Ex parte Davis

• Decision Date: 01 December 1993
• Docket Number: No. 71717,71717
• Citation: 866 S.W.2d 234
• Parties: Ex parte William Prince DAVIS.
• Court: Texas Court of Criminal Appeals

Page 234

866 S.W.2d 234

Ex parte William Prince DAVIS.

No. 71717.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 1, 1993.

Will Gray, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Andrea Lopes Moore, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

This is a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. This Court affirmed applicant's conviction for capital murder on direct appeal. Davis v. State, 597 S.W.2d 358 (Tex.Cr.App.1980). Applicant contends that counsel at his 1978 trial was deficient in a number of respects which, separately and in the aggregate, violated his Sixth Amendment right to effective assistance of counsel. He also contends that certain assurances the prosecutor obtained from prospective jurors, as well as argument made at the punishment phase of trial, combined to deprive him of his Eighth Amendment right to a jury capable of considering all relevant evidence that might provide a basis for imposing a sentence less than death. We will deny relief. ¹

I.

On the evening of June 2, 1978, applicant appeared at the door of the office of the Red Wing Ice Cream Company, just as several of the company drivers were turning in their day's receipts. The proprietor, Richard Lang, aware that something was amiss, began to approach applicant. Applicant shot Lang once in the lower chest with a .32 calibre pistol, and then ordered the drivers up against the wall. He escaped with more than $700 and a shotgun. Lang died. At the time of this offense applicant was twenty-one years old.

The guilt/innocence phase of applicant's trial was essentially a formality. Counsel for applicant only minimally cross-examined the State's witnesses. His final summation takes up less than a full page of the statement of facts. In it counsel basically acknowledged that he had simply put the State to its proof. During his argument at the punishment phase, he further acknowledged that the only viable issue in the case was not applicant's guilt, but whether the State could prove that the statutory special issues embodied in former Article 37.071, (b), ought to be answered affirmatively. ² It is not ineffectiveness, per se, however, for counsel to concentrate his efforts at the punishment phase in a capital murder case. Cf. Holland v. State, 761 S.W.2d 307, at 314-15 (Tex.Cr.App.1988) (it is acceptable strategy in capital prosecution to plead guilty before the jury, and courts will not second-guess that strategy). It appears counsel's trial strategy was to persuade the jury to find his client did not act "deliberately," and thus answer "no" to the first special issue, and to have applicant acknowledge and accept responsibility for his crimes as a first step to rehabilitation, in an effort to persuade the jury to return a "no" answer to the second special issue.

II.

A.

In this post-conviction application for writ of habeas corpus applicant first complains that counsel effectively abandoned youth as a basis for the jury to impose a sentence of less than death. The record reveals that, without objection, the prosecutor secured a commitment during the voir dire of each venireman who was eventually selected to serve on the jury that he or she would not let "the youthful appearance and age of a defendant ... affect your deliberations on punishment." For example, in questioning venireman Billy Davis, the prosecutor inquired:

"Q. All right, sir. Can you assure me that the youthful appearance or age of a defendant would not affect your deliberations?

A. (Prospective juror shaking head.)

Q. All right, sir. Because again, we focus back on the questions. If the evidence calls for yes answers, it doesn't matter how old or young someone is.

A. That's irrelevant."

Davis sat on the jury. Similarly, the prosecutor questioned venireman J.D. Wallace as follows "Q. Can you assure me that the youthful appearance or age of a defendant would not affect your deliberations?

A. I believe I could.

Q. All right. Because the point is this: In determining the punishment, all that the jury is allowed to do is answer the questions. If you believe it's deliberate and if you believe there's a probability, then the age should not be a factor at all. To bring sympathy or bring in age or something else would be violating the Court's instructions saying that you're only to consider the evidence and only answer the questions. So you can't say, 'Well, in my own mind, even though I believe the evidence calls for yes answers, I don't think this is a death penalty case so I'm going to vote no.' You're bound by your oath as a juror to answer the questions based on the evidence and not based upon your personal feelings or whatever, but only on the evidence. And I take it from the answers thus far that you would be able to do that; is that correct?

A. I feel that I could, yes."

Wallace was also selected to serve on the jury. The prosecutor asked each of the twelve eventual jurors some variant of the basic "can you assure me the youthful appearance and age of a defendant won't affect your punishment deliberations" question, and each one agreed he or she would not. Then, during the summation at the punishment phase of trial, the prosecutor reminded the jury of its collective commitment to disregard applicant's youth:

"You promised me on voir dire that the age of the defendant was irrelevant, that the youthful appearance of a defendant was irrelevant. You told me that you could answer the questions based upon the evidence and not merely your personal desire. * * * My purpose in this argument is to hold you to that promise."

Applicant argues that counsel's failure to object to this commitment of the jury effectively deprived him of his Eighth Amendment right to a capital jury willing and able to consider all relevant evidence militating against imposition of the death penalty; and that this in turn violated his Sixth Amendment right to the effective assistance of counsel in his defense. ³

B.

Applicant forfeited his Eighth Amendment claim by failing to object at trial to the prosecutor's questions to eventual jurors and his remarks during punishment argument. See Ex parte Crispen, 777 S.W.2d 103 (Tex.Cr.App.1989). That youth is a relevant mitigating factor was a well known Eighth Amendment principle by autumn of 1978, when applicant was tried. See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (Plurality opinion); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (Plurality opinion). It is true that after Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), the Eighth Amendment does not require jurors to consider the mitigating impact of youth beyond its relevance to the special issues. But it has been clear at least since Jurek that jurors must be empowered to consider the mitigating impact of youth as it bears upon the special issues, especially future dangerousness. Applicant should have known to object to any suggestion that jurors not take youth into account to that extent. Accordingly, applicant cannot (and perhaps for that reason, does not) argue that we should excuse his procedural default either because the basis for his objection would have been so novel as not to have been reasonably available at the time of his trial, or, certainly, because the law was so well settled against him as to render any objection at that time futile. Black v. State, 816 S.W.2d 350, at 368 (Tex.Cr.App.1991) (Campbell, J., concurring, joined by McCormick, P.J., and Clinton, Overstreet, Maloney & Benavides, J.J.). We therefore reject applicant's Eighth Amendment claim.

C.

Applicant claims counsel rendered ineffective assistance of counsel under the Sixth Amendment in failing to object to the commitment of the jurors, and thereby forfeiting applicant's Eighth Amendment right to a jury able to consider his youth in mitigation of punishment. The operative test for determining whether an accused has suffered a deprivation of his Sixth Amendment right to effective assistance of counsel is that articulated in Strickland v. Washington, 466 U.S. 668, at 687, 104 S.Ct. 2052, at 2064, 80 L.Ed.2d 674, at 693 (1984), viz:

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result was reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Given counsel's apparent strategy at the punishment phase of trial, it is hard to imagine that his failing to object was purposeful. Counsel was clearly attempting to paint his client as a penitent, willing to take responsibility for his offense, and therefore capable of rehabilitation. It would seem that emphasis on applicant's youth at the time of the offense would jibe, not conflict, with such a strategy. Indeed, counsel argued at the punishment phase that applicant "is still young. He still has an enormous amount of maturity if you see fit to spare him, to grow and to comprehend[.]" On the state of the record we might well conclude that counsel's error in failing to object to the prosecutor tailoring a jury to ignore youth as a factor in answering special issues was an error so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. We need not resolve that question, however, for in any event we conclude that applicant has not shown he was deprived of "a trial whose result was reliable."

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