Ex parte Walker
| Decision Date | 27 September 1989 |
| Docket Number | No. 70710,70710 |
| Citation | 777 S.W.2d 427 |
| Parties | Ex parte Samuel WALKER, Jr., Applicant. |
| Court | Texas Court of Criminal Appeals |
This is an application for post-conviction writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. This Court ordered this cause filed and set for submission on November 16, 1988.
The jury found applicant guilty of the offense of aggravated robbery, and assessed his punishment at 45 years in the Texas Department of Corrections. In his writ, the applicant asserts a number of allegations to support a claim that he was rendered ineffective assistance of counsel at the pretrial, trial, and punishment stages of his prosecution. The findings of fact and conclusions of law made by the trial court, after a hearing on applicant's writ, urge that relief be granted. After reviewing the record of both the applicant's trial and the writ hearing we find that the trial court's findings and recommendation regarding the punishment stage of the trial are adequately supported by the record and are thereby adopted.
Because the applicant's request for relief is based upon allegations of ineffective assistance of counsel during his jury trial it is necessary that the facts of the offense be identified. The State presented evidence that on December 3, 1981, the applicant and another man entered a Burger King restaurant after it had closed by climbing through the drive-in window. After they got into the restaurant they placed several of the employees and a customer into a walk-in cooler. Two other employees, avoiding detection, secreted themselves in the men's restroom. While this was occurring, the applicant approached the manager of the Burger King, placed a gun to his head, and ordered him to open the safe. After the manager opened the safe he was placed in the cooler with the others. The State's witnesses then testified that while they were in the cooler they heard the applicant and the other man let another person into the restaurant through the back door. After the men left the restaurant the people in the cooler and the restroom came out and called the police.
While on patrol a Bellaire Police Department Sergeant received information from a taxicab driver that there were three suspicious men at a nearby convenience store. The police officer went to the convenience store and while detaining one of the men noticed another man trying to hide behind a car. The man behind the car, obviously seeing the policeman, dropped a paper bag and ran. The Sergeant called for backup help, left the man at the convenience store in the custody of another taxicab driver and pursued the running man. As he began chasing the man he noticed that the bag that was dropped contained cash money.
When the backup police officer arrived he found the bag of cash and took the other man into custody. In addition, he was told that there was a man inside the store (applicant) who had been with the men outside so he took him into custody also. The Sergeant shortly returned without catching the man that had run.
By this time the Bellaire police knew that a nearby Houston Burger King had been recently robbed. Consequently, they turned the cash, the applicant and the other man over to the Houston police.
During the applicant's trial, in addition to the testimony of several police officers, the State presented the testimony of those people that were placed in the cooler: the Burger King's manager, two of his employees, and the customer. The police officers testified about the events leading up to the applicant's arrest inside the convenience store and his being identified by the witnesses at a lineup. Each of the other witnesses positively identified the applicant as one of the individuals who entered the Burger King, armed with a pistol, and robbed it. Despite an aggressive cross-examination, each of the witnesses maintained their identification of the applicant. In addition, each testified that shortly after the robbery they identified the applicant at a lineup conducted by representatives of the Houston Police Department.
After the jury returned its guilty verdict, the State presented a judgment and sentence showing that the applicant had been assessed eight years in the penitentiary for aggravated robbery less than a month before he committed this offense. The applicant presented no evidence at the punishment stage of the trial. The jury assessed the applicant's punishment at forty-five years in the penitentiary.
By way of background, the record reflects that trial counsel and the applicant are maternal cousins. After the applicant was arrested, his parents visited counsel in her home, whereupon she undertook a limited agreement to represent the applicant regarding the trial which is the subject of this writ. According to applicant's counsel's affidavit, the limited agreement to represent the applicant encompassed only pretrial appearances. Counsel also claimed that she obtained assurances from applicant's parents that they would hire a more experienced attorney to represent him at trial. On the date the trial commenced, June 1, 1982, it was counsel's understanding that applicant would accept the fifteen year plea bargain offered by the State. However, the applicant refused to accept the State's offer, choosing instead to hold out for a lower offer. A proposal for less than the fifteen years previously offered by the State was not forthcoming, and applicant's counsel was unexpectedly compelled to proceed with trial.
An exhaustive recitation of the particulars of the testimony and circumstances surrounding counsel's alleged deficiencies at the various phases of the applicant's trial would only serve to obscure the issues relevant to this writ. The findings of fact made by the trial court after a hearing, may be paraphrased as follows:
PreTrial and Guilt-Innocence
(1) Counsel was aware that the case was set for trial some three months in advance; yet failed to inform trial court of her agreement with applicant's parents of her limited representation or that she was not prepared for trial.
(2) Counsel had access to the State's file, which she read and took extensive notes from; yet she conducted only a perfunctory investigation, limited to conversations with the applicant and several witnesses prior to trial.
(3) Counsel never visited the scene of the robbery, only to discover at trial that a familiarity with the layout of the site was critical to rebut the State's evidence as to the means of entry during the offense.
(4) Counsel also undertook to represent applicant on appeal from a plea of guilty to aggravated robbery in another case wherein applicant received eight years confinement as punishment. The conviction arising from this prior offense occurred some fourteen days before the commission of the instant offense. While counsel filed a notice of appeal for the prior conviction, she admitted that the notice was filed four days late. In spite of the tardiness of counsel's filing of notice of appeal, she erroneously assumed that, since an appeal was "pending," the prior conviction could not be admitted in the instant trial.
(5) Counsel failed to file pretrial motions or secure a ruling from the court as to the admissibility of the prior conviction.
(6) Counsel, by her own line of questioning, elicited testimony that applicant had been identified by other witnesses as a suspect in another robbery. Counsel's justification for doing so was her belief that those witnesses misidentified her client. During her efforts to show misidentification, the extraneous offenses were admitted.
(7) Counsel failed to object on two occasions to improper hearsay.
Punishment
and then failed to object or to ask for an instruction to disregard.
The proper standard by which to gauge the adequacy of representation by counsel at the guilt-innocence stage was articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). The test set forth in Strickland, simply stated, requires a two-pronged analysis: (1) Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms, and (2) if so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different? A "reasonable probability" was defined by the Supreme Court as "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068.
As in the case before us, Hernandez involved a claim of ineffective assistance of counsel at the guilt-innocence stage. That decision arose out of the applicant's petition for discretionary review following his conviction for capital murder and sentence of life imprisonment. In Hernandez, the appellant contended that his trial counsel rendered ineffective assistance for three reasons: failure to pursue an insanity defense; presentation of evidence that rebutted the defense of self-defense; and ignorance of the facts of the case and governing law. Id., at 57. Judge Tom Davis concluded:
It is obvious from a review of the entire record that in certain respects trial counsel rendered sub-par assistance. But in the particular instances where...
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