Ex parte Burdine, 16725-06

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MALONEY
• Citation: Ex parte Burdine, 901 S.W.2d 456 (Tex. Crim. App. 1995)
• Decision Date: 06 April 1995
• Docket Number: No. 16725-06,16725-06
• Parties: Ex parte Calvin Jerold BURDINE.

Page 456

901 S.W.2d 456

Ex parte Calvin Jerold BURDINE.

No. 16725-06.

Court of Criminal Appeals of Texas En Banc.

April 6, 1995.

Certiorari Denied May 30, 1995.

See 115 S.Ct. 2256.

Brent E. Newton, Richard Burr and Kathy Patrick, Houston, Robert McGlasson, Decatur, GA, for applicant.

John B. Holmes, Jr., Dist. Atty., Roe Wilson, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Application for writ of habeas corpus denied.

MALONEY, Judge, dissenting.

The matter of denial of effective assistance of counsel due to the absence of counsel because of his sleeping during the trial, having been presented in this case and a majority of this Court having determined that the same should not be considered by this Court, I write separately in dissent of the Court's actions.

The trial judge found as a matter of fact and law, after a full and complete hearing on the issue presented, that counsel did sleep during the presentation of evidence during applicant's trial for capital murder and that applicant was denied effective assistance of counsel. His findings were based upon affidavits and testimony from jurors in this case and upon the testimony of the clerk of the court who was present throughout the entire trial and testified to the effect that defense counsel was asleep on several occasions on several days over the course of the proceedings. ¹ The trial judge made a factual finding that "counsel dozed and actually fell asleep during portions of applicant's trial on the merits, in particular during the guilt-innocence phase when the State's solo prosecutor, was questioning witnesses and presenting evidence." In his conclusions of law the trial judge determined that counsel for the applicant was therefore absent and that this constituted a per se violation of the Sixth Amendment to the Constitution of the United States.

An accused is entitled to effective assistance of counsel under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062-63, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court recognized that generally, in order to establish that he was denied effective assistance of counsel, the defendant must show that (1) he was denied reasonably effective assistance of counsel and (2) there is a reasonable probability that, but for the errors of counsel, the result of the proceeding would have been different. In some cases, however, the second prong of this test--the prejudice showing--is dispensed with. In Strickland itself, the Supreme Court stated that

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.

Id. at 692, 104 S.Ct. at 2067. The Court again recognized this principle in United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984), delivered the same day as Strickland:

There are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.

The Court further noted that prejudice need not be shown when counsel "was either totally absent, or prevented from assisting...