Jimmy Wayne Hughes v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

 

No. 10-93-271-CR

 

JIMMY WAYNE HUGHES,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 66th District Court

Hill County, Texas

Trial Court # 29,958

 

O P I N I O N

 

A jury convicted Jimmy Wayne Hughes of murder and sentenced him to ninety-nine year's imprisonment. See Tex. Penal Code Ann. 12.32, 19.02 (Vernon 1994). He appeals on five points, asserting that trial counsel was ineffective, that the evidence was insufficient to support the murder conviction, and that the court erred in denying his motion for the judge to assess punishment.

We will reverse the judgment and remand the cause for a new punishment hearing.

FACTUAL BACKGROUND

At trial, Hughes testified that on May 17, 1993, he met James Robinson, Wilma Whitten, and some of Whitten's friends at Ceder Creek Park at Lake Whitney. He already knew Robinson and Whitten who were boyfriend and girlfriend and were living together. The group spent the afternoon fishing and drinking beer. Later that evening, Hughes met Robinson and Whitten at their home. The three left to drive to the home of "Lou Ann," a friend of Whitten's who had also been at the lake. Robinson and Whitten went in Whitten's vehicle, with Robinson driving; Hughes followed in his own car.

Hughes changed his mind about going to Lou Ann's house. He passed Whitten's car and pulled to the side of the road. Robinson stopped behind Hughes. Hughes walked back to Whitten's side of the car and told her that he had decided not to go with them. Robinson began cussing and tried to "ram" Hughes between the two vehicles as he walked away.

Hughes became angry and started towards Robinson "with my hands up and my fists doubled up[,] I thought we was just going to have a normal fist fight." Robinson, however, swung at Hughes with a knife. // Hughes pulled out his pocket knife and, when Robinson came at him again, cut Robinson on the shoulder. Robinson came at him again, and Hughes stuck him twice more with the knife. Robinson turned and hurried back to Whitten's car. Fearful that Robinson was going to get a pistol from the car, Hughes ran back to his own car and drove away.

Hughes testified that he left his vehicle at a friend's house because he was "too intoxicated to drive it." // He caught a ride to his cousin Janice Baker's home. She took him to Interstate 35 where he hitchhiked to Waco. He called the Whitney hospital on May 20 and found that Robinson was dead. Hughes then turned himself in to the McLennan County Sheriff's Department.

Whitten's version of the events of the night of May 17 differs. She testified that she, not Robinson, was driving her car to Lou Ann's house, and that Hughes was following in his car. At the intersection of Farm-to-Market 2684, Hughes passed her at a high rate of speed, slammed on the brakes, and stopped "almost in the middle of the road." Whitten stopped her car behind Hughes' vehicle. Hughes walked back to the driver's side of her car and asked Robinson, "Do you have a problem with me?" Robinson replied that he did not. Hughes told Robinson, "Get your ass out of the car."

Whitten testified that she and Robinson thought Hughes was "kidding around." Robinson got out of the car and met Hughes between the cars. Whitten said that she was not paying much attention to the men; however, she had the windows down and did not hear any argument between them. She saw both men "raise their arms toward each other as if to embrace." She looked down to light a cigarette then looked up to see Robinson walking back towards her car. He got in the passenger side and told her that he had been stabbed and needed to get to a hospital. Whitten thought Robinson was kidding, but touched him and saw blood. She immediately put her car in gear and "took off" hitting the back tail light and "sideswiping" the passenger side of Hughes' car in her haste.

Tom Byford, Hill County deputy sheriff, testified that he was dispatched to the Whitney Hospital emergency room at about 11 p.m. on May 17. He photographed Robinson's body and removed the personal belongings. Byford found an unopened pocket knife in Robinson's right front pocket. Byford also photographed Whitten's vehicle and the crime scene. He stated that there was blood on the passenger's side of Whitten's vehicle on the seat, floorboard, and interior of the door. He identified photographs of Hughes' vehicle that showed a glancing blow from Whitten's car on the back right side.

Dr. Juan Luis Zamora, who performed the autopsy, testified that Robinson's blood-alcohol content was .23. Zamora also testified that one stab wound was five-inches deep and another was six-inches deep.

Janice Baker, Hughes' cousin, testified that Hughes arrived at her home the night of May 17 asking for a ride to Interstate 35. He told Baker that his car had been wrecked and was not drivable. Hughes said that he and Robinson "had had an altercation, and that they had got into a fight, and [Hughes] stabbed him." Hughes told her that Robinson had "jumped on him" and that he had stabbed Robinson four times in the shoulder and chest area. Baker and Hughes discussed the possibility of Hughes turning himself in to the police, but Hughes was afraid of "the cops beating him up." Baker, on cross-examination, corroborated Hughes' version of his testimony about the incident. She testified that Hughes told her that Robinson had "rammed" Hughes' vehicle, that Robinson kept pushing and shoving Hughes, and that the men were arguing over Whitten.

The court charged the jury on murder, voluntary manslaughter, involuntary manslaughter, and self-defense. The jury returned a guilty verdict on the charge of murder within forty-five minutes. After the jury returned its guilty verdict and was recessed for a break, Hughes' trial counsel informed the court that he was drawing up a motion. "We want to go to the Judge on punishment and application for probation." The court stated that, unless the State agreed to withdraw the matter from the jury, the State was entitled to have the jury assess punishment.

Following the break, counsel presented a "Motion to Withdraw the Jury Decision on Punishment and Application for Probation to the Court." The State would not consent to withdrawing punishment from the jury, and the court denied the motion. The jury returned a verdict within an hour, assessing punishment at ninety-nine years in prison.

POSTTRIAL

After trial, which ended on October 7, 1993, retained trial counsel informed the court that Hughes was indigent and would require court-appointed counsel on appeal. The court appointed appellate counsel on October 14. Trial counsel wrote a letter to the judge on October 15 that read in part:

In conclusion, I am fully aware I did a poor job of defending Mr. Hughes. Aside from my performance, I know in my own mind that the jury was guilty of misconduct, for they were laughing and carrying on in both the guilt and innocence phase of trial as well as the punishment phase. I found out after the trial that a member of the jury was a Police Sergeant for Red Oak, Texas, but at any rate under this ruling, I do not think that any Defendant under similar circumstances could have secured a fair decision from that jury.

(Emphasis added). Trial counsel filed a notice of appeal on October 15; appellate counsel filed a notice of appeal October 22.

Trial counsel filed a Motion for New Trial on October 25, asserting "obvious jury misconduct" because the jury had found Hughes guilty in only thirty-five minutes // and assessed ninety-nine years in prison after only forty-five minutes of deliberation. // On November 3, trial counsel, Hughes, and the prosecutor were present for a hearing on the motion for new trial. Trial counsel informed the court that appellate counsel had not been notified of the hearing. Trial counsel also informed the court that appellate counsel was preparing an amended motion for new trial. The court announced that it would reset the hearing on the motion for new trial at the request of Hughes' attorneys and that, if no hearing were requested, the motion for new trial would be overruled by operation of law.

A "First Supplemental Motion for New Trial" was filed December 23. Although the motion had signature blocks for both trial and appellate counsel, only trial counsel signed the document. This motion alleged jury misconduct and ineffective counsel. The bulk of the motion complained of the court's refusal to withdraw punishment from the jury. On February 7, 1994, a "First Amended Motion for New Trial" was filed by trial counsel "with permission of the Court." In this motion, trial counsel incorporated the results of appellate counsel's "investigative report" i.e., his conversation with the presiding juror. No hearing was held on any motion for new trial.

INEFFECTIVE ASSISTANCE OF COUNSEL FIRST PHASE

In his first three points, Hughes complains that he was denied effective assistance of counsel, that counsel's failures resulted in a trial so unfair as to deny him due process of law, and that the court erred in refusing to grant a new trial based on the ineffectiveness of trial counsel.

To prevail on a claim of ineffective assistance of counsel at the guilt-innocence phase, Hughes must meet the two-pronged test used to analyze such claims. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 505-06 (Tex. Crim. App. 1991). First, he must show that his trial counsel's performance was so deficient, because he made errors of such a serious nature, that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id. Second, he must demonstrate that the deficient performance so prejudiced his defense that he was deprived of a fair trial, i.e., that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 406 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.; Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App. San Antonio 1991, pet. ref'd).

A claim of ineffective assistance of counsel must be determined upon the particular facts and circumstances of each individual case. Id. A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Stafford, 813 S.W.2d at 506. Stated another way: Counsel's competence is presumed and the party asserting ineffective assistance must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. See id. Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. Jimenez, 804 S.W.2d at 338. That another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. Id.

Hughes complains of several areas of counsel's alleged deficient performance:

" failure to make appropriate evidentiary objections and to file motions, including failing to object to photographs of Robinson's corpse shortly before the autopsy;

" inadequate pretrial discovery and investigation by failing to interview potential witnesses or to obtain their statements prior to trial;

" failure to conduct effective cross-examination, eliciting testimony which unnecessarily undermined Hughes' defensive theory and bolstered the State's version of events;

" failure to develop critical evidence during direct examination of defense witnesses and unnecessarily alluding to Hughes' being on parole for felony driving while intoxicated;

" failure to conduct an effective voir dire examination.

We abated this matter because trial counsel himself had raised the specter of ineffective assistance of counsel in his various motions for new trial. Furthermore, appellate counsel had raised questions of whether trial counsel had failed to communicate plea-bargain offers to Hughes and whether jurors had discussed the ineffectiveness of trial counsel in their deliberations. The court held an evidentiary hearing and filed findings of fact and conclusions of law.

At the evidentiary hearing, three jurors testified. Hughes, his mother, his sister and brother-in-law, and trial counsel also took the stand. The trial court made findings of fact and conclusions of law stating that trial counsel:

" adequately investigated the facts of the case and was prepared for the defense of Hughes;

" filed adequate motions and conducted an appropriate pretrial representation of Hughes;

" developed a strategy of defense prior to trial which was neither unusual nor unique and did not result in Hughes receiving an unfair trial;

" conducted a voir dire examination that did not prejudice Hughes and that no showing was made that the jury selected was not fair and impartial;

" developed evidence at trial that was consistent with his defensive theory;

" adequately examined and cross-examined witnesses, discussed witnesses' testimony prior to trial, and understood defense character witnesses prior to trial;

" asked for and received charges consistent with his defensive theory; and

" conveyed the State's plea bargain offer to Hughes prior to trial.

The court concluded that Hughes had not shown that trial counsel's performance was deficient or that any errors made by counsel were so serious that he was not functioning as counsel as guaranteed by the Sixth Amendment or that any deficiencies in counsel's performance had prejudiced Hughes so seriously as to deprive him of a fair trial.

summary of testimony at evidentiary hearing

Jimmy Ray Tidwell, a juror at Hughes' trial, testified that trial counsel seemed to be "groping for facts" and did not seem prepared. Counsel pulled a pocket knife out of his own pocket, "which the jury couldn't hardly believe," to prove that such a knife could not make the six-inch stab wounds in the victim. The prosecution then produced a large pocket knife capable of making such wounds. "We couldn't understand why the defense would even go through a motion like that." Tidwell also testified that counsel asked for a "Christian" jury during voir dire, and then during punishment argument "insinuated that he didn't get a Christian jury. . . . That didn't set good with those jurors." Tidwell testified that he believed the jury's verdict would have been different had trial counsel not represented Hughes and that, in his opinion, counsel did not effectively represent Hughes.

Rickey Jess McCoy, also a juror, testified that in his opinion, counsel had not been effective in getting across facts and information to the jury. In McCoy's opinion, counsel "ineffectively represented" Hughes.

Ricky Lynn Sullins, the presiding juror, testified that the photographs introduced at trial corroborated the State's version of the facts. All three jurors testified that another juror had at one point made the comment, "If anything happens to me and [trial counsel] represents me, just take me out and shoot me."

Trial counsel testified that his defense strategy was to "let everything come out." Hughes told him that he was not guilty of murder, "[s]o the strategy was that we had two good defenses. One was sudden passion; the second was self-defense." Counsel likened his strategy to the biblical axiom, "You shall know the truth and the truth shall set you free. Either of these defenses would have set Jimmy free." Because Hughes would have to take the stand to testify to these defenses, counsel decided to admit Hughes' alcohol abuse and "womanizing" during voir dire. Counsel testified that he attempted to show that Hughes' problems were alcohol related. Although Hughes had many failures, "all his trouble wrapped around that drinking, but not violence and not murder." Counsel also injected evidence of Hughes' occasional marihuana use.

As to failing to exclude photographs and other harmful evidence, counsel again reiterated that the strategy had been to "let everything in, let the truth in, and I think the truth would acquit Jimmy Hughes." With regard to attempting to exclude evidence, counsel said, "The jury is going to find that you're unworthy to believe, that you're trying to play games with them." Specifically as to the photographs, counsel testified that objecting to the photos would have been "inconsistent with my plan." Furthermore, he believed the photographs were admissible, that he had seen much worse photographs, and he had "never seen a judge keep them out." Because he believed the photos admissible, counsel offered them himself.

Counsel was questioned about his statement in his letter to the judge after trial, in which he stated, `In conclusion, I'm fully aware that I did a poor job of defending Mr. Hughes." Counsel responded, "I'll tell you right now, I did a very poor job in defending Mr. Hughes, as it turned out. I don't care if it was a week or ten years. Res ipsa loquitur, it speaks for itself." However, counsel stated that his doing a "poor job" "had nothing to [do] with my strategy."

When asked why he felt he had done a poor job, counsel explained that he had not taken enough time on the jury voir dire, claiming that the judge had "announced to the attorneys he was going to limit voir dire examination." Thus, counsel had been limited to "either 30 minutes or an hour, something like that." Counsel stated, "I think I got one of the sorriest juries I ever encountered in my life. I was looking for an educated, articulate, conscientious, law-abiding, God-fearing jury. Now, I said privately I'd hate to be caught dead with the Lord that some members of that jury venire apparently worshipped."

Counsel testified that he adequately: prepared for trial, researched the law, communicated with his client, and interviewed defense witnesses. Counsel insisted that jury misconduct had occurred because the jurors were "jovial" and "laughing and carrying on."

After counsel testified, the trial judge stated he had "absolutely no recollection of ever limiting voir dire. I just don't ever do that." He further stated that the docket sheet shows that voir dire began at 9:00 a.m., went through lunch, and was not concluded until 1:30 p.m., "so I don't know where the 30 minutes comes from." The judge stated that he did not "ever recall ever putting a time limit on a criminal voir dire."

We now look to Hughes' specific complaints about counsel's performance.

failure to make appropriate evidentiary objections and file motions:

Hughes complains that counsel failed to make a motion in limine or to object at trial to State's Exhibits No. 7 through 12 photographs of Robinson's corpse taken at the hospital shortly after his death. Hughes argues that the photos are inherently inflammatory and prejudicial. Also, the stab wounds shown in the photos had been enlarged by emergency room staff treating Robinson, and thus were "misleading" to the jury. The photos were also emphasized in the punishment phase when the prosecutor urged the jury in closing argument to look at the photos and "see exactly how [Robinson] left this world."

At the evidentiary hearing, counsel stated his belief that the photographs were admissible, that he had seen far worse photographs, and that in his experience, a judge would not have excluded the photographs. Thus, his strategy was to "let everything in" and not try to hide anything from the jury.

Hughes also complains that counsel offered as defense exhibits several other photographs taken by Deputy Byford. Defense Exhibit No. 8 is a photograph depicting blood stains on the passenger seat of Whitten's car thus bolstering the State's evidence that Whitten was driving her car that evening. Exhibits 9, 11, and 12 are photographs depicting scrapes to the side of Whitten's vehicle scrapes which are consistent with Whitten's testimony that she "sideswiped" Hughes car in her hurry after the stabbing. Hughes denied that Whitten's car was in that shape the night of the altercation.

Counsel testified at the posttrial evidentiary hearing that the photographs had not been made available to him prior to trial, although he had filed a pretrial discovery motion. // He testified that he could have objected to the "surprise" but thought that the State "could have gotten them in." Therefore, he explained, "If they're going to come in, I'd like to get credit, or what little credit I could, for putting them in." Trying to exclude the photographs would be "inconsistent with the position I'd taken--we'd taken, actually--is that you're trying to hide something."

inadequate pretrial discovery and investigation

Hughes argues that counsel's cross-examination of Whitten was "sloppy, unorganized, and done with no clear strategy in mind." Prior to trial, counsel filed and the court granted a discovery motion permitting Hughes to inspect lists of State's witnesses, statements of those witnesses, and all photographs connected with the case. Counsel attempted to interview Whitten at her home in Whitney. Whitten refused to speak with counsel and soon left for Dallas. Counsel did not interview Whitten prior to trial. After Whitten testified on direct examination, counsel requested and received her written statement.

failure to conduct effective cross-examination

Hughes complains that counsel's cross-examination of Deputy Byford harmed him. Byford testified, in response to counsel's questions, that he found blood on the seat, floorboard, and interior door of the passenger's side of Whitten's car thus undermining Hughes' contention that Robinson had been driving.

He also complains that in cross-examining Dr. Zamora, counsel inexplicably produced his own small "Old-Timer" pocket knife and asked if such a knife could produce the type of wounds exhibited on the victim's body. Zamora responded that it was neither probable nor possible, and, during redirect, stated that a larger knife // most probably produced the fatal injuries.

failed to call significant helpful witnesses

Hughes complains that counsel did not call Anita Lou Ann Donaldson, the woman whose house was the trio's destination before the stabbing occurred. He contends that Donaldson was in the courtroom during trial a fact trial counsel did not know until well into the trial. At the evidentiary hearing, however, Hughes failed to show how Donaldson's testimony would have affected the verdict.

introduction of evidence of hughes' alcohol use, drug use, and womanizing

Hughes argues that, by introducing his excessive alcohol use, marihuana use, and "womanizing," counsel's performance was "clearly prosecutorial." He complains that this conduct was never tied to any defensive theory or used to mitigate his actions on the night of the stabbing. As stated previously, counsel stated that his trial strategy was to "let everything in." Because Hughes was going to take the stand and thus put his character at issue counsel chose to mitigate the impact: "[I]f your opponent can prove something on you that's bad, my opinion is now and it was then, the thing to do is minimize it."

I could have kept that out of the jury, but I had to have [Hughes'] testimony, even though he was the accused. I have got to put him on the stand. And when I put him on the stand, his character comes in issue, and he's subject to cross-examination. But if you put his character in issue, and everything like that, and it was going in issue, and his reputation for truth and veracity and [the] whole bit, and there is a big difference between violence and murder, and someone who's just a good old boy that likes to drink. And he likes to drink and he drinks like a fish.

Counsel's strategy was to "let everything come in for the purpose of showing the jury we're not hiding anything."

presentation of plea bargain

The question of whether counsel presented and discussed the State's offer of a plea bargain was developed at the evidentiary hearing. Hughes himself testified at the evidentiary hearing that counsel had informed him of the offer of thirty years. According to Hughes, counsel did not discuss the plea with him. Rather counsel said, "You don't want that, do you Jimmy?" to which Hughes replied, "No, I don't." Counsel testified that he has never accepted a plea bargain for a client who claimed to be not guilty of the offense.

conclusion

As stated previously, counsel's competence is presumed and Hughes must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. See Stafford, 813 S.W.2d at 506. Here, the trial court found that the strategy was "not either unusual or unique and did not result in [Hughes] receiving an unfair trial." The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance. Jimenez, 804 S.W.2d at 338. Although we might not agree with how counsel implemented his strategy, we cannot say that Hughes met his heavy burden of showing that counsel's actions were unreasonable under prevailing professional norms or that his strategy was not sound. See id. We overrule points one through three as they pertain to ineffective assistance of counsel during the guilt-innocence phase.

INSUFFICIENT EVIDENCE

In his fourth point, Hughes asserts that the evidence was insufficient to support a conviction for first-degree murder. A person commits murder if he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. 19.02(b)(2). Hughes argues that there is no evidence that he intended to cause serious bodily injury.

Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1994); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is free to accept or reject any or all of the evidence presented by either party. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Thus, reconciliation of conflicts in the evidence is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Hughes testified that he stabbed Robinson; however, he said that he did it in response to Robinson lunging at him with a knife. According to Whitten, Hughes pulled his vehicle in front of hers, slammed on the brakes, and walked back to her car. Although she testified that she thought the men were "kidding around," she also testified that Hughes made statements like, "Do you have a problem with me?" and "Get your ass out of the car." Additionally, the jury had Dr. Zamora's testimony about the nature of the wounds.

The fact finder may infer intent from the conduct of and remarks made by the accused and the circumstances surrounding the accused's acts. Bowles v. State, 550 S.W.2d 84, 85 (Tex. Crim. App. 1977); Branson v. State, 825 S.W.2d 162, 168 (Tex. App. Dallas 1992, no pet.). Viewing the evidence in the light most favorable to the verdict, we believe that any rational trier of fact could have found beyond a reasonable doubt that Hughes intended to cause serious bodily injury. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Matson v. State, 819 S.W.2d at 843. We overrule point four.

ASSESSMENT OF PUNISHMENT

In his final point, Hughes argues that the court erred in overruling his objections to allowing the jury to assess punishment. In his original brief, Hughes asserted that, prior to voir dire, he had made a motion to have the judge assess punishment. The transcript shows that counsel filed a "Motion to Correct" on September 15, shortly before trial. The motion stated that counsel had previously filed a motion for the jury to assess punishment and had filed an application for probation. However, counsel had learned that Hughes had a prior felony conviction and was thus ineligible to go to the jury for probation. Counsel requested that Hughes be allowed to submit his probation application to the judge in the event he was convicted.

After the jury returned its guilty verdict, counsel informed the court that he was drawing up a motion: "We want to go to the Judge on punishment and application for probation." The court stated that, unless the State agreed to withdraw the matter from the jury, the State was entitled to have the jury assess punishment. Before arguments began at the punishment stage, counsel presented a "Motion to Withdraw the Jury Decision on Punishment and Application for Probation to the Court." // Counsel did not mention to the court that he had previously filed the "Motion to Correct."

The State would not consent to withdrawing punishment from the jury, and the court denied the motion. The jury returned a verdict within an hour assessing punishment at ninety-nine years in prison.

In his final "Motion for New Trial," counsel argued that the court erred in overruling his objection to going to the jury for punishment because (1) he had made the "Motion to Correct" prior to voir dire and (2) article 37.07b of the Code of Criminal Procedure clearly states that it is the judge's responsibility to assess punishment.

At the evidentiary hearing, the trial judge addressed certain allegations in the motion for new trial:

THE COURT: I noticed in the Motion for New Trial that it was stated on more than one occasion that the Defendant had requested the opportunity to withdraw his designation or selection of the jury to set punishment. And in his motion he states that he had requested and filed a motion to withdraw the punishment consideration from the jury prior to voir dire. My recollection is that it was never brought to this Court's attention in any manner until after the jury had returned a finding of guilty and then a motion was filed on that taken up by the Court, and that, of course, is a matter of record. But I was unable to recall any matter ever being brought to this Court's attention prior to that time concerning the request to withdraw the consideration of punishment from the jury.

 

. . .

For the record . . . the Motion to Correct . . . was never brought to [my attention], if it was brought to the attention of any Judge. And it was never--so far as my recollection is concerned and my docket sheet is concerned, it was never acted on. And the only time that the question arose as to the change in request for the jury to set punishment was after the finding of guilty and before we began the punishment phase. . . .

The district attorney concurred with the trial judge's recollection of events.

Article 37.07, section 2(b), of the Code of Criminal Procedure provides in pertinent part:

[I]f a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment . . . provided, however, that . . . in other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury . . . . If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.

Tex. Code Crim. Proc. Ann. art. 37.07, 2(b) (Vernon 1994). Hughes' "Motion to Withdraw the Jury Decision on Punishment and Application for Probation to the Court" the only motion brought to the court's attention at that time was denied because the State did not consent. Thus, under section 2(b) of article 37.07, the court did not err in denying the motion. We overrule point five.

Having overruled point five, however, we revisit the question of ineffective assistance of counsel.

INEFFECTIVE ASSISTANCE AT PUNISHMENT

Hughes's supplemental brief extends his first point that counsel was ineffective to the punishment phase. The standard for evaluating a punishment phase "ineffective assistance of counsel" claim is the "reasonably effective assistance" standard of Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980), rather than the test articulated in Strickland. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). The test is whether the defendant received reasonably effective assistance of counsel, i.e., whether counsel was reasonably likely to render effective assistance and whether counsel reasonably rendered effective assistance. Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). While the reviewing court looks at the totality of the representation, under some circumstances a single error of omission by counsel can constitute ineffective assistance. Ex parte Felton, 815 S.W.2d at 735.

In Ex parte Walker, 794 S.W.2d 36 (Tex. Crim. App. 1990), counsel advised the defendant to have the jury assess punishment because of the harsh reputation of the trial judge. The defendant agreed, and counsel drafted but failed to timely file a motion to have the jury assess punishment. The trial court refused to submit punishment to the jury. The Court found counsel's assistance ineffective. Id. at 37. However, four judges dissented, emphasizing that counsel timely filed several other pretrial motions, investigated the facts, interviewed witnesses, and made well-reasoned decisions. Id. at 38. When counsel realized his error in failing to timely file the motion to have the jury assess punishment, he immediately asked the court's permission to file it late. "Counsel diligently attempted to undo his oversight." Id. Noting that a defendant is not entitled to errorless counsel and that counsel's actions are not judged by hindsight, the dissent reasoned that counsel had "worked diligently for his client but committed a single mistake." Id. Thus, weighing all the facts in their proper context against the error, the dissenters found that the particular error was not sufficient to render the total representation ineffective. Id.

As we have pointed out, the per curiam majority and the four dissenters in Ex parte Walker typify the problems with having different standards of effectiveness of counsel in the guilt-innocence and punishment stages of trial. Ware v. State, 875 S.W.2d 432, 436 (Tex. App. Waco 1994, pet. ref'd) (citing Walker, 794 S.W.2d at 37-38). The Strickland test applied at the guilt-innocence stage is (1) whether assistance was reasonably effective from an objective point of view under prevailing professional standards, and (2) if ineffective, whether a reasonable probability exists that the outcome would have been different but for the ineffective assistance. Strickland, 466 U.S. at 695, 104 S. Ct. at 2068. The Duffy standard, applied to counsel's performance during the punishment phase, focuses on whether, based on the totality of the representation, counsel was reasonably likely to render and did render reasonably effective assistance. Duffy, 607 S.W.2d at 514 n.14; Ex parte Cruz, 739 S.W.2d at 58. An illustrative example is another Ex parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989), where the Court found counsel's performance deficient at both stages of trial, but reversed only the punishment portion of the conviction due to errors at punishment. Although counsel's performance was deficient at guilt-innocence, the ineffectiveness was not enough to meet the second prong of Strickland. Id. at 430. Counsel's deficient performance at punishment, however, failed to meet the Duffy standard of "reasonably effective" representation. Id. at 432. Occasionally, a single error at punishment can result in a finding of ineffective assistance under the Duffy standard. This court has previously found ineffective assistance for a single error at punishment, even though the defendant and the State agreed that counsel's performance during guilt-innocence had been extremely effective. See Ware, 875 S.W.2d at 437.

In the case before us, counsel's performance at guilt-innocence was less than perfect. However, under the Strickland standard, we did not find it ineffective. His performance at punishment i.e., his failure to bring to the court's attention that he had previously filed a motion to go the judge for punishment is judged under the Duffy standard of "reasonably effective." Counsel himself characterizes the jury as one of the "sorriest" juries he had ever encountered. He complained of its members "laughing and carrying on" as they returned their guilty verdict. His motions for new trial urged grounds of jury misconduct. Yet, when the jury returned its verdict of guilt on the murder charge within forty-five minutes, counsel did not urge his prior Motion to Correct. The court, finding his request to withdraw punishment could not be granted without the State's consent, denied his motion. The jury returned its verdict of ninety-nine years in prison.

We construe Hughes' "Motion to Correct" as a withdrawal of his election to have the jury assess punishment. The motion was in writing and filed prior to the voir dire examination. See Tex. Code Crim. Proc. Ann. art. 37.07, 2(b). However, counsel did not bring the Motion to Correct to the court's attention; rather, he filed a separate "Motion to Withdraw the Jury Decision on Punishment and Application for Probation to the Court." Because the jury returned a ninety-nine year sentence, we believe that, had counsel brought the Motion to Correct to the court's attention, the punishment assessed might have been different.

We sustain Hughes' first point as it relates to the punishment phase. We reverse the judgment and remand the cause for further proceedings consistent with this opinion. Because the error occurred at the punishment stage of the trial, our reversal will result in a new trial as to punishment only. See id. art. 44.29(b) (Vernon 1994).

BILL VANCE

Justice

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed April 19, 1995

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