Robertson v. State, PD-325-05.

Citation187 S.W.3d 475
Decision Date22 March 2006
Docket NumberNo. PD-325-05.,PD-325-05.
PartiesTrever Orande ROBERTSON, Appellant v. The STATE of Texas.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Stan Schwieger, Waco, for Appellant.

K.C. Odom, Asst. County & District Atty., Groesbeck, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion for a unanimous Court.

This is an ineffective-assistance of counsel case. We granted discretionary review to decide whether, as a matter of federal constitutional law, appellant's trial lawyer performed deficiently for eliciting testimony from appellant at the guilt phase of his trial that appellant was already incarcerated on two convictions that were pending on appeal.1

Appellant was charged in this case with aggravated assault. In exchange for appellant's guilty plea to this charge, the State initially offered to recommend a ten-year sentence to be served concurrently with a fifteen-year sentence that appellant was serving on one of the convictions then pending on appeal. The record of an in camera hearing just prior to voir dire on the aggravated assault charge reflects:

Q. [APPELLANT'S TRIAL LAWYER]: Trever, you and I have talked about, at the Gurney Unit in Palestine, here in Groesbeck, and then again this morning, the plea offer that the DA's office has offered you, have we not?

A. [APPELLANT]: Yes, sir.

Q. And I've told you that their offer was for ten years to do in TDC.

A. Yes, sir.

Q. With a finding of a deadly weapon.

A. Yes, sir.

Q. And would that sentence, if the judge were to approve it, that the sentence would run concurrent alongside of the [fifteen-year] sentence you're currently serving out of Freestone County, is that correct?

A. Yes, sir.

Q. And you have told me that you are not interested in a plea bargain, is that correct?

A. Yes, sir.

Q. And you don't want to plea; you want a jury trial. Is that correct?

A. Yes.

Q. And you understand that you won't have another opportunity to — you can't change your mind later on.

A. Yes, sir, I understand.

Q. So, after we start now, and at this time you're electing that, if you're found guilty, for the jury to assess punishment, is that correct?

A. Yes, sir.

Q. And so, now, you may have the opportunity later on to change your mind on that, but you won't have the opportunity to change your mind about the plea, you understand?

A. Yes, sir.

Q. And you had told me this morning that you had confidence that your attorney had a good chance to overturn the Freestone County case and for you to win your appeal, is that correct?

A. Yes, sir.

Q. And I told you that I had talked to your attorney perfecting the appeal, and he was not confident at all that you would win. I told you that, didn't I?

A. Yes, sir.

Q. But, yet, you don't want to do the plea.

A. No, sir.

Q. And you understand that, in all likelihood, if the — it's nearly a guarantee, if you're found guilty, that any sentence the jury or the judge may give you would be stacked on top of whatever you may or may not have in Freestone County.

A. Yes, sir.

Q. Okay. And knowing all of that, you foresee us to go forward with the jury trial?

A. Yes, sir.

Appellant went to trial on the aggravated assault charge in May 2003. Rejecting appellant's self-defense claim, a jury convicted appellant of this offense and sentenced him to fourteen years in prison. The evidence at trial shows that appellant stabbed the victim with a knife in the parking lot of a motel after the victim pushed or hit appellant in the face.2 Appellant initially told the police shortly after the incident that the victim and another person (Berry) came into his motel room in a "loud" manner and attacked him. Appellant did not mention in this statement that he stabbed the victim or that he was ever in the parking lot of the motel. Appellant contradicted his initial statement to the police when he testified at trial that he stabbed the victim in self-defense in the parking lot of the motel. Appellant also testified at trial that he called 911 immediately after the incident. Police department 911 records, however, did not support this.

Primarily through his cross-examination of the State's witnesses, appellant's trial lawyer elicited testimony that could have explained most, if not all, the inconsistencies between appellant's initial statement to the police and his trial testimony. Appellant's trial lawyer also elicited testimony from which the jury could have found that the victim was a violent, weapon-carrying, drug-user who had assaulted appellant in the past. And, during his recross-examination of the victim, appellant's trial lawyer was able to reveal that the victim had a pocket knife in his shirt pocket while he was testifying at appellant's trial. On later cross-examination of the victim, appellant's trial lawyer elicited more testimony from the victim in which the victim claimed that he had never "carried any kind of knife all [his] life."

At the beginning of his direct examination of appellant, appellant's trial lawyer questioned appellant about his current incarceration on the two convictions pending on appeal. See also Robertson v. State, slip op. at 3, 2004 WL 2567186 (Tex.App. — Waco 2004) (appellant's trial lawyer elicited testimony from appellant that appellant "was currently incarcerated, that he had been convicted in two cases for possession of cocaine and possession of methamphetamine, and that he was in possession of a knife at the time of the arrests").

Q. [APPELLANT'S TRIAL LAWYER]: [Appellant], if you would now, I want to ask you to answer the questions loud enough that the court reporter can hear your answers, the judge can hear your answers, I can hear your answers, and probably most important, that the jury can hear your answers. So try to answer clear and precise, and try to answer the question that's asked.

For the record, please state your full name.

A. [APPELLANT]: My name is Trever Orande Robertson.

Q. And how do you pronounce your middle name?

A. Orande.

Q. Orande?

A. Yeah.

Q. And how old are you?

A. I'm 25.

Q. And currently, are you incarcerated in TDC?

A. Yes, sir, I am.

Q. And since when have you been there?

A. I've been there since May the 21st. I mean, October 21st.

Q. October the 21st of 2002?

A. Yes, sir.

Q. Now, is that on a sentence out of Freestone County?

A. Yes, sir.

Q. And did you — the jury found you guilty; is that correct?

A. Yes, sir.

Q. And you're currently got that decision under appeal; is that correct?

A. Yes, sir.

Q. Because you disagree with some of the things — how they that transpired in court; is that correct?

A. Yes, sir.

Q. Now, was the sentence there for fifteen years?

A. Yes, sir.

Q. Okay. And in addition, when you were arrested in Freestone County, did they find a switch blade on your person, on you?

A. Yes, sir.

Q. You hadn't used the knife on anybody?

A. No, sir.

Q. You didn't use it on the police?

A. No, sir.

Q. And not on nobody [sic] else; is that correct?

A. Yes, sir.

Q. But it was on — it was either on your person or in your things; is that correct?

A. Yes, sir.

Q. And so they had a finding of a deadly weapon on that charge; is that correct?

A. Yes, sir.

Q. Okay, in addition to that, had you had a prior conviction either in Freestone or Limestone or someplace where you were on probation for possession for some type of illegal substance?

A. Yes, sir.

Q. And tied in with the conviction in Freestone County, did you subsequently or possibly prior to that trial date get your probation revoked and get sentenced on that case?

A. Yes, sir.

Q. And do you know what the sentence was on that case?

A. They ran it concurrent with — with the fifteen years.

Q. But do you know for how many years?

A. Two.

Q. Two years?

A. Yes.

Q. So it was like a state jail fine?

A. Yes, sir.

Q. But it's running concurrent with the fifteen years. So you've actually got two sentences that you're serving time on right now; is that correct?

A. Yes, sir.

This questioning opened the door to some damaging cross-examination by the prosecution, which also referred to appellant's two convictions during its closing jury arguments.3 Appellant's trial lawyer argued to the jury that appellant was afraid of the victim and that he acted in self-defense.

Now, [the victim] sat there on the stand, said that prior to his girlfriend giving him his current knife that he had in his pocket — by the way, y'all saw him open it and just kind of slide that thing up and flip that thing open. It didn't look like the first time he had ever done that. Might have been. We don't know.

But when I asked him right there, had he ever carried a knife, no, he'd never carried any kind of a knife, not even when he was a boy, not to go fishing. But Neva Coleman said she had seen him with a gun, she had seen him with a knife in the past. Not each and every time she had seen him, but he had been known to carry weapons with him and on his person. He's a known drug dealer. But, again, [the victim] said he never carried a knife.

[Appellant] knew [the victim] also. When they start the fight, [the victim] hits [appellant], the fight starts. He testifies that Berry grabs an arm, but he's already gotten a hand in his pocket, got his knife out, Berry grabs his arm, he comes back, he gets his knife open, he stabs him.

He says he was in fear of being hurt by [the victim]. He is in fear. What he knows, in November he calls the police on [the victim]. He — now whether [appellant] is bigger than [the victim] is irrelevant. Fear is fear. Evidently [the victim] may be tougher. He certainly looks like he's in better condition. So this is the thing that you all are going — one of the things you'll have to decide is who do you believe in this?

Appellant's trial lawyer did mention appellant's current incarceration on the two convictions during the very end of his closing jury arguments.

So we ask after considering all the testimony from the witness stand,...

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