Ex Parte White

• Decision Date: 29 September 2004
• Docket Number: No. 74758.,No. 74757.,74757.,74758.
• Parties: Ex parte Wendell Keith WHITE.
• Court: Texas Supreme Court

160 S.W.3d 46

Ex parte Wendell Keith WHITE.

No. 74757.

No. 74758.

Court of Criminal Appeals of Texas.

September 29, 2004.

Rehearing Denied December 15, 2004.

COPYRIGHT MATERIAL OMITTED

Randy Schaffer, The Schaffer Firm, Houston, for Applicant.

District Attorney's Office, Houston, Matthew Paul, State's Atty., Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court, in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

The applicant seeks habeas corpus relief from his convictions for murder and aggravated assault. The convictions stem from the applicant's actions after an altercation in a bar in Harris County. In fleeing from the bar, the applicant ran over Latasha Vasquez and Tracey Johnson with his pickup truck. The main issue during the single trial was whether the applicant ran over the women intentionally.

In his challenge to the conviction, the applicant claims that his trial counsel were ineffective for opening the door to the prosecutor's cross-examination about the applicant's post-arrest silence.¹ The applicant also raised six other claims of ineffective assistance of counsel.² To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington, the applicant must show that counsels' performance was deficient and that a probability exists, sufficient to undermine our confidence in the result, that the outcome would have been different but for counsels' deficient performance.³

The convicting court agreed with the applicant and found that trial counsels' performance had been deficient for opening the door to the prosecutor's questions.⁴ The convicting court also found four other instances of deficient performance. In addition, the convicting court found that there was a reasonable probability that the outcome of the case would have been different if counsel had not opened the door to testimony regarding the applicant's post-arrest silence. The other errors committed by counsel further undermined the convicting court's confidence in the result of the trial. The convicting court recommended that we grant relief.

We disagree with the convicting court's recommendation and deny relief because the record does not support the convicting court's conclusion that a probability existed that a different outcome would have occurred but for counsels' deficient performance. We will address all of the claims raised by the application for habeas corpus relief.

I. Factual and Procedural Background

On an April night in 1998, the applicant went to a bar in Harris County and became embroiled in a dispute because Johnson, another bar patron, alleged that the applicant harassed her verbally.⁵ This dispute escalated, and the applicant left the bar and got into his truck. Johnson's friend followed the applicant and punched him in the face, knocking off the applicant's glasses.

The applicant drove his truck toward a restaurant that shared the parking lot with the bar. The applicant then turned his truck around and drove toward the bar, which was away from the exit. He hit Johnson with his truck. A crowd gathered and yelled that Johnson was under the applicant's truck. The applicant revved his engine and then accelerated, running over Johnson again and hitting Vasquez who was trying to help Johnson out of the way of the truck. Johnson suffered severe injuries and Vasquez, who was pregnant, was killed as a result of being run over by the applicant.

The applicant drove home. Two of the bar patrons followed the applicant home and called the police. The police went to the applicant's home, asked him his name, and asked him if the truck in the driveway belonged to him. The police arrested him and read him his rights under Code of Criminal Procedure Article 38.22, Section 2. The applicant was silent except during a transfer from one police car to another when he said that he had been home all night. The applicant did not mention that he had been in an altercation or that someone had punched him.

The State charged the applicant with murder for killing Vasquez and attempted murder for the injuries to Johnson. During the trial, the applicant's theory of the case was that he did not intentionally run over the victims with his truck. He had been beaten up, lost his glasses,⁶ and had been scared for his life. He did not realize that he had hit Johnson and Vasquez. Also, he was surprised that the police arrested him.

When the applicant testified at trial, counsel asked him whether he had told the police his version of what had happened at the bar. The applicant replied that he had not.

Before the jury charge was given to the jury, the State requested a lesser-included offense instruction on aggravated assault for the attempted murder charge. The applicant objected. In his affidavits submitted during the habeas proceedings in this case, trial counsel⁷ said that he discussed lesser-included offense instructions with the applicant during the trial and that the applicant wanted to pursue an acquittal. The applicant did not want lesser-included offense instructions included in the charge. The applicant objected to the inclusion of the instruction, and the convicting court overruled the objection.

II. The Standard and Test for Ineffective Assistance of Counsel Claims

We afford almost total deference to a trial court's factual findings in habeas proceedings, especially when those findings are based upon credibility and demeanor.⁸ However, if the trial court's findings of fact are not supported by the record, then we may reject its findings.⁹ Under Strickland v. Washington,¹⁰ to prevail on an ineffective assistance of counsel claim, the applicant must show that (1) counsels' performance was deficient by falling below an objective standard of reasonableness and (2) there is a probability sufficient to undermine the confidence in the outcome that but for counsels' unprofessional errors, the result of the proceeding would have been different.¹¹ We "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable assistance," and that "the challenged action `might be considered sound trial strategy.'"¹²

III. Claims

A. No probable change in outcome for opening the door to questions and argument regarding post-arrest silence.

In his first claim, the applicant claims that trial counsels' performance was deficient for failing to file a motion in limine for or to object to testimony and argument that applicant failed to tell his exculpatory version of the events to the police after his arrest. The applicant also alleges that counsel were deficient in opening the door to this testimony. In his affidavit, counsel said that he believed the best way to advance the theory of the case that the applicant had not intentionally run over the victims was to demonstrate that the applicant was actually a victim of circumstance. Specifically, counsel elicited testimony from the State's civilian witnesses that the applicant was assaulted, lost his glasses, and left the scene in a hurry with a bloody nose. In addition, the applicant bolstered this trial strategy by testifying that he was scared out of his mind while fleeing from other bar patrons, was rudely taken from his home, was arrested, booked, and then eventually learned from a property clerk and jailhouse television that he had been charged.

The convicting court found that the direct examination of the applicant regarding his failure to tell his exculpatory version of events and his failure to object to the testimony regarding his post-arrest silence did not advance counsels' trial strategy. The convicting court also concluded that a probability existed that the outcome would have been different but for counsels' error because the State fully exploited the error. We will assume without deciding that trial counsels' performance was deficient for asking about the applicant's post-arrest silence and opening the door to the State's cross examination on this point. We conclude that the record does not support the conclusion that a probability exists that the result would have been different but for counsels' actions because (1) ample evidence existed in the record from which a rational jury could conclude that the applicant intentionally ran over the victims; and (2) before the applicant testified, the theory of the case had already been undermined by testimony that the applicant had told one of the officers that he had been home all night.

The testimony taken during the trial was ample for a rational jury to conclude that the applicant intentionally ran over the victims. There was testimony that the applicant, though parked near the exit, drove back toward the bar where the victims were standing. A witness testified that the applicant revved his engine before running over the victims even though other bar patrons were yelling that Johnson was under his truck. A witness also testified that the applicant was actually wearing his glasses when he ran over the victims.

Also, to the extent that the applicant's theory of the case was damaged by the question about the applicant's post-arrest silence, this theory had already been undermined by an officer's testimony that the applicant had told him that he had been home all evening. There was evidence that the applicant did not remain silent. And, when he did speak, he told the police that he had been home all night and not that he had narrowly escaped the attack of an angry mob.

We conclude that the record does not support the conclusion that there was a probability of a different outcome had trial counsel not opened the door to testimony about the applicant's post-arrest silence.

B. Defense counsel performed an adequate investigation.

In his second claim, the applicant complains that trial counsel failed to conduct an adequate investigation and failed to discover valuable impeachment evidence. Specifically, the applicant alleges that trial...