Stafford v. State

• Decision Date: 03 July 1991
• Docket Number: No. 1085-88,1085-88
• Citation: 813 S.W.2d 503
• Parties: Edmond Albert STAFFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 503

813 S.W.2d 503

Edmond Albert STAFFORD, Appellant, v. The STATE of Texas, Appellee.

No. 1085-88.

Court of Criminal Appeals of Texas En Banc.

July 3, 1991.

Mary B. Hennessy, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Kathlyn Giannaula and Bruce Halling, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant, Edmond Albert Stafford, was convicted of delivery of more than 28 grams of cocaine for which punishment was assessed at 75 years' confinement. He appealed. The First Court of Appeals in Houston reversed the conviction finding that trial and appellate counsels' deficiencies denied appellant effective assistance of counsel. Stafford v. State, 758 S.W.2d 663 (Tex.App.--Houston [1st Dist.] 1988). We granted the State's petition for discretionary review to examine the Court of Appeals' holding. We now reverse.

The Court of Appeals found that appellant's trial counsel was ineffective for his failure to object to testimony concerning another drug transaction conclusively shown not to involve appellant but introduced by the State before the jury in the guilt/innocence phase of trial. 758 S.W.2d at 670-671. The court also found that trial counsel provided ineffective assistance when he, in the court's opinion, admitted appellant's guilt in his final arguments. Id. at 762-673. Finally, the Court of Appeals found that appellate counsel was deficient for her failure to allege trial counsel's ineffectiveness as a point of error on appeal. Id. at 674. The State contests these findings, insisting that trial counsel's failure to object to the extraneous drug transaction was sound trial strategy, that the Court of Appeals has taken trial counsel's argument out of context to conclude improperly that such was an admission of guilt and that appellate counsel cannot be faulted for not bringing frivolous claims to the Court of Appeals' attention. We agree with the State.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that to advance successfully an ineffective assistance of counsel claim:

"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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." 466 U.S. at 687, 104 S.Ct. at 2064.

The Strickland Court continued that the test to be applied in determining whether counsel provided constitutionally satisfactory services is the "reasonably effective assistance" standard. Strickland, 466 U.S. at 687, 104 S.Ct. at 2063. See also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Cr.App.1984); Saylor v. State, 660 S.W.2d 822, 824 (Tex.Cr.App.1983). This right does not mean errorless counsel or counsel whose competency is judged by hindsight. Saylor, 660 S.W.2d at 824. Rather, the right to counsel affords an accused an attorney "reasonably likely to render and rendering reasonably effective assistance." Cannon v. State, 668 S.W.2d 401, 402 (Tex.Cr.App.1984). A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 688-689, 104 S.Ct. at 2064-2065, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). See also Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986) (holding that in evaluating the first prong of the two-pronged inquiry, counsel's competence is presumed and appellant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy). ¹

In the case under consideration, the Court of Appeals found the first prong of Strickland was satisfied (i.e., that trial counsel was ineffective) because counsel failed to object to an extraneous drug transaction the State introduced into evidence before the jury. The court believed that because it was conclusively shown that appellant was not present during the transaction the evidence was immaterial. Specifically, the court wrote:

"[A]n extraneous offense is admissible only when it involves the defendant on trial in the primary case. As the court noted in Ford [v. State, 484 S.W.2d 727, 729 (Tex.Cr.App.1972) ], evidence of other crimes may unduly prejudice the jury and, therefore it must be shown to be more reliable and of greater probative value. In the instant cause, the testimony and evidence conclusively established that appellant was not present during the second transaction. Thus, none of this evidence was relevant to the criminal charges against which appellant defended himself." 758 S.W.2d at 670-671.

In essence, the Court of Appeals "d[id] not feel that the trial counsel's failure to object to these numerous references to highly prejudicial and irrelevant testimony was 'trial strategy,' " because such evidence did not prove identity. The Court of Appeals' analysis is based on the assumption that the only reason that an extraneous transaction may be introduced by the State is to prove identity. True, the "general rule is that an accused may not be tried for some collateral crime or for being a criminal generally." Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1983). See also Tex.R.Crim.Evid. 404(b). But whenever an extraneous transaction is "relevant" and its probative value is not "substantially outweighed by the danger of unfair prejudice, confusion of the issues or by considerations of undue delay, or needless presentation of cumulative evidence," Tex.R.Crim.Evid. 403, the evidence is admissible. Tex.R.Crim.Evid. 402. " 'Relevant evidence' means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Tex.R.Crim.Evid. 401. See also Williams, 662 S.W.2d at 346; Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.1983). A review of the facts is necessary to understand why trial counsel might have thought it relevant to appellant's defense and thus allowed the State to admit evidence of the second drug buy before the jury without objection.

After receiving information that persons were selling rock cocaine at a certain house in Houston, Narcotics Officer W.T. Reeves, dressed in street clothes, went to that location some time between 6:30 and 7:00 p.m. A male, later identified as Ernest Hill, was standing in front of the old, wood frame house. Reeves told Hill that he was there to buy fifty dollars worth of "rock cocaine." Hill let the officer go into the house and instructed him to wait in a room with five or six other people purportedly there also to buy drugs. There was no electricity in the house. After a while, Hill told Reeves that he could go into another room which had been portioned off from the waiting room by a hanging sheet.

This second room was lit only by a couple of candles. There was a "podium" in the room from behind which a male and a female were selling cocaine. After waiting for two people to buy drugs, the officer approached the podium and told the male that he wanted a fifty dollar rock of cocaine. Reeves handed the money to the male who in turn instructed the female to give the officer a rock. The female removed a towel from the top of the podium and told the officer to select one of the several packages of white rocks that were there. The officer chose one and left.

Reeves then met with other officers to plan how they would make their arrests. About twenty or thirty minutes after the first purchase, the officers arrived at a plan and Reeves returned to the house. There the officer made another drug purchase under circumstances similar to the first purchase except this time the male who was present during the first transaction was not present. About fifteen minutes after this second buy, Reeves, along with other police officers, returned to the house and arrested everyone therein. Appellant was not in the house and was not arrested at this time. Along with others in the house, officers were able to arrest the female who was later identified as Beulah May Samuel. She had a "wad" of money which included the fifty dollar bill used to make the first buy.

While the officers were placing the arrested drug dealers into patrol cars, Reeves observed a silver Corvette drive slowly by the front of the house. Reeves believed that the car was driven by the male who had sold him cocaine and ordered uniformed officers to stop it. The officers attempted to comply with the order but the car sped away.

Based on information from a confidential informant, officers began searching for the male in places he was thought to frequent. About fifteen minutes after raiding the drug house, the officers were finally able to arrest appellant in a nearby restaurant. The Corvette Reeves had observed fleeing from the drug...