Ex parte Ybarra

• Citation: 629 S.W.2d 943
• Decision Date: 31 March 1982
• Docket Number: No. 68832,68832
• Parties: Ex parte Danny Orona YBARRA, Appellant.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 943

629 S.W.2d 943

Ex parte Danny Orona YBARRA, Appellant.

No. 68832.

Court of Criminal Appeals of Texas, En Banc.

March 31, 1982.

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

Before the Court en banc.

OPINION

CLINTON, Judge.

This is a post conviction application for writ of habeas corpus under the ambit of Article 11.07, V.A.C.C.P.

On October 18, 1969, Israel Hinojos was shot in the chest just after he had driven up to his parents' home. His parents, who were the first to reach their son, did not see who fired the shot, but did hear a car drive away. The victim's cousin, who arrived at the Hinojos residence twenty minutes later, stated that shortly before the shooting he had encountered applicant and several other Hispanic males in a parked car. ¹ They threatened "to get" Israel because of an earlier fight. While they were talking Israel drove by in his car; a car in which applicant was riding followed. As a result of this information, applicant and another Hispanic male were arrested later in the evening and charged with murder with malice. Applicant and two other Hispanic males were ultimately indicted for the offense. ² Applicant's family retained Bill (G. Alexander of Odessa) to represent applicant at trial. However, because applicant had only paid part of Alexander's fee the day before trial, Alexander assigned the newest associate in his firm, Michael McLeaish, to represent applicant in his murder trial. On January 22, 1971, applicant was convicted of the offense of murder with malice; punishment was assessed by the jury at ninety nine years. On direct appeal the Court affirmed the judgment of conviction without dissent. Ybarra v. State, 486 S.W.2d 937 (Tex.Cr.App.1972).

Having exhausted his avenue of direct appeal, applicant filed an application for writ of habeas corpus in the 70th Judicial District Court of Ector County on March 12, 1981, alleging that he was denied effective assistance of counsel during the murder trial. On May 26, 1981, a hearing was held on applicant's application. The judge of the habeas court entered findings of fact and conclusions of law agreeing that all of the contentions in applicant's application were true. The judge, in recommending that relief in all things be granted, entered an order on June 8, 1981, granting applicant a new trial. Applicant was appointed counsel, stipulated to the evidence, and entered a plea of guilty to the offense of murder with malice. Punishment was assessed by the court at thirty years.

From our examination of the record, we are convinced that applicant was not afforded effective assistance of counsel; so we will vacate the judgment of conviction, and grant the relief sought.

I.

Before reviewing the habeas court's decision to provide relief on application for writ of habeas corpus, we must first determine whether the court was authorized to grant ten years later an out of time new trial. Generally a motion for new trial must be determined within twenty days after it has been filed or it will be deemed overruled by operation of law. Article 40.05, V.A.C.C.P.; ³ Trevino v. State, 565 S.W.2d 938 (Tex.Cr.App.1978); Abrams v. State, 563 S.W.2d 610 (Tex.Cr.App.1978); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975).

At the time of the trial court's action on June 8, 1981, applicant's motion for new trial filed on February 4, 1971, had already been overruled by operation of law. Applicant did not reurge his motion for new trial at the hearing on the writ of habeas corpus. There was in fact, at the time, no motion for new trial for the court to rule upon. Therefore, the court's action must be characterized as granting a new trial of its own accord.

The question then arises whether the trial court acting sua sponte had the authority to grant an out of time motion for new trial. We find that it did not in these premises. ⁴

A motion for new trial in a criminal case may be granted only on the timely made motion of a defendant and the trial court has no authority to grant a new trial on its own motion. Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979). In Zaragosa, the trial court granted a new trial after defendant's motion for new trial had been overruled by operation of law. This Court characterized the trial court's action as granting a motion for new trial of its own accord, and stated:

"We are not unmindful of the provisions of Article 40.09, § 12, V.A.C.C.P., as to the authority of the trial court to grant a new trial during the appellate process, but we conclude that such authority is limited by its very provisions of the state to the time the defendant has been sentenced, gives notice of appeal and files an appellate brief asking in effect for a new trial." 588 S.W.2d at 327.

In the instant case, we find the trial court had no power to grant the new trial as it did-though its concern about straightening out the matter without resorting to this Court is commendable. Still, it could not grant such relief in response to an application for writ of habeas corpus. Only the Court of Criminal Appeals has the authority to grant relief as a result of post conviction writ of habeas corpus. See Article 11.07, § 3, V.A.C.C.P.; In re Brazil, 621 S.W.2d 811 (Tex.Cr.App.1981); Ex parte Friday, 545 S.W.2d 182 (Tex.Civ.App.1977); State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (1961).

Accordingly, the judgment of the second conviction is set aside.

II.

With this threshold question resolved, the Court may proceed in its review of the decision by the habeas judge to "grant" the writ of habeas corpus for ineffective assistance of counsel. ⁵

A criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance to his client-in or out of the courtroom. Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App.1980); Flores v. State, 576 S.W.2d 632, 634 (Tex.Cr.App.1978); Ex parte Ewing, 570 S.W.2d 941, 947 (Tex.Cr.App.1978); see also Herring v. Estelle, 491 F.2d 125, 128 (CA5 1974); Caraway v. Beto, 421 F.2d 636, 637 (CA5 1970); Williams v. Beto, 354 F.2d 698, 705 (CA5 1965). In the seminal decision of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court recognized that a thorough factual investigation is the foundation upon which effective assistance of counsel is built:

"It is not enough to assume that defense counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thorough-going investigation might disclose as to the facts. No attempt was made to investigate."

287 U.S. at 58, 53 S.Ct. at 60, 77 L.Ed. at 165. Justice Sutherland writing for the Court in Powell, emphasized:

"The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice but to go forward with the haste of the mob."

287 U.S. at 59, 53 S.Ct. at 61, 77 L.Ed. at 166.

As this Court recently reiterated in Ex parte Duffy, 607 S.W.2d at 517, regardless of the complications in a particular case, counsel is charged with making an independent investigation of the facts of the case, Flores v. State, supra, eschewing wholesale reliance in the veracity of his client's version of the facts, Ex parte Ewing, supra, at 947. See also Rummel v. Estelle, 590 F.2d 103, 104 (CA5 1979), aff'd. on other grounds, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (counsel must make an independent examination of the facts, circumstances, pleadings and laws involved).

A natural consequence of this notion is that counsel also has a responsibility to seek out and interview potential witnesses, see, e.g., Davis v. Alabama, 596 F.2d 1214, 1217 (CA5 1979); Harris v. Estelle, 487 F.2d 1293, 1299 (CA5 1974); Williams v. Beto, 354 F.2d 698, 702-703, and failure to do so is to be ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced. See Ex parte Duffy, supra; Brooks v. Texas, 381 F.2d 619, 625 (CA5 1967) and Smotherman v. Beto, 276 F.Supp. 579, 590 (N.D.Tex.1967).

In light of these authoritatively declared duties and responsibilities, we reproduce what counsel says he did by way of preparation for trial and then point out and discuss that which he did not do.

It was developed at the habeas hearing that in early January, 1971, trial counsel Michael McLeaish, was employed as a new associate with the law firm of Alexander, Frazier & Edwards. ⁶ Late in the evening on January 20, 1971, McLeaish walked into the hall of the law office and encountered Alexander and applicant. Alexander introduced applicant to McLeaish and stated that McLeaish would represent applicant the following morning at his murder trial. This was the first indication to McLeaish that he was going to handle applicant's case.

McLeaish began his preparation for trial with less than twelve hours to get ready on the facts and law. Acknowledging at the habeas hearing that he had no prior trial experience, McLeaish revealed that he utilized his preparation time by studying the Code of Criminal Procedure. Besides that, McLeaish stated he did nothing else to prepare applicant's case. ⁷

The morning of trial, the trial judge gathered the attorneys in to discuss applicant's motion for discovery. ⁸ Counsel for applicant moved for five days notice of a hearing on the motion, citing Article 28.01, § 2, V.A.C.C.P., but the motion was denied upon "record statements." ⁹ McLeaish indicated that with the exception of the State's witness list, which had apparently just been tendered, he wanted to...