finding no ineffective assistance where lead counsel relied on co-counsel to subpoena witnesses, despite defendant’s complaint as to lead counsel’s performance in that regard
How later courts described this case
- finding no ineffective assistance where lead counsel relied on co-counsel to subpoena witnesses, despite defendant’s complaint as to lead counsel’s performance in that regard
- holding that any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness
- stating that proof beyond a reasonable doubt that appellant fire the fatal shot is not necessary for conviction when the jury is charged on the law of parties
- holding that counsel was not ineffective for not having investigated without a showing that a viable defense could have been advanced
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Mosley v. State, 1998 Tex. Crim. App. LEXIS 86 (1998)
928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249
The opinion
KELLER, Judge,
concurring.
I write separately with regard to supplemental points of error sixteen and seventeen to dispel the notion that the failure to conduct a sufficiency review of the mitigation special issue (Article 37.071 § 2(e) 1 ) is somehow inconsistent with the language of Article 44.251. The latter provision states in relevant part:
The court of criminal appeals shall reform a sentence of death to a sentence of confinement in the institutional division of the Texas Department of Criminal Justice for life if the court finds that there is insufficient evidence to support an affirmative answer to an issue submitted to the jury under Section 2(b), Article 37.071, or Section 3(b), Article 37.0711, of this code or a negative answer to an issue submitted to a jury under Section 2(e), Article 37.071, or Section 3(e), Article 37.0711, of this code.
Art. 44.251(a) (emphasis added).
The plain language of this provision requires reformation of a death sentence to life if this Court conducts a sufficiency review and finds the evidence to be insufficient. The wording of the statute does not require that a sufficiency review be conducted. This conclusion is supported by the fact that the other subsections of Article 44.251 all relate to this Court’s power to reform death sentences but do not relate to a review of the sufficiency of the evidence. See Art. 44.251(b) & (c).
Further, before the passage of the original version of this provision, this Court did not have the power to reform a death sentence to life imprisonment and was required to remand the case for a new trial. Ocker v. State, 477 S.W.2d 288, 290 (Tex.Crim.App. 1972). Harris v. State, 485 S.W.2d 284 (Tex. Crim.App.1972). Bogany v. State, 661 S.W.2d 957, 959 (Tex.Crim.App.1983) (Teague, J. concurring). We held that limited authorization to make such reformations was conferred when the legislature enacted Article 44.251. Sorola v. State, 693 S.W.2d 417, 419 (Tex.Crim.App.1985), cert. denied, 493 U.S. 1005 , 110 S.Ct. 569 , 107 L.Ed.2d 563 (1989).
Legislative history further supports the view that Article 44.251 does not require a sufficiency review but merely prescribes the remedy in the event such a review is conducted. Senator Glasgow, on the floor of the Senate before passage, noted that, under the then-current law, if this Court found the evidence to be insufficient to support an affirmative finding on the punishment issues, then the case had to be retried all over again. H.B. 1164, Sen. Glasgow, Senate Floor, June 30,1981. Glasgow stated that the purpose of the bill was to permit this Court to reform the sentence to life instead of starting all over. Id. Representative McFarland made similar comments on the floor of the House of Representatives. H.B. 1164, Rep. McFarland, House Floor, Second Reading, April 14, 1981.
Before the effective date of the 1991 amendment that inserted the emphasized language regarding mitigation into Article *525 44.251, Judge Clinton noted that, if this Court overturned a judgment based upon a sufficiency review of mitigating evidence, we would not have the power to reform the judgment to a life sentence. Ex Parte Goodman, 816 S.W.2d 383 , 388 n. * (Tex.Crim. App.1991) (Clinton, J. concurring). An appropriate interpretation of the 1991 amendment is that the Legislature simply did not want to leave a loophole in the statute in the event that this Court or the United States Supreme Court decided that the mitigation issue was subject to a sufficiency review.
The fact that this interpretation may leave the provision without practical effect under current law is of no concern. As the majority opinion explains, the statutory mitigation issue is merely a codification of Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). In reacting to the Supreme Court’s decision, the legislature may not have had an opinion as to whether a sufficiency review was appropriate. Or, it may have believed that there was some possibility that the courts would decide that such a review was constitutionally required. Because Article 44.251 is merely a remedy statute regarding this Court’s power to reform a death sentence to life imprisonment, one should not infer from it a mandate by the legislature to conduct a sufficiency review where such intent is not clearly found elsewhere.
To the extent that the majority holds or implies that the language of Art. 44.251 indicates that a sufficiency review of mitigating evidence should be conducted, I disagree. In all other respects, I join the majority opinion.
McCORMICK, P.J., and WHITE, J., join.
. All references to Articles are to the Texas Code of Criminal Procedure unless otherwise provided.