Thomas v. State

923 S.W.2d 611, 1995 Tex. App. LEXIS 1921, 1995 WL 489100
Court of Appeals of Texas·Decided August 17, 1995·No. 01-94-00703-CR·Published·Cited by 16 cases

Opinions

[612]*612OPINION

OLIVER-PARROTT, Chief Justice.

Appellant, Robert Mont Thomas, was charged by indictment with the felony offense of engaging in organized criminal activity. Appellant pled no contest without a plea bargain agreement, and the trial court sentenced him to 16-years confinement. In a single point of error, appellant challenges the effectiveness of his trial counsel. We reverse and remand for a new punishment hearing.

Background

On June 3,1993, appellant was charged by indictment with the felony offense of engaging in organized criminal activity. Appellant pled no contest without a plea bargain agreement. During the punishment phase, testimony by several witnesses revealed many extraneous offenses and bad acts including prior convictions, pending charges, and current investigations into alleged criminal conduct by appellant. Both appellant and the State elicited evidence of these offenses. Counsel for appellant did not object to evidence of any of the extraneous offenses and bad acts. Appellant applied for and proved eligibility for probation. The trial court sentenced appellant to 16-years confinement.

Sole point of error

In his sole point of error, appellant argues that he was denied effective assistance of counsel at the punishment stage of his trial, because his trial counsel (1) did not object to evidence of unadjudieated extraneous offenses, and (2) elicited evidence of unadjudi-cated extraneous offenses.

The State urges us to apply the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Unlike allegations of ineffective assistance of counsel at the guilt-innocence stage, however, allegations of ineffective assistance at the punishment stage are governed by the “reasonably effective assistance of counsel” standard. Ex parte Graz, 739 S.W.2d 53, 58 (Tex.Crim.App.1987). This determination is to be made from the totality of the representation of the accused. Id. The constitutional right to effective assistance of counsel does not mean errorless counsel, or counsel whose competency is to be judged by hindsight. Id. Rather, the right to effective assistance of counsel entitles appellant to counsel “reasonably likely to render and rendering reasonably effective assistance.” Ex parte Duffy, 607 S.W.2d 507, 514, n. 14 (Tex.Crim.App.1980). In order for appellant to prevail, allegations of ineffective assistance of counsel must be “firmly grounded in the record.” Powers v. State, 727 S.W.2d 313 (Tex.App.— Houston [1st Dist.] 1987, pet. ref'd).

Appellant complains that at the punishment hearing, trial counsel either elicited or failed to object to evidence that appellant: had stolen a white Beretta automobile and a GMC pickup truck; was investigated for child pornography, solicitation to commit capital murder, and solicitation to injure police officers; had been charged with misdemean- or driving while intoxicated and numerous traffic offenses; was involved in the theft and interstate transport of other vehicles; was under investigation by both the DPS and FBI; and stalked and made threats against police officers.

In determining whether counsel rendered de&eient performance, the first issue we must decide is whether the extraneous offenses were objectionable, because an attorney’s failure to object to admissible testimony is not ineffective assistance. Cooper v. State, 707 S.W.2d 686, 689 (Tex.App.— Houston [1st Dist.] 1986, pet. ref'd).

Prior to September 1, 1993, evidence of unadjudicated extraneous offenses was not admissible during the punishment phase of trials for noncapital offenses. Grunsfeld v. State, 843 S.W.2d 521, 526 (Tex.Crim.App.1992). On September 1, 1993, the Texas Legislature amended article 37.07 to allow admission of unadjudicated extraneous offenses at the punishment trial of noncapital offenses. Tex.Code CRIM.Proc.Akn. art. 37.07, § 3(a) (Vernon Supp.1995). This amendment to article 37.07 applies only to trials for offenses committed on or after September 1,1993. Voisine v. State, 889 S.W.2d 371, 372 (Tex.App.— Houston [14th Dist.] 1994, no writ). Appellant committed the of[613]*613fense in the instant case in October 1992. Thus, the 1993 amendment to article 37.07 does not affect this case, and evidence of unadjudicated extraneous offenses was not admissible. Grunsfeld, 843 S.W.2d at 526; Voisine, 889 S.W.2d at 372.

Having determined that the extraneous offenses were objectionable, our next inquiry is whether counsel’s failure to object constituted plausible trial strategy. The State points out that most of the extraneous offenses were contained in the presentence investigation report. Thus, the State argues, it was plausible trial strategy for counsel to refrain from objecting to the offenses in the PSI. The State’s argument appears to be that if counsel had objected to the evidence, she “would have had no opportunity to cross examine the sources of information in the [PSI]_ In addition, ... there is no harm in that most of the information objected to was presented to the court in the form of the [PSI].” Contrary to the State’s argument, however, the mere fact that these offenses were contained in the PSI report did not reheve counsel from the duty of objecting. See Spriggs v. Collins, 993 F.2d 85, 89-90 (5th Cir.1993) (holding that trial counsel was deficient for failing to object to unadjudicated extraneous offenses in the PSI report).

We do not need to decide whether this could have constituted sound trial strategy, however, because we find that counsel was ineffective for not objecting to three particular offenses that were not in the PSI report: allegations that appellant was under investigation for solicitation to commit capital murder, for soliciting someone to injure police officers, and allegations that appellant had “stalked” officers and a prosecutor.

With regard to the allegation that appellant had been investigated for solicitation to commit capital murder, the State argues that the witness “did not go into the evidence of these cases.” However, the record contradicts the State’s position. On direct examination, Detective Robert Shaner testified as follows:

Q: Now, this other case, this conspiracy/solicitation case, what—what was that case in regard to?
A: It was in regards to solicitation to commit capital murder.
Q: And were you contacted by a witness or witnesses or—or, I guess, people that initiated that investigation?
A: Yes, I was.
Q: And what was the information that you had?

Free access — add to your briefcase to read the full text and ask questions with AI

Thomas v. State, 923 S.W.2d 611, 1995 Tex. App. LEXIS 1921, 1995 WL 489100 (Tex. Ct. App. 1995).

923 S.W.2d 611 (Thomas v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Hubert Vaughn Thomas v. State
Court of Appeals of Texas, 2018
Jackson v. State
550 S.W.3d 238 (Court of Appeals of Texas, 2018)
Alvarado, Jesse Dimas
Court of Appeals of Texas, 2015
Jesse Dimas Alvarado v. State
Court of Appeals of Texas, 2015
Courtney Woods v. State
Court of Appeals of Texas, 2011
Johnny Robert Monroe Henry v. State
Court of Appeals of Texas, 2004
Wanda Bernard v. State of Texas
Court of Appeals of Texas, 2002
Broussard v. State
68 S.W.3d 197 (Court of Appeals of Texas, 2002)
Juan Ybarra Arambula v. State
Court of Appeals of Texas, 1999
Valencia v. State
966 S.W.2d 188 (Court of Appeals of Texas, 1998)
Cardenas v. State
960 S.W.2d 941 (Court of Appeals of Texas, 1998)
Williams v. State
958 S.W.2d 844 (Court of Appeals of Texas, 1997)
Glivens v. State
918 S.W.2d 30 (Court of Appeals of Texas, 1996)
Thomas v. State
923 S.W.2d 611 (Court of Appeals of Texas, 1995)