Ex parte Raborn

• Decision Date: 26 October 1983
• Docket Number: Nos. 69123,69124,s. 69123
• Citation: 658 S.W.2d 602
• Parties: Ex parte Michael Allen RABORN. Ex parte Michael Dan WETZEL.
• Court: Texas Court of Criminal Appeals

Page 602

658 S.W.2d 602

Ex parte Michael Allen RABORN.

Ex parte Michael Dan WETZEL.

Nos. 69123, 69124.

Court of Criminal Appeals of Texas En Banc.

Oct. 26, 1983.

Allan K. Butcher, Fort Worth, for appellants.

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

Before the court en banc.

OPINION

ONION, Presiding Judge.

These proceedings involve post-conviction applications for writs of habeas corpus under Article 11.07, V.A.C.C.P.

At the trial for burglary of a habitation the jury convicted and assessed each applicant's punishment at twenty (20) years' imprisonment. In their habeas applications the applicants allege that they were denied effective assistance of counsel at trial. ¹ In those applications it was alleged that trial counsel did not make an independent investigation of the facts of the case and did not take an active role in the preparation of the defense of the applicants. The applicants also alleged that the District 7-A Grievance Committee of the State Bar of Texas had suspended the trial attorney from the practice of law for a period of six months because he had accepted a fee to represent applicants and then spent an inadequate amount of time to present the lawful objections of his clients.

Several affidavits were filed in connection with the applications including one by the trial counsel who confessed that he had failed to interview the State's witnesses, inspect the physical evidence, make proper explanation of the law to the applicants, etc., and had thus deprived them of the effective assistance of counsel.

After an evidentiary hearing in which trial counsel testified and adopted his affidavit, the court found that there had been effective assistance of counsel at trial. The record was forwarded to this court.

These proceedings were then filed and set. One of the reasons for such action was to determine what effect a finding of professional misconduct in a criminal case by a State Bar Grievance Committee has on a subsequent habeas corpus proceeding.

After further examination of the record and research, we find that the action of the District 7-A Grievance Committee concerning the attorney here involved was based in part on matters other than the question of effective assistance of counsel at trial. See Texas Bar Journal, Vol. 45, No. 9, p. 1282 (October, 1982). See also finding No. 8 of the trial judge in the instant post-conviction habeas corpus proceedings after evidentiary hearing. A finding of professional misconduct based on other matters as well as actions of counsel at trial should have no bearing on a subsequent Article 11.07, V.A.C.C.P., proceedings alleging solely the ineffective assistance of counsel at trial. We decline to discuss such matter as an abstract subject.

Looking at the other facts, we noted that the trial attorney, although with sixteen years of experience in the practice of criminal law, did not talk to the State's witnesses ² or visit the scene of the crime, etc. He talked to the prosecutors, but never inspected the physical items of evidence found in an automobile at the time of arrest of the applicants. He assumed they were such common items they could not be identified by the owners. ³ The State offered to recommend eight years' probation and a $1,000.00 fine as punishment if the applicants entered guilty pleas. It appears counsel told applicant Raborn's brother of the offer, but the evidence is conflicting as to whether he ever informed the applicants personally of the offer. He never evaluated the offer for the applicants in light of the facts of the case. The law relating to the unexplained possession of recently stolen property was not made known to the applicants. Counsel appears to have told the brother of applicant Raborn the State had no evidence or witnesses to implicate either applicant. At trial the State's witnesses were able to identify and place the applicants at or near the scene of the alleged offense, and were able to identify the property found in the possession of the applicants. ⁴ After the State's evidence was presented, applicants told counsel of their alibi, a defense which counsel had not discussed with them. Alibi witnesses had to be hastily summoned. Counsel interviewed these witnesses in a group for about five minutes. Counsel had not previously interviewed these witnesses. In the midst of trial the State offered to recommend as punishment 10 years' imprisonment if the applicants pled guilty. Counsel advised applicants they "could hardly do worse" if the trial proceeded. It did and the jury assessed each applicant a penalty of 20 years' imprisonment.

Counsel was retained by applicant Raborn's brother. It is now established that the standard for both appointed and retained counsel is the "reasonably effective assistance of counsel," meaning "counsel reasonably likely to render and rendering effective assistance." Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). In applying this standard, the adequacy of an attorney's services on behalf of an accused must be gauged by the totality of the representation. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Johnson v. State, 629 S.W.2d 731 (Tex.Cr.App.1981); Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981); Archie v. State, 615 S.W.2d 762 (Tex.Cr.App.1981); Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977). Thus, it is the totality of the representation, rather than isolated acts or omissions, as the proper basis for inquiry in regard to whether there has been a denial of effective assistance of counsel. Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1974). In this connection any claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case. Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977).

It appears that most of the omissions attributed to trial counsel arose from his failure to conduct an independent factual investigation. This is an essential element of the standard of effective assistance of counsel as applied by this court. See Ex parte Duffy, supra. The State attempted to show counsel discussed the case with the prosecutor, but reliance upon such conversations and discussions for all information is no substitute for an independent investigation of the facts, particularly when there was no effort to examine physical evidence or to talk to the State's witnesses.

Further, counsel did not evaluate the State's offer of probation for the applicants, and indeed because of his failure to investigate and to prepare for trial he was not in a position to do so.

Considering the particular circumstances of the case, and the totality of the representation and the standard to be applied, we conclude that applicants did not have the effective assistance of counsel at trial.

The judgment of conviction in Trial Court Cause Nos. 26,093 and 26,094 is vacated and set aside. Each applicant is remanded to the custody of the Sheriff of Parker County to answer the indictment, and the clerk of this court is directed to forward a copy of this opinion to the Texas Department of Corrections.

It is so ordered.

CLINTON, Judge, concurring.

As the Court points out, one reason we ordered these matters filed and set was in order to consider what bearing, if any, a finding of professional misconduct in representing clients may have in a subsequent postconviction habeas corpus proceeding brought by them pursuant to Article 11.07, V.A.C.C.P. alleging ineffective assistance of counsel. My purpose is to demonstrate why it should have none--generally and in this cause.

Constitutional underpinnings support due process principles that every accused who asserts the right to an attorney is entitled to "the guiding hand of counsel at every step in the proceedings against him"--counsel "giving of effective aid in the preparation and trial of the case," Powell v. Alabama, 287 U.S. 45 at 68-71, 53 S.Ct. 55, at 64-65, 77 L.Ed. 158 at 170-172 (1932); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Ex parte Duffy, 607 S.W.2d 507, at 513-516 (Tex.Cr.App.1980). This Court continues to use "the standard of 'reasonably effective assistance of counsel' to test adequacy of representation afforded an accused," Ex parte Duffy, supra, at 516. That is, "counsel reasonably likely to render and rendering reasonably effective assistance," McKenna v. Ellis, 280 F.2d 592 (CA5 1961) as quoted approvingly by the Court in Caraway v. State, 417 S.W.2d 159, 162 (Tex.Cr.App.1967), and reaffirmed in Ex parte Duffy, supra, at 514, n. 14, and at 516, n. 17. The standard is applied to the totality of representation afforded the client by trial counsel in the case at hand Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981); Sanchez v. State, 589 S.W.2d 422, 424 (Tex.Cr.App.1979); Cude v. State, 588 S.W.2d 895, 896 (Tex.Cr.App.1979), but the "impact" of grievous defaults may make it apparent that an accused did not receive effective assistance of counsel, Weathersby v. State, 627 S.W.2d 729, 730 (Tex.Cr.App.1982) and Cude v. State, supra, at 896. In all of this the goal is to secure and protect due process rights of an accused to a fair trial through aid and assistance of reasonably competent counsel.

On the other hand, the duty of a district grievance committee is "to receive complaints of professional misconduct alleged to have been committed by an...