Ex Parte Chandler

• Decision Date: 13 April 2005
• Docket Number: No. WR-60942-01.,WR-60942-01.
• Citation: 182 S.W.3d 350
• Parties: Ex parte Anwar Iquill CHANDLER, Applicant.
• Court: Texas Supreme Court

Page 350

182 S.W.3d 350

Ex parte Anwar Iquill CHANDLER, Applicant.

No. WR-60942-01.

Court of Criminal Appeals of Texas.

April 13, 2005.

COPYRIGHT MATERIAL OMITTED

Randy Shaffer, Houston, for Appellant.

Baldwin Chin, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for the State.

ORDER

COCHRAN, J., delivered the Order of the Court, joined by KELLER, P.J., MEYERS, PRICE, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ.

Applicant filed an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure alleging ineffective assistance of his trial counsel and seeking relief from his conviction. Applicant was charged with the first-degree felony offense of aggravated kidnapping. A jury found him guilty as charged and sentenced him to life imprisonment. Applicant filed a direct appeal, alleging that the trial court erred by instructing the jury, during the punishment phase, to find the enhancement paragraph true based upon applicant's plea of true. The court of appeals affirmed.¹ Applicant filed a writ of habeas corpus alleging that his trial attorney provided constitutionally ineffective assistance because he failed to:

1) request a special issue during the punishment stage on whether applicant voluntarily released the kidnapping victim in a safe place; and

2) file a motion to quash the enhancement paragraph because applicant's prior conviction was not "final" when he committed the primary offense.

The trial court signed Findings of Fact and Conclusions of Law and recommended that this Court deny relief. We adopt the trial court's findings and deny relief.

I.

According to the trial court's Findings of Fact,² the evidence at trial showed that applicant and a cohort kidnapped Theddeus Prophet and his girlfriend, Roxanne Rogers, at gunpoint on August 4, 1998. The kidnappers took their two victims to Ms. Rogers' uncle's apartment where applicant and his cohort tortured and sexually abused Mr. Prophet, Ms. Rogers, and "other occupants" of the apartment. Afterwards, the kidnappers left, locking the door and burglar bars of the apartment from the outside. Mr. Prophet and Ms. Rogers managed to escape through a back window, climb down a tree, and find a police officer.

At the punishment phase, applicant pleaded "true" to the enhancement paragraph, which alleged that he had been convicted of possession with intent to deliver cocaine on December 18, 1996. At trial, the State introduced a pen packet which showed that applicant was sentenced for this offense on December 18, 1996, and gave notice of appeal on January 6, 1997. The pen packet also reflected that applicant's conviction was affirmed by the court of appeals on February 26, 1998, and that the mandate was issued on August 10, 1998, six days after applicant kidnapped Mr. Prophet.

II.

To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington,³ an applicant must show that his counsel's performance was deficient and that there is a "reasonable probability"—one sufficient to undermine confidence in the result—that the outcome would have been different but for his counsel's deficient performance.⁴ As the Supreme Court explained, the purpose of the constitutional requirement of effective counsel is to ensure a fair trial.⁵ Thus, "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."⁶ It is only in that relatively rare situation that a criminal defendant may obtain a new trial based upon a claim that his attorney provided constitutionally deficient assistance.

First, a defendant must show, by a preponderance of the evidence, that counsel's performance was constitutionally deficient—that is, counsel was not acting as "a reasonably competent attorney," and his advice was not "within the range of competence demanded of attorneys in criminal cases."⁷ Second, the applicant must show that this constitutionally deficient performance prejudiced his defense—that is, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."⁸ Under this two-pronged analytical framework, an applicant must overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance."⁹ Moreover, our "review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance."¹⁰

As the Court in Strickland aptly noted, the practice of law is an art, not a science, "and an act or omission that is unprofessional in one case may be sound or even brilliant in another."¹¹ The existence of an adversary system itself demonstrates that

there always are lawyers who will disagree on almost any issue. Since law is not an exact science, no level of skill or excellence exists at which all differences of opinion or doubts will be removed from the minds of lawyers and judges.¹²

Thus, when a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, "an error that occurs despite the lawyer's informed judgment should not be gauged by hindsight or second-guessed."¹³

A. Counsel was not ineffective for failing to request a jury instruction on "voluntary release in a safe place."

In this case, applicant alleges that his trial counsel provided constitutionally deficient legal representation because he did not request a jury instruction during the punishment stage on whether he had voluntarily released Mr. Prophet in a safe place. Applicant's trial counsel provided an affidavit stating:

Based upon this evidence [of how applicant committed the kidnapping] and my perception of how the jury received this evidence, I did not believe that the evidence actually supported a special issue of a voluntary release in a safe location. Furthermore, I did not believe that it was reasonable or plausible for the jury to believe that [applicant] left the complainant and his girlfriend in a safe location. As a result, I did not request a special instruction on voluntary release.

The trial court concluded that applicant's counsel made an informed strategic decision not to ask for an instruction on "voluntary release in a safe place" during the punishment phase.

Under section 20.04(d) of the Texas Penal Code, a defendant may, during the punishment phase, raise the issue of whether he voluntarily released his kidnap victim in a safe place.¹⁴ If the defendant proves that issue by a preponderance of the evidence, the punishment for the aggravated kidnapping is reduced from a first-degree felony to a felony of the second degree.¹⁵

It is certainly a debatable legal proposition—at least from the Findings of Fact before us—that the evidence in this trial could support a rational finding, by a preponderance of the evidence, that applicant "voluntarily released" Mr. Prophet in a "safe" place. Applicant asserts that because he left his tortured and sexually abused victims in an apartment, that fact alone is sufficient to support the submission of a jury instruction on "voluntary release in a safe place." He may have left his victims in an apartment, but he also locked the burglar bars from the outside, presumably to prevent their escape. Is a defendant legally entitled to an instruction on "voluntary release in a safe place" because his kidnap victims were small enough and agile enough to escape out of a second-story window and climb down a tree to seek assistance?¹⁶ This is, at a minimum, an issue upon which reasonably competent attorneys and judges could disagree.

A reasonably competent lawyer might well conclude that leaving kidnap victims in a locked apartment, room, or tomb is not a "release" at all. Instead, under section 20.01(1), one might conclude that those victims continue to be "restrained" because their movements are still restricted without their consent and their liberty is substantially interfered with by being confined.¹⁷ Texas courts have long held that a kidnap victim's escape from captivity does not entitle a defendant to an instruction on the issue of "voluntary release in a safe place."¹⁸

Applicant relies upon a single court of appeals case, Lavarry v. State,¹⁹ for his assertion that leaving a kidnap victim in an apartment ipso facto constitutes "voluntary release in a safe place," and entitles him to submission of a mitigating jury instruction. In Lavarry, however, the kidnap victim was not abandoned inside a locked apartment behind burglar bars. He was free to open the apartment door and free to depart unhindered.²⁰

A reasonably competent attorney might well conclude that there is an enormous factual and legal difference between a kidnap victim being voluntarily released inside an open apartment and one being left, after having been tortured and sexually abused, in an apartment behind locked burglar bars. The trial court in this case found that applicant's trial attorney made a "reasonable or plausible" strategic decision not to request a jury instruction on "voluntary release in a safe place" based upon the evidence presented at trial. We cannot fault the trial court's fact finding that this was a reasonable or "plausible," strategic decision.

This was a reasonable decision because applicant has not shown that the trial court would have (or should have) actually submitted such an instruction had it been requested, or that the evidence was sufficient to prove, by a preponderance of the evidence, that applicant did, in fact, voluntarily release Mr. Prophet in a safe place. Applicant contends that "[t]here was no sound strategic reason not to request the special issue, which could only have benefitted applicant." But a reasonably competent counsel need not perform a useless or futile...