Roberson v. State

• Decision Date: 24 February 1993
• Docket Number: No. 489-92,489-92
• Citation: 852 S.W.2d 508
• Parties: Willie Ray ROBERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 508

852 S.W.2d 508

Willie Ray ROBERSON, Appellant, v. The STATE of Texas, Appellee.

No. 489-92.

Court of Criminal Appeals of Texas En Banc.

Feb. 24, 1993.

Rehearing Denied April 21, 1993.

William E. Sterling, Jr., Lawrence A. Russell, Cedar Park, for appellant.

Ken Anderson, Dist. Atty., Sally Ray, Asst. Dist. Atty., Georgetown, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of three counts of delivery of cocaine. The court assessed punishment at two concurrent fifty-year sentences and a ten-year sentence, which was probated. The court of appeals reversed the judgment and remanded for a new trial, holding that appellant had not received effective assistance of counsel at trial. Roberson v. State, 798 S.W.2d 602 (Tex.App.--Austin, 1990) (Roberson I ). On original appeal appellant challenged the sufficiency of the evidence to support each of his three convictions for delivery of cocaine. The court of appeals failed to conduct a sufficiency review and relied instead on its decision to grant a new trial based on its holding that appellant received ineffective assistance of counsel. We granted the State's petition for discretionary review and remanded the case to the court of appeals for a determination of the sufficiency of the evidence, and to reconsider its decision pertaining to effectiveness of trial counsel. Roberson v. State, 810 S.W.2d 224 (Tex.Cr.App.1991) (Roberson II ).

On February 12, 1992, the court of appeals handed down another opinion finding the evidence sufficient to support the guilty verdicts. Roberson v. State, No. 03-89-144-CR (Tex.App.--Austin, delivered February 12, 1992) (Roberson III ). After incorporating by reference the original discussion on ineffective assistance of counsel in Roberson I, the court held that of all of the shortcomings of counsel discussed in Roberson I, the most significant was counsel's failure to request a charge on the defense of mistaken identity. The court found that had a mistaken identity defense been presented, the jury might well have found in appellant's favor. Thus, the court concluded that "but for counsel's errors, there is a reasonable probability that the result of the trial would have been different." Roberson III, supra, slip op. at 4.

In its petition for discretionary review the State contends the court of appeals improperly based a determination of ineffective assistance of counsel primarily on trial counsel's failure to request a jury instruction on "mistaken identity" when there is no authority for giving such a charge, and that the court of appeals has not made a proper analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We granted the State's petition to examine the opinion of the court of appeals in light of these contentions.

Appellant was indicted for selling cocaine in Taylor, Texas, on three separate occasions in July, 1988; to Officer Hayes on the 21st and 27th of July, and to Officer Delarosa on July 27th. Appellant's identical twin brother, Willie James Roberson, was also indicted and pleaded guilty to selling cocaine to Officer Hayes on July 21, 1988. The court of appeals noted that "counsel's explicit trial strategy" involved appellant's assertion that the undercover officers confused him with his twin brother.

After setting forth the standard for review of an ineffective assistance of counsel claim as provided for in Strickland, the court of appeals cataloged the alleged errors of counsel. The court conceded that none of the identified omissions standing alone would constitute ineffective assistance of counsel but, without specifying what alleged errors met the first prong of Strickland and without explaining how any of these errors prejudiced appellant such that the second prong of Strickland was met, the court summarily concluded that "but for counsel's errors, there is a reasonable probability that the result of the trial would have been different." Roberson III, supra, slip. op. at 4.

The proper standard by which we review the adequacy of representation at the guilt-innocence stage of trial is that articulated in Strickland, and adopted by this Court in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). The Strickland test encompasses a two-part analysis. First, a defendant bears the burden of proving that, in light of all the circumstances viewed at the time of trial, counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. If a defendant is able to demonstrate that the attorney's performance did fall below the accepted standard, he then must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Id. In order for a defendant to meet his burden with respect to the first prong of Strickland, he must overcome the presumption "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Accordingly, we now review the court of appeals' opinion concerning counsel's deficiencies under a Strickland analysis. The court of appeals discussed five areas in which it determined counsel erred.

(1) "Trial counsel's ineffectiveness flowed primarily from his failure to raise objections or to diligently pursue discovery." Roberson I, 798 S.W.2d at 604. ¹ The court of appeals expressed particular concern that although the testimony from investigating officers at trial established they relied on pictures of the twins during their undercover operation in order to distinguish them, counsel failed to press the officers for an explanation as to why they would not or could not produce them, and failed to request a ruling on any pre-trial motions filed with the court. This is the extent of the court of appeals' discussion of this alleged deficiency of counsel. The court failed to explain how failure to formally pursue the discovery of these pictures constitutes deficient performance or how appellant was harmed. It is possible that counsel consulted with his client and determined that production of the photos would in fact discredit appellant's sole defense of mistaken identity. The record is not developed in this regard. Although a hearing was held on appellant's motion for new trial based on allegations of ineffective assistance of counsel, no questions were asked of counsel in this respect. Thus, under Strickland, we are to presume that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690 104 S.Ct. at 2066, 80 L.Ed.2d at 695. See also, Delrio v. State, 840 S.W.2d 443 (Tex.Cr.App.1992). What the record does reflect is that the prosecutor has an "open file" policy on discovery, and had, in fact, at some time before trial made his entire file available to appellant's counsel so that he would have access to all of the evidence of which the prosecutor was aware.

The court of appeals also stated without subsequent analysis, "apparently, the pre-trial hearing was waived, and defense counsel made no attempt to secure a ruling on any of the various pre-trial motions contained in the record." Roberson I, 798 S.W.2d at 604. There is no showing that a ruling on any of the pre-trial motions would have changed anything in the case. Further, the record reflects that it was agreed between the trial court and the parties that any evidence on contested issues of fact raised by pre-trial motions which were still unresolved by the morning of trial would be considered at that time. At the hearing on appellant's motion for new trial, counsel admitted he received from the prosecution all matters requested in pre-trial motions filed.

(2) "Counsel did not request a pre-trial identification hearing in which the court might have forced disclosure of the informant's identity if the court determined that they were necessary for the determination of guilt and innocence." Id. Officer Hayes testified at trial that he initially met appellant through a confidential informant; that he relied upon this information to identify appellant; and that as far as he could recall, the...