Mitchell v. State

• Decision Date: 30 June 2000
• Docket Number: No. 04-96-00643-CR,04-96-00643-CR
• Citation: 23 S.W.3d 582
• Parties: (Tex.App.-San Antonio 2000) WILLIAM MITCHELL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
• Court: Texas Court of Appeals

Page 582

23 S.W.3d 582 (Tex.App.-San Antonio 2000)

WILLIAM MITCHELL, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 04-96-00643-CR

COURT OF APPEALS OF THE FOURTH DISTRICT OF TEXAS

June 30, 2000

From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 94-CR-5398 Honorable Raymond Angelini, Judge Presiding

Sitting:¹ Phil Hardberger, Chief Justice Tom Rickhoff, Justice Alma L. Lopez, Justice Catherine Stone, Justice Paul W. Green, Justice Sarah B. Duncan, Justice

OPINIION

Tom Rickhoff, Justice

On first review of this case a panel of our court found trial defense counsel ineffective for allowing the defendant to appear before the jury in the same distinctive T-shirt worn during the offense, featured on the store video and at the time of arrest. We presumed harm.

The Court of Criminal Appeals vacated our judgment and remanded this cause finding that we erred in presuming prejudice and finding that our analogy to state action "fails" because appellant was not compelled to wear jail clothes.² We recognize our error. We have re- analyzed counsel's performance and find both deficient attorney performance and prejudice.

William Mitchell, a borderline mentally retarded defendant, was sentenced to 80 years in prison for aggravated robbery with a deadly weapon after he appeared during voir dire before the jury in the same T- shirt the jury would come to know was worn by the suspect two years earlier during the offense. The T-shirt was the focal point of the trial.

We again reverse and remand and direct the trial court to appoint new counsel. Counsel's failure to object before jurors saw the defendant in the distinctive outfit worn during the offense, and when arrested, under these facts, constitutes ineffective assistance of counsel. We subject this oversight to a harm analysis and conclude that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

FACTS

On July 8, 1994, Leigh Ann Russell was working the midnight shift in a Stop-n-Go near Randolph Air Force Base. About 3 a.m. a man she later identified as William Mitchell came in the store. He put some items on the counter, then went to the back of the store and browsed while another customer came in and left. After that customer left, the man brought a 12-pack of sodas to the counter. Russell testified at trial:

A. I rang him up. I totaled him up. That is when he showed me the gun.

Q. Can you show the jury what gesture, if any, he used when he did that?

A. Just raised his shirt, during the whole time he kept going for the gun, making me totally nervous and scared.

Q. Tell the jury exactly where was the gun.

A. In the waistband of his pants.

Q. Can you describe it?

A. It was a light colored - you can tell it was a wooden handle; part of the barrel, you could see, was silver.

Q. Did he ever take that gun out of his waistband and point it at you?

A. Thank God, no.

Q. Did it appear to you to be a toy gun?

A. No, it didn't. It was very real.

Q. Where were you standing when he first showed you the gun?

A. I was behind the register.

Q. What did you do when he did that?

A. I got so scared I couldn't work the keys on the register. I kept messing up before I got the drawer open.

Q. Did he say something at this time?

A. I think he said something like, "See, I have got a gun. Give me your money," or something like that.

Q. While you were [taking money out of the register], what was he doing?

A. He kept reaching for his gun.

Q. Okay. When you say that, what kind of movement did he make? Describe that for the jury.

A. He was reaching into his waistband and shirt, kept lifting up his shirt like he was going for his gun. [Tabular or Graphical Material Omitted]

Mitchell was arrested the next day wearing a T-shirt identical to the one worn by the robbery suspect captured on the store's video camera. The investigating detective described it as "a blue colored T. shirt (sic) with writing on it, I believe the writing said Cameron Elementary Scotties and a picture of a Scottish terrier dog." Mitchell was photographed in this T-shirt; this photograph was placed in a photo line-up which the clerk used to identify Mitchell. On the photograph is the hand-written notation, "Same clothes on as he had on in video."

INEFFECTIVE ASSISTANCE OF COUNSEL

In his fifth point of error Mitchell contends he was denied effective assistance of counsel. The test for ineffective assistance of counsel under the state and federal constitutions are the same, Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986), and so we consider them together.

The criteria for assessing ineffective assistance of counsel has been set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test focuses on reasonableness, measuring the assistance received against the prevailing norms of the legal profession. Id. at 690. Counsel is presumed to have rendered adequate assistance, and it is incumbent on the defendant to identify those acts or omissions which do not amount to reasonable professional judgment and are outside the "range of professionally competent assistance." Id. To show prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The key question becomes whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Castoreno v. State, 932 S.W.2d 597, 604 (Tex. App.-San Antonio 1996, pet. ref'd) citing Strickland, 466 U.S. at 687. The constitutional right to counsel, whether appointed or retained, does not mean errorless counsel. Castoreno, 932 S.W.2d at 604.

Here appellate counsel singles out seven particular shortcomings of trial counsel: 1) failure to preserve error at the jury selection process; 2) failure to preserve error on the question of the photo identification; 3) failure to preserve the photo line-up itself; 4) failure to ask the State for advance notice of its intent to use prior convictions or previous crimes before trial; 5) omission of the definition of "reasonable doubt" in the charge; 6) opening the door to testimony about Mitchell's prior convictions by counsel's own questions; and 7) failure to object to the State's jury argument about the effect of parole laws on Mitchell.

While the effectiveness of counsel is ordinarily gauged by the totality of the representation, a single error, if sufficiently egregious, can constitute ineffective assistance. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); See also May v. State, 722 S.W.2d 699 (Tex. Crim. App. 1984) (single error of failure to have defendant's petition for probation sworn sufficient to constitute ineffective assistance). However, a single lapse by counsel is not presumptively prejudicial. Batiste v. State, 888 S.W.2d 9, 15 (Tex. Crim. App. 1994)(failure to preserve Batson error); see also Ex parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (J. Maloney, dissenting) (counsel fell asleep). We find, under the facts of this case, that defendant has affirmatively proven prejudice by a preponderance of the evidence.

Just before closing argument, the following exchange took place:

[DEFENSE COUNSEL]: Something has been brought to my attention. I didn't realize until just now that during voir dire Mr. Mitchell was actually wearing those clothes there. He was told by the jail people to put them on and he was brought over here in those clothes. During the entire voir dire he was wearing the exact outfit he is alleged to have been wearing during the commission of the offense. I move for a mistrial because the jurors saw him, they were tainted by seeing him in that outfit.

THE COURT: That is denied. Anything else?

[PROSECUTOR]: For the record, he only had those clothes on during the judge's opening remarks, not during the entire voir dire.

THE COURT: It doesn't matter, anyway. That is the only clothes he had. We can't bring him over in a jail outfit. Those are his clothes.

In our view, this exchange suggests a grievous lack of preparation by Mitchell's counsel. Counsel was either not familiar enough with the videotape which provided the most damning evidence against Mitchell, or was insufficiently in touch with Mitchell, or both. Indeed, bringing him to court in jail garb would be less incriminating than displaying him to the jury panel in the distinctive T-shirt captured on the videotape and at the time of arrest.

A more damning inference to be drawn from the record is that this defendant was abandoned by the judicial system. At least one prosecutor suggested knowledge of this miscarriage of justice and yet volunteered nothing. A prosecutor is an officer of the court and has the duty to see that justice is done.

While the State argues that identification was not an issue in this case, we disagree. Though the identity evidence was strong, the record shows defense counsel contested identity up until the very point when the mortifying discovery was made, just before closing argument. She suggested to witnesses on cross-examination that there were certainly more than one of these shirts and that anyone (presumably her client) could have found this discarded shirt and worn it. Shorn of the ability to contest identity, she was reduced in closing argument to arguing that the evidence did not show beyond a reasonable doubt that Mitchell used a gun during the robbery.

This oversight challenges the integrity of our jury system. A defendant in our criminal justice system is entitled to put the State to its proof. Tex. R. Disciplinary P. 3.01 cmt. 3, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon Supp. 1998). Mitchell's attorney thwarted his attempt to put the State to its proof before it ever...