Brown v. State

GREEN, Justice,

dissenting.

I respectfully dissent. Mandy Lee Brown shot and killed her husband, claiming it was self defense. The State claims it was a drug-related murder. The majority reverses and remands for a new trial largely on the basis that Brown’s trial counsel improperly raised her history of drug use before the jury and, as a consequence, rendered her ineffective assistance of counsel. I do not believe, however, that the errors complained of overcome the strong presumption of effective representation. Moreover, Brown has not shown there is a reasonable probability that, but for the errors of her trial counsel, the result of the trial would have been different.

In this “wife shoots husband” murder case, the State needed to provide a motive for the murder in the face of Brown’s self-defense claim. The State argued that Brown shot her husband in an argument over drugs. Consequently, proof of Brown’s history of drug addiction was admissible to show motive, see Tex.R.Crim. Evid. 404(b), contrary to the majority’s suggestion that such evidence would not be relevant in a murder case. See op. at 293. If it was apparent to Brown that the drug evidence was going to come in, it was not unreasonable for her to deal with her undeniable past drug use and try to minimize its impact. Indeed, the extraneous offense evidence cited by the majority as proof of the ineffectiveness of Brown’s counsel may be viewed as part of his strategy to deal with the State’s motive theory. For example, Brown’s testimony that drug use was part of her past is consistent with a theory that she could not have killed her husband over drugs because she was no longer a drug user. She also argued, with respect to her self-defense theory, that the cocaine found in her husband’s car was his and that his drug addiction was a cause of his abusive behavior toward her.

Whether or not Brown elicited evidence of her own drug history, the State was entitled to prove that she was, at the time of the murder, a hopeless drug addict who was willing to kill her husband for the drugs he hid on his body. That Brown’s testimony could perhaps also be seen as “opening the door” to the State’s proof does not make her counsel’s strategy of dealing with the fact of her drug use legally ineffective, however factually ineffective it may have turned out.

The record contains much evidence that is consistent with the State’s theory of the case. Defense counsel, playing with the cards that were dealt him, was duty bound to lay out what he thought was his best hand. From our distant, post-verdict perspective, we may not agree that he played his best cards. But we are not entitled to second guess. There is no perfect, or best, way to try a case. There are too many subjective factors involved in formulating what a lawyer considers, in his professional judgment, to be the best trial strategy. The strong presumption of effective representation exists in the law to take this into account. Brown has not overcome the presumption of effective representation because there is a plausible defen *296 sive theory that justifies the strategy employed by her trial counsel.

In order to obtain a reversal because of ineffective assistance of counsel, a defendant is required to prove harm. The test for determining whether ineffective assistance of counsel resulted in harm was set out in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 ; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). In view of the entire record in the case, there is nothing to suggest that the result of the trial would have been different had the claimed errors of counsel not occurred. As indicated, it is likely the evidence of Brown’s drug use would have come in as evidence in support of the State’s motive theory. It did not matter that the evidence first came in as elicited by Brown’s own attorney.

A convicted murderer should not be able to get a new trial simply because her trial strategy was unsuccessful. In my view, that is what has happened in this case. Therefore, I respectfully dissent.