Ex parte Felton

• Decision Date: 18 September 1991
• Docket Number: No. 71069,71069
• Parties: Ex parte Frank Douglas FELTON, Applicant.
• Court: Texas Court of Criminal Appeals

Page 733

815 S.W.2d 733

Ex parte Frank Douglas FELTON, Applicant.

No. 71069.

Court of Criminal Appeals of Texas En Banc.

Sept. 18, 1991.

Frank Douglas Felton, attorney pro se.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Tex.Crim.Proc.Code art. 11.07.

Applicant was convicted in 1981 of aggravated robbery. Tex.Penal Code § 29.03. The conviction was enhanced by a prior conviction from 1961 for a capital offense, robbery by firearm. Tex.Penal Code art. 1408 (Vernon 1953), see Tex.Gen.Laws ch. 62, 1895, repealed by Tex.Penal Code § 29.03 (1974). Punishment was assessed at seventy-five years imprisonment. The Fifth Court of Appeals affirmed applicant's conviction and sentence. Felton v. State, 659 S.W.2d 482 (Tex.App.--Dallas 1983).

In a previous application, applicant contended that the 1961 conviction, used to enhance punishment, was void because he had waived a jury trial and entered a guilty plea to the charge which at the time was a capital offense. This Court remanded the cause to the trial court for a hearing to determine if the 1961 conviction was void. After the hearing, the trial court entered findings of fact and conclusions of law, determining that the 1961 conviction was void. ¹ The trial court, however, also found that applicant had failed at trial to make an objection, specifically based on the invalidity of the 1961 conviction, to the use of that conviction to enhance punishment. Thus, we denied relief without written order.

Applicant now asserts that his counsel was ineffective because he failed to object to the use of the void prior conviction to enhance punishment. Applicant contends that his counsel was ineffective in failing to properly investigate the validity of the prior conviction, and in failing to know the law that applied at the time of the 1961 conviction. U.S. CONST. amend. VI. We remanded the cause to the trial court for a hearing to determine if there was a basis for applicant's claim.

On February 27, 1989, the trial court held a hearing pursuant to this Court's remand order. Applicant's trial counsel was questioned regarding his knowledge of the law to be applied to applicant's 1961 conviction.

Q. [By Ms. Batjer, prosecutor] Well, with regard to the 1961 case. Was it your--was it your understanding that the State had to file a written notice in order to seek the death penalty?

A. Of the offense--of the many offenses that were listed of which capital punishment was a potential that the law in existence in 1961 is that the State of Texas had to file written notice of intent to seek death, which triggered several other aspects of the code to come into effect in determining whether or nor an individual was going to receive a capital punishment for any of the offenses that were listed. And there were numerous ones back in that period of time. The Code of Criminal Procedure was amended in 1966, and then in 1972 as a result of Thurman versus Georgia [sic]. There was a new procedure for capital offenses after 1973. But my understanding of the law in 1971 [sic] was that prior to the time that it could be a capital offense, there had to be written notice--my understanding was that there had to be written notice of intent to seek death.

* * * * * *

Q. [By Applicant] And you've made reference to the State giving notice of intent to seek the death penalty as your reason for not objecting; that that statute did not become effective until the present Code of Criminal Procedure. Are you aware of that?

A. I'm not aware of that.

* * * * * *

Q. I said can you see of any reason--can you give me any reason why you would use--apply a code--a statute that didn't become effective until five years after my trial?

A. The only thing I can tell you is that the law that I believed that was operating under at the time was the law that I based my failure to object on.

Counsel's testimony at the writ hearing clearly indicates that he did not know the correct law to be applied to applicant's 1961 conviction, and that his failure to object to the use of that conviction to enhance punishment was a result of his misunderstanding of the law to be applied. ²

We must now determine whether counsel's conduct of applicant's trial constituted ineffective assistance of counsel.

The error complained of in the instant case occurred during the punishment phase of trial. The standard for evaluating a punishment phase "ineffective assistance of counsel claim" is the "reasonably effective assistance" standard of Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), rather than the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App.1987); Ex parte Walker, 794 S.W.2d 36 (Tex.Cr.App.1990). The "reasonably effective assistance" standard has been explained "to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960) (emphasis original); Ex parte Duffy, supra.

In applying this standard, this Court judges the "full scope of 'assistance'--representation, performance, delivery--for effectiveness rather than adequacy of ability or capacity to advise. The standard we retain mandates an examination both of competence, 'likely to render,' and of assistance, 'and rendering,' in determining effectiveness of counsel." Ex parte Duffy, supra at 516, note 17; Ex parte Walker, supra at 37. While this Court normally looks to the "totality of the representation" and "the particular circumstances of each case" in evaluating the effectiveness of counsel, Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Cr.App.1983), we have also found that under some circumstances a "single error of omission by ... counsel [can] constitute[ ] ineffective assistance." Jackson v. State, 766 S.W.2d 504 (Tex.Cr.App.1985), modified on other grounds on remand from the U.S. Supreme Court 766 S.W.2d 518 (Tex.Cr.App.1988).

We must now decide whether applicant was denied effective assistance under the circumstances of his representation at the punishment phase. Applicant cites Ex parte Scott, 581 S.W.2d 181 (Tex.Cr.App.1979) to support his contention that his counsel's failure to adequately challenge the prior conviction constituted ineffective assistance.

In Ex parte Scott, supra, Scott claimed that his counsel was ineffective because he failed to discover that an alleged prior conviction was not final at the time he committed the offense, resulting in a second alleged prior conviction. Scott further claimed that he received ineffective assistance when he was advised to stipulate to the prior convictions without being advised of the legal implications of the stipulation (i.e. the possibility of a life sentence). This Court found that under these circumstances Scott failed to receive effective assistance of counsel.

We find that in the instant application, as in Ex parte Scott, applicant was denied effective assistance when his trial counsel failed to adequately investigate his prior conviction and failed to know the law to be applied to that prior conviction. Under these circumstances, applicant's counsel was not likely to render effective assistance, and did not in fact render effective assistance. Ex parte Duffy, supra. Moreover, this single error made at the punishment phase was of a magnitude significant enough to render applicant's counsel ineffective. Jackson v. State, supra. The 1961 conviction was apparently the only one of applicant's prior convictions that was available for the State to use to enhance punishment. ³ Furthermore, applicant testified that he would have taken the witness stand in his defense, but for the possibility that he would be impeached through the prior conviction. Finally, the use of the prior conviction to enhance raised the minimum possible punishment from five to fifteen years imprisonment. Tex.Penal Code § 12.42(c). Under the totality of the circumstances, we find that the failure of applicant's counsel to adequately investigate and to know the applicable law denied applicant reasonably effective assistance of counsel. ⁴

The relief sought is granted. The applicant is hereby remanded to the custody of the Sheriff of Dallas County for proceedings consistent with this opinion. A copy of this opinion will be forwarded to the Texas Department of Criminal Justice, Institutional Division.

It is so ordered.

MILLER and BAIRD, JJ., concur in result.

1 In 1961, applicant was convicted of robbery by firearm, a capital offense at the time. Applicant waived a jury trial and pled guilty. Prior to 1965, a guilty plea to a capital offense was invalid, unless the record showed that the State affirmatively waived, with the trial court's written approval, the capital element of the offense. Under Texas law at the time of applicant's prior conviction, a trial court was without jurisdiction to accept a guilty plea in a capital case when a jury trial had been waived. Ex parte Traxler, 147 Tex.Crim. 661, 184 S.W.2d 286 (1944); Ex parte Laux, 334 S.W.2d 172 (Tex.Cr.App.1960); Ex parte Sparks, 372 S.W.2d 697 (Tex.Cr.App.1963). In 1965, Tex.Crim.Proc.Code art. 1.14 was enacted to allow guilty pleas in capital cases unless the State had filed notice of intent to seek the death penalty. Article 1.14 has since been amended to delete any reference to notice of intent to seek the death penalty, in light of the...