Johnson v. State

• Decision Date: 25 May 2005
• Docket Number: No. PD-1623-03.,PD-1623-03.
• Citation: 169 S.W.3d 223
• Parties: Michael D. JOHNSON, Appellant, v. The STATE of Texas.
• Court: Texas Supreme Court

Page 223

169 S.W.3d 223

Michael D. JOHNSON, Appellant, v. The STATE of Texas.

No. PD-1623-03.

Court of Criminal Appeals of Texas.

May 25, 2005.

Rehearing Denied August 13, 2005.

COPYRIGHT MATERIAL OMITTED

Paul E. Mansur, Denver City, for appellant.

William C. Sowder, DA, Lubbock, Matthew Paul, State's Attorney, Austin, for state

OPINION

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

When defense counsel's conduct deprives a defendant of his constitutional right to testify, is that deprivation subject to an analysis of harm or prejudice, and if so, what standard should be used? We hold that this type of claim is properly characterized as one of ineffective assistance of counsel and that the usual analysis of prejudice under Strickland v. Washington¹ applies.

I. BACKGROUND

A. Trial

Appellant was charged with committing aggravated assault.² At trial, the evidence showed that he and his girlfriend, Yasminda Robinson, had been drinking alcoholic beverages during a birthday party at a friend's house.

Robinson testified to the following events: Appellant insisted on driving her and her four-year-old son home, but during the trip, Robinson became concerned that appellant was intoxicated and asked to be returned to her friend's house. Appellant refused, asserting that Robinson was drunk and should not be driving. In an attempt to get away from appellant, Robinson grabbed the steering wheel with the intent to "get his attention or flip the car and get out." A fight ensued, in which they each hit the other. Appellant stopped the car, and Robinson got out of the vehicle. Robinson tried to get her son out of the back seat, but before she could do so appellant shoved her and she fell to the ground. Appellant then straddled her; when she started screaming he choked her with his hands. Robinson "almost passed out" on two occasions. Appellant released Robinson after her son got out of the vehicle. Robinson tried to appease appellant by acting apologetic. The three of them returned to the car and continued on toward Robinson's apartment. Robinson asked appellant to stop at a Town and Country convenience store so that she could use the restroom. While there, she handed to an employee of the store a note stating that appellant was trying to kill her and asking for help. The note also contained Robinson's name, address, and telephone number.

The store clerk called the police, and appellant was subsequently arrested outside of Robinson's apartment. Officer David Paulk noticed that Robinson had a large, deep scratch on one of her arms and light choking marks on her neck.

Upon his arrest, appellant was placed into Officer Paulk's patrol car. While there, he and the officer had a conversation that was electronically recorded. During this conversation appellant denied ever going to the Town and Country store that day. This statement, and all other conversation occurring in the patrol car, was suppressed by the trial court because Officer Paulk had failed to give Miranda³ warnings.

The evidence at trial included letters and electronically recorded telephone calls from appellant to the victim while appellant was in jail. During these communications, appellant made comments regarding what happened during the incident. Sometimes appellant stated that he had not tried to hurt the victim. Other times appellant admitted that he behaved badly, including grabbing Robinson in the wrong way and putting his hands on her in the wrong way. He apologized numerous times for his behavior. During these communications appellant also attempted to persuade the victim to drop the charges, plead the Fifth Amendment, or change her story. He claimed that if she did what he said, appellant could file a false imprisonment lawsuit, and he and the victim would both get plenty of money. In addition, during one of the recorded conversations, appellant admitted that Robinson would not be telling the truth if she followed his instructions.⁴

The State also introduced the judgment of conviction for a prior assault on a different woman to satisfy the "prior conviction" element of one of the legal theories contained in the indictment.⁵

Appellant was convicted. At the punishment stage, the prosecution introduced evidence that appellant had two prior felony convictions. The jury sentenced appellant to fourteen years in prison.

B. Hearing on motion for new trial

At the hearing on the motion for new trial, appellant claimed that his trial counsel deprived him of his constitutional right to testify. Appellant told his attorney several times that he wanted to testify to give his side of the story, but counsel replied, "Your priors will kill you." Appellant stated that he was unaware that he had the final authority to make the decision on whether to testify and that his attorney failed to so inform him. Appellant further stated that, had he known that he could testify against counsel's wishes, he would have done so.

Appellant stated that he would have testified to the following at trial: Robinson was the aggressor in their fight. She was drunk, and she mistakenly believed that he was seeing another woman. She nearly succeeded in wrecking the car. She beat appellant with her fists and a stick, and she clawed at and scratched his face. Appellant did not choke her, but pushed her back while looking away with his eyes closed to prevent her from scratching him more. While he was pushing her back, she made a gagging sound, and he let go of her.⁶ The State cross-examined appellant regarding the nature of the stick he claimed the victim used, and in response to questioning, appellant claimed it was a tree branch.

Trial counsel testified that he was against appellant testifying at trial and told him so. Counsel further stated that he did not specifically tell appellant that he could testify against counsel's wishes because counsel assumed appellant already knew that.

Regarding appellant's story, trial counsel related that appellant told him that Robinson was drunk, that she was mad about finding a cell phone, that she started hitting him, and that he was defending himself. Counsel also remembered appellant saying that Robinson got out of the car and fell, but counsel could not remember the entire story. Counsel did recall that the version of events appellant had related to counsel was "pretty close" to the version given by the victim at trial. Counsel was surprised that the victim's "testimony came out like it did."

Evidence at the motion for new trial hearing also showed that appellant's prior assault conviction involved a choking assault against the mother of his child.

The trial court denied the motion for new trial.

C. Court of appeals opinion

On appeal, appellant contended that he was improperly denied the right to testify. The court of appeals analyzed the claim as an ineffective assistance of counsel claim under Strickland.⁷ The court concluded that counsel's performance was deficient because his conduct deprived appellant of his right to testify.⁸ However, the court of appeals held that appellant failed to show prejudice. In support of this holding, the appellate court offered two main reasons. First, it found that the jury heard at least part of appellant's version of the incident.⁹ The appellate court referred to a compact disc containing the recorded telephone conversations admitted into evidence at trial. Second, the court found that appellant's opportunity to testify "would have come at a price."¹⁰ Appellant would have been impeached with his two prior felony convictions and he would have risked causing the admission of the details of his prior assault conviction.¹¹ Further, he would have been cross-examined about his prior denial of being at the scene and about damaging statements made in the recorded telephone conversations.¹² The court of appeals concluded that there was not a reasonable probability that the result of appellant's trial would have been different.¹³

D. Appellant's contentions

Appellant presented the following grounds in his petition:

(1) What is the appropriate standard that courts must utilize in reviewing a violation of a defendant's right to testify when the violation occurs through actions of defense counsel?

(2) Did the court of appeals misapply Strickland's prejudice analysis contrary to controlling United States Supreme Court decisions?

Appellant contends that a denial of the defendant's right to testify — from whatever source — is "structural" error, requiring automatic reversal without conducting any sort of harm analysis. Second, he argues for the application of the harm standard articulated in Chapman v. California: that the error is reversible unless found to be harmless beyond a reasonable doubt.¹⁴ As a final optional position, appellant contends that the error is reversible under Strickland. Under this final option, appellant argues for the more limited prejudice inquiry conducted by the Supreme Court in cases that involve involuntary pleas and denial of appeal: whether, absent counsel's misconduct, the defendant would have availed himself of the right in question — in this case, whether the defendant would in fact have testified. Appellant also contends that the court of appeals "failed to take into consideration the unique nature of a defendant's testimony and its particular effect on the prejudice component."

II. ANALYSIS

A. Overview

The appropriate standard of harm or prejudice depends upon the answers to two questions: First, is the deprivation of a defendant's right to testify, caused by defense counsel, an error that is properly attributable to the trial court? Second, is the deprivation of a defendant's right to testify the kind of violation that is properly characterized as a "structural" defect? The possible answers to these two questions produce four distinct positions on how to handle this type of claim. (1) If the answer to both questions...