Freeman v. State

Decision Date05 November 2003
Docket NumberNo. 2156-01.,2156-01.
Citation125 S.W.3d 505
PartiesConsuelo FREEMAN, Appellant, v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

Yolanda Gutierrez Burns, Corpus Christi, for Appellant.

Douglas K. Norman, Assistant District Attorney, Corpus Christi, Matthew Paul, State's Attorney, Austin, for State.

OPINION

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

In this case, we decide that the record does not support the decision of the Court of Appeals on an ineffective assistance of counsel claim that appellant raised for the first time on direct appeal.

Appellant raised several ineffective assistance of counsel claims for the first time on direct appeal without having developed a record in the trial court during the trial or during a motion for new trial hearing for the purpose of establishing these claims. In a 2-1 decision, the Court of Appeals held that appellant's trial counsel was ineffective for failing to file a motion to recuse the trial judge because of comments the trial judge made which appellant claimed raised the issue of the trial judge's impartiality. See Freeman v. State, No. 13-98-587-CR slip op. at 7 (Tex. App.-Corpus Christi, delivered August 16, 2001) (nonpublished). The dissenting opinion claimed that, in the absence of a more fully developed record, the presumption that counsel's conduct was reasonable was not overcome. See Freeman, slip op. at 1-2 (Hill, J., dissenting); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (counsel's conduct presumed reasonable).

We exercised our discretionary authority to review this decision. The sole ground upon which we granted the State's discretionary review petition states:

Did the Court of Appeals err when it effectively held that the failure to seek recusal of the trial judge was per se ineffective assistance of counsel as a matter of law, in conflict with the dissenting opinion, with another court of appeals, and on an important question of state and federal law that has not been, but should be, settled by the Court of Criminal Appeals?

We have held several times that in cases like this "the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." See, e.g., Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Cr.App.1999). The United States Supreme Court generally agrees. See Massaro v. United States, 538 U.S. 500, ——, 123 S.Ct. 1690,1694, 155 L.Ed.2d 714 (2003) (when ineffective assistance of counsel claim is raised on direct appeal, "appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose").

The record in this case is insufficient to support the conclusion reached by the Court of Appeals on the ineffective assistance of counsel claim it addressed because appellant did not develop a record in the trial court for the purpose of establishing this claim. See Thompson, 9 S.W.3d at 815. The Supreme Court in dicta did state in Massaro that some ineffective assistance of counsel cases may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." See Massaro, ___ U.S. at ___, 123 S.Ct. at 1696. Without more guidance from the Supreme Court, however, we decline to hold that this is such a case. See Freeman, slip op. at 1-2 (Hill, J., dissenting).

The judgment of the Court of Appeals is reversed and the case is remanded there for further proceedings consistent with this opinion.

MEYERS, J., filed a dissenting opinion in which PRICE, J., joined.

PRICE, J., filed a dissenting opinion in which MEYERS, and JOHNSON, JJ., joined.

MEYERS, J., dissenting in which PRICE, J., joined.

The issue in this case is whether the Court of Appeals erred by holding that the failure to seek recusal of the trial judge was ineffective assistance of counsel. The majority's opinion, however, fails to address this issue and instead concludes that the Court of Appeals erred by addressing the merits of a claim that was raised for the first time on direct appeal. The State doesn't ask us to say that the Court of Appeals erred in addressing this point, only that it was wrong in holding that it was per se ineffective assistance of counsel to fail to seek recusal. In fact, in its brief, the State presents interesting arguments concerning whether this type of error could be per se ineffective assistance of counsel. As indicated by both the opinion of the Court of Appeals and the dissenting opinion by Justice Hill, this case was well briefed and could properly be answered on direct appeal. Additionally, Judge Price's dissenting opinion actually addresses the ground for review brought by the State. Why don't we just improvidently grant this case if we are not going to answer the question that was asked? Because the majority resolves this case without considering the ground for review which was granted by this Court, I respectfully dissent.

PRICE, J., dissenting which MEYERS, and JOHNSON, JJ., joined.

The appellant was charged with retaliation for threatening witnesses who were to testify at her son's community supervision revocation hearing. The trial judge who presided over the revocation hearing also presided over her trial and made several comments on the record about his prior involvement in the case.1 The appellant's trial counsel did not file a motion to recuse the trial judge. On direct appeal, the Court of Appeals held that trial counsel provided ineffective assistance of counsel in failing to file a motion to recuse the trial judge. Freeman v. State, No. 13-98-587-CR (Tex.App.-Corpus Christi Aug. 16, 2001) (not designated for publication). Today the Court summarily concludes that the record does not support the Court of Appeals's decision. Because I believe that the record was adequate and that there was no reasonable trial strategy for the attorney's failure to file a motion to recuse the trial judge in this case, I dissent.

I. Facts

During the appellant's son's community supervision revocation hearing, the trial judge noticed that two witnesses seemed reluctant to testify against the appellant's son. The trial judge pulled the witnesses aside and questioned them about their reluctance to testify. During the questioning, the witnesses said that the appellant threatened to retaliate against them if they testified against her son. The trial judge notified the proper state authorities who fully investigated matter. It is not clear from the record what, if any, further disciplinary measures the trial judge took to prevent further disruption of the revocation hearing.

On April 20, 1998, authorities arrested the appellant on a warrant alleging retaliation. The warrant was issued by a judge other than the one who presided over the revocation hearing. Later, the appellant was indicted. The appellant's bond was set at $100,000, again by a different judge. The appellant completed an affidavit of indigency, and trial counsel was appointed to her. At a pretrial hearing, in which the same trial judge from the revocation hearing presided, the appellant's trial counsel discussed a motion to request notice of intent to offer extraneous offenses and a motion for reconsideration of bond reduction. No documentation regarding the appellant's financial situation was presented to the trial court during this pretrial hearing to support the request for a bond reduction. Although the transcript is devoid of any formal motion or order in that hearing, the trial court states that the motion for a bond reduction was denied. The appellant did not make bond.

The case was assigned to the trial judge who had presided over the appellant's son's revocation hearing. During another pretrial hearing, the trial judge explained to the appellant's counsel the sequence of events that led to the appellant's indictment.

The Court:—well, let me tell you how it all started, if you want to know. Her son was accused of, I think, assault.

Ms. Cable [State's attorney]: Robbery.

The Court: Robbery?

Ms. Cable: Robbery. And he had a Motion to Revoke alleging assault.

The Court: Okay. And there were two women involved who later refused to testify. And I said: Well, I wonder why anybody got beat up that bad, to make it a felony and wouldn't testify? So I asked that the women be brought up and, according to them, they were forced or threatened not to testify. That's the way it turned out. So that's what led to this Indictment.

Mr. George [Appellant's attorney]: To this Indictment?

The Court: Right. And we had a hearing after she was placed in the jail. I don't know if I found her in contempt, but she kept interrupting the hearing, I believe. And then there was a—I don't show any psychological testing at all.

Mr. George: Okay.

The Court: And there may not have been one, but that's what led to this. And then we had some testimony under oath by one or two of the women.

Ms. Cable: Two women.

The Court: Two women, testifying about the threats, and the father of one of them.

Mr. George: Actually, that's the testimony that I was seeking, Your Honor.

The Court: All right.

Ms. Cable: That was within the Motion to Revoke [the appellant's son's community supervision], Judge.

When the appellant requested a bond reduction or the option of house arrest, the trial judge responded to the requests using his own knowledge of the facts gained from prior interactions with the appellant rather than using the arguments presented by the appellant during the hearing.

The Court: Well, you understand that here is a judge looking at a woman who is accused of retaliation. And I get a letter dated May 20—or at least that's when we got it—and she speaks of how she's been harassed for 25 years. She kept quiet, "but then this time I will speak out...

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