holding that counsel was ineffective because, in part, they repeatedly referred to their client as a “wetback” when juror members had indicated during voir dire that illegal aliens might not be entitled to as much protection as U.S. citizens
How later courts described this case
- holding that counsel was ineffective because, in part, they repeatedly referred to their client as a “wetback” when juror members had indicated during voir dire that illegal aliens might not be entitled to as much protection as U.S. citizens
- referring to client as a Awet-back@
- counsel referred to client as "wetback"
- “This was insufficient preparation.”
Written by the judges who cited it.
The opinion
ONION, Presiding Judge,
dissenting.
The real issue here, masked in disguise, is whether there was sufficient evidence to support the affirmative finding of the jury as to the issue of future dangerousness— the second special issue under Article 37.-071, V.A.C.C.P. Of course, this issue was not raised on direct appeal and this proceeding is a collateral attack — a post-conviction application for writ of habeas corpus. The applicant attacks the ineffective assistance of counsel at trial and on appeal, apparently not believing that an attack upon the insufficiency of evidence would prevail in a collateral attack. See and compare, however, Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).
The majority, in order to reach a desired result, finds ineffective assistance of counsel at the penalty stage of the trial only. *737 The conduct of counsel is belittled and “knocked about” in the majority opinion in order to soften up the reader for the final conclusion. Much of the language and inferences and innuendos, etc., in the majority opinion as to the effective assistance of counsel is totally unnecessary, and some is divorced from the reality of the facts with which appointed counsel had to work. It is much easier in the better light of hindsight to decide how the case should have been tried on behalf of the applicant. I dissent to reaching a result, however desirable, upon the basis that the majority does.
Before the court en banc.
OPINION ON STATE’S MOTION TO DISMISS
MILLER, Judge.
On original submission applicant was granted the relief requested pursuant to Art. 11.07, Y.A.C.C.P. and was remanded to the custody of the Sheriff of Navarro County to answer the indictment against him. Ex parte Guzmon, 730 S.W.2d 724 (Tex.Crim.App.1987). The State filed a motion for rehearing. On April 30, 1987, during the pendency of that motion, the Hon. William P. Clements, Governor of the State of Texas, entered his Executive Order commuting applicant’s death penalty to life imprisonment.
All of the issues presented in the application for writ of habeas corpus relate only to errors occurring in the penalty stage of applicant’s trial. Appellant’s complaints go only to the imposition of the death penalty, not the imposition of the alternative lesser punishment of life in prison. Once a defendant is found guilty of capital murder, punishment may only be assessed at death or life imprisonment. V.T.C.A. Penal Code, § 12.31. The Governor’s order, therefore, has made the matter moot. See O’Pry v. State, 642 S.W.2d 748 (Tex.Cr.App.1982).
The relief requested by the applicant is denied.
DUNCAN, J., concurs in the result.
CLINTON, J., dissents based on the rationale of his dissenting opinion in Adams v. State, 624 S.W.2d 568 , at 569 ff. (Tex.Cr.App.1981), and other opinions cited in Judge Teague’s dissenting opinion in this case.
CAMPBELL, J., not participating.