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
TEAGUE, Judge,
dissenting.
Former Chief Justice John Marshall of the United States Supreme Supreme Court, are you watching and listening? 1
For Governor Bill Clements, and the members of the Executive Branch of our State Government which he heads, this Court’s majority opinion should make for each of them a very happy day. For the citizens of this State, and the members of the Judicial Branch of our State Government, however, it should be a very sad moment because once again this Court destroys the faith that the voters of this State placed in the Judicial Branch of our State Government when they voted to enact Article II, § 1, of the Texas Constitution by ignoring its constitutionally imposed duties *738 and responsibilities to the citizens of this State.
The record reflects the following:
On April 8,1987, after finding that applicant, who had been convicted of capital murder and assessed the death penalty, was denied the effective assistance of counsel at the punishment stage of his trial, this Court ordered that applicant should receive a new trial on guilt as well as punishment.
On April 23, 1987, the State filed a motion for rehearing in this cause, and on May 1, 1987, the State filed a motion to dismiss based upon the fact that on April 30, 1987, while the State’s motion for rehearing was pending this Court’s acting on the motion, Hon. Bill Clements, Governor of this State, entered an Executive Order commuting Guzmon’s death penalty sentence to life imprisonment.
I presume that this Court’s original decision today had nothing whatsoever to do with Governor Clements’ decision and that he would have issued the executive order even had this Court originally denied Guz-mon any relief. It was just a matter of timing, I suppose.
Today, May 20, 1987, because of what Governor Clements has done, a majority of this Court declines to act on the State’s motion for rehearing, and, furthermore, denies applicant any requested relief because the issue he presented, and on which this Court originally acted favorably towards him, are found to be moot because of Governor Clement’s Executive Order of Commutation.
In debating with myself whether to file this dissenting opinion, or just a short note that I joined in the judgment of this Court because I was unable to persuade a majority of this Court that a purported grant of executive clemency by Governor Clements should not preclude this Court from discharging its constitutionally imposed duties and responsibilities on a case then pending before it, I finally opted to file this dissenting opinion so that those persons who follow in my judicial footsteps in the future will, hopefully, someday read in print where I, as one member of this Court, strongly believed, as did the people of this State when they voted to enact Article II, § 1, of the Texas Constitution, in the general concept of government that that provision of the Constitution announces, i.e., that the powers of our State Government are divided into three distinct departments, and that those of which are Legislative belong to that Department; that those of which are Executive belong to that Department; and that those of which are Judicial belong to that Department; and that no person, or collection of persons, being of one of these Departments, shall exercise any power properly attached to either of the others, except as provided by the Texas Constitution.
Today, once again, see post, the highest criminal court of our State Government holds that when a cause is lawfully pending before it, and is not yet finally decided, another branch of our State Government, the Executive, is permitted to step in and keep this Court from discharging its own constitutionally imposed duties and responsibilities, and thus make moot the issue that is before it to decide.
Without elongating this opinion, I will simply incorporate by reference all of what Judge Clinton has stated in the opinions that he has filed in the following causes, see Rodriquez v. State, 626 W.2d 35 , 37 (fn. 3) (Tex.Cr.App.1981) Adams v. State, 624 S.W.2d 568, 569 (Tex.Cr.App.1981); Clark v. State, 627 S.W.2d 693, 627 (Tex.Cr.App.1982); and Graham v. State, 643 S.W.2d 920, 931 (Tex.Cr.App.1983), in which Presiding Judge Onion and I joined, regarding the doctrine of separation of powers of State Government, in which he so eloquently demonstrates that what this Court has done in the . past, and what it does today, is a serious breach of the trust that the citizens of this State placed in the Judicial Branch of our State Government when they voted to enact Article II, § 1, of the Texas Constitution.
. For further reason why I commence this dissenting opinion with this question, and my reference to Chief Justice Marshall, see and read the historic decision of Marbury v. Madison, 1 Cranch 137 , 2 L.Ed. 60 (1803), that he authored on behalf of the United States Supreme Court, which decision stands today as the fundamental decision in the American system of Federal constitutional law. I am sad to report that I cannot refer the reader to a comparable decision on State constitutional law by this Court. However, as will be seen, there are many decisions by this Court which, contrary to what Chief Justice Marshall did, reflect that this Court in recent times has abdicated its constitutionally imposed duties and responsibilities, which has relegated this Court and the other members of the Judicial Department of our State Government to be non-equals in the three part division of our State Government.