Vaughn v. State

931 S.W.2d 564, 1996 Tex. Crim. App. LEXIS 186, 1996 WL 514832

• Court: Court of Criminal Appeals of Texas
• Decided: September 11, 1996
• Docket: 234-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the felony offense of aggravated assault. V.T.CA. Penal Code § 22.02. After the jury found appellant guilty as charged in the indictment, it assessed her punishment at a six year term, probated, and a $5,000 fine.

On appeal to the First Court of Appeals, appellant argued, inter alia, that she was denied her right to reasonably effective assistance of counsel at the punishment phase of trial under Art. I, § 10 of the Texas Constitution. The court of appeals overruled this claim and affirmed the conviction. Vaughn v. State, 888 S.W.2d 62 (Tex.App.—Houston [1st Dist.] 1994). In her petition for discretionary review appellant challenges the court of appeals’ disposition of this claim, contending that the court ignored Fifth Circuit case-law to the contrary. We granted review to determine whether the court of appeals erred in holding that appellant’s counsel was not ineffective.

I.

Appellant testified at the guilt-innocence phase of trial. Her testimony raised the issues of self-defense and defense of a third party. The jurors were entitled to believe or disbelieve her testimony, and it is clear that they did not find that her actions were justified as she claimed. At the punishment hearing before the jury, appellant again took the stand and again maintained her innocence when cross examined by the State:

“Q. Miss Vaughn, do you accept the jury’s verdict?

A. Yes, I have to.

Q. During the trial you denied what took place and what the jury found to be true. And do you now admit to the members of the jury that that took place?

A. No, what I told the jury was absolute truth, what I believe was the truth, what happened was the absolute truth.”

In his closing argument at punishment, the prosecutor referred to the foregoing exchange:

‘You know, ladies and gentlemen, one of the first things a person has to do when they want to rehabilitate is to admit their crime. Admit what they did. Admit the injustice and the harm they caused to another. But we didn’t hear that up here today. They had have [sic] not admitted to anything. They are not admitting to what you found them guilty of. That’s the first step anybody has to take in rehabilitation. They haven’t done it. A possible reason could be for them to do it, they would have to get on the stand and admit to you that they lied to us. But the thing is they are not admitting it and that is the first step to rehabilitation.”

Appellant’s trial counsel did not object to this questioning and argument.

In her ground for review, appellant contends that counsel was ineffective because of this failure to object. According to appellant, the State’s questions and argument put her in a “Catch-22,” i.e., a situation with equally undesirable and prejudicial alternatives. Specifically, appellant argues that the State violated the Due Process Clause of the Fifth Amendment to the United States Constitution by forcing her to choose between two evils.¹ First, she could choose to admit her guilt. Because this admission would be inconsistent with her protestations of innocence at the guilt-innocence phase of trial, it would open her up to aggravated perjury charges. See V.T.C.A. Penal Code § 37.03. Such an admission would also waive a review of the sufficiency of the evidence and all error that occurred during the guilt innocence phase. DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.1985); McGlothlin v. State, 896 S.W.2d 183 (Tex.Cr.App.1995). In short, she might be prosecuted for perjuring herself and she might forfeit her statutory right to appeal. Her other choice is the one she actually made in this cause, viz: to persist in telling the jury that she was innocent. Under this scenario, she would face what occurred in this case: the prosecutor invited the jury to punish her more harshly for being recalcitrant.

Appellant argues that her trial counsel was ineffective for not objecting to the dilemma created by the prosecutor. The court of appeals found no caselaw dispositive of, or even addressing, this claim. The court de-dined to fault counsel for failing to raise a less-than-well-settled claim and rejected the point of error. We will affirm the judgment of the court of appeals.²

II.

A.

The test for determining whether counsel rendered ineffective assistance of counsel at the punishment phase of a noncap-ital trial is that adopted by the Court in Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). This test asks whether counsel was reasonably likely to render effective assistance and whether counsel reasonably rendered effective assistance — i.e., whether the defendant received reasonably effective assistance of counsel. Ex Parte Langley, 833 S.W.2d 141, 143 (Tex.Cr.App.1992). There is no requirement that a defendant show prejudice — that but for counsel’s performance the outcome of the proceeding would have been different — as is required under the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App.1987).

As the court of appeals correctly states, in order to argue successfully that her trial counsel’s failure to object to the State’s questioning and argument amounted to ineffective assistance, appellant must show that the trial judge would have committed error in overruling such an objection. Vaughn, 888 S.W.2d at 74. Appellant cannot meet this burden. As we discuss below, there is no caselaw clearly supporting appellant’s claim. We have said that basing an ineffective assistance claim on caselaw that is unsettled at the time of counsel’s actions “would be to engage in the kind of hindsight examination of effectiveness of counsel the Supreme Court expressly disavowed in Strickland ...” Ex Parte Davis, 866 S.W.2d 234, 241 (Tex.Cr.App.1993) (counsel not ineffective for failing to object to prosecutor’s argument, at punishment phase of capital trial, that “deliberate” synonymous with “intentional” since this Court had not clearly interpreted “deliberate”), citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984). We will not engage in such an analysis here.

B.

Having chosen to take the stand at guilt and deny committing the offense, appellant was cornered into a difficult decision by the prosecutor once she took the stand again at punishment. But it does not necessarily follow that appellant’s rights were violated. Though an admission of her guilt at punishment would amount to aggravated perjury, V.T.C A Penal Code § 37.03, and a waiver of appellate rights, McGlothlin, supra, and DeGarmo, supra, it is unclear that there is anything unconstitutional about putting appellant to a choice between these consequences. Cf. Cantu v. State, 738 S.W.2d 249, 256 (Tex.Cr.App.1987) (putting defendant to hard choice of whether to testify or not does not violate his due process rights).

We note initially that criminal defendants have no due process right to an appeal. Rosales v. State, 748 S.W.2d 451, 454 (Tex.Cr.App.1987), citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The only right that the federal constitution confers to criminal defendants in the context of an appeal is that, if a state provides an appeal by statute, it must provide access to the appellate courts in a way that does not violate the Equal Protection Clause of the Fourteenth Amendment. Id. Appellant does not allege how her waiver of a sufficiency review and all trial error under DeGarmo and McGlothlin violates the principle of equal access. Nor does appellant challenge the holdings of DeGarmo and McGlothlin themselves, and stare decisis compels us to assume that those decisions are valid.

Similarly, it is far from certain that the possibility of a perjury prosecution violates the Constitution. A defendant’s right to take the stand at the guilt phase of trial and testify in his own behalf does not insulate him from being prosecuted for perjury if he lies in some material way while on the stand. We know of nothing in the Constitution to prevent such a prosecution. A defendant deciding whether to take the stand at the punishment phase of trial is simply confronted with more momentous consequences than the vague threat of a perjury prosecution. Indeed, if a defendant gives testimony at punishment which is inconsistent with testimony given at the guilt phase of the same trial, he has provided the State with evidence constituting a prima facie case of aggravated perjury against the defendant. See V.T.C A. Penal Code §§ 37.03 and 37.06.

Appellant wants to be able to avoid such a prosecution, yet she also wants to be able to seek leniency from the jury by “coming clean.” However, the privilege to testify in one’s own defense “cannot be construed to include the right to commit perjury.” Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). That she will potentially have to answer perjury charges if she testifies at punishment and admits her guilt does not clearly violate due process or her right against self-incrimination. This predicament is arguably nothing more than the logical (and constitutional) result of a series of choices in her defense.³

C.

Appellant instead elected to continue in protesting her innocence at the punishment phase. The prosecutor cross-examined appellant and made a reasonable argument based on the answers he elicited from her. Appellant was subject to the same rules governing cross-examination as any other witness. She was therefore open to impeachment on all relevant issues, a factor which undoubtedly made the decision to take the stand a difficult one. But we are inclined to agree with the State that “[n]o constitutional violation is presented by ... a difficult decision for a defendant.” Brief for State at 13. To take the stand and maintain her innocence in light of the probability that the jury will see her as unrepentant or even defiant was a voluntary tactical decision by appellant and her counsel.⁴ The fallout of this choice seems to us no different than that attendant to a defendant’s decision whether or not to take the stand at guilt-innocence and be subject there to the broad array of potentially impeaching sources. That is to say, they are most likely just factors which should inform a proper, well-founded trial strategy.

III.

But we need not reach the merits of the substantive claim. Even if we resolved that issue in her favor, appellant would still not have established ineffective assistance of counsel. Appellant’s claim of ineffective assistance of counsel would fail even were we to announce for the first time today that the prosecutor’s questions and argument at the punishment hearing did in fact violate her due process rights. As the court of appeals noted, “[ajppellant has cited no Texas authority ... that supports her contention that the State’s question and argument were harmful error.” Vaughn, 888 S.W.2d at 74. She cites Fifth Circuit caselaw, but no controlling precedent.⁵ An ineffective assistance of counsel claim cannot be based on an alleged error of counsel when the caselaw evaluating counsel’s actions and decisions in that instance was nonexistent or not definitive. The most that can be said about the state of the caselaw as to appellant’s underlying claim is that it was unclear, if not silent altogether. As a result, “... a ruling on appellant’s hypothetical objection [would be] extremely uncertain.” Vaughn, 888 S.W.2d at 74.

Given the indefinite state of the caselaw, we cannot fault the court of appeals for concluding that appellant’s trial counsel was not ineffective for failing to object to the prosecutor’s questions and argument at punishment about appellant’s willingness to admit her guilt. Moreover, the State’s questions and arguments were not so manifestly in error as to compel the court of appeals to find ineffective assistance of counsel despite the absence of caselaw supporting appellant’s claim. Accordingly, we affirm the judgment of the court of appeals.

MALONEY, J., concurs.

1 . Nowhere in her "Brief in Response to the Granting of her Petition for Discretionary Review” does appellant cite any statute or Federal or State constitutional provision that was violated by the alleged error. She does say that the Hobson’s choice she faced violated "Due Process” but does not elaborate. Article I, § 19 of the Texas Constitution speaks in terms of "due course of law.” For this reason, we take appellant’s invocation of "Due Process" to be an argument brought under the Fifth Amendment to the United States Constitution.

2 . We also granted review on the merits of the claim underlying the ineffective assistance of counsel claim, namely that the State’s questions and arguments violated appellant's due process rights. For various reasons we decide, however, that the underlying claim was improvidently granted. Tex.R.App.Pro., Rule 202(k). First, our present disposition of the ineffective assistance claim is to the effect that the caselaw on the substantive issue was too uncertain to predicate an ineffective assistance claim. Second, appellant did not raise the substantive issue on appeal. Finally, it is not even clear that the court of appeals reached the substantive issue so much as it just pointed out the lack of any definitive authority. Vaughn, 888 S.W.2d at 73-74. Thus, appellant’s ineffective assistance of counsel claim is the only of the two grounds for review granted that is properly before this Court and is the only ground for review we need to decide.

3 . There is one way appellant can avoid her conundrum, viz: she can invoke her Fifth Amendment right not to testify.

4 . That our jury system may result in the conviction of innocent persons is not a factor in our consideration of appellant's claim. The jury verdict is the most accurate result under our system. Though we can never know the absolute truth, we must have confidence in and accept the jury verdict as the best possible answer and as the truth in contemplation of the law. We must defer to and afford finality to jury verdicts. We decline to question the jury’s verdict if the procedure resulting in that verdict was within constitutional bounds and did not otherwise violate law. Thus, the possibility of convicting actually innocent people does not make appellant’s quandary at punishment a violation of due process. Cf. Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155 (1988) (no constitutional right to have jurors’ residual doubts about defendant’s guilt considered as mitigating factor at punishment of capital trial).

To the extent that appellant’s argument may be based on the idea that no conviction is final until all appeals are exhausted and that hence an admission of guilt should not waive any of her statutory appellate rights, her dispute is With DeGarmo and McGlothlin. See Thomas v. United States, 368 F.2d 941, 945 (5th Cir.1966).

5 . Cf. Thomas v. United States, 368 F.2d 941, 945 (5th Cir.1966); Bertrand v. United States, 467 F.2d 901, 902 (5th Cir.1972); United States v. Rodriguez, 498 F.2d 302, 312 (5th Cir.1974); United States v. Laca, 499 F.2d 922, 927 (5th Cir.1974); United States v. Wright, 533 F.2d 214, 216 (5th Cir.1976).

Fifth Circuit caselaw is persuasive authority, but it is not binding on this Court. Stewart v. State, 686 S.W.2d 118, 121 (Tex.Cr.App.1984); Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972). In any event, the instant case is distinguishable from the cited caselaw in various ways that appellant does not discuss. First, the trial court was the sentencer in the cases relied on by appellant. Second, those cases do not clearly indicate whether the defendants took the stand and claimed their innocence at the guilt phase. Finally, the defendants in the federal cases had no choice but to appear before the judge in the informal sentencing proceeding then used in federal prosecutions. Whether these distinctions make a difference is a question we need not now decide; suffice to say that they underscore the indefinite nature of the caselaw touching on appellant’s claim.