Hernandez v. State, 1009-83

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation726 S.W.2d 53
Docket NumberNo. 1009-83,1009-83
PartiesPaul HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
Decision Date17 September 1986

Page 53

726 S.W.2d 53
Paul HERNANDEZ, Appellant,
The STATE of Texas, Appellee.
No. 1009-83.
Court of Criminal Appeals of Texas,
En Banc.
Sept. 17, 1986.

Page 54

Michael L. Brandes, Austin, for appellant.

Ronald Earle, Dist. Atty. and Ralph Graham, Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


TOM G. DAVIS, Judge.

Trial was before the jury 1 upon appellant's plea of not guilty to a charge of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After the jury found appellant guilty, the court, acting pursuant to V.T.C.A. Penal Code, Sec. 8.07(d), assessed punishment at life. The Court of Appeals for the Third Supreme Judicial District (Austin) affirmed appellant's conviction in an unpublished opinion, Hernandez v. State, No. 3-82-370, (Delivered September 21, 1983). We granted appellant's petition for discretionary review in order to examine the Court of Appeals' holding that appellant's trial counsel rendered effective assistance.

Following the Court of Appeals' decision, the United States Supreme Court handed down its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The opinion in Strickland established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertaining

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when such ineffectiveness is prejudicial.

Accordingly, prior to examining the facts of the instant case, we determine whether under Art. I, Sec. 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P. we must apply higher standards than those enumerated in Strickland.

With respect to determining ineffectiveness, the general standard established in Strickland differs little or not at all from this Court's standard, which in turn is based on Fifth Circuit precedents.

In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), and its progeny we stressed that effective counsel is counsel "rendering and likely to render" reasonably effective assistance.

The Supreme Court in Strickland noted:

"As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance ... When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

"More specific guidelines are not appropriate ... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms ...

" ... A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 104 S.Ct. at 2064-66.

Since we find that the threshold standard for determining effective assistance of counsel enunciated in Strickland is not substantively different from the standard this Court has propounded in recent years, there is no reason for refusing to apply the Strickland standard to cases arising under Art. I, Sec. 10 of the Texas Constitution or Art. 1.05, V.A.C.C.P.

The test for determining prejudice or reversible error resulting from ineffective assistance of counsel was also spelled out in Strickland:

" ... The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 104 S.Ct. at 2068. 2

This test, at least in certain circumstances, differs from the tests devised by our Court to determine prejudice in ineffective assistance cases. See, for example, Ex parte Duffy, supra, where we held, again based on Fifth Circuit precedent, that effective assistance was so important a right to a petitioner condemned to death that its infraction could never be treated as harmless error. Does our recent case law or the language and history of Art. I, Sec. 10, or Art. 1.05, V.A.C.C.P., suggest that a defendant should be put to a lesser standard of proof in establishing prejudice than the Strickland standard?

Starting with the opinion in Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), this Court has consistently applied the test for effectiveness of counsel employed by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). That is, this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases and has utilized the standards enunciated by the Fifth Circuit in the absence of an authoritative and comprehensive opinion from the

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Supreme Court. See Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981). In Strickland, the Supreme Court clearly set forth the federal constitutional standard to be followed.

As far as the language of Art. I, Sec. 10 is concerned (as well as the identical language in Art. 1.05, V.A.C.C.P.), 3 in no way can it be independently interpreted to provide greater protection for a defendant beset by ineffective assistance of counsel than the protection provided by Strickland. The language of Art. I, Sec. 10, insuring that a defendant "shall have the right of being heard by himself or counsel, or both," can be traced back to the 1836 Constitution of the Republic of Texas and was obviously modeled on the Sixth Amendment to the federal constitution 4 which guarantees the accused's right, "to have the Assistance of Counsel for his defense."

The Sixth Amendment right to be heard by counsel was originally understood, and understood throughout all of the 19th and the earlier part of the 20th century, to encompass the right of a defendant to retain counsel of his own choice for the preparation and trial of a case. The provision was not yet understood to include the right of an indigent defendant to have counsel appointed at State expense or the right of any defendant to enjoy effective assistance of counsel. 5

The right to effective assistance of counsel as we understand it today was derived from the right to be heard by counsel. 6 Accordingly, in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland.

An examination of this Court's case law regarding effective assistance in the years before the Sixth Amendment was incorporated into the Fourteenth 7 and applied to the States only serves to buttress the point.

Ineffective counsel or counsel not permitted by the trial court to be effective was tantamount to no counsel at all and hence a violation of Art. I, Sec. 10. Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954); Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). Even "no counsel at all," however, did not result in reversible error in the absence of a showing of harm. See Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (Tex.Cr.App.1931). See also Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965), and Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), two cases decided shortly after Gideon v. Wainwright, supra, where a showing of harm was required of defendants asserting ineffective assistance claims.

In short, our constitutional and statutory provisions do not create a standard in

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ineffective assistance cases that is more protective of a defendant's rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom.

Turning to the instant case, we summarize the facts relevant to appellant's ineffective assistance claim.

During the evening of June 2, 1977, appellant and two other youths, Michael Castro and Manuel Gonzales, unlawfully entered a habitation at 1607 East 11th Street in Austin. The youths were looking for bullets to use in a rifle they had been firing at fence posts earlier in the day. The youths found and appropriated some .22 caliber bullets during their search. Appellant confessed to loading the rifle, but trial testimony conflicted as to which of the boys loaded the rifle.

At some point during their wanderings in the house the youths came upon Domingo Vasquez, the deceased, and resident of the house, who was asleep under a pile of rags on the kitchen floor. Appellant and his cohorts discussed killing the deceased but decided against doing so.

Some time later, the youths returned to Vasquez and roused him from his sleep whereupon the old man chased the boys out of the house brandishing an ax.

The three youths stopped in the deceased's front yard. As the deceased came out of the front door, appellant shot him with the rifle.

Testimony differed as to whether Vasquez was still in the process of chasing the boys when shot or was instead in the process of returning to the inside of his home. The fatal shot, however, entered the deceased from the back and the testimony was undisputed that no barrier blocked the retreat of appellant and his friends.

After appellant shot the deceased he took the butt of the rifle and hit the deceased in the head as he tried to get up. The three youths then rifled through the deceased's pockets. Appellant and his friends were arrested the next day while attempting to burglarize another residence.

According to appellant, his trial counsel rendered ineffective assistance for three reasons: failure to pursue an...

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