Ex parte Skelton
| Decision Date | 10 July 2013 |
| Docket Number | No. 04-12-00066-CR,04-12-00066-CR |
| Parties | EX PARTE Patricia Foster SKELTON |
| Court | Texas Court of Appeals |
From the 38th Judicial District Court, Real County, Texas
Honorable Camile G. Dubose, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice
AFFIRMED
Patricia Skelton appeals from an order denying her relief on her application for a writ of habeas corpus. On appeal, Skelton offers three grounds for granting habeas relief: her constitutional rights were violated because she is actually innocent, she was denied a fair trial due to prosecutorial misconduct, and she received ineffective assistance of counsel. We affirm.
Skelton was convicted of forging the will of a deceased client, Ysidro Canales. To convict Skelton, the State had to prove she forged a writing with intent to defraud or harm another. TEX. PENAL CODE ANN. § 32.21(b) (West 2011). The State specifically alleged Skelton committed forgery by altering a writing so it purported to be an actual act of Canales. Skelton v. State, No. 04-08-00720-CR, 2010 WL 2298859, at *1 (Tex. App.—San Antonio June 9, 2010, pet. ref'd)(mem. op., not designated for publication); see TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West 2011).
At trial, the State and Skelton both presented evidence that Skelton had literally cut and pasted the signatures of Canales and two witnesses onto a document, which Skelton claimed was a computer copy of a will executed by Canales. She then photocopied the altered document and filed that copy with the probate court without informing the court that neither Canales nor the witnesses ever signed that particular document.
The State's theory of the case was that Skelton made Canales's alleged will from whole cloth and that Canales had never executed a will. To this end, the State presented evidence that neither Skelton nor Canales could have met in her office in Leakey, Real County, Texas, to sign the will on the date stated on the filed copy. The State presented evidence that Skelton attended a hearing in Kerrville, Kerr County, Texas, that morning and that Canales was on his way to gamble in Louisiana with his sister by that afternoon. Regardless of whether Canales had executed a will, the State argued that Skelton committed forgery because she filed an unsigned copy of the will intending to defraud the court or potential heirs. The State offered expert testimony that different probate procedures would have to be used to probate an unsigned copy of the will. These procedures were not followed because Skelton did not inform the court of what she had done.
Skelton testified the document she created was a copy of a will validly executed by Canales. She testified Canales kept the original will, but it was lost and the signed copy of his will she kept in her office had been severely water damaged by a flood. She further testified she did not know she could probate an unsigned copy of his will. She had cut out signatures from the signed copy of Canales's will and pasted them onto a new copy of the will, and admitted she did not inform the probate court of what she had done. According to her attorney's testimony at the habeas hearing, his trial strategy focused on denying that she acted with the intent to defraud or harm anotherbecause Canales did execute a will and the document Skelton filed was a copy of that will. Because the filed copy represented Canales's intentions, she did not act with the intent to harm or defraud. The record of the trial reflects that the trial court, the prosecution, and the defense agreed Skelton's intent was the main point of contention. See TEX. PENAL CODE ANN. § 32.21(b) (West 2011).
Skelton was ultimately convicted of forgery and sentenced to community supervision. She appealed her conviction to this court, and we affirmed the judgment. Skelton, 2010 WL 2298859, at *4. The Court of Criminal Appeals refused her petition for discretionary review.
During the State's investigation of Skelton, some of Canales's heirs contested the will offered for probate. The probate court stayed the contest until Skelton's criminal trial was completed. After Skelton's conviction, the probate case resumed and the jury found the filed copy was an accurate copy of Canales's will. One of the jury questions specifically asked if Skelton had forged the will offered for probate. The charge used the Penal Code definition of forgery and other relevant terms. The jury found Skelton did not forge the will.
Skelton then applied for a writ of habeas corpus, and the habeas court denied relief without a hearing. This court abated the appeal and remanded her case to the habeas court to conduct an evidentiary hearing on the ineffective-assistance-of-counsel claim. The hearing was held, and the trial court made findings of fact and conclusions of law. The supplemental record has been filed in this court.
We review a trial court's order denying relief on a writ of habeas corpus for abuse of discretion. Ex Parte Klem, 269 S.W.3d 711, 718 (Tex. App.—Beaumont 2008, pet. ref'd); see Ex Parte Twine, 111 S.W.3d 664, 665 (Tex. App.—Fort Worth 2003, pet. refd). Under this standard, we view the facts in the light most favorable to the court's ruling. Ex Parte Klem, 269 S.W.3d at 718. To this end, we afford almost total deference to the habeas court's determination of historicalfacts supported by the record, especially when the factual findings rely on evaluations of witnesses' credibility and demeanor. Ex Parte Twine, 111 S.W.3d at 665. The court's application of the law to the facts is accorded the same deference, if its application also turns on points of evidence related to credibility and demeanor. Id. Otherwise, we review its application of the law to the facts de novo. Id. at 665-66.
Skelton alleges her trial was rife with instances of prosecutorial misconduct, all of which combined denied her right to due process. Every allegation of misconduct contained in her application rests on facts that were known to her at the time of her direct appeal—yet she failed to raise her prosecutorial-misconduct claim in that forum. See Skelton, 2010 WL 2298859. We therefore hold Skelton forfeited her constitutional claim. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 3(a) (West 2005); Ex Parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). She cannot resuscitate it now through a writ of habeas corpus. Ex Parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) ().
Effective representation is not flawless representation. To be entitled to habeas relief for ineffective assistance of counsel, Skelton must prove by a preponderance of the evidence that her attorney's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result." Thompson v. State, 9 S.W.3d 808, 812—13 (Tex. Crim. App. 1999); see also United States v. Cronic, 466 U.S. 648, 656—57 (1984). We evaluate her claim under the two-prong Strickland test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex Parte Nailor, 149 S.W.3d 125, 129—30 (Tex. Crim. App. 2004). Under this test, we look to the totality of her attorney's representation to analyze all of Skelton's allegations of deficient performance and decide whether her attorney's conduct was constitutionally deficient; if it was deficient, we then consider whether the attorney's deficient acts or omissions, in their totality, prejudiced Skelton's defense. Ex Parte Nailor, 149 S.W.3d at 130. Isolated errors of commission or omission ordinarily do not cause counsel to become ineffective. Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Yet sometimes a single egregious error may sufficiently demonstrate that a defendant received ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id.
An attorney's performance is constitutionally deficient if it fell below an objective standard of reasonableness under the facts of the particular case and the prevailing professional norms at the time of the attorney's conduct. Strickland, 466 U.S. at 690; Ex Parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013); see also Ex Parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998) (). To avoid the deleterious effects of hindsight, we indulge the strong presumption that her counsel's performance fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Ex Parte Nailor, 149 S.W.3d at 130.
Skelton must also affirmatively show she was prejudiced by her counsel's deficient performance. Thompson, 9 S.W.3d at 812; Ex Parte Nailor, 149 S.W.3d at 130. The alleged prejudice must rise to the level that there is a reasonable probability the result of the trial would have been different but for counsel's unprofessional errors. Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. An isolated error of counsel often will not show such a probability. Passmore v. State, 617 S.W.2d 682, 686 (Tex. Crim. App. [Panel Op.] 1981), overruled on other grounds by, Reed v. State, 744 S.W.2d 112, 125 n.10 (Tex. Crim. App....
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