State v. Jones, No. 678-02 (Tex. Crim. App. 1/28/2004)
| Decision Date | 28 January 2004 |
| Docket Number | No. 678-02,678-02 |
| Parties | THE STATE OF TEXAS v. KENRICK TREMAINE JONES a.k.a KENRICK T. JONES, Appellant. |
| Court | Texas Court of Criminal Appeals |
OPINION
On November 9, 2001, a jury convicted appellant of aggravated robbery with a deadly weapon. The court sentenced appellant to ten years imprisonment. On December 11, 2001, appellant's counsel on appeal filed a motion for new trial alleging that trial counsel was ineffective. After conducting a hearing, the trial court denied the motion.
On appeal, the court found that appellant established both prongs of the Strickland test for ineffective assistance of counsel. Jones v. State, No. 2-00-477-CR, slip op. at 29 (Tex. App.—Fort Worth Mar. 28, 2002, pet. granted)(not designated for publication). Specifically, the court held that trial counsel's failure to move for a continuance to secure the presence of certain alibi witnesses at trial fell below an objective standard of reasonableness and, but for the error, the result of the proceeding would have been different. Id. at 26, 28. The court concluded that appellant "satisfied the Strickland test, and the trial court abused its discretion by denying his motion for new trial." Id. at 29. Accordingly, the court reversed and remanded the case for a new trial. In its petition for discretionary review, the State contends that the court of appeals erred by reviewing the testimony at the hearing on the motion for new trial de novo and then basing its decision on a determination that trial counsel's strategy was unsuccessful, not on whether it was valid. We granted review to determine the applicable standard of review in assessing claims of ineffective assistance of counsel raised by a motion for new trial.
On the evening of October 31, 1999, two individuals robbed Michael Brooks, a pizza delivery person, at gunpoint, taking his wallet. The wallet contained a debit card and numerous credit cards. The following day appellant and three others went to a Just for Feet store and used one of Brooks' credit cards to purchase approximately five hundred dollars in merchandise. On November 18, Detective Robert Abbott went to Brooks' place of business and showed him six photographs of individuals with similar features. Brooks selected appellant's photograph and said "this is one of the men that robbed me." Appellant was arrested the next day. Appellant admitted to using the credit card, but explained in a hand-written statement that he found the wallet near a dumpster, took the credit cards, and threw the rest into the dumpster.1
At trial, Brooks gave a detailed account of the robbery. He explained that after he made a delivery, two individuals approached him. One of the individuals shoved Brooks up against his car door and placed a grey automatic handgun against the back of his neck. Brooks managed to turn around and see one face, but was turned around immediately and shoved to the ground. One of the individuals held Brooks down while the other rifled through Brooks' pockets. Brooks again looked over his left shoulder. This second time, he claimed he was able to get a good look at both faces. Brooks identified appellant as one of the individuals who robbed him.
On cross-examination, appellant's trial counsel impeached Brooks' identification of appellant. Counsel asked Brooks about his initial description given to an officer on the night of the offense. Brooks described one of the individuals as approximately eighteen years old, wearing a green T-shirt and black pants. He also described the other individual as being approximately five feet tall and twelve- to thirteen-years-old. Counsel then turned to a subsequent identification made by Brooks. Brooks identified one of the individuals as Billy Don Smith, who already had been convicted for this offense. When asked if Smith was the person described as being eighteen years old and wearing a green shirt and black pants, Brooks replied, "I believe it was." Counsel previously established through Detective Abbott that the twelve- to thirteen-year-old individual was never located. Appellant was twenty years old at the time of the offense. Finally, counsel turned to Brooks' identification of a photograph of appellant. Counsel showed Brooks appellant's picture used in the photograph spread and asked, "Is this the suspect that had the gun?" Brooks replied, "That's the one that had the gun." Counsel then showed Brooks a copy of a statement made to a detective during the identification of Smith where he identified Smith as "the one that had the gun." The court thereafter excused Brooks and the State closed its case-in-chief.
After a discussion regarding the admissibility of appellant's statement to police, appellant's trial counsel indicated that the defense would rest without calling any witnesses. When the court asked appellant if he agreed, he replied, "Hold on a second." During a pause in the proceedings, the court allowed appellant to confer with his counsel regarding the decision. The trial court then asked appellant about his decision:
During his closing argument, appellant's trial counsel focused on Brooks' identification:
Now, ladies and gentlemen, this case obviously hinges on identity. Identity was so important in this case because Mr. Brooks identified Billy Don Smith as the gunman. And Billy Don Smith was convicted.
Now, you heard Mr. Brooks sit up there and tell y'all, point out Mr. Jones. That Mr. Jones was the gunman. He said two different things.
***
He admitted it. He said I did identify Billy Don Smith as the gunman. But in court he pointed at him and said he was the gunman, but then he recanted when I got to ask him some cross-examination questions that that wasn't true.
This defense did not sway the jury and, ultimately, it returned a guilty verdict. The trial court sentenced appellant to ten years imprisonment and appointed new counsel to handle his appeal.
Appellate counsel filed a motion for new trial raising ineffective assistance of counsel and requesting a hearing on the motion. The motion specifically alleged that trial counsel "failed to request a continuance or seek other appropriate remedies when defense witnesses did not appear to testify at the trial of this case." The motion set forth that subpoenas were issued for three individuals: Sheila Rene Gordon, Debra Woods,2 and Lloyd Turner. According to the motion, "investigation indicated that their testimony would establish Defendant's innocence." Although subpoenas were issued, the witnesses were not served nor did they appear to testify at trial. The trial court conducted the hearing on the motion over the course of two separate days.
On the first day of the hearing, January 16, 2001, appellant's appellate counsel called trial counsel to testify. He explained that he discussed the possibility of an alibi defense with appellant "at least a couple of months prior to trial." Appellant gave trial counsel three names of potential alibi witnesses: Gordon, Woods, and Turner. The basis of the theory was that appellant was with these three individuals at Gordon's apartment on the night of the robbery. Trial counsel's investigators tried to locate the three individuals. Of the three witnesses, however, the investigator located only Woods. Trial counsel testified that subpoenas were issued for the three individuals one to two days before trial, but none were ever served. He explained that his investigator was unable to serve Woods because she failed to meet him at a prearranged time. Trial counsel then went into his explanation for not requesting a continuance:
When the trial started, we were still under the impression that we would be able to locate these witnesses and that they weren't avoiding us, and so we didn't file a motion prior to trial, and at the close of State's evidence, we made a strategic decision to not continue or ask for a Motion for Continuance because we felt that we stood a good chance that the State didn't put on enough evidence to find the Defendant guilty.
When asked why appellant did not take the stand to testify as to the alibi, trial counsel explained, "He had another extraneous offense that certainly might be subject to testifying about, and we advised him against it, and he agreed with us and agreed that that's not something he wanted to do, also."3 Trial counsel finally testified that he and his co-counsel went over the decision not to seek a continuance "carefully" with appellant; appellant ultimately agreed with the strategy.
The investigator for appellate counsel, Ron Pendergraf, also testified. Appointed to assist appellate counsel shortly before the hearing, he explained that, in the two weeks he had prior to the hearing to investigate the three witnesses, he was also having difficulty locating any of them. He did receive a possible address for Gordon and left a business card requesting that she call him. When asked if given additional time he could locate the...
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