Ewing v. State

PHILLIPS, Judge,

dissenting.

I cannot agree that admission of evidence showing appellant had twice been picked up by police officers for suspicion of burglary is “a question of tactics” in light of the record here presented. On direct examination Officer Cashion testified the license number relayed by Hart was checked out. He said, “We called the burglary and theft division that we had the car picked up approximately four days prior to that”. The failure to object to this statement would not be sufficient to support a finding that trial counsel was ineffective. See Long v. State, supra. However, the details were then brought out on cross examination by appellant’s counsel and Cashion testified:

“Q [DEFENSE COUNSEL]: You mentioned earlier that you had previously had some information on a make. For the purpose of the jury, that means that this car had been reported some other way, right?

*397 A Right.

Q Would you explain what you mean by ‘make’ to the jury?

A How we obtain the license number.

Q You had had a make previously on this car, what do you mean?

A We had picked it up for investigation of a burglary.

Q This car?

A Yes, ma’am.

Q When?

A Back on the 25th of November, 1973.

Q Was Mr. Ewing involved?

A Yes, ma’am; he was.

Q You say Mr. Ewing was involved in a burglary?

A We are saying we questioned him about a burglary.

Q Was his car involved in a burglary? Was it positively—

A We had it picked up for investigation of a burglary.

Q Was it positively identified as being involved in the burglary?

A Not at that time it wasn’t. It was at the scene, though.

Q Was Mr. Ewing in the car on the 25th?

A No ma’am; he wasn’t in the car.”

Officer Davis explained the incident more fully during cross examination:

“Q [DEFENSE COUNSEL]: How did you happen to go to Ringold and Prosper?

A First of all, we had a license plate number. I asked the dispatcher — I can’t remember which one of us did — got on the radio and got him to trace the registration on the car and it was registered to one Chris Leblanc who lived on — I can’t remember the exact number. I think it is 1046. It was at about the intersection of Wheatley and South Victory. We proceeded to that house and talked to Chris Leblanc’s mother who stated that her son had sold the car to Mr. Ewing, I think, two months earlier.

We then asked her if she knew where he lived. I can’t remember whether she knew where he lived or not. From her house I called the burglary and theft division because we had the same car with the same license number towed off on the 28th from the scene of a burglary. Down at burglary they have a little card that stated who claimed the car. We put a ‘hold’ on the ear for burglary and theft and before the man who wanted the ear could get it out — it was out at the prisoner’s lot is where it was — before he could get it released, he would have to get a release from the burglary and theft division and have to prove by means of registration that it was his car and prove who it was and it turned out it was the Defendant, Kartis Ewing, that got the car released from the burglary division.

Q Did you find out that this car had actually been involved in a burglary?

A Did I find out it was? We believed it was but we were not sure. We also apprehended Mr. Ewing at the scene of a burglary but since the car that we found there was a suspicious car, the only car there, it was some model homes, there was one or two trucks that blocked — I don’t remember who built — let’s say Suburban Homes, everybody knows them— one of the Suburban Company trucks were there and there was a passenger car parked on the other side of the lot. We had it picked up and towed off in case it was. Then I saw Mr. Ewing walking down toward the freeway shortly after we had made the burglary call there and so I arrested him for suspicion then but he was released at the scene since the car was not registered to him at that time.

Q You never took him to the police department?

A Not on the burglary we didn’t. We didn’t have enough evidence to think that we could.

Q Did you find that the car had been reported stolen?

A No, ma’am; it hadn’t been reported stolen.

* * * * * *

Q You told me he was not handled for burglary?

*398 A He was picked up for suspicion of burglary the 15th of November for burglary of an apartment. He has the I.D. number from that case.

Q You told me you didn’t take him—

A This is not the same burglary, this is another burglary. This is on the 15th. The time we picked him up that we arrested him at the scene was the 25th of November. On the 15th of November he was also handled by another set of officers for burglary of an apartment but he was released with no charge . . .”

The harmful effect of these two prior incidences was compounded on cross examination of appellant as follows:

“Q [PROSECUTOR]: Mr. Ewing, you have been breaking the law for some time now, haven’t you?

A No, I haven’t.

2 And finally you got caught red-handed is what happened in this case, isn’t it?

A No.”

Thus, the jury heard that appellant had been handled by the police on two occasions for suspicion of burglary. The foregoing testimony makes it clear appellant was not shown to be the person who committed these burglaries, thus the two burglaries were not admissible as extraneous offenses committed by the appellant. See Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97 ; Ford v. State, Tex.Cr.App., 484 S.W.2d 727 . As pointed out by counsel for the State during cross examination of appellant, the testimony concerning the two burglaries showed appellant to be of bad character, or a criminal generally. This testimony was obviously prejudicial in view of the fact that appellant was 18 years of age at the time of trial and had never been convicted of an offense.

We are not here presented with acts of omission by counsel, such as failure to call witnesses, see Jones v. State, Tex.Cr.App., 501 S.W.2d 677 ; including the accused, Sims v. State, Tex.Cr.App., 546 S.W.2d 296 (Decided January 26, 1977); failure to vigorously cross examine witnesses, Rockwood v. State, 524 S.W.2d 292 ; failure to make closing argument, Ransonette v. State, Tex.Cr.App., 550 S.W.2d 36 (Decided October 6, 1976); or failure to object to the admission of evidence, Nichols v. State, Tex.Cr.App., 500 S.W.2d 158 . Such omissions may be due to trial strategy.

The improper, irrelevant and prejudicial testimony was injected into the case through the actions of appellant’s trial counsel. To construe such action as trial strategy implies counsel was thoroughly familiar with the details of the two prior incidences. It is fundamental that an attorney must acquaint himself with the facts and law of the case before he can render reasonably effective assistance of counsel. Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972).

I would hold that the introduction and further development of this prejudicial testimony by appellant’s counsel amounts to a breach of a legal duty and denied appellant reasonably effective assistance of counsel as provided for in the Sixth Amendment of the U.S. Constitution and Art. I, See. 10 of the Texas Constitution. For this reason, I respectfully dissent.