Ex parte Duffy

• Decision Date: 01 October 1980
• Docket Number: No. 64863,64863
• Citation: 607 S.W.2d 507
• Parties: Ex parte Harvey Joseph DUFFY, Jr.
• Court: Texas Court of Criminal Appeals

Page 507

607 S.W.2d 507

17 A.L.R.4th 546

Ex parte Harvey Joseph DUFFY, Jr.

No. 64863.

Court of Criminal Appeals of Texas, En Banc.

Oct. 1, 1980.

Rehearing Denied Nov. 26, 1980.

Maury Maverick, Jr., San Antonio, Mike Tobin, Huntsville, Gerald H. Goldstein and Robert H. Ozer, San Antonio, for appellant.

Bill M. White, Dist. Atty., Charles T. Conaway and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CLINTON, Judge.

This is a post-conviction application for writ of habeas corpus under the ambit of Article 11.07, V.A.C.C.P.

On September 14, 1976, petitioner was convicted of the offense of capital murder and assessed death after the jury returned with affirmative findings to the three special issues submitted under Article 37.071, V.A.C.C.P. On direct appeal, the Court affirmed the judgment of conviction without dissent, one judge concurring in the result. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978). The Supreme Court of the United States, two justices dissenting, denied petitioner's application for writ of certiorari on November 27, 1978. Duffy v. Texas, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978) (Brennan and Marshall, JJ., dissenting consistent with their expressions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)).

Having exhausted his avenue of direct appeal, petitioner filed an application for writ of habeas corpus in the 186th District Court of Bexar County on January 8, 1979, alleging that he was denied the effective assistance of counsel during his capital murder trial. Petitioner also advanced the contention that during the course of the trial as well as at critical times prior to trial, he was so heavily sedated by physicians employed by the State that he could not adequately comprehend nor participate intelligently in his own defense. From March 15 through March 19, a hearing was held in the 186th District Court on petitioner's application. On June 4, 1979, the Judge of the habeas court entered findings of fact and conclusions of law on the application recommending that relief in all things be denied. On original presentation to this Court, application for writ of habeas corpus was denied without written order on April 30, 1980. Some two weeks thereafter, however, the Supreme Court of the United States decided Cuyler v. Sullivan, --- U.S. ----, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) in which the Court rejected conventional legal thought dichotomizing retained and appointed criminal defense counsel; viz,

"Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers." ¹

Id. at --- U.S. ----, 100 S.Ct. at 1716.

Because Part III of the opinion in Cuyler v. Sullivan, supra, from which the above excerpt is taken, ² obliterates any distinction previously made between criminal lawyers in testing for "state action," ³ we granted petitioner's motion for rehearing on May 28, 1980, limited to the question of alleged failure of retained counsel to provide adequate representation. The matter was submitted to the Court En Banc June 18, 1980, on briefs and oral argument. From our examination of the record and aided by the submissions, we are convinced that petitioner was not afforded "effective assistance of counsel," ⁴ and now vacate the judgment of conviction and sentence of death, and grant the relief sought.

I.

"On January 14, 1976, the body of Louise Word, an eighty-year-old woman, was found in her house in a rural area of Bexar County. The evidence showed that she had been stabbed ten times with a knife. The front screen door of her house was bent and twisted, indicating a struggle had taken place. Large bloodstains were found in the living room and trails of blood led to the bedroom where the body of the deceased was found. Drawers in the house appeared to have been opened and rifled.

"On January 16, 1976, (petitioner) was arrested in Fredricksburg, where he subsequently made a confession to the crime. The evidence reflects that (petitioner) had been in possession of checks belonging to the deceased, and that for two and one-half days (petitioner) had been forging and cashing the checks in three cities. Other evidence found at the scene of the crime connected (petitioner) with the murder."

Duffy v. State, supra at 199-200. ⁵

On April 14, 1976, petitioner was indicted for the offense of capital murder and on May 5, 1976, Judge Preston H. Dial, Jr., appointed Lonnie Duke, Esq. to represent petitioner in the case. On June 2, 1976, Antonio Cantu, Esq. was also appointed by the trial judge to assist Duke in preparation and trial of the case. During their tenure as counsel, Duke and Cantu prepared and filed a motion for a court appointed psychiatrist as well as a motion for discovery. Neither motion was ever presented to or acted upon by the trial court due to a turn of events beginning soon after these motions were filed.

Between the hours of ten and eleven o'clock on the evening of June 22, 1976, petitioner's father received a telephone call from one who identified himself as Joel Conant, an attorney. Conant said he had talked with his son and was "very much interested" in his case, and would like to discuss it further during office hours the following day. The next morning, Mr. Duffy went to Conant's office where he was formally introduced to the lawyer and again was told that Conant was interested in handling petitioner's case. The pair then went to the Bexar County Jail to visit petitioner; on the way over, Mr. Duffy recalled, Conant gave him "the impression that he was an expert in criminal law and prosecuting (sic) capital murder cases." Following their visit with petitioner an agreement was reached that Conant would defend petitioner in the pending capital murder prosecution. Later in conversation with his son did Mr. Duffy learn that before he was retained Conant had in fact approached petitioner at the Bexar County Jail upon the advice of a jail guard with whom Conant had some character of relationship.

Some three weeks later, Conant announced ready when the case was called for trial on July 12, 1976, however, the trial judge, who later would be the habeas judge, opined that Conant surely needed more time to prepare for trial, and reset the case. Shortly, signals of discontent with Conant appeared in a letter that petitioner dispatched to the trial judge. It relates and requests:

"I am writing you in regard to the postponement of my trial as ordered by you on July 12, 1976.

"It was the stipulation of the court that the reason for the postponement was to allow me to examined (sic) and treated for hepetitus (sic). As til (sic) this date I have not been examined nor treated for hepetitus (sic). Not only that Judge Barlow, but the medicine prescribed for me in relation to a nerve condition has been discontinued.

"I have been in hopes (sic) that my attorney would pay me a visit and could perhaps explain these things and inquire of the officials here of the jail why your explicit orders have been ignored. However, he hasn't been to see me since I was in court July 12, 1976. He is not court-appointed attorney (sic). I have written him but have not received a reply nor acknowledgement of my letter.

"I suppose this is an unusual request, but sir, could you please have my attorney contact me regarding the medical problem?"

We are not informed how this matter was resolved. Yet the record does show that before trial began Conant visited his client twice and conferred with his father on two occasions-"and if either lasted over fifteen minutes ... I would be surprised," said Mr. Duffy. What petitioner said to his attorney is not revealed, but Mr. Duffy told Conant that his son had been under the care of a psychiatrist, naming him, for over a year and that the psychiatrist was available to testify about the mental condition of petitioner and the prior treatment given him. Mr. Duffy also informed Conant of at least two other potential witnesses for his son: one, a former girlfriend knowledgeable about circumstances surrounding his confession; two, a police officer who would testify about his character.

Conant did not move for appointment of a psychiatrist to examine his client or present to the trial court for determination the motion that the appointed attorneys had prepared and filed. Neither did he present a motion for discovery nor call up the one previously filed. Nor did he move to suppress petitioner's confession. His only pretrial motion was for individual voir dire of prospective jurors, a procedure sanctioned by Article 35.17, V.A.C.C.P. and followed as a matter of custom and practice in Bexar County.

Trial began September 7, 1976; the docket sheet reflects that a jury was selected in less than eleven hours. Conant did not voice any objection on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) to some seven jurors who were challenged for cause even though there was no showing that any of the seven were irrevocably committed to voting against the death penalty regardless of the facts of the case. See also Adams v. Texas, --- U.S. ----, 100 S.Ct. 2521, 65 L.Ed.2d 581 (June 25, 1980). The record does not affirmatively reflect that any of the prospective jurors were required to state under oath, consistent with V.T.C.A. Penal Code, § 12.31(b), that the mandatory penalty of life imprisonment or death would not affect their deliberations on any issue of fact. ⁶

In presenting its case, the State called some twelve witnesses who laid down a pictorial mosiac of a brutal crime and, with his own confession, the involvement of petitioner in it. Evidence from an inventory search of his motor vehicle was admitted, without having been...