holding that defendant may base ineffective-assistance claim on failure to present witnesses only if defendant can show that witnesses were available and that their testimony would have benefitted defendant
How later courts described this case
- holding that defendant may base ineffective-assistance claim on failure to present witnesses only if defendant can show that witnesses were available and that their testimony would have benefitted defendant
Written by the judges who cited it.
The opinion
COHEN, Justice,
dissenting.
I would hold that the defense attorney rendered ineffective counsel at the punishment stage of trial by not objecting to the prosecutor’s jury argument, “If I ask these officers right here ... they would probably say to give him a year and to make him hurt_” I reach this conclusion only after considering all the evidence at both stages of the trial, including the jury argument at the punishment stage, the jury’s note to the judge during its deliberations on punishment, and the sentence assessed.
The striking thing about this case is that the jury assessed a sentence of six months imprisonment, even though the prosecutor requested only 60 days; even though there was no evidence of prior felony or misdemeanor convictions; even though there was no evidence of bad reputation; even though there was no evidence of an extraneous offense (except public intoxication); even though there was no flight, no resisting arrest, and no violence involved; and even though the defendant, who sought probation, was 42 years old, married, lived with his wife and six children, and had worked for almost eight years at the V.A. Hospital.
Why would the jury give appellant three times as much time in jail as the prosecutor desired? There are several answers. The first is the prosecutor’s misconduct in making a grossly improper argument that not only went outside the record, but also injected harmful new “facts” that were not facts at all, but his own speculation, or possibly imagination. Needless to say, there was no evidence that the arresting officers wanted to give appellant a year and “make him hurt.” There would never be such evidence in any case because no Texas judge would allow a prosecutor to ask police officers what punishment a defendant should get. No doubt aware of this, the prosecutor did not offer such inadmissible evidence — he just stood up and blurted it out.
This misconduct is especially objectionable because the prosecutor’s statement is probably not true. There is no reason to *418 believe that officers who arrested an armed man who did not flee, who did not threaten them, who did not resist arrest, and who did not “make them hurt,” would recommend a year sentence if they knew he was a long-term employee with no criminal record, who was living with and supporting seven dependents, and who would lose his job if jailed for a year. The arresting officers, unlike the jury, would have known that six months was an unusually severe sentence for this defendant convicted of this crime on these facts; Far from wanting “to make him hurt,” the officers might have been grateful the defendant cooperated, respected their authority, and yielded to it peacefully. They may have considered themselves lucky that it was appellant they met in the dark of night on January 3, 1989, instead of another armed suspect, who might have threatened, or taken, their lives.
The record of the punishment stage of this trial is revealing. The State offered no evidence. The prosecutor argued against probation. Except for arguing that the arresting officers wanted a year sentence, the prosecutor’s only specific punishment recommendation was the following:
What is the price of carrying a .25 calibre in your pocket in Houston, Texas? I think the price is this: I think 60 days in the Harris County jail because I want you to send a message and say we are sick and tired of what is going on out there in the street. If you carry a pistol like that, if you are in an area and you have a pistol and a police officer has to come in and pull a gun on you to make you act right or you are drunk and you have a pistol on you, you are going to pay a price. Not a year in jail, not 180 days, but you are going to pay with 60 days in jail.... I recommend that you give him some jail time. My recommendation is 60 days.
(Emphasis added.)
The jury sent out two notes during its deliberations on punishment. The first asked, “Has he ever been convicted of any other misdemeanors?” The court answered, “Continue your deliberations. You have all the evidence that has been admitted in this case.” Appellant had testified that he had never been convicted of a felony or a misdemeanor of moral turpitude. Ten minutes later, the jury asked:
If we give him a certain amount of time in the county jail will he serve the full term or be given time off for good behavior?
The court answered:
You are not to consider the amount of time the defendant may be required to serve in the Harris County Jail on any jail sentence you may give him. Such matters are within the exclusive jurisdiction of the Governor of Texas, the Texas Board of Pardons and Parole, and the Sheriff of Harris County, Texas, and are no concern of yours. You may not discuss how much time the defendant may be required to serve on any jail sentence you may give him.
The jury was obviously disregarding the instruction the trial judge gave in his charge, i.e., “in deliberating upon the punishment in this case, you must not refer to or discuss any matters not in evidence before you.” Thus, in addition to the prosecutor’s misconduct and the defense lawyer’s negligent failure to object to it, we have the jury’s disregard of the instructions in the charge.
The record reveals that the jury foreman served on a criminal jury before. If she was then given the parole instruction found unconstitutional in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987), she would have known that appellant might serve only one-third (or less) of his sentence. It is noteworthy that the jury’s verdict was exactly three times the prosecutor’s request, an arithmetical relationship we have held to be significant in finding reversible Rose error. See Early v. State, 779 S.W.2d 79, 81 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d); Bonner v. State, 779 S.W.2d 81, 83 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d); accord Arnold v. State, 786 S.W.2d 295, 303, 306-307, 308 (Tex.Crim.App.1990). As we suspected in Bonner and in Early , this jury may have tripled the 60 days the prosecutor sought in *419 order to make sure the defendant got his entire 60 days in jail.
This Court has held that a single error by counsel affecting only punishment may, if serious enough, constitute ineffective assistance of counsel. Cooper v. State, 769 S.W.2d 301, 305 (Tex.App.—Houston [1st Dist.] 1989 pet. ref'd); Snow v. State, 697 S.W.2d 663, 667 (Tex.App.—Houston [1st Dist.] 1985, pet. ref’d). This lawyer’s error was certainly not as bad as the errors in those cases. Nevertheless, considering the entire record, I would hold that the prosecutor’s misconduct was severe because it injected new, nonexistent “facts” that were harmful, inadmissible under any scenario, and probably false; that the defense lawyer’s failure to object to obvious misconduct of this magnitude should not be excused; and that the verdict may well have been different, but for the prosecutor’s argument, because nothing else in the record explains why, on these facts, a rational jury would assess three times the punishment the prosecutor desired. As the United States Supreme Court has written:
[W]e believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case ... An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by preponderance of the evidence to have determined the outcome.
Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052, 2068 , 80 L.Ed.2d 674 (1984).
The real reason this case should be reversed is because of the prosecutor’s intentional misconduct, not because of the defense lawyer’s negligent failure to object. Texas courts have reversed before for severe prosecutorial misconduct in jury argument and suggested that no objection was needed to preserve error. Bray v. State, 478 S.W.2d 89, 91 (Tex.Crim.App.1972). However, we have no point of error on appeal asserting that complaint. Thus, the tables are turned, and the prosecutor’s improper argument ends up stigmatizing the defense attorney. That is unfair to the defense attorney, but not as unfair as affirming the judgment and letting appellant suffer for the prosecutor’s acts. If this Court has the power to reverse, without a trial objection or a point of error, for prose-cutorial misconduct in jury argument, it should do so in this case. If not, the doctrine of ineffective assistance of counsel is broad enough to do justice for this defendant, even if it unavoidably does injustice to his trial lawyer.
I would sustain appellant’s point of error. Since the ineffectiveness by counsel affected only the punishment stage of trial, I would reverse the part of the judgment assessing punishment and remand the cause for another hearing on punishment. Tex.Code CRIM.PROC.Ann. art. 44.29(b) (Vernon Supp.1990).
I respectfully dissent.