Ex parte Ewing

• Decision Date: 20 September 1978
• Docket Number: No. 3,No. 58268,58268,3
• Citation: 570 S.W.2d 941
• Parties: Ex parte Kartis EWING
• Court: Texas Court of Criminal Appeals

Page 941

570 S.W.2d 941

Ex parte Kartis EWING.

No. 58268.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 20, 1978.

Andrew L. Jefferson, Jr., Houston, for appellant.

None appearing for the State.

Before ROBERTS, ODOM and TOM G. DAVIS, JJ.

OPINION

ODOM, Judge.

This is a post-conviction writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Petitioner was convicted of robbery by assault in a trial before a jury on a plea of not guilty on September 10 and 11, 1974. Punishment was assessed by the court at 10 years, and notice of appeal was given. The conviction was affirmed in Ewing v. State, Tex.Cr.App., 549 S.W.2d 392. A major issue in the appeal, the issue upon which the court was divided, was whether petitioner received effective assistance of counsel at his trial. In that opinion the majority stated:

"(W)e are not in a position to 'second guess', through appellate hindsight, the strategy adopted by counsel at trial. . . . The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.

"We should not . . . attempt to ascertain the specific reason why counsel interrogated the arresting officers in the manner established by the record . . . Our duty is to review the totality of the representation and determine whether the appellant has been denied his constitutional right to effective assistance of counsel."

By application for writ of habeas corpus filed in the convicting court on September 23, 1977, petitioner raised claims of ineffective assistance of counsel that will be detailed later in this opinion. The trial court denied petitioner's request for an evidentiary hearing on the issues and the record was forwarded to this Court. In a per curiam order filed in this case on November 2, 1977, this Court wrote:

"This allegation (of ineffective assistance of counsel) was raised on the direct appeal and rejected by this Court; however, this Court clearly pointed out, 'Finally, we are not in a position to "second guess", through appellate hindsight, the strategy adopted by counsel at trial.' Because of the seriousness of the allegation, we feel that an evidentiary hearing should be conducted by the trial court to allow the issue of 'trial strategy' to be developed so that the proper determination of the issue of ineffective assistance of counsel shall be made. We observe that the determination of such question must turn upon the particular circumstances of each individual case. The constitutional right to counsel, whether the counsel be appointed or retained, does not mean errorless counsel whose competency or accuracy of representation is to be judged by hindsight. See Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974); Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975).

"Since this Court does not hear evidence, Ex parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (1960), this Court will hold the instant writ in abeyance and hereby order the trial court to conduct a fact finding hearing at the earliest practical time, make findings of fact and conclusions of law, and make the same returnable to this Court pursuant to Article 11.07, Vernon's Ann.C.C.P."

Thus, this Court directed that a record be developed for determination of the issue by post-conviction habeas corpus even though the issue had been decided in the direct appeal, because the record on appeal was not adequately developed. The record of the hearing directed in the per curiam order is before us, together with the trial court's findings of fact and conclusions of law, and we can now proceed to decide the issue with finality.

Petitioner's assertions of ineffective assistance of counsel that are before us in this cause rest on claims that counsel on numerous occasions failed to object to hearsay evidence at trial, and that counsel allowed introduction at trial of evidence of two extraneous offenses where there was no ground for their admission. ¹

Before these contentions regarding counsel's trial performance are addressed, a discussion of the standard for judging that performance is in order.

We begin with excerpts, omitting citations, from our opinion in petitioner's appeal, Ewing v. State, supra, at 395-396:

"For purposes of determining the effectiveness of an attorney's representation, we have adopted the 'reasonably effective' assistance of counsel standard for use in this jurisdiction. We have also formulated reasonable and flexible rules in order to guide our application of this standard.

"First, the sufficiency of an attorney's assistance must be gauged by the totality of the representation of the accused. In our system of criminal justice an individual is entitled to a fair but not a perfect trial. Isolated failures to object to certain procedural mistakes or improper evidence do not constitute a breach of legal duty by an accused's attorney.

"We also observe that assertions of ineffective counsel shall be sustained only if they are 'firmly founded.' The record must affirmatively demonstrate the counsel's ineffectiveness.

"Finally, we are not in a position to 'second guess,' through appellate hindsight, the strategy adopted by counsel at trial. Trial lawyers occupy the realm of the here and now; they do not possess the luxury of a record to review, nor are they given time to formulate solutions to complex procedural or evidentiary issues in the midst of trial. The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.

" * * * Furthermore, the failure to object to every instance of improper evidence does not mean that appellant's representation was ineffective.

" * * * Our duty is to review the totality of the representation and determine whether the appellant has been denied his constitutional right to effective assistance of counsel."

It has been urged that effectiveness of retained counsel and appointed counsel should be judged by the same standard. We will begin examination of this proposition with a look at Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974, en banc), cert. den., 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675, in which the issue was discussed at length. The first distinction drawn in that case was between the Fourteenth Amendment due process clause standing alone and the Sixth Amendment right to counsel incorporated in Fourteenth Amendment due process. It was that court's conclusion that "whenever a lawyer's ineffectiveness has rendered a trial fundamentally unfair, whether he be retained or appointed and whether his action or inaction was known or unknown to state trial officials, a deprivation of Fourteenth Amendment due process results from enforcement of the resultant judgment." Distinguishing the incorporated Sixth Amendment standard from the standard of due process alone, the court stated that "the standard of reasonably effective assistance of counsel . . . covers a greater range of counsel errors than does the fundamental fairness standard."

The Fitzgerald court held that the reasonably effective assistance of counsel standard applies to both appointed and retained counsel, yet the test for deprivation of the constitutional right requires a showing of state action In addition to a showing of services below the "reasonably effective assistance of counsel" standard. That court wrote, "The circumstances in which the state will be Bound by Retained counsel's Failure to meet the Sixth Amendment standard of effectiveness . . . must be assessed more strictly . . . ." (Emphasis added). The test for relief for ineffective assistance of counsel thus consists of two parts: performance below the Sixth Amendment standard and state action.

For retained counsel, the Fifth Circuit adopted this test for the state action requirement:

"To find state involvement in retained counsel's conduct which is adjudged to be less than reasonably effective . . . it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have Actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained attorney's representation is So apparent that a reasonably attentive official of the state Should have been aware of and could have corrected it then again the state action requirement is satisfied." (Emphasis added.)

Thus, state action may be shown by actual or constructive awareness by the court or prosecutor of retained counsel's less than reasonably effective assistance. The great difficulty in applying this test is introduced by the trial strategy and tactics factor. It is to be presumed that the trial judge is fully aware of the actual performance of retained counsel in the courtroom, but how is the trial judge to weigh that performance in light of possible defense strategy and tactics? The Fitzgerald opinion also recognized this problem, and stated that interrupting the trial to question retained counsel about his strategy and tactics would often be counterproductive for the defendant.

We agree that to secure relief for ineffective assistance of retained counsel there must also be an adequate showing of state action by failure of a responsible state official connected with the criminal proceeding (such as the trial judge or prosecutor) to take corrective action when that official had actual or constructive knowledge of retained counsel's failure to deliver reasonably effective assistance. The...