Percy Ben Williams v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-02-00013-CR
Percy Ben WILLIAMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-2012
Honorable Bert Richardson, Judge Presiding

Opinion by: Catherine Stone, Justice

Concurring opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

 

Delivered and Filed: March 26, 2003

Constrained by existing precedent, I reluctantly concur in the majority's opinion and judgment. After opening the door to five prior felony convictions that even caused the trial judge to question defense counsel's trial strategy, defense counsel proceeded to call Betty Schroeder, a psychologist, as an expert witness. Most amazingly, defense counsel called Ms. Schroeder to testify on behalf of Williams. Generally, one would assume defense counsel would call witnesses whose testimony would be helpful to the defendant. In this case, Ms. Schroeder testified that jail had stabilized Williams's mental condition, the possibility of rehabilitation of Williams was very limited, and Williams would benefit from the structure of a prison system. The question that is then raised is what possible trial strategy could defense counsel have for calling Ms. Schroeder to testify on behalf of Williams?

Unfortunately, since the Texas Court of Criminal Appeals' decision four years ago in Thompson v. State, cited by the majority, we may not speculate on how non-existent that trial strategy was. After Thompson, we must hope that a defendant has the fortune of acquiring new counsel to file a motion for new trial raising the ineffective assistance complaint and is granted a hearing on the motion for new trial so that our record is not "silent" on the ineffective assistance issue. Because the record is silent in this case, we must overrule the ineffective assistance complaint on appeal. However, Williams should be permitted to raise this ineffective assistance issue in an application for habeas corpus relief. Perhaps, then, at a hearing on the habeas application, defense counsel could explain his trial strategy for calling an expert witness at the punishment phase to inform the jury that Williams would benefit by being sentenced to a term of imprisonment.

 

Alma L. L pez, Chief Justice

DO NOT PUBLISH