Thompson v. State

MEYERS, J.,

dissents with an opinion, in which PRICE and JOHNSON, J.J., join.

We granted the State’s Petition for Discretionary Review in order to address three of the four grounds raised. The Court’s opinion reaches only the first question on which we granted review — that is, whether the Court of Appeals erred in failing to apply a presumption of objectively reasonable conduct where there was “no evidence in the record of counsel’s trial strategy.” State’s Brief at 6. In reaching its conclusion, the Court emphasizes the caution an appellate court must exercise when determining whether counsel’s “actions were of strategic design or the result of negligent conduct.” Ante, op. at 814. 1 The Court then decides that without counsel himself having explained why he voiced no objection to the hearsay evidence, the record is simply insufficient to “successfully defeat! ] the strong presumption that the decisions of counsel during trial fell within the wide range of reasonable professional assistance.” Id. at 814 (citations omitted).

The only evidence that the Court suggests is lacking from the record are trial counsel’s own subjective reasons (or lack thereof) for failing to object to Sergeant Yanchak’s hearsay testimony. Id. at 814. The Court holds that the record’s silence on this point prevents us from discerning “the motivation behind counsel’s actions.” Id. In other words, the Court indicates that, given the state of the record, it cannot determine by a preponderance of the evidence whether counsel’s failure to object was the result of some unapparent strategic decision. But this approach requires that we ignore an abundance of circumstantial evidence indicating that counsel’s omission was not the result of a deliberate decision. Thus, while counsel’s own statement regarding whether his omission was the product of “trial strategy” would be helpful in evaluating appellant’s claim, in this case such evidence is not a necessary prerequisite to an analysis of whether the error complained of met an “objective standard of reasonableness.” See Strickland v. Washington, 466 U.S. 668, 688 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984).

Although not mentioned by the majority, in Vasquez v. State, 830 S.W.2d 948, 950 (Tex.Crim.App.1992) (per curiam), this Court reviewed a claim of ineffective assistance of counsel which was postured in a manner similar to the case at bar. Specifically, counsel had failed to request a jury instruction on the statutory defense of ne *816 cessity and the record was silent as to whether the challenged action was the product of “trial strategy.” Id. Nevertheless, the Court concluded that counsel’s performance was “clearly deficient.” Id. at 951 . In reaching its conclusion, the Court made the following statement: “Although Strickland mandates that we should not second-guess trial strategy, we state without hesitation that the failure to seek an instruction on necessity would not have been acceptable trial strategy under the facts of this case.” Id. at 950 n. 3. Therefore, even in the face of a record which is “silent” as to counsel’s subjective trial strategy, appellant will have satisfied his burden by a preponderance of the evidence where the record otherwise reflects that counsel’s omission would have been unacceptable regardless of any trial strategy- 2

The Court of Appeals did not err in concluding that the record, although silent as to trial counsel’s personal thought process, was otherwise sufficient to overcome the presumption of reasonable professional assistance. There is adequate evidence to conclude that counsel’s failure to object was not predicated on trial strategy. The record shows that counsel objected a total of three times in his attempt to prevent the disputed testimony from being heard by the jury. The first two times, counsel’s hearsay objection was sustained by the trial court. Nevertheless, the prosecutor continued to inquire about the substance of the out-of-court statements by using different forms of the same question. Ultimately, the hearsay was admitted without objection. During closing arguments, trial counsel again objected when the prosecutor began to argue that the hearsay statements bolstered the State’s other identification evidence. The trial court overruled the objection, apparently on the grounds that the evidence was already before the jury.

While it is conceivable that counsel had some unapparent reason for failing to object when the prosecutor finally elicited the hearsay testimony, it is inconceivable that any such reason would fall within the spectrum of objectively reasonable trial strategy. 3 As the Court of Appeals noted, this is not a case where coufisel could reasonably conclude that the hearsay evidence “potentially enhancefd] his client’s defense or at least [did] not seriously prejudice it.” Thompson v. State, 981 S.W.2d 319, 324 (Tex.App.—Houston [14 th Dist.] 1998). In fact, the hearsay evidence was potentially seriously damaging given its tendency to bolster the relatively weak identification evidence. Counsel clearly recognized this fact and had twice been successful in challenging its admissibility. Thus, while we do not have counsel’s own statement as to why he failed to object *817 when the prosecutor successfully elicited the hearsay testimony, the surrounding circumstances present sufficient evidence to overcome the Strickland presumption that counsel’s omission was the result of a calculated decision based on a reasonable trial strategy.

The Court’s opinion effectively requires that an appellant present direct evidence of trial counsel’s subjective motivations (or lack thereof) in order to overcome the presumption of objectively reasonable conduct on direct appeal. 4 Because the record is sufficient for the Court of Appeals to conclude that counsel’s actions were not presumptively reasonable under the facts of this case, the State’s first ground for review should be overruled. The remaining two grounds simply ask us to substitute our own judgment on ultimate questions of fact for that of the Court of Appeals. The appellate court’s opinion fairly addresses the issues raised on appeal and evaluates those issues under the proper legal standards. Even if our own decision might be different on the remaining questions presented, we should defer to the lower court’s application of law to fact where, as here, the evidence is sufficient to support their conclusion. The judgment of the Court of Appeals should be affirmed. I dissent.

. The Supreme Court in Strickland was adamant that appellate review of counsel’s performance be highly deferential: “It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 . Nevertheless, the "strong presumption” that counsel employed reasonable professional judgment in acting as he did is rebuttable. Specifically, appellant is required to prove by a preponderance of the evidence that counsel was ineffective. See Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984).

. Vasquez's conclusion is consistent with the focus of the first prong of Strickland — that is, "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690 , 104 S.Ct. at 2066 . This test sets forth an objective inquiry and does not predicate a conclusion that counsel was ineffective on counsel's subjective motivations. In other words, the focus of an ineffective assistance challenge should be on whether counsel rendered reasonably competent assistance and not on whether counsel may had some peculiar reason for doing as he did. If counsel’s performance is unreasonable "under prevailing professional norms,” Id., 466 U.S. at 688 , 104 S.Ct. at 2065 , justifications of "trial strategy” will not save the conviction.

. Neither the State nor the majority set forth a plausible reason for how counsel’s omission could have been of strategic design. The State, for example, argues that counsel may have sought to avoid drawing further attention to Sergeant Yanchak’s testimony. This malees no sense, however, given that the hearsay had been successfully challenged up until that point. By objecting, counsel would have managed to keep the testimony out entirely. For its part, the majority suggests that it may have been reasonable for counsel simply to have missed the objectionable material given the "artful questions employed by the prosecutor.” Ante, op. at 814. But this approach presupposes that counsel had no strategic reason for performing as he did and makes evidence of counsel’s own decision-making irrelevant.

. In a great majority of cases, the record on direct appeal will not contain an explicit statement on the part of trial counsel explaining the reasons why he failed to object. Therefore, by requiring the record to contain this information, the Court’s opinion effectively short-circuits virtually any attempt to raise this type of claim on direct appeal. This approach presents at least two additional practical problems. First, trial courts will be burdened with hearings in subsequent writ applications when the evidence sought is unnecessary to the ultimate disposition of the case. Second, an indigent defendant whose ineffective assistance claim is denied on direct review because of an "insufficient record” is left to attack the conviction collaterally without many of the resources, such as the assistance of appointed counsel and a free record, available on direct appeal. The indigent ha-beas petitioner would be left to pursue this important constitutional claim pro se.