Okonkwo v. State

• Decision Date: 15 May 2013
• Docket Number: No. PD–0207–12.,PD–0207–12.
• Citation: 398 S.W.3d 689
• Parties: Chidiebele Gabriel OKONKWO, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

398 S.W.3d 689

Chidiebele Gabriel OKONKWO, Appellant

v.The STATE of Texas.

No. PD–0207–12.

Court of Criminal Appeals of Texas.

May 15, 2013.

Brian W. Wice, Attorney at Law, Houston, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

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

The State's petition for discretionary review asks whether trial counsel for Chidiebele Gabriel Okonkwo, appellant, rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact. ¹ Answering this question in the affirmative, the court of appeals reversed appellant's conviction for forgery of money. Okonkwo v. State, 357 S.W.3d 815, 821 (Tex.App.–Houston [14th Dist.] 2011); Tex. Penal Code § 32.21(b).² The State asserts two challenges. First, it contends that the court of appeals erroneously used a subjective standard to assess whether defense counsel was ineffective. Second, it argues that, under an objective standard, counsel could not be held ineffective for failing to request a mistake-of-fact instruction because the State had to prove that appellant knew the money was forged as an element of its case. We disagree with the State on its first challenge and agree on its second. The court of appeals did properly apply an objective standard, although it erred by failing to weigh the evidence in a light most favorable to the trial court's ruling. Furthermore, the court of appeals erred by determining that counsel was objectively ineffective in light of the record in this case, which shows that it was an inconsistent, alternative theory asserted by appellant's trial counsel, and its inclusion may have lessened the State's burden of proof. We, therefore, reverse the judgment of the court of appeals.

I. Background

A. Facts

According to appellant, he received $60,000 dollars in the mail from a man in Nigeria whom he had never met, who told appellant that he needed assistance in making purchases in the United States. Appellant claimed that he believed the money was authentic currency. He took the money to three different locations with the intent of obtaining money orders. After he successfully obtained two money orders, he was arrested when a clerk who was suspicious about the authenticity of the money called the police. The police confirmed that the money had been forged. At trial, the sole issue was whether appellant knew that the money was forged.

The jury instructions required the State to prove that appellant, “with the intent to defraud and harm another, possess[ed] a forged writing, namely money, and ... possessed the writing with the intent to pass the writing and with knowledge that the writing was forged....” Focusing on the instruction's requirement that a defendant act with the intent to defraud or harm another, appellant's counsel argued in his closing statements that the State had failed to prove forgery because a person cannot “intentionally or intend to act to defraud or harm another with currency that you don't know is counterfeit.” Rejecting this argument, the jury found appellant guilty.

Appellant filed a motion for new trial claiming that he had received ineffective assistance of counsel based on counsel's failure to request the inclusion of a mistake-of-fact instruction. The only evidence introduced was counsel's affidavit, in which he stated that his failure to make the request was inadvertent and not the result of trial strategy. The trial court denied the motion for new trial without rendering findings of fact or conclusions of law.

B. Direct Appeal and State's Petition for Discretionary Review

The court of appeals reversed appellant's conviction. Okonkwo, 357 S.W.3d at 819–21. It determined that counsel was ineffective for failing to request the instruction on mistake of fact and concluded that this error harmed appellant because the jury was precluded from considering his sole defense. Id. The State challenges this analysis in two grounds in its petition for discretionary review.

First, as on direct appeal, the parties dispute whether a subjective or objective standard should be used to assess the effectiveness of counsel. Appellant prefers the former and the State the latter. Focusing on this dispute, the State asks, “Must a reviewing court look beyond the testimony of trial counsel to determine whether not requesting a mistake-of-fact instruction was objectively reasonable?”

Second, also as on direct appeal, the parties dispute whether counsel was ineffective by failing to request an instruction on mistake of fact. The State argues that counsel was not ineffective because the substance of the mistake-of-fact instruction was subsumed by the charge describing the elements of the offense and that the instruction, which lessened the State's burden of proof, would not have benefitted appellant. Appellant responds that, even if that is true, he was nonetheless statutorily entitled to that defense, which was his only defense, and that counsel, therefore, was ineffective in failing to request it. Addressing this dispute, the State's second ground for review asks, “Can it ever be deficient performance not to request a mistake-of-fact instruction when the offense requires the State to prove knowledge of that fact beyond a reasonable doubt?”

As to these two grounds, we conclude that, under an objective standard, appellant's counsel was not unreasonable in failing to request the instruction. Counsel, therefore, did not render deficient performance.

II. Strickland³ Error Standard Is Objective

In its first ground for review, the State argues that the court of appeals improperly focused on counsel's subjective self-assessment rather than reviewing his conduct objectively. Appellant responds that the court of appeals properly considered counsel's admission that his failure to request the instruction was not tactical. In deciding an ineffective-assistance claim, a reviewing court must analyze the reasonableness of counsel's conduct on the facts of the particular case, viewed at the time of the conduct. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must identify counsel's acts or omissions that he alleges are not the result of reasonable professional judgment. Id. The court must then determine whether, in light of all the circumstances, the acts or omissions were outside the wide range of professionally competent assistance. Id. “[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another.” Ex parte Chandler, 182 S.W.3d 350, 354 (Tex.Crim.App.2005) (internal quotations omitted).

Courts “commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005); see also Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex.Crim.App.2002). However, when no reasonable trial strategy could justify his conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of counsel's subjective reasons for his conduct. Andrews, 159 S.W.3d at 102;see also Lopez v. State, 343 S.W.3d 137, 143 (Tex.Crim.App.2011). Therefore, the focus of appellate review is the objective reasonableness of counsel's actual conduct in light of the entire record.

Appellant cites Hardwick v. Crosby for the proposition that “[t]he mere incantation of ‘strategy’ does not insulate attorney behavior from review.” 320 F.3d 1127, 1186 (11th Cir.2003). Neither, however, does the mere incantation of “no strategy.” As Hardwick states, the appellate court reviews “attorney behavior.” Id.

Contrary to the State's suggestion that the court of appeals used a subjective standard to find ineffective assistance based solely on counsel's testimony, the court of appeals articulated and applied an objective standard. It based its decision not only on counsel's affidavit ⁴ but also on the facts that (1) mistake of fact was appellant's only defense and (2) he would have been entitled to an instruction had he requested it. See Okonkwo, 357 S.W.3d at 819–20. Although we ultimately disagree with its application of the objective standard, which we address in the State's second ground for review, we hold that the court of appeals did properly employ an objective standard to evaluate counsel's performance. We, therefore, overrule the State's first ground for review.

III. Counsel's Failure to Request Mistake–of–Fact Instruction Was Not Objectively Unreasonable

In its second ground for review, the State asks, “Can it ever be deficient performance not to request a mistake-of-fact instruction when the offense requires the State to prove knowledge of that fact beyond a reasonable doubt?” Appellate courts, however, should decide cases on the narrowest available ground, and resolution of this case does not require resolution of this question as it might to pertain to all other cases. See Randolph v. State, 353 S.W.3d 887, 895 n. 32 (Tex.Crim.App.2011) (“The prudent jurist will typically decide cases on the narrowest, surest ground available, leaving tougher calls, with broader implications, for future cases that squarely present them.”) (internal quotations omitted). Instead, we need only decide whether the court of appeals erred in reversing the trial court's denial of appellant's motion for new trial claiming ineffective assistance of counsel. We conclude that it did.

A. Deferential Standard of Review

As noted above, the trial court denied appellant's motion for new trial. An appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if the trial court's ruling was clearly erroneous and...