# Ex Parte Cruz

> Court of Criminal Appeals of Texas · October 28, 1987 · 739 S.W.2d 53

URL: https://www.frixlaw.com/law-library/cases/9863311

## Case

- **Full name:** Ex Parte Roland CRUZ
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 28, 1987
- **Citations:** 739 S.W.2d 53; 1987 Tex. Crim. App. LEXIS 684
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** McCormick, Clinton, Duncan, Miller, Teague
- **Cited by:** 268 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Hernandez v. State, 1999 Tex. Crim. App. LEXIS 33 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863311

## How later opinions describe it (automated extraction)

- holding record insufficient to justify finding that attorney failed to properly investigate case
- noting that right to effective representation by counsel does not require that counsel be "errorless" or permit reviewing court to judge counsel's performance by hindsight
- applying the standard of Ex parte Duffy, 607 S.W.2d at 516, to the penalty stage of the trial

## Opinion text

CLINTON, Judge,
dissenting.
“Fully stated, the test for effective counsel is ‘counsel reasonably likely to render and rendering reasonably effective assistance,’ McKenna v. Ellis, 280 F.2d 592 [at 590] (5 Cir.196[0]) as quoted approvingly by the Court in Caraway v. State, 417 S.W.2d 159, 162 (Tex.Cr.App.1967).”
Ex parte Duffy, 607 S.W.2d 507, 514, n. 14 (Tex.Cr.App.1980). 1
The majority opinion in this cause dramatically demonstrates the utter folly of blindly following opinions of the Supreme Court of the United States when we decide questions readily answerable under our own law. Only because in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the Supreme Court did not consider “the role of counsel in an ordinary sentencing,” 466 U.S., at 686 , 104 S.Ct. at 2064 , does the majority revisit Texas standards for judging effective assistance of counsel. While some may welcome the return, one consequence will surely be more confusion ahead.
There is already a federal standard for counseling a plea of guilty, for which the “prejudice” test of Strickland v. Washington, supra, is made. McMann v. Richardson, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970); Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). If not yet the rule in Texas, see Ex parte Adams, 707 S.W.2d 646 (Tex.Cr.App.1986), the Court certainly adopts it in Ex parte Pool, 738 S.W.2d 285 (Tex.Cr.App.1987).
Now when the plea is not guilty there is a federal set of tests for capital cases; the same tests apply to trial of noncapital cases through the first phase. But since the Supreme Court has pretermitted a federal standard for effective assistance during a punishment proceeding, we look to state law.
The Supreme Court can create such anomalies because in writing countrywide constitutional rules it has the prerogative of leaving gaps for the states to close. This Court, however, does not have that option. We must write the rules for the bench and bar to know ineffective assistance of counsel when they see it. Such was our objective in Part III of Ex parte Duffy, supra, at 513-516 , wherein we concluded:
“Until further experience teaches otherwise we will apply here and continue to use the standard of ‘reasonably effective assistance of counsel’ to test adequacy of representation afforded an accused by retained as well as appointed counsel when the performance is to be judged by the Sixth Amendment right to assistance of counsel made applicable to the states by the Fourteenth Amendment — also by our own ‘right to be heard’provision of Article I, Section 10, Bill of Rights, Constitution of Texas.”
If “further experience” has taught that the lesson in Ex parte Duffy is no longer valid, some of us were not in class. What we have learned from experience is that from time to time a majority of this Court seems driven to pretend that Justices of Supreme Court of the United States alone understand and are competent to decide constitutional law — not only for the country but also for this Court and other courts of this State. But when the Supreme Court has not written on an issue the majority is willing to let Texas courts try their hand. Those notions are an affront to the Constitution of the State of Texas.
Ex parte Duffy makes absolutely plain that under the “right to be heard” clause *61 of Article I, § 10 in our own Bill of Rights, “reasonably effective assistance of counsel” is a constitutional standard for judging performance of counsel. That it is fit and proper to apply it here to the matter of “ordinary sentencing” means that but for the intransigence of the majority the standard is equally appropriate for testing adequacy of all representation by counsel.
Therefore, the question is “whether this petitioner was ‘left to the mercies of incompetent counsel,’ incompetent in the sense that his purported assistance was unreasonably ineffective.” Ex parte Duffy, at 526-527. Without judging by hindsight, I find this record requires an affirmative answer.
Trial counsel made a judgment call “that since a small child had been killed, a jury might very well give him a considerable prison sentence,” and because “he felt Judge McMaster to be a fair man.... he felt it advisable to go to him for punishment.” Maj. op. at p. 55. Or as the majority calls it, “an informed and conscious piece of trial strategy.” Maj. op. at p. 59. So far so good. But once his client decided to follow his advice, counsel was obliged to plan and to prepare tactics to execute that strategy.
His first duty was to acquaint himself not only with the law but also with the facts relative to the matter of punishment in order to carry out his responsibility to present a “best case” to the trial judge. While legally and factually he knew enough to file an application for probation, his own testimony supports findings by the trial judge to the effect that counsel had not studied relevant punishment law. 2 When the application was filed, presumably pretrial to be timely, if the fact is that he had never been convicted of a felony, of course applicant was then eligible for probation. But the issue is his state of preparedness for every foreseeable eventuality at a punishment hearing.
While his counsel “felt Judge McMaster to be a fair man,” counsel did not know that if the proof showed his client used or exhibited deadly weapon, as it surely did, Judge McMaster was authorized, if not mandated, by law to make and enter an affirmative finding, and thereby render applicant not only ineligible for probation but also delay his eligibility for release on parole. Not knowing of those possible consequences, counsel could not plan and prepare to meet them with feasible alternatives.
Indeed, according to his testimony he failed to investigate the relevant facts to devise any tactic at all in advance of the punishment hearing. When asked to justify his “expectations” for his client, counsel said they were based “on the evidence that was presented and upon my knowledge of general practice of law, my understanding of people.” Then he volunteered a statement that speaks volumes of unpreparedness: “I did not know what the P.S.I. would reveal.” Those bases were faulted by none other than Judge McMaster when he testified that “after considering the facts of the case and reading the P.S.I., he would not have given probation....”
This record shows that counsel could do no more than his own testimony proves he did — nothing! On behalf of his client he would hope for the best and expect miracles, namely, “reduction to a misdemean- or,” “that the judge would let him off the hook” or “grant a new trial.”
Gauged by the totality of his representation of applicant with respect to punishment, for lack of preparation as to law and facts counsel was not likely to render effective assistance, and for want of any representation other than subjective hope and vain expectations he did not render effective assistance.
Because the majority does not cause the Court to vacate assessment of punishment and sentence and order a fresh hearing on punishment, I respectfully dissent.
. "The standard we retain mandates an examination both of competence, ‘likely to render,’ and of assistance, ‘and rendering,’ in determining effectiveness of counsel." Id., at 516, n. 17. (All emphasis is mine throughout this opinion unless otherwise indicated.)
. Beside the point is Jones v. State, 596 S.W.2d 910 (Tex.Cr.App. 1980), holding error did not attend failure to admonish that defendant was ineligible for probation since the judgment ultimately entered did not contain an affirmative finding about a deadly weapon.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863311. Public record. Not legal advice.