Robinson v. State

• Decision Date: 12 April 2000
• Parties: (Tex.Crim.App. 2000) DONTAE ROBINSON, Appellant v. THE STATE OF TEXAS NO. 1701-99
• Court: Texas Court of Criminal Appeals

Page 808

16 S.W.3d 808 (Tex.Crim.App. 2000)

DONTAE ROBINSON, Appellant v. THE STATE OF TEXAS

NO. 1701-99

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

April 12, 2000

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS BEXAR COUNTY

O P I N I O N

Meyers, J., delivered the opinion of the Court in which McCormick, P.J., and Keller, Price, Holland, Womack, Johnson and Keasler, J.J., joined.

A jury convicted appellant of felony possession with intent to deliver cocaine and assessed punishment at seventy-five years confinement. See TEX. HEALTH & SAFETY CODE ANN. 481.112 (d) (Vernon Supp. 1998). In his sole point of error on appeal, appellant argued that he was denied the effective assistance of counsel at his trial in violation of both the Sixth Amendment to the United States Constitution and Article I, section 10 of the Texas Constitution.¹ The Court of Appeals held that, by failing to make a timely request, objection, or motion to the trial court raising the ineffective assistance claim, appellant's complaint was barred by Rule 33.1(a) of the Texas Rules of Appellate Procedure.² Robinson v. State, No. 10-98-194-CR, slip op. at 5 (Tex. App.-Waco August 25, 1999) (not designated for publication). We granted appellant's Petition for Discretionary Review to determine whether the Court of Appeals erred in deciding that a claim of ineffective assistance of counsel could be forfeitedpursunat to Rule 33.1(a).

In reaching its conclusion that appellant's ineffectiveness claim was barred by the general rule of procedural default, the appellate court relied on its previous decision in Gonzalez v. State, 994 S.W.2d 369 (Tex. App.-Waco 1999, no pet.). In that case, the Waco court determined that the "clear language" of Rule 33.1(a) prevented a similarly situated appellant from raising an ineffective assistance of counsel claim for the first time on appeal. See id. at 373. The Gonzalez court noted the general axiom that, "'[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim.'" Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)). It then concluded that the proper mechanism to develop the record in the ineffective assistance of counsel context was to present the argument to the trial court in a motion for new trial under Texas Rule of Appellate Procedure 21. Id. at 373-74. The Gonzalez court held that by failing to present the claim to the trial court in such a manner, the appellant was procedurally barred from raising the issue on appeal. Id. at 374. Relying on Gonzalez, the Court of Appeals overruled appellant's point of error. Robinson, slip op. at 5.

Rule 33.1(a) generally requires that a complaint be presented to the trial court "by a timely request, objection, or motion" as a prerequisite to presenting the complaint for appellate review. However, this Court has suggested in dicta that an ineffective assistance of counsel claim will generally not be foreclosed because of an appellant's inaction at trial. See Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993). We have expressed two separate rationales that support an exception to the general rule of procedural default in the ineffective assistance of counsel context. First, we have noted the many practical difficulties with requiring an appellant to claim ineffective assistance at the time of trial or immediately post-trial. For example, in Randle, we rejected the Court of Appeals' suggestion that the appellant's ineffective assistance claim had been waived by a failure to object with sufficient specificity to preserve the complaint. Id. at 580. We held that the claim had been adequately preserved by means of a pre-trial Motion for Protective Order and post-trial Motion for New Trial. Id. at 579-80. We then continued:

Even if appellant and defense counsel had chosen to do nothing before or at the time of trial to bring to the trial court's attention the particulars [that underlay appellant's Sixth Amendment claim], there is no reason for appellant to have been required to specifically claim ineffective assistance of counsel at the time of trial. We do not require any defendant to risk alienating his trial lawyer by requiring the defendant to claim ineffective assistance of counsel at the time of trial. Further, because many errors by defense counsel are of a technical nature, the defendant may not even know errors by their trial lawyer are occurring, and cannot possibly object. Many times it is in the review of the record by the appellate attorney that errors of an ineffective assistance of counsel nature are discovered. The timely filed appeal to the court of appeals by appellant is a proper procedure for seeking relief.

Id. at 580 (emphasis added). Thus, a defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. Id.

The second reason we have given for not enforcing a procedural bar in this context is because there is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, we have noted that a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge:

While expansion of the record may be accomplished in a motion for new trial, that vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point. Further, mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if the trial counsel remains counsel during the time required to file such a motion. Hence, in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.

Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (internal citation omitted).³ Indeed, we have increasingly noted that, in most cases, the pursuit of such a claim on direct appeal may be fruitless . See id. ("In most cases, the record on direct appeal is inadequate to develop an ineffective assistance claim"); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ("Rarely will a reviewing court be provided with the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation") (footnote omitted); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (noting that because record on direct appeal usually insufficient to adequately reflect failings of trial counsel, appellate court will not apply general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal). In the instant case, many of the practical concerns cited above miliate against enforcing a procedural bar to appellant's ineffective assistance claim on appeal. ⁴ Appellant's sentence was imposed on April 22, 1998. Trial counsel filed a timely notice of appeal on May 6, 1998. On the same day, trial counsel withdrew as attorney of record, citing a possible conflict of interest if the appeal required him to argue his own ineffectiveness. Appellate counsel Jay Brandon was appointed on the same date. On May 28, 1998, the clerk's record shows that appellant retained Richard Langlois ("Langlois") to represent him in his appeal. On June 1, the court reporter received a request from Langlois for a transcribed statement of facts. The transcribed record was completed on July 16.

The time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. See TEX. R. APP. P. 21.4 (requiring motion for new trial to be filed no later than 30 days after trial court imposes sentence); TEX. R. APP. P. 21.6 (requiring defendant to present motion for new trial to trial court within 10 days of filing it unless trial court, in its discretion, allows additional time). The transcription of the record alone took the court reporter a full month and a half. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. See, e.g., Johnson v. Mizell, 912 F.2d 172, 176 (7th Cir. 1990) ("It is too much to expect counsel to argue post-trial his own ineffectiveness at trial, so if the issue is not raised post-trial it is excusable"); State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982) (allowing exception to general rule of error preservation in ineffective assistance context "[b]ecause these claims (realistically) are not made by attorneys against their own actions"). First, it is unrealistic to expect that the attorney charged with ineffectiveness will subsequently realize all of his mistakes and be able to adequately prosecute the claim. This is especially true in a case like the one at bar, where the errors alleged are acts of omission. Had counsel realized that some action on his part was required, he almost certainly would have taken it in the first instance. Second, the potential exists for a conflict of interest were we to require counsel to argue his own ineffectiveness at trial. Appellant's own counsel realized this possibility and correctly sought to withdraw as attorney of record.

In addition to the practical reasons expressed by this Court in Randle and Torres for recognizing an exception to the rule of procedural default in the ineffective assistance context, we have also suggested that, as a fundamental constitutional right, such a Sixth Amendment challenge is not subject to the requirements of Rule 33.1(a).⁵ In Ex parte Gonzalez, this Court reinforced the well-established proposition that "the Sixth Amendment right to counsel is not forfeitable, but may only be waived by the conscious and...