Sanders v. State

715 S.W.2d 771, 1986 Tex. App. LEXIS 8150
CourtCourt of Appeals of Texas
DecidedJuly 31, 1986
DocketNo. 12-85-0090-CR
StatusPublished
Cited by11 cases

This text of 715 S.W.2d 771 (Sanders 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
Sanders v. State, 715 S.W.2d 771, 1986 Tex. App. LEXIS 8150 (Tex. Ct. App. 1986).

Opinion

COLLEY, Justice.

James Earl Sanders (“appellant”) was convicted by a jury of burglary of a building. Appellant elected to have the jury assess punishment, and upon finding that prior to commission of the offense at issue appellant had twice been convicted of felonies, the jury assessed punishment at life imprisonment.

Appellant presents three grounds of error. In his first ground, appellant contends that he was denied effective assistance of counsel at trial in violation of the First and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Texas Constitution. It is appellant’s position that the record as a whole shows that his trial counsel was constitutionally ineffective in representing him at trial, and he details seven specific deficiencies in the representation. No challenge is made to the sufficiency of the evidence.

The right of criminal defendants to be represented by counsel is a fundamental component in our criminal justice system. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657 (1984). Effective assistance of counsel is essential to assure defendant’s fundamental right to a fair trial, because it is through counsel that a defendant’s other rights are secured and the prosecution’s case is subjected to meaningful adversarial testing. Id., at 2045. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984).

A two pronged test must be satisfied before a claim of ineffective assistance of counsel can succeed. Strickland v. Washington, 104 S.Ct. at 2064; Moore v. State, 700 S.W.2d 193, 205 (Tex.Cr.App.1985). The first prong requires that appellant show counsel’s performance was deficient under prevailing professional norms. Strickland v. Washington, 104 S.Ct. at 2064; Moore v. State, 700 S.W.2d at 205. In meeting this first requirement, appellant must overcome a strong presumption that counsel’s performance was “within the wide range of reasonable professional assistance.” Strickland v. Washington, 104 S.Ct. at 2066. The second prong of the test requires that appellant show a reasonable probability that but for counsel’s errors the result would have been different. Id. at 2068. In other words, counsel’s errors must be such as to undermine confidence in the outcome. In challenging a conviction, the inquiry is whether, in the absence of the asserted errors, there is a reasonable probability that the jury would have had a reasonable doubt as to guilt. Id. at 2069.

Whether counsel provided constitutionally effective assistance is determined on the totality of the representation. Moore v. State, 700 S.W.2d at 206; Johnson v. State, 691 S.W.2d 619, 627 (Tex.Cr.App.1984). Generally, isolated errors reflected in the record do not render counsel ineffective. Moore v. State, 700 S.W.2d at 205; Johnson v. State, 691 S.W.2d at 627. Allegations of ineffective assistance of counsel can be sustained only if firmly founded. Smith v. State, 676 S.W.2d 379, 385 (Tex.Cr.App.1984).

The insufficiencies of representation asserted in this case begin with inadequate preparation for trial. Defense counsel has a duty to conduct a thorough independent investigation of the facts of the crime alleged against his client, regardless of the client’s representations. Ex parte Duffy, 607 S.W.2d 507, 516-517 (Tex.Cr.App. 1980).1 The express purpose of the required investigation is to enable defense counsel to “have a firm command of the facts of the case as well as governing law.” Id. at 516.

[774]*774Appellant testified at the motion for new trial that Jonathan Crow, his court appointed trial counsel, visited him at the jail just twice in seven months between his arrest and the trial. According to appellant’s undisputed testimony, the first visit occurred approximately thirty days after Crow had been appointed to represent him and the second was three to four weeks before trial. Each visit lasted about ten minutes. Appellant testified that he spoke to Crow by telephone “about three times” for about five minutes each time. The record reflects that in the course of the approximately thirty-five minutes spent by Crow conferring with his client, appellant informed him that he was unable to read or write; he had given and signed statements regarding several offenses at the police department; and, that there were three individuals he thought would testify that he was elsewhere at the time the burglary allegedly occurred, his mother, his brother, and one James Odom.2 The record further reflects that at some time prior to trial, the prosecutor provided Crow with a witness list and access to appellant’s statement.3 Appellant testified that Crow never asked him about the statement nor did he review it with him. Despite the overwhelming evidence that Crow knew of and had seen appellant’s statement, he counseled appellant to turn down the State’s proffered plea agreement because “he could beat the case because the D.A. didn’t have any evidence.” 4

Standing alone, the mere fact that Crow spent just thirty-five minutes with his client prior to trial does not necessarily establish inadequate preparation and thus ineffective assistance of counsel. See United States v. Cronic, 104 S.Ct. at 2049. The record does not show that Crow expended no further effort preparing for trial. In fact, it is shown that he met at least once with the prosecutor and either at that time or some other discussed a plea agreement. The record does show that Crow apparently spoke with at least some of the witnesses appellant sought to have testify. Although he did not contact the one unrelated alibi witness, the record is silent as to what efforts he expended in attempting to reach that individual. As such, this Court cannot assume he did not exercise due diligence in making that attempt. See Moore v. State, 700 S.W.2d at 206; Rodriquez v. State, 691 S.W.2d 77, 81 (Tex.App.—Houston [1st Dist.] 1985, no writ).

Despite our inability to find counsel erred on those bases, there is significant evidence in the record of a total lack of action on Crow’s part in regard to the statement purportedly given by appellant to the police. Knowledge of the statement alone would require that counsel at the very least discuss it with his client, particularly in light of its uncompromisingly incriminating nature. Under no standard of professional conduct can it be said that it was reasonable or competent for Crow to tell his client that the State had no evidence when in fact they had a signed statement from appellant admitting guilt.5 In this respect, Crow’s preparation was seriously deficient.

Appellant additionally claims that Crow’s representation was ineffective in his failure to challenge the admissibility of the statement into evidence.6 The evidence at the [775]

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Bluebook (online)
715 S.W.2d 771, 1986 Tex. App. LEXIS 8150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-state-texapp-1986.