counsel must make an independent examination of the facts, circumstances, pleadings and laws involved
How later courts described this case
- counsel must make an independent examination of the facts, circumstances, pleadings and laws involved
Written by the judges who cited it.
The opinion
fyfrZ-oZ'
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
EX PARTE §
§
§ WR-53,835-05
§
CARL MATTHEW BELLOTTI, III §
NOTICE
m re the "Off Limits" trial Record
RECEIVED IN
COURT OF CRIMINAL APPEALS
18 2015 *
Abel Acosta, Clerk*
Philip W. "Phil" Moore, Petitioner Pro $e
15623 Fagerquist Road
Del Valle, Texas 78617-5800
Phone:(512)667-1508
e-mail: pwml 1.07@gmail.com
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
EX PARTE §
§
§ WR-53,835-05
§
CARL MATTHEW BELLOTTI, IH §
NOTICE
in re the "Off Limits" trial Record
Philip W. "Phil" Moore, Petitioner Pro $e
15623 Fagerquist Road
Del Valle, Texas 78617-5800
Phone:(512)667-1508
e-mail: pwmll.07@gmail.com
i
%
k
u*.. ; -,. ,.;'(.* • .V:jv r.*ai5*iJB.
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
EX PARTE §
§
§ WR-53,835-05
§
CARL MATTHEW BELLOTTI, III §
NOTICE
in re the x%Off Limits" trial Record
TO THE HONORABLE JUDGES of said court:
COMES NOW CARL MATTHEW BELLOTTI, III, APPLICANT Pro $e in the
above-styled andnumbered cause,byandthroughPhilipW." Phil"Moore, whopresents
this his NOTICE in re the "Off Limits" trial Record pleading(s) in the above-
styled and numbered cause in accordance with, inter alia, Article 11.12 (Who May
Present Petition) of our Texas Code of Criminal Procedure and its "Hornbook Law"
progenies and who, in support thereof, would respectfully show this Honorable Court the
following:
I
PROCEDURAL BACKGROUND
Once again in the interest(s) ofbrevity, Applicant has raised two (2) Grounds for
Relief in the habeas pleading(s) filed on his behalf on Monday, February 9th, 2015 —
1 ALL "emphasi$" belongs to this writer unless otherwise indicated.
2
Either the party for whom the relief is intended, or any person "for" him, may
present a petition to the proper authority for the purpose of obtaining relief.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
-1-
l/>tZrf*—
ineffective "assistance" oftrial counsel (a/k/a LAC) based primarily on "trial" counsel's
failure(s) to so much as attempt to impugn the testimony ofthe State's "Star" Witnesses
identifiedinfra and ProsecutorialMisconductbased primarilyupon the State's knowing
and intentional subornation of perjured testimony (viz, Inconsistent Statements as
defined by V.T.C.A., Texas Penal Code §37.06) on the part of its two (2) "Star"
Witnesses, Groves Police Department Sergeant Kevin Russell White and a Lay Witness
by the name of Aelisa Faye Sanders.
. . .and despiteprimafacie evidence in support of Applicant's allegations and
lengthyverbatim quotationsfromthe Strickland Court's two-prongedtest nowrequired
for analysis of such LAC allegations, the habeas court below has entered its so-called
Findings of Fact and Conclusions of Law asserting that
". . .[A]pplicant has failed to meet his twin-burden of
production and persuasion for establishing his LAC claim, as
required under Strickland v. Washington, 466 U.S. 668,
687-688 (1984), by a preponderance of the evidence "
".. .FINDINGS, CONCLUSIONS ..." @ p. 5. Worse yet, the habeas court below has
ordered the Jefferson County District Clerk's Office to immediately forward to this
Honorable Court
".. .[t]he [CJlerk's [R]ecord in .. .[Cause] No. 09-072[83]...,"
ID. @ p. 6 (4), rather obviously intent upon compelling this Honorable Court to reach
the merits vel non of the case at bar without benefit ofthe Official Reporter's (trial)
Record!?
. . .and then most alarmingly, when this writer placed a telephone call to
DeborahAnn (Ann)Manes—the AssistantJeffersonCountyDistrictAttorneywho filed
the State's Original Answer pleading(s) in the case at bar — to question her about the
3 See MEMORANDUM @pp. 17-19.
habeas court's exclusion of the Official Reporter's (trial) Record from its so-called
"Transmittal" Order, Ann Manes actually had the unmitigated gall to respond that
".. .the Official Reporter's (trial) Record is Off Limits
on Habeas Corpus!!?"
REDUCTIO AD ABSURDUM
Ths sockdolager is simply this: as even a cursory review of those highlighted
portions of Exhibits "A" & "B" reveals, the Official Court Reporter's trial Record
certainly wasn't "Off Limits" in the Duffy and/or Burkhalter cases decided by this
Honorable Court (and cited by this writer in the pleadings germane to the case at bar)
and it is not — and cannot be — "Off Limits" m this Bellotti case!!!?
FURTHER PETITIONER S/WETH NOT.
II
PRAYER
WHEREFORE, PREMISES CONSIDERED, Applicant respectfully
prays that this Honorable Court will ORDER the habeas court below to ORDER
the Official Court Reporter ofthe 252nd Judicial District Court ofJefferson County,
Texas to provide this Honorable Court with a certified copy of said trial Record to
enable this Honorable Court to comply with our United States "Supreme" Court's
mandate(s) that
".. .a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct
on the facts ofthe particular case, viewed as ofthe time of
counsel's conduct. A convicted defendant making a claim
ofineffective assistance mustidentify the acts or omissions
of counsel [shown in the Official Reporter's (trial)
Record] that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified[in the Official Reporter's (trial) Record]
acts or omissions that were outside the wide range of
professionally competent assistance. ..."
Strickland v. Washington, supra. In the alternative, this Honorable Court could
(and probably should) rely upon the true and correct copy ofthe entireOfficial Court
Reporter's (trial) Record—BOTH TRIALS/all five (5) Volumes—which was
hand-delivered to Hon. Abel Acosta, Clerk ofthis Honorable Court by Petitioner at
Petitioner's expense on Wednesday, March 11th, 2015 to enable the Court to reach
the merits vel non ofApplicant's claims in the case at bar in a manner consistent with
the mandate(s) of the Strickland Court.
CLEARly, because Applicant has alleged facts which, if true, would surely
entitle him to the relief sought, the proper course of action is to
". . .remand this matter to the trial court for resolution of
the factual issues presented in accordance with Article 11.07,
§ 3(d) of the [Texas] Code of Criminal Procedure."
Ex parte Patterson, No. 72,866,993 S.W.2d 114,115 (Tex. Crim. App. -05/26/1999)
(Holland, J., delivering the unanimous opinion of the Court).
". . .In these circumstances, additional facts are
needed. As [this Honorable Court] held in Ex parte
Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960),
the trial court is the appropriate forum for findings of fact."
Ex parte Hinojosa, WR-82,619-01 & WR-82,619-02 [ORDER @ p. 3] (Tex. Crim.
For some definitions of the word clearly, see BLACK'S LAW DICTIONARY, Ninth
Edition (2009), West Publishing Co., Inc., St. Paul, MN @ p. 267.
-4-
App. - Per Curiam - 02/25/2015) (not designated for publication) and cases cited
therein. At the very least, this Honorable Court should ORDER the habeas court
below to
".. .conduct a live [E]videntiary [H]earing [in this case], at
which [Groves Police Department Sergeant Kevin Russell
White, Aelisa Faye Sanders and both Prosecutors — Ernest
Perry Thomas and Patrick W. (Pat) Knauth] shall be called to
testify. ..."
Ex parte Contreras,6 WR-80,635-02 [ORDER @p. 3] (Tex. Crim. App. -Per Curiam -
February 4th, 2015) (not designated for publication) and cases cited therein.
Respectfully submitted,
Philip W. "Phil" Moore, Petitioner Pro $e
m
CERTIFICATE OF SERVICE
I, Philip W. "Phil" Moore, Petitioner in the above-styled and numbered cause and
the Amicus Curiae "person" alluded to throughout pleadings filed in the case at bar,
hereby certify that the original and ten (10) true and correct copies ofthese NOTICE in
re the "Off Limits" trial Record pleading(s) have been served upon the members of
this Honorable Court by hand-delivering them as follows:
Can't get much more "current" than that!?
6 Reliefwasfinally GRANTED on February 25th, 2015 because "the truth, the whole
truth and nothing but the truth" was finally allowed to prevail///?
-5-
Hon. Abel Acosta, Clerk
Texas Court of Criminal Appeals
Supreme Court Building
201 West 14th Street, Room 106
P.O. Box 12308
Austin, Texas 78711-2308
Phone:(512)463-1551
FAX: 512/463-7061
e-mail: abel.acosta@txcourts.gov
Date: Q^Z/i/^Af ATTEST: ^^^L^P^^^
month/day/year Philip W. "PhiI" Moore, Petitioner Pro $e
I further certify that — as soon as I can get to the Post Office from the Supreme
Court Building where the Court of Criminal Appeals is located — three (3) true and
correct date-stamped "RECEIVED" copies ofthese NOTICE In re the "Off Limits"
trial Record pleadings will be served upon the below named individual(s)7 by placing
the same in the United States Mail, First Class postage pre-paid, as follows:
Debbie Folse, Deputy District Clerk
Felony Criminal Section
Jefferson County District Clerk's Office
Jefferson County Courthouse
1085 Pearl Street, Room 203
Beaumont, Texas 77701-3545
Phone: (409) 835-8580
FAX: 409/835-8527
e-mail: dfolse@co.jefferson.tx.us
Date: 6 1 fl 01<±0/f ATTEST: \^d^4a *t^<%&&&&-
mbnth/day/year Philip W. "Phil" Moore, PetitionerPro $e
.. .with one (1) copy each being intended for the records and files of the Jefferson County
District Clerk's Office, Hon. Raquel West, Judge Presiding of the 252nd Judicial District Court of
Jefferson County, Texas and the State's Attorney, Deborah Ann (Ann) Manes.
-6-
ADDENDUM
TRACKING SLIP
VERIFICATION
of Service
X
H
I
B
I
T
S
A
Ex parte Duffy^O? SW 2d 507 - Tex: Court of Criminal Appeals 1980- Google^Scholar Page 1 of 25
^
"pjiivv <il
•<*
607 S.W.2d 507 (1980)
Ex parte Harvey Joseph DUFFY, Jr.
No. 64863.
Court of Criminal Appeals of Texas, En Banc.
October 1,1980.
Rehearing Denied November 26,1980.
508 *508 Maury Maverick, Jr., San Antonio, Mike Tobin, Huntsville, Gerald H. Goldstein and Robert H.
Ozer, San Antonio, for appellant.
Bill M. White, Dist. Atty., Charles T. Conaway and Douglas V. McNeel, Asst. Dist. Attys., San Antonio,
Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION
CLINTON, Judge.
This is a post-conviction application for writ of habeasjcorDus under the ambit of Article 11.07,
V.A.C.C.P.
On September 14,1976, petitioner was convicted of the offense of capital murder and assessed
death after the jury returned with affirmative findings to the three special issues submitted under
Article 37.071, V.A.C.C.P. On direct appeal, the Court affirmed the judgment of conviction without
dissent, one judge concurring in the result. Duffy v. State. 567 S.W.2d 197 (Tex.Cr.App. 1978). The
Supreme Court of the United States, two justices dissenting, denied petitioner'sapplication for writ of
509 certiorari on November27, 1978. Duffyy.Texas.^ 439 *509 U.S. 991.99 S.Ct. 593. 58 l-.Ed.2d 666
(1978) (Brennan and Marshall, JJ., dissenting consistent with their expressions in Furman v. Georgia.
408 U.S. 238. 92 S.Ct. 2726. 33 LEd.2d 346 M9721).
Having exhausted his avenue of direct appeal, petitioner filed an application for writ of habeas corpus
in the 186th District Court of Bexar County on January 8, 1979, alleging that he was denied the
effective assistance of counsel during his capital murder trial. Petitioner also advanced the contention
that during the course of the trial as well as at critical times prior to trial, he was so heavily sedated by
physicians employed by the State that he could not adequately comprehend nor participate
intelligently in his own defense. From March 15 through March 19, a hearing was held in the 186th
District Court on petitioner'sapplication. On June 4,1979, the Judge of the habeas court entered
findings of fact and conclusions of law on the application recommending that relief in all things be
denied. On original presentation to this Court, application for writ of habeas corpus was denied
file:///C:/Users/Phirs%20Laptop/Desktop/Phirs%20Documents/DUFFY,o/o20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 2 of 25
without written order on April 30,1980. Some two weeks thereafter, however, the Supreme Court of
the United States decided Cuvlerv. Sullivan. 446 U.S. 335. 100 S.Ct. 1708. 64 LEd.2d 333 (1980) in
which the Court rejected conventional legal thought dichotomizing retained and appointed criminal
defense counsel; viz,
"Since the State's conduct of a criminal trial itself implicates the State in the defendant's
conviction, we see no basis fordrawing a distinction between retained and appointed
counsel that would deny equal justice to defendants who must choose their own
lawyers.,tLl
Id. at 446 U.S. 344. 100 S.Ct. at 1716.
Because Part III of the opinion in Cuvler v. Sullivan, supra, from which the above excerpt is taken,121
obliterates any distinction previously made between criminal lawyers in testing for "state action,"121 we
granted petitioner's motion for rehearing on May 28,1980, limited to the question of alleged failure of
retained counsel to provide adequate representation. The matter was submitted to the Court En Banc
June 18,1980, on briefs and oral argument. From our examination of the record and aided bythe
submissions, we are convinced that petitionerwas not afforded "effective assistance of counsel,"1*1
and now vacate the judgment of conviction and sentence of death, and grant the relief sought.
I.
"On January 14,1976, the body of Louise Word, an eighty-year-old woman, was found
in her house in a rural area of Bexar County. The evidence showed that she had been
stabbed ten times with a knife. The front screen door of her house was bent and twisted,
indicating a struggle had taken place. Large bloodstains were found in the living room
and trails of blood led to the bedroom where the body of the deceased was found.
Drawers in the house appeared to have been opened and rifled.
*510 "On January 16,1976, [petitioner] was arrested in Fredricksburg, where he
subsequently made a confession to the crime. The evidence reflects that [petitioner] had
been in possession of checks belonging to the deceased, and that for two and one-half
days [petitioner] had been forging and cashing the checks in three cities. Other evidence
found at the scene of the crime connected [petitioner] with the murder."
Duffy v. State, supra at 199-200.^
On April 14,1976, petitioner was indicted for the offense ofcapital murder and on May 5,1976,
Judge Preston H. Dial, Jr., appointed Lonnie Duke, Esq. to represent petitionerin the case. On June
2,1976, Antonio Cantu, Esq. was also appointed bythe trial judge to assist Duke in preparation and
trial of the case. During their tenure as counsel, Duke and Cantu prepared and filed a motion for a
courtappointed psychiatrist as well as a motion for discovery. Neither motion was ever presented to
or acted upon by the trial court due to a turn of events beginning soon after these motions were filed.
file:///C:msers/PWl,s%20Laptop/Desktop/Phirso/o20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 3 of 25
Between the hours often and eleven o'clock on the evening of June 22,1976, petitioner's father
received a telephone call from one who identified himself as Joel Conant, an attorney. Conant said he
had talked with his son and was "very much interested" in his case, and would like to discuss it further
during office hours the following day. The next morning, Mr. Duffy went to Conant's office where he
was formally introduced to the lawyer and again was told that Conant was interested in handling
petitioner's case. The pair then went to the Bexar County Jail to visit petitioner; on the way over, Mr.
Duffy recalled, Conant gave him "the impression that he was an expert in criminal law and
prosecuting [sic] capital murder cases." Following their visit with petitioner an agreement was reached
that Conant would defend petitioner in the pending capital murder prosecution. Later in conversation
with his son did Mr. Duffy learn that before he was retained Conant had in fact approached petitioner
at the Bexar County Jail upon the advice of a jail guard with whom Conant had some character of
relationship.
Some three weeks later, Conant announced ready when the case was called for trial on July 12,
1976, however, the trial judge, who later would be the habeas judge, opined that Conant surely
needed more time to prepare for trial, and reset the case. Shortly, signals of discontent with Conant
appeared in a letter that petitioner dispatched to the trial judge. It relates and requests:
"I am writing you in regard to the postponement of my trial as ordered by you on July 12,
1976.
"It was the stipulation of the court that the reason for the postponement was to allow me
to examined [sic] and treated for hepetitus [sic]. As til [sic] this date I have not been
examined nor treated for hepetitus [sic]. Not only that Judge Barlow, but the medicine
prescribed for me in relation to a nerve condition has been discontinued.
"I have been in hopes [sic] that my attorney would pay me a visit and couldperhaps
explain these things and inquire of the officialshere of the jail why your explicitorders
have been ignored. However, he hasn't been to see me since I was in court July 12,
1976. He is not court-appointed attorney[sicj. I have written him but have not received a
reply nor acknowledgement of my letter.
"I suppose thisis an unusual request, butsir, couldyou please have myattorney contact
me regarding the medical problem?"
511 *5i1 We are not informed how this matter was resolved. Yet the record does show that before trial
began Conant visited his client twice and conferred with his father on two occasions-"and if either
lasted over fifteen minutes ... Iwould be surprised," said Mr. Duffy. What petitioner said to his
attorney is not revealed, but Mr. Duffy told Conant that his son had been under the care of a
psychiatrist, naming him, for over a year and that the psychiatrist was available to testify about the
mental condition of petitioner and the priortreatment given him. Mr. Duffy also informed Conant of at
least two other potential witnesses for his son: one, a former girlfriend knowledgeable about
circumstances surrounding his confession; two, a police officer who would testifyabout his character.
file:///C:/Users/Phirs%20Laptop/Desktop/Phil,s%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 4 of 25
Conant did not move for appointment of a psychiatrist to examine his client or present to the trial court
for determination the motion that the appointed attorneys had prepared and filed. Neither did he
present a motion for discovery nor call up the one previously filed. Nor did he move to suppress
petitioner's confession. His only pretrial motion was for individual voir dire of prospective jurors, a
procedure sanctioned by Article 35.17, V.A.C.C.P. and followed as a matter of custom and practice in
Bexar County.
Trial began September 7,1976; the docket sheet reflects that a jury was selected in less than eleven
hours. Conant did not voice any objection on the basis of Withersooon v. Illinois. 391 U.S. 510. 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968) to some seven jurors who were challenged for cause even though
there was no showing that any of the seven were irrevocably committed to voting against the death
penalty regardless of the facts of the case. See also Adams v. Texas. U.S. . 100 S.Ct. 2521,
65 L.Ed.2d 581 (1980). The record does not affirmatively reflect that any of the prospective jurors
were required to state under oath, consistent with V.T.C.A. Penal Code, § 12.31(b), that the
mandatory penalty of life imprisonment or death would not affect their deliberations on any issue of
fact.®
In presenting its case, the State called some twelve witnesses who laid down a pictorial mosiac of a
brutal crime and, with his own confession, the involvement of petitioner in it. Evidence from an
inventory search of his motor vehicle was admitted, without having been subjected to pretrial
ventilation though a motion to suppress, so objection to its introduction had to be made before the
jury. The confession was perhaps the most damaging piece of the picture put together in front of the
jury.
The case presented by the State demonstrated guilt of petitioner. Still, Conant did not raise any sort
of psychiatric defense, the only one he had. He called but a single witness in defense-the petitioner
himself. The habeas court found that his "testimony was incriminatory in many respects." That
testimony, particularly the portions excerpted post, suggests a perverted, somewhat mocking, attitude
produced the "defense" proferred: provocation by an eighty year old woman "striking" him with a cane
during the encounter.
After the jury returned a verdictof guilty in less than two hours, and after the State presented its
evidence during the punishment stage, Conant again called his client to the stand. Suffice itto say
now that petitioner again did himself substantial damage by his performance on the witness stand.
Trial counsel also presented to the jury petitioner's priest, and on direct examination in response to
questioning by Conant he testified that petitioner was "the type of individual who would continue upon
a course of violence." Cf. Article 37.071(b)(2), V.A.C.C.P. The jury deliberated for some three hours
and returned to assess petitioner the death penalty.
512 On September 20,1976, Conant filed a two page motion for new trial contending, *512 inter alia, that
the trial court erred in admitting evidence of the inventory search of petitioner's truck, as well as in
admitting his confession. He had pretermitted a pretrial motion to suppress either the fruits of the
search or the confession.
file:///C:/Users/PWrs%20Laptop/Desktop/Phil's%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 5 of 25
The relationship between petitioner and trial counsel came to an abrupt end, and the trial court again
appointed Messrs. Duke and Cantu in response to a request that Conant be removed from the case.
mDuke and Cantu represented petitioner on direct appeal before this Court and before the Supreme
Court denied his application for writ of certiorari. Duffy v. Texas, supra.
Though petitioner points to some twelve major failings or instances of incompetence on the part of
Conant as trial counsel, we do not reach each one. For reasons more fully developed below, we hold
that the abject failure of trial counsel to conduct the requisite factual and legal investigation resulted in
abandonment of the only viable defense available and, in turn, prompted trial counsel to present a
"defense" that relied on acceptance of the testimony of a clientwho had been diagnosed as being
incapable of distinguishing between truth and falsehood and lulled him into presenting a priest who all
but answered the second special issue before the jury even retired to deliberate because trial counsel
did not take the time carefully to consult with him before calling him to testify. At the threshold,
however, we must first deal with two other collateral problems: whether the issue of effective
assistance of counsel is properly before us and the standard by which this performance by Conant
must be gauged.
At the outset, we are met with the State's contention that the issue of ineffectiveness of counsel is not
properly before this Court inasmuch as the issue was not raised on direct appeal. Arguing that
because habeas corpus may not be used as a substitute for direct appeal, see, e. g., Ex parte
Groves. 571 S.W.2d 888 (Tex.Cr.App. 1978). and that habeas corpus reliefgenerally does not lie
where reliefcould have been obtained by properly preserving the issue on direct appeal, see, e. g.,
Ex parte Puckett. 274 S.W.2d 696 (Tex.Cr.App.1954). the State invites us to apply the "Deliberate
Bypass of Appellate Remedies Doctrine" employed by the Fifth Circuit. See, e. g., Freeman v.
Henderson. 507 F.2d 1229 (5 Cir. 1975). The State even goes so far as to assert that "petitioner's
counsel on appeal deliberately declined to raise the issue of trial counsel's competence." But an
examination of Freeman v. Henderson, supra, reveals that the State misinterprets its holding as
reflected by the following language contained therein:
"Where the record conclusively and unequivocally demonstrates that the accused made
a conscious and intentionalwaiver of his right to a thorough and careful examination of
his constitutional claim on direct appeal, the denial of federal habeas corpus relief is
proper...
"Where the record of a state trial reveals a deliberate bypass clearly and beyonddoubt,
an evidentiary hearing in the federal courts as to whether there was a deliberate bypass
is not required."
Id. at 1229-1230 [citations omitted].
Succinctly stated, this record in no way reflects that petitioner made a conscious and intentional
waiver of his right to assert his Fourteenth Amendment claim derived from Sixth Amendment right®
file:///C:/Users/Phil's%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 6 of 25
513 That *513 the effectiveness issue was not properly raised on direct appeal may be indicative of
nothing more than the spectre of ineffective appellate counsel.121 See, e. g., Passmore v. Estelle. 594
F.2d 115 (5Cir. 1979). The federally created "deliberate bypass" doctrine is not applicable in a State
habeas proceeding such as this where a persistently complaining citizen eventually finds attorneys to
question the very fairness and integrity of the factfinding process by a founded claim of denial of a
right so fundamental as representation by effective counsel. Argersinger v. Hamlin. 407 U.S. 25. 29-
33. 92 S.Ct. 2006. 2008-2010. 32 LEd.2d 530 (1972); Powell v. Alabama. 287 U.S. 45. 53 S.Ct. 55.
77 L.Ed. 158 (1932) and Gideon v. Wainwright. 372 U.S. 335. 83 S.Ct. 792. 9 LEd.2d 799 (1963)
confirm the right to counsel is a fundamental one.
The State's argument must fail for another equally compelling reason. Experience has taught us that
in most instances where the claim of ineffective assistance of counsel is raised, the record on direct
appeal is simply not in a shape, perhaps because of the very alleged ineffectiveness below, that
would adequately reflect the failings of trial counsel. Indeed, in a case such as this, where the alleged
derelictions primarily are errors of omission de hors the record rather than commission revealed in the
trial record, collateral attack may be just the vehicle by which a thorough and detailed examination of
alleged ineffectiveness may be developed and spread upon a record.
Finally, as the Court noted in Ex parte Groves, supra, such judicially imposed restrictions "are not
absolute," and habeas corpus is the proper forum for one unlawfully restrained of his libertywho is
without an adequate remedy at law. In a context as compelling as the case at bar-where the supreme
penalty has been assessed-we would be hard pressed to find that our petitioner had any other
available remedy in the courts of this State. Accordingly, in the circumstances of this case we reject
the State's contention that the issue is not properly before us and turn next to find the appropriate
standard to determine if petitioner's claim is well taken in light of Cuylerv. Sullivan, supra, and other
germane authority.
III.
The level of trial court performance of an appointed criminal defense attorney accepted bythe Court,
though not with complete assent, is "reasonably effective assistance," Ex parte Galleoos. 511
S.W.2d 510 (Tex.Cr. App.1974).ll£1 However, beginning with Lawson v. State. 467 S.W.2d 486
(Tex.Cr.App.1971) and continuing to Ex parte Ewing. 570 S.W.2d 941 (Tex.Cr.App. 1978). the Court
looked for willful misconduct by retained counsel withoutthe knowledge of the client that amounts to a
breach of the legal duty of an attorney.1111 See, e. g., Howell v. State. 563 S.W.2d 933. 937 (Tex.
514
Cr.App.1978): Harrison v. State. 552 *514 S.W.2d 151.152 (Tex.Cr.App. 1977):^ Hunnicutt v. State.
531 S.W.2d 618. 626 (Tex.Cr. App. 1976).
The rationale originated in post-trial situations where retained counsel bowed out at a critical stage,
leaving frustrated the right of his client to protect vital interests in further proceedings. See Steel v.
State. 453 S.W.2d 468 (Tex.Cr.App.1970) and cases from other jurisdictions cited therein.
Furthermore, misconduct of retained counsel, itwas then thought, could in no way be attributed to the
State for Fourteenth Amendment purposes. Lawson v. State, supra, at 488: Trotter v. State. 471
file:///C:msers/Phirs%20Laptop/Desktop/Phil,s0/o20Documents/DUFFY,%20Ex0/o20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 7 of 25
S.W.2d 822 (Tex.Cr.App.1971): Johnson v. Smith. 447 F.2d 985 (5 Cir. 1971); Langford v. Alabama.
422 F.2d 760. 763 (5 Cir. 1969): Howard v. Beto. 375 F.2d 441. 442 (5 Cir. 1967). Then came Ex
parte Ewing, supra.
Acknowledging the argument that effectiveness of retained counsel and appointed counsel should be
judged by one standard, the Court examined treatment of the proposition in Fitzgerald v. Estelle. 505
F.2d 1334 (5 Cir. 1974. en banc). It found the Due Process Clause of the Fourteenth Amendment
standing alone and unaided by incorporation of the Sixth Amendment is violated when
"ineffectiveness [of counsel] has rendered a trial fundamentally unfair, whether he be retained or
appointed and whether his action or inaction was known or unknown to state trial officials." When the
Sixth Amendment guarantee of assistance of counsel is implicated by State action, however, the
applicable standard is the same for both appointed and retained counsel: reasonably effective
assistance. And this "state action" measure "covers a greater range of counsel errors than does the
fundamental fairness standard." The unanimous Ewing court then concluded:
"We agree that to secure relief for ineffective assistance of retained counsel there must
also be an adequate showing of state action by failure of a responsible state official
connected with the criminal proceeding [such as the trial judge or prosecutor] to take
corrective action when that official had actual or constructive knowledge of retained
counsel's failure to deliver reasonably effective assistance."1131
To recapitulate, after Ex parte Ewing. supra, three separate sources of effective assistance of trial
counsel had been discovered:
One, the Due Process Clause of the Fourteenth Amendment, unadulterated, requires representation
that attains the level of fundamental fairness-from both appointed and retained counsel.
Two, the Sixth Amendment incorporated intothe Fourteenth Amendment demands "reasonably
effective assistance" from appointed counsel and from retained counsel when requisite State action
obtains.1141
Three, a legal duty an attorney owes to his client is not to be breached by retained counsel nor, for
that matter, an appointed counsel.
Now, however, as we have already shown ante, Cuvler v. Sullivan, supra, put an end to the "double
standard" emanating from the retained-appointed dichotomy. As stated by Mr. Justice Powell, the
rationale is viz:
"A proper respect for the Sixth Amendment disarms petitioner's contention that
defendants who retain their own lawyers are entitled to less protection than defendants
for whom the State appoints counsel. We may assume with confidence that most
counsel, whether retained *515 or appointed, will protect the rights of an accused. But
experience teaches that, in some cases, retained counsel will not provide adequate
representation. The vitalguarantee of the Sixth Amendment would stand for little if the
often uninformed decision to retaina particular lawyer could reduce or forfeit the
file:///C:/Users/Phil,s%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 8 of 25
defendant's entitlement to constitutional protection. Since the State's conduct of a
criminal trial itself implicates the State in the defendant's conviction, we see no basis for
drawing a distinction between retained and appointed counsel that would deny equal
justice to defendants who must choose their own lawyers."
Id. at 446 U.S. 344. 100 S.Ct. at 1716.
The consequence of Cuyler, then, is twofold: the requisite State action is in conducting the criminal
trial itself and performance of trial counsel is to be tested by the same standard whether retained or
appointed. Thus, the Ewing formulation derived from Fitzgerald v. Estelle is satisfied without any
showing of State action through inaction of a responsible State official connected with the criminal
proceeding. All that remains is application of the "reasonably effective assistance" test under the
Sixth Amendment incorporated by the Fourteenth-if that is still the test.
McMann v. Richardson, supra, has led one member of this Court to an undifferentiated standard of
"reasonable competence demanded of attorneys in criminal cases," Ex parte Gallegos. supra, at
513-514. Some five federal judicial circuits and ten states have adopted the "reasonable competence"
test. See Erickson, "Standards of Competency for Defense Counsel in a Criminal Case, 17
Am.Crim.LRev. 233, 239-240 at nn. 57-58 (1979).
-Perhaps sensing this "reasonable competency by community standards" test and its increasing
popularity among state and federal appellate courts, able counsel for the petitioner produced and
included in our record offers of proof from some eight criminal defense practitioners in Bexar County,
comprising an array of outstanding legal talents in that county, indeed in this State, that in their
opinion, based upon his revealed conduct in this case, Conant did not render reasonably effective
assistance of counsel, did not fulfill his legal duties to a client on trial for the offense of capital murder,
and did not meet the minimally acceptable standard of legal assistance in the Bexar County
community for such a case.1151
The State, in brief and at oral argument, proposed its own standard for effectiveness under Cuyler v.
Sullivan, supra: whether counsel, in the course of his representation of a criminal defendant, engages
in willful misconduct or gross negligence that substantially prejudices the accused's cause. The State
goes on to define "gross negligence" as a "conscious indifference to the defendant's cause resulting
in failure to exercise reasonable diligence in the course of the representation of the defendant."
State's Reply Brief at 8. We reject the State's proposalfor it is but a throwback to the "breach of duty"
notion that has been untenable as an exclusive measure for effectiveness of retained counsel since
Ex parte Ewing. supra. Moreover, though vague, the touchstone of Cuyler v. Sullivan, supra, is
"adequate representation," and it immediately occurs that performance by trial counsel may well be
"inadequate" through acts of commission or omission less reprehensible than willful misconduct or
gross negligence. The result in such cases would be a tacit sanctioning of representation that falls
belowthe Sixth Amendment standard but does not amount to a breach of legal duty. What the State
516 proposes seems more appropriate forassaying a pure *516 Fourteenth Amendment guarantee of
fundamental fairness vouchsafed by its Due Process Clause, and as we view the instant assertions of
ineffective assistance of counsel a greater range of counsel errors is invoked.1151
file:///C:msers/PWl,s%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 9 of 25
Ex parte Ewing. supra, is barely two years old and Cuyler v. Sullivan, supra, not even a toddler. Until
further experience teaches otherwise we will apply here and continue to use the standard of
"reasonably effective assistance of counsel" to test adequacy of representation afforded an accused
by retained as well as appointed counsel when the performance is to be judged by the Sixth
Amendment right to assistance of counsel made applicable to the states by the Fourteenth
Amendment-also by our own "rightto be heard" provision of Article I, Section 10, Bill of Rights,
Constitution of Texas.110
IV.
A criminal defense lawyer must have a firm command of the facts of the case as well as governing
law before he can render reasonably effective assistance to his client-in or out of the courtroom.
Flores v. State. 576 S.W.2d 632. 634 (Tex.Cr.App. 1978): Ex parte Ewing. supra, at 947: see also
Herring v. Estelle. 491 F.2d 125. 128 (5 Cir. 1974): Caraway v. Beto. 421 F.2d 636. 637 (5 Cir. 1970):
Williams v. Beto, 345 F.2d 698, 705 (5 Cir. 1965). In the seminal decision of Powell v. Alabama. 287
U.S. 45. 53 S.Ct. 55. 77 L.Ed. 158 (1932). the Supreme Court recognized that a thorough factual
investigation is the foundation upon which effective assistance of counsel is built:
"It is not enough to assume that defense counsel thus precipitated into the case thought
there was no defense, and exercised theirbestjudgment in proceeding to trial without
preparation. Neither they northe court couldsay what a prompt and thorough-going
investigation might disclose as to the facts. No attempt was made to investigate."
287 U.S. at 58. 53 S.Ct. at 60. 77 L.Ed, at 165.
517 *517 An American Bar Association Project echoes these sentiments in proposing that:
Defense counsel has the responsibility to conduct a prompt investigation of the
circumstances of the case and explore all avenues leading to facts relevant to guiltand
degree of guilt or penalty. The investigation should always include efforts to secure
information in the possession of the prosecution and law enforcement authorities. The
duty to investigate exists regardless of the accused's information or statements to the
lawyer of facts constituting guilt or his stated desire to plead guilty.
ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and
Defense Function § 4.1 (Approved Draft 1971).
The Court recently reiterated that regardless of complications in a given case, counsel is charged with
making an independent investigation of the facts of the case, Flores v. State, supra, eschewing
wholesale reliance in the veracity of his client's version of the facts, Ex parte Ewing. supra, at 947.
See also Rummelv. Estelle. 590 F.2d 103. 104 (5 Cir. 1979). affd. on othergrounds, 445 U.S. 263.
file:///C:/Users/Phirs%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 10 of 25
100 S.Ct. 1133. 63 LEd.2d 382 (1980) (counsel must make an independent examination of the facts,
circumstances, pleadings and laws involved).
A corollary of this notion is that counsel also has a responsibility to seek out and interview potential
witnesses, see, e. g., Daws v. Alabama. 596 F.2d 1214.1217 (5 Cir. 1979): Harris v. Estelle. 487
F.2d 1293.1299 (5 Cir. 1974): Williams v. Beto, supra at 702-703, and failure to do so is to be
ineffective, if not incompetent, where the consequence is that the only viable defense available to the
accused is not advanced. See Brooks v. Texas. 381 F.2d 619. 625 (5 Cir. 1967) and Smotherman v.
Beto. 276 F.Supp. 579. 590 (N.D.Tex.1967).
In light of these authoritatively declared duties and responsibilities, we first reproduce verbatim in the
margin what Conant says he did by way of preparation for trial113 and then point out and discussthat
which he did not do.
Among the papers on file was the written request made by initial counsel for an independent
psychiatric examination of petitioner in which priorcommitments under the care of Dr. George
Schlagenhauf were mentioned. Mr. Duffy called the prospective witness and his availability to the
attention of Conant on more than one occasion before trial. Conant did not contact or interview or
examine any records maintained by Dr. Schlagenhauf. Indeed, at the evidentiary hearing, he was "not
sure if I recall that name."
Neither did trial counsel bother to contact or confer with two other potentially valuable defense
witnesses, petitioner's former fiancee and one W. W. McCord. The first had been interviewed by the
investigator for petitioner's court appointed attorneys as well as counsel for the State, yet inexplicably
not by Conant. The woman expressed a desire to testify at trial on the issue of whether petitioner's
confession was in fact voluntary and advised trial counsel of this desire. When asked at the habeas
hearing why he did not call her to testify at trial, trial counsel refused to give any answer at all.
518 McCord was a police officer who had *518 befriended petitioner and helped him get a job. The officer
indicated to petitioner's parents his willingness to testify favorably regarding petitioner's character;
they in turn passed this information on to Conant, but he did nothing with it.
With respect to interviewing State's witnesses, neglect infected that responsibility. It was stipulated at
the habeas hearing that Conant did not contactor interview any ofthe twelve witnessescalled by the
State. While he testified that he had contacted Bill White of the Bexas County Sheriffs Office, the
parties stipulated that White would testify otherwise if called. But trial counsel testified and the State
contends that the failure to interview its witnesses was harmless because the State "opened its file" to
trial counsel. Accordingly, said trial counsel, "I didn't think itwas necessary to file a Brady versus
Maryland motion." Trial counsel stated that he did notobtain statementsfrom any ofthe witnesses in
this case because he made notations from written statements of the witnesses to which he had
access in the sheriffs department.1111 He first announced ready on July 12,1976, notwithstanding the
fact he had not yet conferred with eitherprosecutor in charge ofthis case. Though Conant was sure
that he had talked with Mr. Harris, co-counsel for the State, before July 12, Harris testified otherwise,
and his file bears him out. It was impossible for Conantto determine just what quantum of
file:///C:/Users/Phirs%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 11 of 25
investigation he conducted or what degree of factual information he possessed because as soon as
he was discharged by the Duffys he discarded his entire file.
Neither did trial counsel confer with his client in a manner consistent with the gravity of the case he
was called upon to defend. It was developed at the habeas hearing that according to the Bexar
County Jail "sign-in logs," Conant visited with his client only twice from June through September of
1976, the period of his tenure as retained counsel.1221 The State replies with the assertion, citing Loftis
v. Estelle. 515 F.2d 872 (5 Cir. 1975) and Daughtervv. Beto. 388 F.2d 810 (5 Cir. 1967). that "mere
brevity of consultation alone is insufficient to establish a violation of the Sixth Amendment right to
effective counsel." State's Brief at 12. Butthis record reflects a great deal more than "mere brevity of
consultation" and, consequently, the reasoning of Loftis and Daughtery is inapposite.
Finally, we note that Conant admitted he did not visit the scene of the crime. See Friloux, The
Defense View: Pre-trial, at 7, Selected Materials on Trial Practice, National College for Criminal
Defense (May, 1979).
In sum, we are unable to find any endeavor worthy of being denominated "an independent
investigation of the facts of the case" demanded of competent criminal defense lawyers by this Court
in, e. g., Flores v. State, and Ex parte Ewing, both supra.
B
It is well settled that an attorney has a professional duty to present all available evidence and
arguments to support the defense of his client. Thomas v. State. 550 S.W.2d 64. 68
519 (Tex.Cr.App.1977). In the *519 case at bar, however, this record glaringly reflects that trial counsel
failed to advance an insanity defense or in any other way make use of psychiatric evidence available
to him. As is so often the case in those situationswhere a psychiatric defense, or for that matter any
viable defense, has not been raised, the dereliction is because the attorney is not familiar with the
defense or, if he is, has not adequately investigated the facts ofthe matter.1211 See, e. g., Brooks v.
Texas. 381 F.2d 619 (5 Cir. 1967) (insanity); Smotherman v. Beto. 276 F.Supp. 579 (N.D. Tex.1967)
(insanity); United States v. Fessel. 531 F.2d 1275 (5 Cir. 1976) (insanity); Gomez v. Beto. 462 F.2d
596 (5 Cir. 1972) (alibi). That this situation is present in the instant case is clear.
As noticed earlier, original court appointed attorneys for petitioner filed a motion requesting the
appointment of a psychiatrist at State expense in an attempt to develop an insanity defense as well
as to test competency to stand trial. But after Conant replaced them, no further mention of or
reference to such a motion is found in the record. We are left with the impression that Conant did not
discuss with the lawyers he succeeded their formulation of possible defenses, did not obtain his
client's file from them nor examine the court file. But it is undisputed that petitioner's father informed
Conant that his son had been under the care of Dr. George Schlagenhauf, at the Villa Rosa medical
facility in Bexar County for over a year. Yettrial counsel did not contact, interview or attemptto
secure Schlagenhaufs attendance at the trial. "[A]n attorney for an accused must use all diligence in
file:///C:/Users/Phirs%20Laptop/Desktop/Phil's%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 12 of 25
securing evidence on the issue of insanity," Sharp v. State. 392 S.W.2d 127.128 (Tex.Cr.App. 1965).
and it may depend upon how easily evidence may be secured.
At the hearing below, Dr. Schlagenhauf testified that petitioner's mother was a nurse at Methodist
Hospital where in making his rounds he came to know her; once she took the occasion to ask him to
see her son. After a number of visits with him, Schlagenhauf came to the opinion that petitioner
should be hospitalized, and on December 17,1971, petitioner voluntarily committed himself to the
Villa Rosa psychiatric facility where he stayed for six weeks. On at least two later occasions, the
doctor noted, petitioner committed himself, again voluntarily, to the Villa Rosa facility for six week
periods during the summer of 1972. After learning petitioner had been arrested for the offense of
capital murder, Schlagenhauf felt sure that "somebody would call me" in regards to his past medical
history. Shortly thereafter, Cliff Ross, a court appointed investigator, did contact him on or about
March 23,1976, at the instance of Messrs. Duke and Cantu. Denied the opportunity to testify at the
trial because Conant did not follow through, the doctor attested at the habeas hearing what he would
have testified to at the trial, in pertinent part:
Q [By Mr. Goldstein]: You didn't see any serious assaultive tendencies in [petitioner] at
that point?
A: Quite to the contrary. Joe was always a very gentle sort of fellow.
Q: And whether he knew the difference between right and wrong, individuals in this state
may have, on occasion, difficulty or an inability to conform theirconduct because of their
inability to deal with these situations?
A: Uh-huh.
Q: Because of the mentalstate of the problem they are having, the personality
disorder—
A: That is true.
Q: And had Mr. Conant contacted you at the time of the trial in 1976 would you have
been able to tell him about Joe's gentle personality and about his inability to tell the
difference between rightand wrong?
*520 A: Yes.1221
The Fifth Circuit has repeatedly stressed the "particularly critical interrelation between expert
psychiatric assistance and minimally effective representation of counsel." United States v. Fessel.
531 F.2d 1275.1279 (5 Cir. 1976). Indeed, where, as here, trial counsel fails to request the
appointment of a psychiatrist at State expense, especially when evidence of guilt is virtually
uncontested and the only defense issue for development is the sanity of the accused at the time of
the offense, trial counsel has been ineffective. United States v. Fessel. supra. The language of Fessel
is nicely instructive in explicating why trial counsel there, as here, has not met the mark posed bythe
Sixth Amendment:
file:///C:msers/Phil's%20Laptop/Desktop/Phirso/o20Documents/DUFFY,o/o20Ex%20parte,... 3/16/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 13 of 25
"In the instant case, there could be little doubt as to the appropriateness of an insanity
defense and the need for psychiatric assistance to prepare it. The evidence showing
Fessel guilty of committing the acts charged was virtually uncontested. The only issue
for the jury to consider therefore was the sanity of the defendant at the time of the
offense. In the absence of live psychiatric testimony favorable to the defendant, the need
for a... motion [requesting the appointment of a psychiatrist] was manifest. In these
circumstances, we hold that the failure of [trial] counsel to utilize [the appointment of a
psychiatrist at public expense] denied the accused services necessary to the preparation
and presentation of an adequate defense, and thus denied him the minimally effective
representation guaranteed by the Sixth Amendment."
Id. at 1279.
See also Brooks v. Texas, supra; compare Faz v. State. 510 S.W.2d 922 (Tex.Cr.App. 1974) and
Coble v. State. 501 S.W.2d 344 (Tex.Cr.App. 1973).
Even without a court appointed psychiatrist, Conant had been told of a history of commitments and
knew of the availability of Dr. Schlagenhauf. In similar circumstances the Fifth Circuit has recently
found in Daws v. Alabama. 596 F.2d 1214.1218 (1979):
"Not only did the defense attorneys know that insanity was a possible defense; they
apparently knew it was Davis's only possible defense. Thus their failure to investigate
cannot be excused by saying that it did not seem to be a very strong defense. In
deciding not to develop the insanity defense Davis's attorneys effectivelydecided to put
on no defense at all. We cannot say that such an approach amounts to adequate
representation." [Emphasis in original]
and, after reviewing more of the record, held, id. at 1219:
"... Still they made no effort to investigate or develop the possible sources of evidence.
This is not a borderline case; it is a clear breach of the duty a defense attorney owes to
his client."
In Smotherman v. Beto. supra, where failure to develop the facts resulted in presentation of nothing
more than a pro forma insanity defense, it was written:
A lawyer attends a professional school for 3 years; he is instructed in a myriad of legal
theories, rules and rationales, all of which are designed to achieve but one end: the
development of a searching, inquisitive and analytical mind ... The lawyer who does not
probe, does not inquire, and who does not seek out all the facts relevant to his client's
cause is prepared to do little more than stand still at the time of trial."
Id. at 588.
The State advances the contention, however, that the failure to develop and assert *521 the defense
of insanity was excusable and did not prejudice petitioner because itwas a tactical or strategic
file:///C:msers/PWl,s%20Laptop/Desktop/Phil,s%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 14 of 25
decision of trial counsel. See, e. g., Ex parte Parker. 485 S.W.2d 585 (Tex.Cr.App. 1972); Fazv.
State, supra: Daughterv v. Beto. supra. Since the State makes the similar contention with respect to
other failings, discussion and disposition of the contention is reserved until we get to the findings and
conclusions of the habeas court post under Part V.
The State also advances the correlative contention that even if counsel had elected to assert an
insanity defense, the evidence adduced bythe State would have rendered it unavailing.1221 But this
attitude ignores applicable law. The California Court of Appeals spoke to this exact same contention
in the Juan Corona case, People v. Corona. 145 Cal.Rptr. 894. 911-12. 917-18. 80 Cal. App.3d 724
(1978). and its reasoning is equally applicable to the instant case:
"The very vice of the procedure followed by trial counsel was his failure to properly
investigate and develop facts which could have or would have given rise to the defense
in question [insanity]. Also, since the facts remained uncovered and undetected, there is
no way of telling whether those facts, if fully developed, would or would not have
established the defenses in dispute. Ifthe record on appeal is defective or incomplete, it
is due solely to the neglect of trial counsel. At any rate, the test of whether a criminal
defendant was accordedan adequate legal defense does not depend on thepotential
success of the defense omitted, but rather on the consideration whether the defense
withdrawn from the case was a crucial one...
"In such circumstances we may not save thejudgmentby speculating whether the
defense would have been successful; regardless of the apparent strength of the
prosecution's evidence, a trial in which only one side of the case is heard is
fundamentally unfair' and hence constitutes a denial of due process of law. Such a
conviction cannot stand."
People v. Corona, supra, at 917-918 (citations omitted).12^
Furthermore, even ifspeculation reduced the strength of an insanity defense, such matters about
which Dr. Schlagenhaufwas prepared to testify would have been relevant in mitigation of
punishment. See Lockett v. Ohio. 438 U.S. 586. 98 S.Ct. 2954. 57 LEd.2d 973 (1978). confirming the
now familiar concept that in capital murder cases the jury must be permitted to consider all aspects
and the character and record of the accused as well as circumstances of the offense.
Having dealt at this point with errorsof omission as they related to hisfailure adequately to
investigate the facts, we turn lastly to a discussion of how this failure contributed to a pairof critical
errors of commission: the ill-fated testimony of the petitionerand his priest.
Get Ftl~fcKKCX#fiC£
i*
At the trialon the merits, petitioner's entire defense was presented by but one witness: himself. Atit the I I
habeas hearing below, itwas developed that until Friday of the first week of trial, petitioner was
file:///C:/Users/Pnirs%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Exo/o20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 15 of 25
receiving a daily dosage of 100 milligrams of mellaril, a potent tranquilizer. Trial counsel had not
learned his client was being medicated when he made the decision to put the petitioner on the stand.
522 *522 Conant was also singularly unaware of petitioner's manifest inability to distinguish between truth
and falsehood.1251
And so, without any of this information that was readily available to him had he conducted the most
cursory factual investigation, Conant implemented his "tactical decision" to place his client on the
stand. Totally unaware of Dr. Schlagenhaufs diagnosis that "[petitioner's] manner of relating... is so
eloquent and superficially genuine that Joe projects a facade of being a victim of circumstances," trial
counsel led his client through a story premised on the "defense" that he had been provoked by the
eighty year old victim when she struck him with a cane.1251 Yet probably the most damaging testimony
out of petitioner's own mouth, totally consistent with Dr. Schlagenhaufs analysis that petitioner was
"unable to tell the truth without meaning not to tell the truth," was his "denial" of stabbing the victim
more than three times:
"Q: Did you go there to take anything from her?
A: No, sir, I did not. I told that to Detective Bill White... He kept wanting to know what
happened to the other seven wounds.
Q: What did happen to them?
A: / don't know. He kept telling me 'Well, what happened to them? Where are the other
seven.' / told him I didn't do it."
That the prosecutor was ready, willing, and able to wreak additional havoc on petitioner's "testimony"
is more than amply illustrated by the following colloquy:
Q [By Mr. Conaway]: That is what you said. You are savage enough to sit there and tell
this jury you stabbed her three times, you are that savage, aren't you?
A: No audible answer.
Q: Are you?
*523 A: / am not what you would call it that savage or not.
Q: Savage enough?
A: I am saying that I stabbed her three times. / don't know where the other seven went.
Q: You don't know where the other seven went?
A: / don't have any idea. I have stated that from the beginning.
file:///C:/Users/Phil,s%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 16 of 25
Q: All right. Well, do you suppose that after you stabbed her three times and left
someone else came in and stabbed her seven times. Do you think that anyone is going
to believe that, Harvey?
A: I really don't know. / hope so because I didn't do it.
Q: You are just going to sit there and admit stabbing her three times, that's all?
A: What other defense do Ihave ... /*• fUNJ^frMZKT
v£
Testimony given by petitioner at the punishment phase reveals an attitude entirely predictable from
the psychological profile drawn by Dr. Schlagenhauf, viz:
Q [By Mr. Conant]: How do you feel about killing Mrs. Word?
A: I really don't know how to express how I feel...
Q: How do you feel about it?
A: I am sorry for the offense that I did. I don't know how else I can put it. I know what all
the things that happened to me, / know the condition that I was in. I still don't believe that
I did it. I still don't know how that I did it.
Q: But you know that you did it?
A: / said that I am not a savage person. I simply don't know how I did it.
Predictably, the prosecutor capitalized on that attitude, as follows:
Q [By Mr. Conaway]: Why did not you make some effort, since you are so remorseful
now-after you have been convicted-why did not you make some effort at the time to do
something to help the woman?
A: I simply don't know.
Q: But you sure won't do it again, would you?
A: No, sir; I would not.
Q: You are sorry you murdered her, sorry you stabbed her ten times?
A: / didn't stab her ten times.
Q: You still want to argue about that?
A: No audible response.
Also during the punishment phase, after the State had introduced evidence of five prior felony
convictions (none of which involved crimes against the person), trial counsel called Father Joseph
Leroy Manning to persuade the jury that petitioner would not continue upon a course of violence. Cf.
file:///C:/Users/Prul,s%20Laptop/Desktop/Phil,s0/o20Documents/DUFFY,%20Ex0/o20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 17 of 25
Article 37.071(b)(2), V.A.C.C.P. ("whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society"). The record then reflects
the following exchange:
Q [By Mr. Conant]: All right, sir. Do you feel that you know the defendant, Mr. Duffy?
A: As well as I know any human being.
Q: All right, sir. That is fair. In your opinion do you feel that Mr. Duffy is the type of
individual who would continue upon a course of violence?
[State's objection overruled]
Q: Do you feel that, sir?
A: Yes, sir. You said continue on a course of violence.
Q: Yes, sir.
Though the witness attempted to qualify his affirmative answer by noting that "he was very surprised
to learn of the charges against [petitioner] because from my association with him l,had. detected no
indication ofviolence," it would be hard to imagine a more damaging piece of4evidence'e//c/'teo, on
direct examination bythepetitioner's own counsel^ calculated to convince the jury that this petitioner
should be awarded the death penalty. See Duffy v. State, supra at 208. Even a minimally cautious
attorney would have taken steps to prevent this occurrence. *524 That this counsel did not is
explained by the testimony of Father Manning at the habeas hearing below:
Q [By Mr. Goldstein]: Father, did you have—did you know his-the defense attorney Joel
Conant?
A: No.
Q: Had he ever come and interviewed you or asked you any questions with regard to
this case.
A: To the best of my recollection we talked for a few minutes. He put me on the stand
during the course of the sentencing hearing, and he talked to me a few minutes before
that and I don't even recall anything of the conversation.
Q: All right. Did he ever reallyask you whatyou were going to say when he put you on
the stand?
A: Not really. No.
******
Q: And he never bothered you to ask you about... what you might say at a punishment
^ stage when that is one of [sic] critical issues they might ask you? / ? A
** Ate* ********Mfi4&y* **V <!&*«)-*2 t$»» *«+°J-*""4 •
file:///C:/Users/Phirs%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 18 of 25
A: He did not probe at all.
The cause, then, for this harmful "surprise"123 by FatherManning is utter failure on the part oftrial
counsel even to discuss with credentialed and otherwise impressive witness what his response would
be to a question going to the heart of one of three issues the jury must decide. "Witness preparation
is vital to an effective defense presentation," Moses, Criminal Defense Sourcebook 55, § 3.08 "Advice
to Prospective Witnesses."
The State replies that in calling Father Manning to the stand Conant was following the trial strategy of
presenting witnesses to convey the idea that petitioner was not a violent person and, in any event,
there is no reasonable possibility that the jury verdictwould have been different had Father Manning
not testified as he did. Of course, that trial counsel would adduce prooftouching on the second
special issue to be answered by the jury is to be expected of competent counsel. Ifhe did not do so,
his very ability to function as a trial lawyer in a capital case would be called into question. That he did
so, therefore, is not so much a matter of trial strategy as it is a mandate from the law of the case on
trial. The vice flowing from his attempt to carry out that mandate originated, however, in his cavalier
preparation of the witness at the punishment stage of trial. When a Catholic priest testifies to a Bexar
County jury, members of his faith, we are sure, will be most attentive.
Finally, the State's argument that "there is no reasonable possibility" that the death sentence would
not have been imposed absent Father Manning's testimony flies in the face ofthe Supreme Court's
holding in Chapman v. California. 386 U.S. 263. 87S.Ct. 229.17 LEd.2d 705 (1967) and its progeny.
Explicating its holding in Chapman, the Supreme Court in Schneble v. Florida. 405 U.S. 427. 92 S.Ct.
1056, 31 L.Ed.2d 340 (1972) held that the errorin admitting or excluding evidence is harmless if an
average jury "would not have found the State's case significantly less persuasive" had the complained
of evidence been admitted or excluded. Viewing the State's case during both the offense and
punishment phases of the trial in the entirety, we are compelled to hold that its case would in fact
have been significantly less persuasive had FatherManning nottestified as he did or, for that matter,
had the petitioner himself not testified in the manner alluded to above. In a case such as this where
the petitioner has been condemned to death, we believe that effective assistance of counsel is a
"constitutional right so basic to a fair trial that [its] infraction can never be treated as harmless error."
Chapman v. California. 386 U.S. at 23. 87 S.Ct. at 827-828.17 LEd.2d at 710. See also Hollowav
525 *525 v. Arkansas. 435 U.S. 475. 98 S.Ct. 1173. 55 LEd.2d 426 (1978): White v. Maryland. 373 U.S.
59. 83 S.Ct. 1050. 10 LEd.2d 193 (1963): Gideon v. Wainwright. 372 U.S. 335. 83 S.Ct. 792. 9
LEd.2d 799 (1963): Powell v. Alabama, supra.
Tainted at the start bysolicitation, errant in investigative method, unheeding of directions to available
germane witnesses, slothful in preparation for and unexplainable in conduct at trial, assistance of
counsel in this case was never effective-findings ofthe habeascourt to the contrary notwithstanding.
V.
Finally, there is the matter of the habeas court's findings of fact and conclusions of law filed on June
4,1979, in which it is recommended that relief be denied. Of course, this Court is not bound by the
file:///C:/Users/Phil,s%20Laptop/Desktop/Phirs%20Documents/DUFFY,o/o20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 19 of 25
findings of the habeas court in a post-conviction habeas corpus proceeding. Ex parte Harris. 593
S.W.2d 330 (Tex.Cr.App.1979): Ex parte Cantrell. 571 S.W.2d 33 (Tex.Cr. App.1978); Ex parte
Rains. 555 S.W.2d 478 (Tex.Cr.App. 1977). In concluding that performance of counsel did not fall
below that standard mandated by the Sixth Amendment through the Fourteenth, the habeas court
found as a "fact" that:
"Such counsel, in this case ... seemed to follow the tacticin the case of attempting to
save the defendant from the death penalty, to the exclusion ofpreserving legal points at
the time. Under the circumstances of this case, this may not be an unreasonable
approach. At any rate the trial was not a farce or mockery ofjustice in any sense of the
word."
As indicated ante, for its part the State insists that what might be viewed as failings of trial counsel, as
we have, are in realty the consequences of trial strategy or tactical decision. We have not addressed
the matter of a strategy that rules out "preserving legal points" in this capital case, but do examine it
in the margin to provide the setting for evaluating the contentions made by the State.1251
526 *526 Whether counsel'sfailure to assert psychiatric defenses was a strategic decision begs the
question. It may not be argued that a given course of conduct was within the realm of trial strategy
unless and until the trial attorney has conducted the necessary legal and factual investigation which
would enable him to make an informed, rational decision. See Powell v. Alabama, supra at 58. 53
S.Ct. at 60. 77 L.Ed, at 165: see also People v. Corona, supra. Abdication of basic threshold
responsibility is the antithesis of a considered strategy to assert or withhold possible defenses. Thus,
Conant withdrew psychiatric defenses and mitigating testimony on punishment before he had even
examined them.
Though it might be argued that the uninformed decision to place the petitioner on the stand at the
offense and punishment stages was a ploy which in hindsight we may not criticize, this argument
must also fall. It blinks realityto find that a reasonably effective trial lawyer would, as a matter of
tactics in a capital case, decide to put his client on the stand, waive the privilege against self-
incrimination, subject him to a potentially brutal cross examination-all without taking the trouble to find
out that his client is incapable of telling the truth or that he is being given a massive dosage of a
potent tranquilizer which could not help but make a bad situation worse. We will not balance the rights
of a maladaptive, possibly insane, twenty five year old accused against convenience of a mature
retained attorney, nor condone his brinksmanship in an area that he has not explored for dangers that
are there. See Davis v. Alabama, supra, at 1221.
Surely at some point "tactic" becomes an unsatisfactory justification for ineptness. And where silence
which results in waiver of potentially reversible errorin almost all respects cannot be explained by the
practitioner, we are not warranted in excusing his major derelictions. The justifications advanced by
the State-in its own hindsight-must be rejected. Ineffectiveness disguised as strategy ultimately
unmasks itself.
The second conclusion of law made by the habeas court reads in its entirety:
file:///C:/Users/PWrs%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 20 of 25
"Recent rulings of the Court of Criminal Appeals held that where the Petitioner hired a
counsel to defend him in a criminal case, he cannot contend that he was represented by
ineffective counsel. The rule may be otherwise if the trial is a farce or a total miscarriage
ofjustice, which this trial was certainly not."
We know not to which "recent rulings" the habeas court had in mind on June 4,1979 when reaching
that legal conclusion, but the "farce and mockery" gauge has not been recognized as the correct
standard for appointed counsel in this State since 1967, see Caraway v. State. 417 S.W.2d 159 (Tex.
Cr.App.1967).[29] and has never beenthe correct test for gauging effectiveness ofretained counsel-
until Ewing. supra, it was "breach of a legal duty."
VI.
In McMann v. Richardson, supra, the Supreme Court insisted:
"[l]f the right to counsel [as] guaranteed by the Constitution is to serve its purpose,
defendants cannot be left to the mercies of incompetent counsel..."
397 U.S. 759. 771. 90 S.Ct. at 1449. 25 LEd.2d at 773.
A decade before, Judge Davidson for the Court presaged this sentiment when he wrote:
"[W]hen from the entire record is is apparent that the accused has not been adequately
represented the court should have no hesitancy in so saying."
Rodriguez v. State. 340 S.W.2d 61. 63 (Tex. Cr.App.1960).
We are not unmindful of the brutal offense which the evidence amply shows this petitioner committed.
527 Butthe only issue before us at this juncture is whether this *527 petitionerwas "left to the mercies of
incompetent counsel," incompetent in the sense that his purported assistance was unreasonably
ineffective. Because this petitioner is so situated, this conviction and concomitant death penalty
cannot stand, and it falls to us to say so. To hold otherwise would be, in the words of Justice
Sutherland, "to ignore the fundamental postulate... that there are certain immutable principles of
justice which inhere in the very idea of free government which no memberof the Union may
disregard." Powell v. Alabama. 287 U.S. 45. 71. 53 S.Ct. 55. 65. 77 L.Ed. 158.172 (1932).
Accordingly, the relief sought is granted and conviction and assessment of death in Cause No. 76-
CR-840 are set aside; the petitioner is hereby remanded to the custody of the Sheriff of Bexar County
to answer the indictment in the case. A copy of this opinion will be forwarded to the Texas
Department of Corrections.
It is so ordered.
ONION, P. J., and DOUGLAS, ODOM, TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., concur in
result.
file:///C:/Users/Prnl,s%20Laptop/Desktop/Pnil's%20Documents/DUFFY,0/o20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 21 of 25
[1] Allemphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
[2] Part III is a unanimous holding by the Supreme Court, speaking through Mr. Justice Powell; Justices Brennan and Marshall,
though writing separate concurring opinion, expressly joined in this part.
[3J In the margin by way of further explication, Mr. Justice Powell quoted approvingly from UnitedStates ex rel. Hart v. Davenport.
478 F.2d 203. 211 (3 Cir. 1973):
"A rule which would apply one fourteenth amendment test to assigned counsel and another to retained counsel would produce
the anomaly that the non-indigent, who must retain an attorney if he can afford one, would be entitled to less protection .... The
effect upon the defendant —confinement as a result of an unfairstate trial —isthe same whether the inadequate attorney was
assigned or retained."
Thus, while the claim being addressed was that the federal habeas corpus action had no bottom because "the conduct of
retained counsel does not involve state action,"both the text and footnote 9 demonstrate that demolishing the priordichotomy
produces a broader effect.
[4] Here and generallythroughoutthe phrase is used generically unless in context a more discrete meaning is evidently intended.
[5]Afuller exposition ofthe facts of the offenseand its aftermath appears in Duffy v. State, supra, at 207-208. and a reading of
the complete opinion there will provide a settingforthis one. Whatwe propose to do here is, first, to outline the attorney-client
relationship and to summarizewhatfollowed, editorializing somewhat inthe interestof brevity; then each significant failing of
counsel and its particular facts will be discussed; finally we will address certain findings of fact and conclusions made by the
habeas court.
[6]This contention was rejected on petitioner's direct appeal on the grounds that trial counsel voiced no objection to the
proceedings or the jurorsat any time during the course of the trial thereby permitting a presumption of regularity to rule adversely
to petitioner. Duffy v. State, supra at 200-201.
[7] Therecord at the motion for new trial hearing reflects that petitioner strenuously objected to the continued representation by
Conant. The basis was Conant'sfailure to confer with him or otherwise represent him adequately. Petitioner didthe best he could
to bring the matterto the attention of the trial court-to the point of a near physical altercation with Conant in the presence of the
trial judge, so we are told-and we do not know what opportunities he had thereafter to reiterate his extreme resentment toward
Conant and hisconduct ofthe case. Presumably he had been promptly transferred to death row at the TexasDepartment of
Corrections.
[§] Beginning at leastwith the anxious letter petitioner wrote to the trial judge, quoted verbatim ante, and the stormy scene
preceding a scheduled hearing on motion for new trial, that petitionerwas insisting on his rightto effective assistance of counsel
was evident to anyone aware of the events. Nothing before us indicates that petitioner ever wavered in the belief that Conant had
ill-served him and his cause.
I§1 See Duffyv. State, supra, at 200. note 1, foran account of the oral profession by appellate counsel of ineffective assistance
on appeal in failing to file an amended motion for new trial upon leave of the trial court to do so after the notes of the court
reporter had been transcribed. Thatrecord, though, could notenlighten an appellate attorney as availability of prospective
witnesseswho were notcalled or existenceof medical records that were notexamined. By that time inJulyof 1977one is
permitted to surmise that petitioner had been transferred to and confined on death row, making directcommunication with him
somewhat difficult; we are not informed whether appellate counsel made the effort.
[10] Judge Roberts, joined byJudge Odom, would expect "reasonable competence demandedof attorneys incriminal cases,"
drawing that standard from McMann v. Richardson. 397 U.S. 759, 90 S.Ct. 1441. 25 L.Ed.2d 763 (1970).
HU Along the way, dissenting inEwing v. State. 549 S.W.2d 392. 396 (Tex.Cr.App. 1977). Judge Roberts argued thatthere
should be nodistinction in demanding ofretained and appointed counsel alike the reasonable competency performance he
advocated in Ex parte Galleaos. supra.
[12] In dissent Judge Roberts reiterated that both retained and appointed counsel, without distinction, "should be reasonably
competent, and neithershould render inadequate representation." This timeJudge Phillips joinedhim.
file:///C:/Users/Phil,s%20Laptop/Desktop/Phil's%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 22 of 25
1131 From this formulation it follows that until denial of reasonably effective assistance of retained counsel is demonstrated the
requirement of State action need not be examined. Ex parte Ewing. supra, at 948.
[14] Fully stated, the test for effective counsel is "counsel reasonably likely to render and rendering reasonably effective
assistance," McKenna v. Ellis. 280 F.2d 592 (5 Cir. 1961) as quoted approvingly by the Court in Carawayv. State. 417 S.W.2d
159.162 (Tex.Cr.App. 1967).
1151 Such defense attorneys included:
(1) Terrence W. McDonald, Professor of Criminal Law, St. Mary's University School of Lawin private practice with Nicholas and
Barrear, Inc.;
(2) Pat Priest, private practitioner;
(3) John Hrncir, former Bexar County Assistant DistrictAttorney;
(4) Warren Weir, former U.S. Attorney;
(5) Sam Bashara, private practitioner;
(6) Charles Butts, private practitioner and current President of the San Antonio Bar Association;
(7) Fred Semaan, private practitioner; and
(8) AntonioCantu, former Assistant Criminal District Attorney.
[16]The State also would have itthat "[t]he fact that petitioner'scounsel solicited [the] case whilepetitionerwas in the Bexar
County Jail... is irrelevant to the issue ofeffectiveness..." Yet, the solicitation inthiscase dramatically underscores the point made
by Mr. Justice Powell in Cuyler v. Sullivan, supra: 'The vitalguarantee of the Sixth Amendment wouldstand for little if the often
uninfonved decision toretain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection."
Our prohibition against solicitation, State Bar Rules, DR 2-103(A), is premised in part on the thesis that initial misconduct in
obtaining the client is a harbinger of "potential harm to the solicited client inthe form ofoverreaching, overcharging,
underrepresentation, and misrepresentation," Ohralikv. Ohio State Bar Assn.. 436 U.S. 447.461. 98 S.Ct. 1912.1921.56
L.Ed.2d 444 (1978). Thus, that Conant "rustled" the clientfrom appointedcounsel is not completely irrelevant to the issue of
adequacy of his ensuing representation, for certainly itmarks the beginning ofthe "totality ofthe representation [afforded] the
accused," Ex parte Ewing. supra. Solicitation also tends to belie the erstwhile conventional wisdom that simply because he is
retained an attorney is not likely to engage in willful misconduct that amounts to a breach of his legaldutyto his client and keep it
from his client, Lawson v. State, supra, and the initial tainted feature of the attorney-client relationship, in turn, bears on the
performance level demanded ofwhatwe maycall a "self-appointed" counsel. Ifthere are the harmspotentially inherent inthe
solicited relationship that the Ohralik courtfound, damage that is inflicted by the soliciting attorney, though foreseeable in one
sense, was hardly anticipated by the unsuspecting solicited client, and relief should not be precluded by resort to a higher
standard of misconduct applied to properly retained counsel. In sum, that the client has been badly served from the outset
coupled with some otherfailing producesa synergism that moreacutely flaws the overall performance of the soliciting attorney.
[17]The "reasonable competence" test proposed by our BrotherRoberts lacks appeal at this time for the language of the
Supreme Courtwas spoken in a context of advice of counsel that his cliententer a guilty plea. Our concern here is with a much
broader course of conduct than counselling a plea; we must judge a full scope of "assistance'-representation, performance,
delivery-foreffectiveness rather than adequacy of abilityor capacity to advise. The standard we retain mandates an examination
both of competence, "likely to render," and of assistance, "and rendering," in determining effectiveness of counsel.
[18] Atthe evidentiary hearing and without elaboration as to theircontent, except hisdiscussions with prosecutors were primarily
in the nature of plea bargaining, when asked to tellwhat he did by way of preparation Conant answered:
"A: I had several conferences with Mr. Bill Harris. I think one conference with you, and two or three conferences with Mr. Bill
White, I believe, is his name, he is a deputy sheriffwho was in the investigative division of the sheriffs department here, wherein
he opened up his fileto me and showed me all the statements of the witnesses that-or possible witnesses that the State would
have. I made notations from those, wentoverthe search warrant and with the information I had gainedfrom the states [sic] file I
went back and discussed these matters on numerous occasions with Mr. Duffy."
file:///C:msers/Prul,s%20Laptop/Desktop/Phirs%20Documents/DUFFY,o/o20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 23 of 25
We are constrained to remark that Conant could not have gone over "the search warrant" for the incriminating materials admitted
during trialwere obtained from an "inventory search" conducted by Bexar County officers in Fredricksburg, Gillespie County.
[19] Since completeness and accuracy of any priorwritten statement of a prospective witness depend in part on the skill of the
person taking it in directing questions and recording answers, it is not necessarily determinative of all relevant informationstored
away in the mind of the affiant. Thus, the careful and cautious defense investigatorwill directly explore every nook and cranny for
some unwritten recollection, whether it be helpful or harmful to his client. Moses, Criminal Defense Sourcebook 51.
[20]It being inherently prejudicial for a trial court to prohibit overnight consultation between attorney and client, Geders v. United
States. 425 U.S. 80. 96 S.Ct. 1330. 47 L.Ed.2d 592 (1976). the Fifth Circuit has indicatedthat prejudice need not be shown
before an attorney is held ineffective for failing to consult adequately with his client, Davis v. Alabama, supra, at 1223. The
infrequency of consultation, given the nature of this cause, suggests another shortcoming of trial counsel but we cannot find it
amounts to ineffectiveness for the record does not inform us of the content of the consultations that were held.
[21]Atone pointafter he regained the status of appointedcounsel (on appeal) Cantu was discussing matters with him and the
judge of the trial court remarked that he "was convinced the investigation [by trial counsel] was not proper"and had "a real
concern about the investigation" in the case.
[2211* is certainly true, as the State pointsout, that Dr. Schlagenhaufdiagnosed petitioner as having a personality disorderof the
maladaptive type, was inflicted with an inability to tell the truth, is unlikely to benefit from experienced punishment bysociety, and
probably will continue to behave pretty much the same way; asked ifpetitioner knewthe difference between right and wrong, the
doctoranswered, "I think so." Still, that diagnosisand those observationsand opinions do not necessarilycontradict the
conclusions ofthe doctor, set out inthe textabove, and they are surely whata competent criminal defense attorney would want
to know about his client charged with capital murder.
[23] Among other testimony the State points to that of petitioner himself:
"Q: There is absolutely nothing wrongwith you mentally, is there, Harvey?
A: No, sir; I don't believe so."
But, pertinent inthis connection is the poignant observation ofJudge Goldberg in Dawsv. Alabama, supra, at 1220: "An attorney
who does seriously interview an arguably insane client mayfind him to be one of those many insane persons whoplacidly insist
that they are entirely sane ..."
[24] See Davis v. Alabama, supra, at 1222-1223. pointing out that indeciding whethera failure to investigate a possible defense
was prejudicial by examining the specific evidence that an investigation would have uncovered, as he have here, a court can
"avoid speculating about how a jury would have reacted" to that evidence.
[25]As petitioner's psychiatrist testified at the hearing below:
Q [By Mr. Goldstein]:... Did he [petitioner] have difficulty distinguishing between truth and falsehood?
A: / don't think Icould everdepend onJoe to tell me allof thetruth. And Idon't know that he could really—it is kind of hardto
even give an example. But he would tell me things thatwere the truth ifIknew what wasgoing on, butifIdidn't know he might tell
me or he might tell me something completely different.
Q:All right. And would itbe fair to say that he did notrealize theconsequences ofhisanswers regarding truths and untruths?
A: / think it is fair.
Q: Is it not true that you found that he didn't seem toknow thedifference between telling truth andan untruth?
A: Yes.
t * * * * *
Q: Doctor, if they hadan individual ina life ordeath situation where thatmight depend on whether the person was telling the truth
or not, would it, inyourestimation, could youhavebeenofbenefit tothem interms of advising them ofyour diagnosis that he
[petitioner] was unable to distinguish between truth and falsehood?
file:///C:/Users/Phil,s%20Laptop/Desktop/Phil,s%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 24 of 25
A: / thought so at the time, and I still do.
Q: DidMr. Conantor anyone else ever come to you and ask you about thatand were you able ever to give thatopinion to anyone
who came to you?
A: No.
Q: They never came?
A: No.
[26] Q [By Mr. Conant]: After she hit you what did you do?
A: / was shocked. Ididn't know whatto think. Whyshe did it... It kind of stunned me and then / guess it was because of the fact I
was on drugs, because of the fact of all that was happening, Ijust-you know, she triedto hitme again and then I blocked it and
then I stabbed her.
i * * # * t
Q: Why did you stab her again?
A: Because she was stillshouting, stillscreaming, just as if-ldon't know, she just startedscreamingmore. I knew that people had
heard it so I dragged her to the back...
Q: Well, after you realized that you had stabbed the woman what did you decide to do then?
A: / had only stabbed her three times and I looked at her and there was quite a bit of blood all over and I didn't know whether she
was dead or not. It looked like she was dead. Ifshe wasn't dead she was dying. And Istarted thinking more about the fact thatI
was on parole. Iknew thatIhad alreadymessed it up then so I looked for the checks-l knew that I had to have some money to go
somewhere then... I took them and I left.
[27] The State ruefully remarks, "The fact that the witness did not testify exactly as anticipated by petitioner's counsel did not
establish ineffective assistance of counsel." But the problem is that one cannot safely surmise just what counsel anticipated since
the witness attested there was no basis for any expectation.
[2§] The record reflects, and opinion of the Court on direct appeal tersely notes, that virtually all potential reversible error in the
trial court was not preserved because Conant repeatedly failed to object or request the proper relief when he did object. See
Duffyv. State, supra at 201 (swearing ofjury); at 204 (form of the charge); at 205 (sidebar remark by prosecutor);at 206
(improperjury argument by prosecutor). Others were characterized by the habeas court as "the exclusion of preserving legal
points at the time," and the result is a concerted waiver of potentially reversible error. That trial strategy explains silence,
especially in a context as compelling as a capital murder trialwhere the supreme penalty looms large, is a strange concept.
Moreover, trialcounsel's testimony at the habeas hearing regarding his habitual failure to object reveals that the "trial strategy"
argument is devoid of merit in this regard:
Q [By Mr. Goldstein]: Mr. Conant, could you explain why, if thereis a reason, you failed to make any objections at any time during
the course of jury selection or trialand the record is silent with respect to the selection of prospective jurors and any oath they
may have taken?
A: No, sir. / can't explain that.
Q: Can you explain why, ifat all, you acquiesced in and made no objection to the charge given by the Court in this cause?
A: / felt the charge was correct under the law, Mr. Goldstein.
Q: Can you explainwhy you did not request further reliefwith regard to sidebar remarks by the prosecutor that you objected to
and left in the record in the state of an affirmative ruling by the trialcourt, asking no instruction, not moving for a mistrial, so that
no error was preserved with regard to trial sidebar remarks made by the prosecutor in this cause?
A: No, sir. / can't explain that.
file:///C:/Users/Prul's%20Laptop/Desktop/Phirs%20Documents/DUFFY,%20Ex0/o20parte,... 3/15/2015
Ex parte Duffy, 607 SW 2d 507 - Tex: Court of Criminal Appeals 1980 - Google Scholar Page 25 of 25
Q: Can you explain why you made no objection to the prosecutor's statement referring to this trial as an important case and the
prosecutor's statements in the intimating [sic] familiarity with the victim's family?
A: Mr. Goldstein, I don't know if you are reading from the record or what you are doing. / am not sure that I recall these
statements being made at that time...
That Conant's constant failings were within the realm of trial strategy is difficult to accept but, ifthey were, he had ample
opportunities to say so. That he did not, choosing instead to give no explanation at all, refutes the notion that his performance
was "tactical" in nature and reinforces our conclusion that the wounds in this instance were self-inflicted. See Callaway v. State.
594 S.W.2d 440, 444-445 (Tex.Cr.App. 1980): Cude v. State. 588 S.W.2d 895. 897-898 (Tex.Cr.App. 1979); Ruth v. State. 522
S.W.2d 517. 519 (Tex.Cr.App. 1975) (Morrison. J., concurring).
[29] That Caraway v. State, supra, is the turning point is confirmed by Ex parte Galleoos. supra, at 511. albeit thereafter "farce
and mockery" language occasionally "crept into some of our opinions," id. at 512.
Save trees - read court opinions online on Google Scholar.
file:///C:/Users/Phil's%20Laptop/Desktop/Phil,s%20Documents/DUFFY,%20Ex%20parte,... 3/15/2015
B
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of CriminalAppeals 1973 - Google Sch... PageJ of 1
493 S.W.2d 214 (1973)
Archie BURKHALTER, Appellant,
v.
The STATE of Texas, Appellee.
No. 44675.
Court of Criminal Appeals of Texas.
February 21, 1973.
Rehearing Denied April 25, 1973.
Second Rehearing Denied May 9,1973.
215 *215 Warren Burnett, Odessa, for appellant.
Carol S. Vance, Dist. Atty., Joe S. Moss, James C. Brough and James Moseley, Asst. Dist. Attys.,
Jimmy R. James, Sp. Prosecutor, Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst.
State's Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
The offense is accomplice to murder with malice; the punishment, life.
Appellant does not challenge the sufficiency of the evidence and, therefore, a detailed recitation of
the facts is unnecessary. It sufficesto say that appellant, a physician, was indicted as an accomplice
to murder with malice in the death of Robert J. Pendleton, a fellow physician. Del Monte Whitehurst, a
key prosecution witness, and two others were indicted as principals in the same offense. A
companion case is Tucker v. State. Tex.Cr.App., 461 S.W.2d 630.
The primary question in this case, raised by appellant's first two contentions, is whether the trial court
erred in refusing to let the jury hear evidence that the witness Whitehurst's lawyerhad an
understanding with the State that ifWhitehurst testified without claiming immunity he would not be
prosecuted. A special prosecutor admitted that it was the State's plan to procure witness Whitehurst's
release from all charges when appellant's trial was over. Further, it was part of the plan that the State
would try Whitehurst ifthe defense were to request immunity either in open court or otherwise. Thus,
the testimony was that the arrangements were to be communicated to appellant's counsel, but not
directly to appellant himself.
Appellant's strongest contention is based upon the recent opinion of the United States Supreme
Court in Gialio v. United States. 405 U.S. 150. 92 S.Ct. 763. 31 L Ed.2d 104 (1972V In that case, the
witness Taliento testified that:
file:///C:/Users/Phil,s%20Laptop/Desktop/Phil's%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 2 of 12
"Nobody told me I wouldn't be prosecuted... I believe I still could be prosecuted."
In summation, the government attorney reiterated that no promises had been made to Taliento.
While the case was on appeal, the petitioner filed a motion for new trial based on newly discovered
evidence and attached an affidavit from one of the prosecutors who was not directly involved in the
216 actual trial stating that he had promised Taliento that all prosecutions against him would be *216
dismissed if he testified against an alleged co-conspirator.
The Court ordered a new trial holding that since the government depended almost entirely on
Taliento's testimony, his credibility as a witness was important and the jury was entitled to know about
any agreement concerning immunity.
In the case at bar, we have the testimony of the Special Prosecutor that he told Whitehurst's lawyers
that ifWhitehurst testified for the State without claiming immunity the prosecutions against him would
be dismissed, but warned such lawyers not to convey that information to Whitehurst personally.
Attorney Farmer, Whitehurst's lawyer, testified as follows:
"But the way we stated it to him [Whitehurst] was that if he testified it could help him but
that we would not promise him nor could anyone else promise him anything in exchange
for his testimony."
Further,
"... we didn't tell Whitehurst that if he testified he would be exonerated from this case or
any other case. We merely stated that if he testified it could help him."
Quoting Farmer's testimony further:
"Q You did not promise him any particular results, of course.
"A No, sir."
Arguably, the Giglio opinion has no application in the present case, since there is no showing here
that the prosecutor ever spoke directly with or conveyed to Whitehurst a directpromise that he would
not be prosecuted if he testified for the State.
We have closely examined the Giglio decision and we cannot agree that the case turned on this
point. Nowhere does the U.S. Supreme Court make such a distinction and we certainly will not imply
one. We quote from Giglio:
"Here the Government's case depended almost entirely on Taliento's testimony; without
it there could have been no indictment and no evidence to carry the case to the jury.
Taliento's credibility as a witness was therefore an important issue in the case, and
evidence of any understanding or agreement as to a future prosecution would be
relevant to his credibility and the jury was entitled to know of it." (emphasis supplied)
file:///C:/Users/Phirs%20Laptop/Desktop/Phil's%20Documents/Burkhalter%20v %20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 3 of 12
The court did not say "any agreement between the witness and the prosecutor" or "in cases where
the agreement is directly conveyed to the witness." Such language unduly restricts the very reasoning
behind Giglio: that is, that the jury should have the opportunity to decide the witness's credibility for
themselves.
We recognize the argument that while the witness's state of mind while testifying and his expectations
were not mentioned in Giglio, the court there was faced with a different factual situation. Admittedly,
that court was not faced with and did not address a situation where the witness granted immunity was
completely ignorant of any agreement as to future prosecution. In our opinion, neither is it clear that
this Court is presented with such a case. f c / /{ n t ,
The record reveals the following colloquy, heard during the motion for a new trial:
(Testimony of Whitehurst's attorney)
"A ... and we were careful not—I was careful, and I assume Mr. Neisig was, I know he
was, we were together, that he didn't tell Whitehurst that if he testified that he would be
exonerated from this case or any other cases. We merely stated that if he testified that it
could help him.
"Q If he testified it could help him?
"A If he testified it could help him.
"Q You did not promise him any particular results of course?
217 *217"AN0, sir.
"Q But you did tell him that if he testified that it could help him?
"A If he wanted to testify, it could possibly help him.
"Q In other words, it would be fair to say that he was allowed to know that if he testified
that it could be of benefit to him?
"A It could be.
"Q He was made to know that?
"A We communicated that to him. But that was as far as we went with this."
Thus, the record indicates that both Whitehurst and his attorney admitted that, although no direct
promise of immunity from prosecution was ever conveyed to Whitehurst, he was told that his
testimony "could help his case." We find it unrealistic to draw a line between an outright promise not
to prosecute and a very real inference not to prosecute.m The suggestions and innuendos in the
present case bring appellant within the rule announced in Giglio.
file:///C:/Users/Phil,s%20Laptop/Desktop/Phirs%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 4 of 12
Further, evidence that witness Whitehurst was not completely in the dark is revealed by the record, in
reference to the visit by Phil Greene. Mr. Greene, an attorney, allegedly called on Whitehurst during
the course of the trial and urged him to seek immunity before testifying. With Whitehurst testifying, the
record reflects:
"A Well, it was a lawyer who come up to visit me the other night who wanted to represent
me. He told me that he would get me immunity out of this murder case and would handle
all of the other charges for me. He almost demanded that I come down here and take
immunity. It took me two hours last night to run him off.
******
"Q You deny that you are expecting that?
"A I was offered that last night. I turned it down.
"Q So now your testimony before the jury is that you were offered that you could go
absolutely scot-free, but that you turned it down?
"A Yes, sir.
"Q You don't want to be scot-free, right?
"A Well, I didn't want to look at it the way he was trying to do it."
Surely, it must have struck the trial judge as unusual, to say the least, that a co-indictee in a murder
case would "run off' an attorney who suggested that he should go into open court and demand
immunity before testifying. One reasonable inference to be drawn from Whitehurst's actions is that he
218 knew of the State's plan *218 not to prosecute, but also knew not to mention itforfear of jeopardizing
the entire scheme. Whether or not this is true is not for us to decide. The point is that thejuryshould
have been given the opportunity to judge Whitehurst's credibility for themselves. The trial court's
refusal to permit disclosure of the State's plan not to prosecute Whitehurst deprived the jury of that
function.
Further, we find that such a deprivation amounted to a denial of due process. It is axiomatic that a
State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction.
This rule does not cease to apply merely because the false testimony goes only to the credibility of
the witness. Napue v. Illinois. 360 U.S. 264. 79 S.Ct. 1173. 3 L.Ed. 2d 1217 (1959). As recognized in
Napue, the jury's estimate of the truthfulness and reliability of a given witness may well be
determinative of guilt or innocence.
We fully appreciate the State's position that there was no false evidence here, since Whitehurst did
not knowthat he would not be prosecuted. Even ifwe assume this ignorance, arguendo, we find that
the prosecutor's silence as to the plan not to prosecute conveyed an impression to the jury which the
State knew to be false and one which should have been corrected. On cross-examination, Whitehurst
gave the following testimony:
file:///C:/Users/Phirs%20Laptop/Desktop/Phil's%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 5 of 12
"Q And you fully expect that when this case is over, not only will you be out of this case
but all other charges against you?
"A No, sir."
Appellant was not accorded due process of law when he was denied the opportunity to refute the
inevitable impression that such testimony had on the jurors; that is, that Whitehurst would obtain no
reward for testifying. Defense counsel should have been permitted to place the parties in proper
perspective and develop further the interests involved.121 cf. Alcorta v. Texas, 355 U.S. 32, 78 S.Ct.
103.2LEd.2d9(1957).
The State answers that if there was any error in refusing to let the jury hear the disputed testimony, it
was harmless error. We disagree.
Whitehurst was the only source of direct testimony tending to establish the alleged main fact of
appellant's advising the commission of the offense charged in this case. As previously stated, it is of
no consequence that the falsehood bore upon the witness' credibility rather than directly upon
appellant's guilt.
/"A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the
district attorney has the responsibility and duty to correct what he knows to be false and
elicit the truth. * * * That the district attorney's silence was not the result of guile or a
desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial
that could in any real sense be termed fair." Napue, supra. 360 U.S. at p. 269, 79 S.Ct.
at p. 1177.
We cannot pretend to be oblivious to the time and expense involved in the presentation of this cause;
the voluminous record now before this Court is sufficient evidence of that. Our intent is not to punish
the trial court or the prosecutor for the error committed, but rather to avoid an unfair trial to the
accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our
system of the administration of justice suffers when any accused is treated unfairly. Brady v.
Maryland. 373 U.S. 83. 83 S.Ct. 1194. 10 LEd.2d 215 (1963).
219 *219 Our holding today is not to be taken as a ruling that the procedure used by the State here is
unconstitutional per se. Certainly, each case must turn on its particular circumstances. In the instant
case, the State could easily have preserved Whitehurst's "unawareness" and, at the same time,
protected appellant's constitutional guarantees. The rule had been invoked at the beginning of the
trial. Therefore, the State could have presented testimony before the jury disclosing the plan with
Whitehurst's attorney and thereby have permitted them to judge his credibility. In such a
circumstance, and where the witness is indeed non-cognizant of the plan, we would commend the
prosecution.
We simply hold that Giglio. supra, is constitutionally dictated and cannot be cleverly circumvented in
this case by the scheme used by the State. Due process, perhaps the most fundamental concept in
our law, embodies principles of fairness rather than an immutable line drawing as to every aspect of a
file:///C:/Users/Pnil,s%20Laptop/Desktop/Phil,s%20Documents/Burkhaltero/o20v %20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 6 of 12
criminal trial. Arqersinaer v. Hamlin. 407 U.S. 25. 92 S.Ct. 2006. 32 LEd.2d 530 (1972). See also
Moonev v. Holohan. 294 U.S. 103. 55 S.Ct. 340. 79 L.Ed. 791 (1935).
In light of the disposition of this ground of error, we will not consider appellant's other grounds.
The judgment is reversed and the cause remanded.
MORRISON, Judge (dissenting).
I am thoroughly in accord with the holding of the Supreme Court of the United States in Giglio v.
United States. 405 U.S. 150. 92 S.Ct. 763. 31 LEd.2d 104.1 have concluded that the circumstances
in the case at bar, though similar to those in Giglio, supra, are, nonetheless, factually distinguishable.
Giglio, supra, revolves around the jury's right to know "of any understanding or agreement as to future
prosecutions" between a witness and the State as an aid in judging the witness' credibility. In Giglio,
supra, there was a consummated agreement between the witness and the prosecution. The jury was
not only ignorant of the agreement, but the witness, Taliento, lied to them about its existence.
In the case at bar, there is no evidence to indicate that the witness Whitehurst knew he would be
granted immunity or that he had lied to the jury about his prospects for receiving it. The majority
claims that the court erred in failing to permit the jury to hear testimony which would have shown the
State planned to grant Whitehurst immunity. However, the prosecution's intention is not the critical
factor. The rationale for permitting the jury to hear testimony about an "arrangement" is that such
information may be a factor in determining the witness' credibility. The witness' motives and bias,
then, are the controlling element. It, therefore, follows that the jury need not be given more
information than the witness himself actually possesses.
Further, it cannot be said the jury was unaware of Whitehurst's position and possible motives.
Appellant's vigorous cross-examination of Whitehurst included thorough questioning about the
possibility that his testimony might earn him a dismissal of charges against him. Certainly these
various references to immunity, dismissal, and other cases pending against Whitehurst, including an
indictment for Pendleton's murder, were sufficient to alert the jury to Whitehurst's interest in the case.
m
220 *220 In United States v. Blackwood. (2 Cir.) 456 F.2d 526. the U. S. Court of Appeals for the Second
Circuit considered a similar situation stating:
"... A defendant's major weapon when faced with inculpatorytestimony of an accusing
witness often is to discredit such testimony by proof of bias or motive to falsify.... The
rule is that [in] attempting to establish the motives or bias of a witness against him, a
defendant may ... elicit evidence showing that the government made explicit promises of
leniency in return for cooperation.
******
file:///C:msers/Phil,s%20Laptop/Desktop/Phirs%20Documents/Burkhalter%20v %20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 7 of 12
"A defendant's right to elicit such evidence, however, is not boundless, but is subject to
reasonable limitations imposed by the trial judge in the exercise of sound discretion. The
test for determining whether there has been an abuse of discretion is whether 'the jury
was otherwise in possession of sufficient information concerning formative events to
make a "discriminating appraisal" of a witness' motives and bias.'"
The Court there concluded, as I do here:
"We are satisfied that the circumstances from which the jury could decide whether [the
witness] might have been inclined to testify falsely in favor of the government were
adequately presented to the jury in this case."
The only suggestion that more existed than was made known to the jury comes from the defense.
Whitehurst's testimony was critical to the prosecution, perhaps determinative. It is reasonable to
assume that appellant's trial strategy would include an effort to discredit the witness' testimony. It is
not surprising that appellant's attorney cross-examined Whitehurst extensively concerning his
prospects for immunity. Counsel concentrated particularly on Whitehurst's conversation with "a lawyer
who came to see him the other night.... [He] gave his name as Phil Green."121
Who was Phil Green? He was not on the prosecutor's staff nor was he appointed by the court to
represent Whitehurst. The record does not reflect his exact connection with the case. The record
does, however, suggest he played a role in the defense's effort to discredit Whitehurst's testimony by
attempting to compromise him. Whitehurst testified that Green came to see him shortly before he was
scheduled to testify and told him that if he demanded immunity during the trial, he, Green, would
arrange to have Warren Burnett, Burkhalter's trial attorney, and another, represent him in the cases
221
pending against him.121 Burnett, himself, confirmed Green's *221 visit toWhitehurst during his
argument to the jury. A demand for immunity by Whitehurst, particularly during the trial, would have
placed the State in the position of either granting the immunity or dismissing the prosecution. If
immunity were granted the defense could launch an unrestrained attack on the reliability of the
witness' testimony.
It is obvious from the record that the jury knew of the possibility of immunity and that they were in a
position to judge his credibility accordingly. I would, therefore, reject appellant's effort to hoodwink the
jury and this Court. Certainly the logic and rationale of Giglio, supra, should not be read to permit or
encouragethe defense tactics in evidence here.M I respectfully dissent.
DOUGLAS, J., joins in this dissent.
ON STATE'S MOTION FOR REHEARING
DOUGLAS, Judge (dissenting).
The majority overrule the State's motion for rehearing. The conviction was reversed because
appellant was not allowed to prove before the jury that the special prosecutor James had told counsel
file:///C:/Users/PMl,s%20Laptop/Desktop/Phil,s%20Documents/Burkhalter%20v_o/o20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 8 of 12
for the accomplice witness Whitehurst that he would not be prosecuted even though this was not
communicated to the witness. While I agree with practically everything that was said in the original
dissent, my views are set out below:
The record shows that this is a case where the appellant, Dr. Burkhalter, hired the accomplice
witness Del Monte Whitehurst and others to kill Dr. Burkhalter's partner, Dr. Pendleton. There had
been some personal difficulties between the two doctors and Dr. Burkhalter was to benefit from an
insurance policy on the life of Dr. Pendleton.
The majority based the reversal upon the case of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,
31 LEd.2d 104. In that case there was a direct agreement with the accomplice witness Taliento to
grant him immunity. In the present case all the testimony in the record at the trial and on the motion
222 for new trial shows that there was no communication or agreement with the *222 witness Whitehurst
that he would not be prosecuted. These two fact situations are quite different.
How would statements between counsel affect the credibility of a witness who had not heard nor
been informed about the conversation? No fact issue was made. Giglio v. United States, supra, was
reversed because there was an agreement, or at least an affidavit by a prosecutor, that there was a
direct agreement with the witness that immunity would be granted him if he testified.
The majority, in reversing the conviction in the present case, stated: "Arguably, the Giglio opinion has
no application in the present case, since there is no showing that the prosecutor ever spoke directly
with or conveyed to Whitehurst a directpromise that he would not be prosecuted if he testified for the
State."
The majority in the above quote have made the obvious distinction and by omitting the word
"arguably" the statement would be entirely correct.
In the next paragraph the majority state that they would not agree that the Giglio decision turned on
this point. This statement is correct because the fact situation in the present case was not before the
Supreme Court when it handed down the Giglio decision.
The majority state:
"We find it unrealistic to draw a line between an outright promise not to prosecute and a
very real inference not to prosecute."
and
"The suggestions and innuendos in the present case bring appellant within the rule
announced in Giglio."
Then the majority, using the testimony about the attorney Green who, this record shows, had no
authority to make any promise to Whitehurst, offered to have defense counsel in the present case
defend him if he would claim immunity in open court.
file:///C:/Users/PMl,s%20Laptop/Desktop/Phirs%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google Sch... Page 9 of 12
Surely, it must have struck the trial judge as unusual, to say the least, that a lawyer without being sent
for and who was in an apparent violation of the code of ethics would go to the jail and offer the
services of appellant's counsel in the present case to Whitehurst in his future trials.
Counsel for the defense have not attempted to show that this attorney who visited Whitehurst was
sent by the prosecution, nor have they shown that defense counsel did not send him so that they
might argue before the jury about what occurred.
Cannot some sort of an inference be reached when any co-defendant testifies for the State against a
defendant?111 Does it not follow from the majority opinion that in each case where a co-defendant
testifies for the State that no promises have been made him, that a defendant can then call the
assistant district attorney trying the case, the first assistant district attorney, the district attorney and
perhaps other prosecutions to determine ifthe prosecution intended to dismiss charges or grant
immunity? This would be analogous to the present situation though no promise had been made. The
defense could explore the minds of those in the district attorney's office to determine their future plans
because the innuendos or inferences would be there.
The majority state that they appreciate the State's position that there was no false evidence here
since Whitehurst did not know he would not be prosecuted. Then it is stated, "Even if we assume this
ignorance, arguendo, we find that the prosecutor's silence as to the plan not to prosecute conveyed
an impression to the jury which the State knew to be false and one which should have been
223 corrected." It has always been the rule that when witnesses *223 testify before a trial judge, it is his
and not this Court's function to decide their credibility. There is nothing for this Court to assume. The
witnesses at the trial, outside the presence of the jury, and on the motion for new trial, were heard by
the trial judge. He saw and heard the witnesses and observed their demeanor on the stand. He
apparently believed them, because he did not grant a new trial.
Again, referring to the example where the prosecutor in his mind had decided not to prosecute a co-
defendant witness for the State who testifies that he expects to be prosecuted: Does the prosecutor
then and there have to inform the jury that he does not expect to prosecute to keep from leaving a
false impression before the jury?
The majority quote from Napue v. Illinois. 360 U.S. 264. 79 S.Ct. 1173. 3 LEd.2d 1217 (1959): "A lie
is a lie,..." That case holds that the district attorney has a duty to correct what is false. In the present
case no lie or false testimony has been shown. No correction was required; no fact issue created.
It was shown that Whitehurst was an ex-convict. He had served sentences in New Mexico and in
Texas. He obtained the "trigger man" and helped carry out the murder in the present case. There is
no doubt that he hoped to obtain leniency and just as much as the State would recommend, but still
there is no proof that leniency or immunity was offered to him. It does not take much logic or common
sense for anyone to realize that he was not going to incriminate himself unless he thought his
chances for at least some leniency was good. Jurors have common sense and they no doubt thought
Whitehurst was testifying in an effort to help himself. They heard the evidence that he had been
convicted before. They could and probably did infer that he wanted to help himself.
file:///C:/Users/Phirs%20Laptop/Desktop/Phil's%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google S... Page 10 of 12
Ifthere was any doubt that the jury did not have this in mind, it was erased when counsel for the
defense argued that one must wonder if the charges against Whitehurst will be dismissed and if he
would go "scot free" and "one must wonder if he succeeded in his effort to earn advantage for
himself."
No constitutional or statutory right was denied the appellant. This reversal is apparently on some new
rule or concept that proof to disprove an innuendo or suggestion on a collateral matter must now be
admitted even though all of the direct evidence is to the contrary.
This Court has always permitted impeachment of a witness on what he says and what he does to
show bias or interest. See Jackson v. State. Tex.Cr.App., 482 S. W.2d 864. No prior inconsistent
statement is shown in the present case. The rules for impeachment because of a prior inconsistent
statement are clear, but by what rules may one impeach an innuendo or a "very real inference not to
prosecute?"
For the above reasons, the State's motion for rehearing should be granted and the judgment affirmed.
[1] In Giglio, two differentaffidavitswere filed in reference to newlydiscovered evidence. One affidavit states outright that a
promise was made to Taliento that if he testified, he would not be prosecuted. The second affidavit(which the U.S. Supreme
Court saw fitto set out in the text of their opinion, rather than in a footnote, as they did with the first affidavit) stated that: "he [the
U.S. Attorney] had personally consulted with Taliento and his attorney shortly before trial to emphasize that Taliento would
definitely be prosecuted ifhe did not testify and that if he did testify he would be obliged to rely on the good judgment and the
conscience of the government' as to whether he would be prosecuted." The court noted that this latter affidavit, standing alone,
contains at least an implicationthat the government would reward the cooperation of the witness, and hence, "tends to confirm
rather than refute the existence of some understanding for leniency." Giglio. supra. 405 U.S. at p. 153. 92 S.Ct. at p. 765, 31
L.Ed.2d at p. 108. It, thus, appears to this Court that even in Giglio, there was some question as to the "directness" and
unequivocality of the agreement not to prosecute.
[2] 1 C. McCormick & R. Ray, Texas Evidence, § 673 (2d ed. 1956) states: "Where an accomplice in the crime with which
accused is charged testifies for the prosecution this is a circumstance affecting his credibility. It indicates a probability that he is
seeking or has been promised favor at the hands of the State."
HI Some of the evidence brought out before the jury included:
"[Prosecutor] You are the same Del Monte Whitehurst that has been indicted for the killing of Robert Pendleton, is that correct?
"[Whitehurst] Yes, sir"
In addition to the testimony in Footnote (3), infra, Defense Counsel Burnett argued to the jury:
"One must wonder what will become of Del Monte Whitehurst as a result of the perjury that he gave in this case. One must
wonder what advantage he has earned. One must wonder what will become of him in the days and in the weeks to come after
this trial is concluded. One must wonder what will become of the charges against Del Monte Whitehurst. One must wonder
whether they will be dismissed. One must wonder whether or not he will go scot-free. One must wonder if his plan so wicked and
so beyond description has worked. One must wonder ifhe succeeded in his effort to earn advantage for himself. One must ask to
receive this earning, ifwhen this trial is over, ifthere will be a dismissal of all of the murder charges against Whitehurst."
[2] This name is variously spelled Green and Greene.
[3] Burnett's cross-examination of Whitehurst concluded with the following:
"Q. You did not have a conversation yesterday withthe Special Prosecutor in the case, Mr. Jimmy James?
file:///C:/Users/Phirs%20Laptop/Desktop/Phil's%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google S... Page 11 of 12
"A. Well, it was a lawyer who come up to visit me the other night who wanted to represent me. He told me that he would get me
immunity out of this murder case and would handle all of the other charges for me. He almost demanded that I come down here
and take immunity. It took me two hours last night to run him off.
******
"Q. You fully expect that when this case is finally concluded, that you will be out, don't you?
"A. No, sir. That is what the lawyer wanted to get done for me last night.
"Q.And you fully expect that when this case is over, not onlywill you be out of this case but all other charges against you?
"A. No, sir.
"Q. You deny that you are expecting that?
"A. I was offered that last night. I turned it down.
*****)
"Q. He wanted you to do it in open court, didn't he?
"A. Well, I give a statement and agree to testify and then wait until the trialgot halfwaythrough and come on down and demand
that I wasn't going to get on the stand unless I get immunity.
"Q. He wanted you to do it in open court, didn't he?
"A. He wanted me to do it when I come down for them to put me on the stand."
In answer, Prosecutor James questioned Whitehurst on redirect examination:
"Q. Let's talk about this lawyer that came up to see you: Do you know what his name is?
"A. Yes, sir.
"Q. What is it?
"A. He gave it to me as Phil Green.
"Q. Some time late last night did he tell you he wanted to represent you?
*#***,
"A. He told me that if I would let him come to the courtroom and demand immunity this morning, that Bob Tarrant and Mr. Burnett
would represent me on the rest of my cases that I have pending against me.
"Q. So this was the good deal he offered you, to represent you—if you got immunity in this case—on your other cases, is that
correct?
"A. Yes, sir.
"Q. Did you send for this lawyer?
"A. No, sir.
"Q. So all of a sudden out of a clear blue sky, now appears the saving angel, is that correct?
"A. Yes, sir.
"Q. He is going to do wonders for you along with Mr. Burnett and Tarrant, is that correct?
"A. Yes, sir."
file:///C:/Users/Phil's%20Laptop/Desktop/Phil,s%20Documents/Burkhalter%20v_0/o20Stat... 3/15/2015
Burkhalter v. State, 493 SW 2d 214 - Tex: Court of Criminal Appeals 1973 - Google S... Page 12 of 12
[4] Robert D. Tucker, Jr.'s, 99-year conviction was affirmed by this Court (461 S.W.2d 630) on Del Monte Whitehurst's testimony.
LU 1 C. McCormick & R. Ray, Texas Evidence, Section 673 (2d ed. 1956).
Save trees - read court opinions online on Google Scholar.
file:///C:msers/Phirs%20Laptop/Desktop/Phil,s%20Documents/Burkhalter%20v_%20Stat... 3/15/2015
the
COVER
letter(s)
Philip W. "Phil" Moore Phone: (512) 667-1508
15623 Fagerquist Road ♦ Del Valle, Texas 78617-5800 e-mail: pwmll.07@gmail.com
Wednesday, March 18th, 2015
Debbie Folse, Deputy Clerk
Jefferson County District Clerk's Office
Jefferson County Courthouse, Room 203
1085 Pearl Street
Beaumont, Texas 77701-3545
in re Ex parte Carl Matthew Bellotti, III, No. WR-53,835-05:
AN UNCOMMON PLEA - from cm all-too-common victim!
Dear Debbie,
Please find enclosed three (3) true and correct date-stamped "RECEIVED" (in
the Court ofCriminal Appeals) copies1 of my NOTICE in re the "Off Limits" trial
Record2 pleading(s) inthe above-styled and numbered cause.
.. .one copy being intended for the records and files ofthe Jefferson County District Clerk's
Officewith one (1) copyeach provided for Judge West and for the State's PostconvictionAttorney,
Deborah Ann (Ann) Manes.
. . .the five (S) volume Record which Deborah Ann (Ann) Manes stated to me was "Off
Limits"in habeas cases despite the Strickland Court's mandate(s) that
". . .a court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the facts of the
particular case, viewed as ofthe time ofcounsel's conduct. A convicted
defendant making a claim of ineffective assistance must identify the acts
or omissions of counsel [shown in the Official Reporter's (trial)
Record] that are alleged not to have been the result of reasonable
professionaljudgment. The court must then determine whether, in light of
all the circumstances, the identified [m the Official Reporter's (trial)
Record] acts or omissions were outside the wide range of professionally
competent assistance. ..."
Id., 466 U.S. 668, 690 (1984).
-1-
.. .and allow me to once again thank you (and all of the girls there in your
office - including Hope) for y'alls style, aplomb and professionalism in your dealing(s)
with me in the premises/
".. .and miles to go before I sleep, and miles to go before I sleep."
Respectfully submitted,
Philip W. "Phil" Moore
PWM/pwm
Enclosures
cc. Carl Matthew Bellotti, III, 1755639
East Texas Treatment Facility
P.O. Box 8000
Henderson, Texas 75653-8000
Carl S. Bellotti, Jr.
2122 Merriman Street
PortNeches, Texas 77651-3728
Phone: (409) 626-4542
Hon. Abel Acosta, Clerk
Texas Court of Criminal Appeals
Supreme Court Building
201 West 14th Street, Room 106
P.O. Box 12308
Austin, Texas 78711-2308
Phone:(512)936-1620
FAX: 512/463-7061
e-mail: abel.acosta@txcourts.gov
several others
file(s)