Ex Parte Carl Eddie Miller, Applicant.

• Decision Date: 28 October 2009
• Docket Number: No. AP–76,167.,AP–76,167.
• Citation: 330 S.W.3d 610
• Parties: Ex parte Carl Eddie MILLER, Applicant.
• Court: Texas Court of Criminal Appeals

330 S.W.3d 610

Ex parte Carl Eddie MILLER, Applicant.

No. AP–76,167.

Court of Criminal Appeals of Texas.

Oct. 28, 2009.Opinion Granting Rehearing

Sept. 22, 2010.

Randy Schaffer, Houston, TX, for Appellant.Ronald Earle, D.A., Austin, TX, for State.

OPINION

COCHRAN, J., delivered the opinion of the court in which MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined.

In this habeas corpus proceeding, applicant claims that both his trial and appellate attorneys provided ineffective assistance of counsel that prejudiced his rights.¹ The habeas judge made findings of fact, conclusions of law, and a recommendation that this Court grant relief. We accept the habeas judge's findings of fact, but we disagree with some of his legal conclusions. Based on the habeas judge's factual findings and the applicable law, we conclude that applicant is not entitled to relief on his ineffective assistance of trial counsel claim, but he is entitled to relief on his ineffective assistance of appellate counsel claim.

I.

A. Factual Background.

Applicant, Carl Miller, was charged with murder for the stabbing death of Terry Burleson, a bail bondsman and member of a motorcycle club called “The Humping People.” At trial, the evidence was undisputed that applicant killed Burleson. The only issue was whether he did so in self-defense.

The fifty-year-old applicant testified that, on Saturday, August 18, 2000, he “made the rounds” to bid farewell to friends and family before going home to California the next day. He followed a friend to the Aristocrat Club, but he stayed outside because he did not have the $5.00 cover charge. He started talking to some young women. Soon, Burleson walked up, said that the women were with him, and cursed at applicant. The two men exchanged words; then Burleson invited applicant to go around the corner to “talk.” James Cleveland, a friend of Burleson's and a fellow motorcycle club member, followed the two men around the corner and onto a concrete slab behind the club.

Applicant and Burleson had already begun to fight when Cleveland came around the corner. Cleveland saw applicant “swinging,” and then Burleson kicked applicant about three times. Applicant also testified that Burleson kicked him twice in the chest and once in the leg, causing him to fall backwards. Applicant explained that he could not run away due to a leg brace he wore because of injuries from a motorcycle accident. He said that he feared for his life, so he pulled out his knife and stabbed Burleson in the chest and head “three or four times.” He “leaned” into Burleson as he stabbed him, pushing the blade in almost three inches, piercing Burleson's aorta, vena cava, and heart. Burleson was unarmed; his blood-alcohol level at the time of death was 0.14.

Applicant and Burleson had never met before, and applicant knew nothing about Burleson. At trial, the defense offered significant evidence of Burleson's character for violence when drinking ² from four different witnesses.

* Robbie Davis, who had dated Burleson more than a decade earlier, said that she and Burleson had been members of the same motorcycle club. She testified that Burleson was very jealous and became physically violent when he had been drinking.

* Douglas Hurst, applicant's former brother-in-law, testified that Burleson had a reputation for violence when he had been drinking.

* Glenn Crawford, applicant's cousin, testified that he had heard that Burleson was “someone you wouldn't want to be around because of his temper and violence,” and that he was especially violent after drinking.

* Lee Arthur Thomas, who had known applicant for thirty years and Burleson for ten, testified that Burleson was violent and “very aggressive,” as well as loud and profane when he had been drinking.

On rebuttal, the State called Deputy Darrell Galloway, Burleson's best friend and a fellow member of “The Humping People.” He said that Burleson was “nice. He respects people. He'll go out of his way to help you. And he never harmed anyone.”

The jury rejected applicant's self-defense claim and convicted him of murder. The judge found the two enhancement paragraphs true and sentenced applicant to thirty years in prison.

On appeal, applicant raised four points of error: (1) the sufficiency of the evidence to reject his self-defense claim; (2) the trial court's failure to grant a mistrial based on a comment by the prosecutor that applicant had “a shackle on his leg because he murdered a man”; (3) the trial court's failure to grant a new trial based on that prosecutor's comment; and (4) the trial court's failure to grant his motion for instructed verdict. The court of appeals rejected applicant's claims and affirmed his conviction and sentence. ³

B. The Application for a Writ of Habeas Corpus and the Habeas Judge's Findings.

Applicant filed a post-conviction application for a writ of habeas corpus five-and-a-half years after his conviction became final. He claimed that his trial counsel provided ineffective assistance of counsel because (1) he “failed to object to the prosecutor informing the jury that applicant was shackled during trial”; and (2) he “failed to present testimony regarding prior acts of violence committed by the deceased and his companion.” He also claimed that his appellate counsel provided ineffective assistance of counsel because he “failed to raise the issue that the evidence was insufficient to prove that applicant's 1976 burglary conviction was for an offense committed after his 1972 possession of heroin conviction became final.”

Trial counsel submitted an affidavit disputing his alleged ineffectiveness and explaining his strategic decisions at trial. Appellate counsel had died a year and a half before applicant filed his application and thus could not defend his actions or strategic decisions.

The habeas judge held a hearing at which trial counsel and his investigator testified. The habeas judge then made written findings of fact and conclusions of law.⁴ He concluded that applicant's trial counsel made a strategic decision not to object to the prosecutor's comment concerning applicant's shackles and that, in any event, applicant was not prejudiced by that comment. The habeas judge also found that applicant's trial counsel was not ineffective for failing to discover and offer evidence concerning prior acts of violence by James Cleveland, who had accompanied Burleson to the fight, and, according to applicant, had blocked any possible escape route from the fight. We agree with those factual findings and legal conclusions.

The habeas judge found that trial counsel provided constitutionally ineffective assistance because he failed to discover and offer evidence that Burleson had been convicted of misdemeanor assault in 1982 for stabbing a man named Chris Hanson. The habeas judge concluded that applicant was prejudiced by this failure and recommended that applicant be granted relief on this claim. The habeas judge also found that applicant's appellate attorney was ineffective because he failed to challenge the sufficiency of the evidence to prove that the enhancement paragraphs were sequential and that applicant was therefore an habitual offender, subject to a minimum of twenty-five years' imprisonment. The habeas judge concluded that applicant was prejudiced by this failure and recommended that applicant be granted relief on this claim as well. We will thus turn to those two claims after setting out the general legal standards for an ineffective assistance of counsel claim.

II.

A. The Legal Standard for Assessing an Ineffective Assistance of Counsel Claim.

To prevail on an ineffective assistance of counsel claim under Strickland v. Washington, the applicant must show that (1) counsel's performance was deficient by falling below an objective standard of reasonableness ⁵ and (2) there is a probability, sufficient to undermine the confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceeding would have been different.⁶ Courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” and that “the challenged action ‘might be considered sound trial strategy.’ ” ⁷ The applicant must prove both of these prongs by a preponderance of the evidence.⁸ When the record contains no evidence of the reasoning behind counsel's actions, a court normally cannot conclude that counsel's performance was deficient.⁹

To determine whether counsel has provided effective assistance, courts must consider the totality of the representation and the particular circumstances of each case; we do not restrict the analysis to an evaluation of isolated acts or omissions of counsel.¹⁰ “The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance.” ¹¹

With these general principles in mind, we turn to applicant's two claims.

B. Applicant Did Not Prove That His Trial Attorney Was Ineffective in Failing to Present Testimony Regarding the Murder Victim's Prior Assault Conviction.

Applicant claims that his trial attorney was constitutionally deficient because he did not discover and offer evidence of Terry Burleson's prior conviction for misdemeanor assault. Applicant asserts that evidence of this 1982 assault would have been admissible under Rule 404(a)(2) of the Texas Rules of Evidence, and that the outcome of applicant's trial probably would have been different had the jury known about the murder victim's eighteen-year-old conviction.

1. The prior assault.

Applicant has provided an affidavit from Chris Hanson, stating, “Terry Burleson stabbed me with a knife at an apartment complex in 1982.” ¹² Applicant also included copies of the 1982 offense report and the judgment of conviction for that assault. According to the offense report, Burleson had been making loud noises with his motorcycle as he drove around the apartment complex where he...