Walker, Samuel Richmond

425 S.W.3d 267, 2014 WL 941443, 2014 Tex. Crim. App. LEXIS 430
CourtCourt of Criminal Appeals of Texas
DecidedMarch 12, 2014
DocketWR-73,965-04
StatusPublished
Cited by8 cases

This text of 425 S.W.3d 267 (Walker, Samuel Richmond) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker, Samuel Richmond, 425 S.W.3d 267, 2014 WL 941443, 2014 Tex. Crim. App. LEXIS 430 (Tex. 2014).

Opinions

PRICE, J.,

filed a concurring statement

in which KELLER, P.J., joined.

I concur with the Court’s denial of relief in this application for a writ of habeas corpus. I write separately to address some of the concerns raised by Judge Al-cala in her dissenting statement. I express no opinion as to whether, in the words of the dissenting statement, “[h]ad defense counsel objected to the back-door hearsay elicited at trial by the State, the trial court would have erred by permitting the evidence.”1 But even assuming ar-guendo that it would have, I do not think that the applicant has met his burden to prove that his counsel on retrial performed deficiently — nor that, assuming his representation was deficient, such deficiency prejudiced the applicant.

1. Deficient Performance

In concluding that counsel retained by the applicant for his robbery retrial performed deficiently by failing to object on hearsay and Confrontation Clause grounds to the testimony of Detective Parinello, the dissent seems to place great weight on the fact that initial counsel’s overruled Confrontation Clause objections resulted in a reversal of the applicant’s first conviction on appeal.

But “[e]ven the best criminal defense attorneys would not defend a particular client in the same way” — and indeed, “[t]here are countless ways to provide effective assistance in any given case.”2 It is not our task, in' other words, to undertake an apples-to-oranges-like comparison of “Trial Strategy No. 1” to “Trial Strategy No. 2” and determine which strategy we think preferable.3 Instead, our task is simply to fairly determine whether subsequent counsel’s strategic decision was “reasonable considering all the circumstances” 4 — or, alternatively, whether counsel committed an “error[ ] so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”5 When we make this determination, we are to bear in mind that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time” the decision was made.6

[268]*268Furthermore, and perhaps most relevant to the question before us, “[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 7 The Fifth Circuit has said, in this context, that when counsel makes a “conscious and informed decision on trial tactics and strategy,” that decision should not be deemed to be constitutionally deficient unless it was “so ill chosen that it permeates the entire trial with obvious unfairness.”8 This Court has, in addition, noted that when important trial decisions are made for “strategic reasons,” the fact that those decisions would seem “risky” or “undesirable to most criminal attorneys” will not suffice to establish deficient performance under Strickland.9 It is only when “no reasonable trial attorney would pursue such a strategy under the facts of th[e] case” that this Court may grant relief for an unreasonable strategic decision that was made after deliberation and under advisement.10

Judging by some of the considerations it identifies as supporting the conclusion that counsel’s performance was objectively unreasonable, the dissenting statement fails to pay full and proper heed to the Supreme Court’s admonition regarding the “distorting effects of hindsight.” Specifically, in its discussion of counsel’s alleged deficiencies, the dissent finds it significant that “[t]he State ran with [Parinello’s] hearsay, essentially arguing in its closing statement that the probability that applicant did not commit this offense was one in four million.”11 The dissent also concludes from a review of the record that “the jury gave significant weight to Dangerfield’s statements that ‘Low Down’ gave her the complainant’s stolen property.” 12 But each of these considerations is utterly irrelevant in determining the extent of counsel’s deficiency as of the time of his decision. Of course, we now know that counsel’s trial strategy failed — his client was, after all, convicted. However, we cannot say on the basis of either of these considerations that his strategy was ex ante unreasonable.

Focusing on the consideration that is relevant to the issue of whether or not counsel performed deficiently — that counsel chose not to object on hearsay or Confrontation grounds despite his knowledge of former counsel’s (ultimately vindicated) decision to do so — I conclude that the applicant has failed to carry his burden to prove that counsel’s decision was “so ill chosen” as to “permeate[ ] the entire trial with ... unfairness.”13 The applicant does not point to anything in the record that suggests that counsel’s strategy (which was, apparently, to suggest that the State went down a “rabbit trail” in investigating the applicant when it relied upon the “ridiculous” story provided by a self-serving arrestee) was illogical, implausible, or patently doomed from the outset to failure. He does not argue it would be [269]*269unreasonable for an attorney, in the exercise professional judgment, to think that the identification testimony of the complainant’s son, if potentially questionable, might still be enough to convince a jury to convict — and that in order to counter this evidence, it would be necessary to proactively suggest that the State had investigated and implicated the wrong man. And he does not explain why it is that no reasonable trial attorney would conclude, as did counsel, that the rewards of such an approach might outweigh the risks — nor why a miscalculation in this regard would constitute an “error[ ] so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”14

Instead, the applicant (rather conclusorily) states that his counsel “knew or should have known” to object to the hearsay testimony, given the outcome of the applicant’s first direct appeal. But this bare assertion effectively begs the question: Given that counsel knew the testimony was objectionable, was it nevertheless unreasonable for him to make the decision to admit it without objection?15 The applicant fails to explain why it was. In light of this, I cannot conclude that the applicant has carried his burden to prove by a preponder-anee of the evidence that his attorney’s conduct fell below an “objective standard of reasonableness.” On this basis alone, I would concur with the Court’s decision to deny this application for writ of habeas corpus.

2. Prejudice

But I also believe that the Court’s decision to deny relief on the applicant’s ineffective-assistance claim is justified by the applicant’s failure to show prejudice.

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Cite This Page — Counsel Stack

Bluebook (online)
425 S.W.3d 267, 2014 WL 941443, 2014 Tex. Crim. App. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-samuel-richmond-texcrimapp-2014.