Ricalday v. Procunier

• Decision Date: 16 July 1984
• Docket Number: No. 82-2488,82-2488
• Citation: 736 F.2d 203
• Parties: Albert RICALDAY, Plaintiff-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 203

736 F.2d 203

Albert RICALDAY, Plaintiff-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of

Corrections, Defendant-Appellee.

No. 82-2488.

United States Court of Appeals, Fifth Circuit.

July 16, 1984.

Don Fogel, Houston, Tex. (Court-appointed), for plaintiff-appellant.

Mark White, Atty. Gen., H. Charles Strauss, Charles A. Palmer, James O. Kopp, Asst. Attys. Gen., Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, WILLIAMS and GARWOOD, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from a denial of a state prisoner's habeas corpus petition. Petitioner Ricalday contends that his right to effective assistance of counsel under the sixth and fourteenth amendments was violated when his attorney failed to object to and failed to appeal a variation between his indictment and the court's charge to the jury. We agree that counsel's assistance was deficient, but because we find no prejudice to the petitioner, we affirm the district court's decision.

I.

On September 4, 1975, petitioner Ricalday shot and killed a man named Abel Moreno after an argument the two men had over a woman named Rosa Torres. Ricalday was indicted for murder under Section 19.02 of the Texas Penal Code. The statute provides:

Sec. 19.02. Murder

(a) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

(b) An offense under this section is a felony of the first degree.

TEX.PENAL CODE ANN. Sec. 19.02 (Vernon 1974). Ricalday was indicted only under Section 19.02(a)(1) for "intentionally and knowingly caus[ing] the death of an individual, Abel Moreno, by shooting him with a gun." However, at trial, the court instructed the jury on both Subsections (a)(1) and (a)(2):

Now if you should find and believe from the evidence beyond a reasonable doubt that on or about the 4th day of September, 1975 in Nueces County, Texas, the Defendant, Albert Ricalday, did intentionally or knowingly cause the death of Abel Moreno by shooting him with a firearm, to wit, a gun, or did then and there intend to cause serious bodily injury to the said Abel Moreno and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit, shooting at Abel Moreno with a gun and causing the death of the said Abel Moreno, as alleged in the indictment, then you will find the Defendant guilty of murder.

The jury convicted Ricalday of murder and sentenced him to eighty years confinement in the Texas Department of Corrections. The conviction was upheld on appeal. Ricalday v. State, 574 S.W.2d 782 (Tex.Crim.App.1979).

After exhausting his state remedies, Ricalday filed the instant petition on the ground of ineffective assistance of counsel under the sixth amendment. The district court dismissed the petition for lack of merit without holding an evidentiary hearing. This appeal followed.

II.

The United States Supreme Court has recently addressed the proper standards for judging a criminal defendant's claim of ineffective assistance of counsel under the sixth amendment. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There, the Court held that, "[t]he benchmark for judging any claim of ineffectiveness must be 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." Id. 104 S.Ct. at 2064. The Court established a two-part test for determining whether counsel's assistance was so defective as to require reversal of a conviction First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. ¹

III.

A. Performance of Counsel

Because both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact, ² this court must make an independent determination of whether counsel's representation passed constitutional muster. Trass v. Maggio, 731 F.2d 288 (5th Cir.1984). As to the district court's conclusion that counsel's performance was adequate, we disagree.

The proper standard for attorney performance is that of reasonably effective assistance. Washington, 104 S.Ct. at 2064. As previously noted, a convicted defendant must identify serious acts or omissions of counsel that are outside the range of professional competence. Id. at 2066. The reviewing court must give great deference to counsel's assistance, strongly presuming that counsel has exercised reasonable professional judgment. Id.

What counsel failed to do in the instant case was to object to a variation between the indictment and the jury instructions and to raise the issue of the variation on direct appeal. The indictment charged Ricalday with intentionally and knowingly causing the death of an individual. The jury instructions, however, added another offense: intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes the death of an individual. This variation between the indictment and the jury instructions is a very serious matter under both Texas law and federal constitutional law.

Under Texas law, where the charge allows conviction on an unindicted offense, the error is "fundamental" and reversal is required. Bentacur v. State, 593 S.W.2d 686 (Tex.Crim.App.1980); Moring v. State, 591 S.W.2d 538 (Tex.Crim.App.1979); Stewart v. State, 591 S.W.2d 537 (Tex.Crim.App.1979). Even if, as here, no objection is made at trial, Texas courts will reverse. Robinson v. State, 553 S.W.2d 371 (Tex.Crim.App.1977). ³

Under federal constitutional law, a violation of the due process clause results when a criminal defendant is convicted of a crime he was never charged with committing: "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge ... are among the constitutional rights of every accused." Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644, 647 (1948). ⁴ Plunkett v. Estelle, 709 F.2d 1004, 1009 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984); ⁵ Tarpley v. Estelle, 703 F.2d 157, 160 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983). Counsel's failure to object to or appeal such an egregious flaw in his trial cannot be considered to be within the "wide range of professionally competent assistance." See Washington, 104 S.Ct. at 2066. Even giving to counsel's performance the high degree of deference required by Washington, we cannot conclude that Ricalday's counsel's performance was adequate.

B. Prejudice

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error did not prejudice the defense. Washington, 104 S.Ct. at 2067. Under the Supreme Court's recent formulation of the required showing for prejudice, "[t]he 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." Id. at 2068. The question for the reviewing court is "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 2069. Furthermore, a verdict strongly supported by the record is less likely to have been affected by counsel's errors than one with only weak support. Id.

Applying the prejudice standard to the instant case, we must ask whether the jury would have had a reasonable doubt respecting Ricalday's guilt if counsel had objected to the addition of the instruction on intent to cause bodily injury so that the instruction would have been stricken. The question is whether, from all the evidence, the jury could have had a reasonable doubt concerning Ricalday's intent to kill, and could have convicted him of intent to cause serious bodily injury. Because the error at the appellate stage stemmed from the error at trial, if there was no prejudice from the trial error, there was also no prejudice from the appellate error.

The first court to review the evidence at Ricalday's trial was the Texas Court of Criminal Appeals. That court, in an unpublished per curiam opinion, held that the evidence of intent to kill was sufficient to support the verdict. Ricalday v. State, 574 S.W.2d 782 (Tex.Crim.App.1979). The second court to review the same evidence was the federal magistrate in this habeas proceeding. That court concluded that "[b]ecause the evidence of Petitioner's guilt was so overwhelming, the erroneous instruction could not have been a contributing factor in the jury's decision to convict." Reviewing the facts for a third time, the district court adopted the Magistrate's Memorandum and Recommendation. After a fourth independent review of the record, we also find overwhelming evidence of intent to kill.

The record establishes that petitioner...