (Tex.Crim.App.1999).

[269]*269 Standard of Review

In Hernandez, the Court of Criminal Appeals overruled it decision in Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim. App.1980). See 988 S.W.2d at 772-74. We now apply the same two-prong Strickland standard of review for ineffective assistance of counsel claims in both the guilt/innocence phase of trial and the punishment phase of trial. See id.

First, the appellant must demonstrate counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). Counsel’s competence is presumed, and the appellant must rebut this presumption by identifying the acts or omissions of counsel that are alleged as ineffective and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland, 928 S.W.2d at 500. An ineffectiveness claim cannot be demonstrated by isolating any portion of counsel’s representation, but is judged on the totality of the representation. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.

Second, the appellant must establish counsel’s performance was so prejudicial, it deprived appellant of a fair trial. See id. at 691, 104 S.Ct. at 2066. To satisfy this prong, appellant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See id. at 694, 104 S.Ct. at 2068. Reasonable probability means a probability sufficient to undermine confidence in the outcome. See id., 104 S.Ct. at 2068. An appellant need not show, however, that counsel’s deficient performance more likely than not altered the outcome of the case. See id.

Discussion

“The sentencing stage of any case, regardless of the potential punishment, is ‘the time at which for many defendants the most important services of the entire proceeding can be performed.’ ” Vela v. Estelle, 708 F.2d 954, 964 (5 th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). Where the potential punishment is life imprisonment, as in the instant matter, the sentencing proceeding takes on added importance. See id.

First Prong of Strickland — Objective Standard of Reasonableness

In our previous opinion, we found that appellant’s trial counsel was ineffective by fading to investigate and interview potential punishment witnesses, despite the availability and willingness of several of appellant’s relatives, friends and co-workers to testify on his behalf. See Milbum, 973 S.W.2d at 343. At the hearing on the motion for new trial, the parties stipulated to the testimony of twenty of appellant’s relatives and friends. See id. They stipulated that each witness would have testified they had known appellant for a long period of time, they were never contacted to testify by any member of appellant’s defense team, they would have testified had they been requested to, and they would have asked the jury to consider the minimum punishment. See id. The parties further stipulated that the potential witnesses knew appellant was previously placed on probation for an offense committed in Louisiana and that this knowledge would not have affected their testimony. See id.

At the hearing on the motion for new trial, appellant’s fiancée testified that she was never contacted by appellant’s lawyer about testifying at the punishment phase of trial. See id. She stated that she and appellant have a young daughter with severe medical problems and that appellant was a good father and very active in raising their daughter. See id. Appellant’s employer testified that he has known appellant for fifteen or sixteen years and had employed appellant as a property manager [270]*270on a part-time basis for over a year. See id. He further stated that appellant was an outstanding employee and had he been contacted by appellant’s attorney, he would have been willing to so testify. See Milbum, 973 S.W.2d at 343.

Appellant’s trial counsel also testified at the motion for new trial hearing. He attributed his failure to interview or call any witnesses during the punishment stage to trial strategy. Counsel explained that in his experience juries don’t generally place much weight on the testimony of family members. We rejected the argument that, in this case, the failure to call witnesses at the punishment stage could be considered sound trial strategy. See Milbum, 973 S.W.2d at 344. We noted that counsel can only make a reasonable decision to forego presentation of mitigating evidence after evaluating available testimony and determining that it would not be helpful. See id. at 345^46. Here, counsel admitted he had neither investigated nor evaluated available punishment evidence. As a result of counsel’s lack of preparation, we concluded that the jury had no mitigation evidence before it to offset appellant’s probation record, the prosecutor’s argument that appellant had abused the legal system and had not been rehabilitated, and his recommendation of thirty years’ imprisonment. See id. at 346. Accordingly, we held that the first prong of Strickland had been met by showing that trial counsel’s performance at the punishment phase of appellant’s trial fell below the professional norm of reasonableness. See id.

Second Prong of Strickland — Prejudicial Impact of Counsel’s Errors

In light of Hernandez,

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Bluebook (online)
15 S.W.3d 267, 2000 WL 280289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milburn-v-state-texapp-2000.