Derrick v. State , 1989 Tex. Crim. App. LEXIS 37 ( 1989 )

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.

The appellant was convicted of intentionally causing the death of Edward Sonnier in the course of committing and attempting to commit the offense of robbery. In eight related points of error, appellant argues that he was denied effective assistance of counsel. In points of error one and two, appellant argues that his trial counsel failed to object to an improper hypothetical scenario used by the State during voir dire. In points of error three through six, appellant argues that trial counsel allowed the State to misstate the law in such a way as to create reasons for excusing five potential jurors for cause. Point of error seven argues that unspecified procedural defaults by trial counsel prejudiced appellant. And, in his eighth point of error, appellant argues that trial counsel was ineffective because he opened the door to introduction of prejudicial evidence by the State. We will affirm appellant’s conviction.

Appellant does not argue the evidence at trial was insufficient; therefore, only a brief recitation of the facts is necessary. On October 11, 1980, the nude body of Edward Sonnier was discovered in the bedroom of his Houston apartment. His throat had been cut, and his chest and back were penetrated by approximately fifteen deep stab wounds, any one of which could have been fatal. Five days later, Sonnier’s car was discovered in Buna, Texas, stripped and abandoned. A police investigation eventually led to the arrest of Marshall Derrick, appellant’s brother, in August of 1981. At the time of Marshall’s arrest, appellant was serving a sentence in the Texas Department of Corrections on an unrelated conviction. Marshall’s wife wrote to appellant and told him of his brother’s arrest. Appellant wrote to the Harris County District Attoney’s office, confessing that he, and not Marshall, was responsible for the murder and robbery. Houston homicide detectives interviewed appellant and obtained a number of confessions to the crime. Further investigation substantiated appellant's statements.

The proper standard for reviewing appellant’s claim of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Cr.App.1986) (adopting the Strickland test for ineffective assistance of counsel claims under the Texas Constitution). In order to reverse a conviction for ineffective assistance of counsel, we must find that an appellant has shown: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “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.” Hernandez, supra at 55 (quoting from Strickland, supra).

In his first two points of error, appellant complains of his trial counsel’s failure to object to a hypothetical used by the State during voir dire. The prosecutor posited a situation in which a person robs someone and then kills the victim. Under this scenario, the prosecutor would suggest to a juror that such conduct would be both “intentional,” within the meaning of V.T.C.A. Penal Code, § 19.02(a)(1), and “deliberate,” within the meaning of Art. 37.071(b)(1) V.A.C.C.P. Next, the prosecutor would introduce a hypothetical “getaway driver.” The prosecutor would explain how party culpability could be applied to the driver to make him responsible for “intentionally” killing the victim, although the driver would not have “deliberately” killed him. Appellant does not argue that this hypothetical misstated the law. C.f. Lane v. State, 743 S.W.2d 617 (Tex.Cr.App.1987). Instead, appellant asserts that because the issue of party liability, as expressed in the hypothetical, was not present in appellant’s case, the hypothetical had the potential of confusing or prejudicing the jury to appellant’s detriment.

In support of the contention that the State’s repeated reliance on this hypothetical was error, appellant cites Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980). Contrary to appellant’s characterization of Esquivel, [prohibiting a defense attorney from voir diring a juror on his understanding of the terms “deliberate” and “intentional,”] that case merely holds that it was not an abuse of discretion for a trial judge to disallow voir dire on this issue. Id. at 525. Appellant cites no other authority for the proposition that it would be error to allow this hypothetical to be presented to a venireman.

Appellant does, however, argue that a juror might have been lead to believe that a finding of intentional conduct will inevitably lead to a finding of deliberate conduct in all cases except those closely matching the “wheel-man/trigger-man” hypothetical. We reject this contention. Nothing that the prosecutor said indicated that his hypothetical scenario exhausted the distinction between intentional and deliberate conduct. Absent even a hint from the prosecutor to the jury that it should automatically answer the first special issue affirmatively, we will not assume that the jury made this unjustified inferential leap. Appellant’s counsel could well have made a tactical decision to refrain from alienating a venireman [by objecting to the hypothetical], knowing that there was no firm legal basis on which to object and that the prejudicial effect of the hypothetical was, at best, speculative. Appellant’s attorney may have hoped to gain greater latitude in the scope of his voir dire by allowing the State to use the hypothetical. Finally, by listening to the jurors’ responses to the hypothetical, appellant may have received information and insight useful in the exercise of his peremptory challenges.¹ This Court will not use hindsight to second guess a tactical decision made by a trial attorney which does not fall below the objective standard of reasonableness. Butler v. State, 716 S.W.2d 48, 54 (Tex.Cr.App.1986). We find that allegations made in points of error one and two do not satisfy the first prong of the Strickland test; consequently, these points of error are overruled.

In points of error three through six, grouped by appellant, appellant argues that his trial attorney allowed the prosecutor to misstate certain constitutional rights granted to the appellant in such a way to allow the State to “manufacture” grounds for excusing veniremen Ramirez, Philio, Sherrod, Daniels, and Wells for cause, thus effectively providing the State with an additional five peremptory challenges. Appellant does not argue that this procedure constituted prosecutorial misconduct nor does he claim as error the trial judge’s exclusion of any of the venireman. Appellant limits these points of error to the argument that the State was allowed the equivalent of five “free” peremptory challenges.

In all five complained-of instances, the prospective juror testified that he or she could not return a verdict without first hearing testimony from the appellant. Appellant characterizes such a challenge as a “defense challenge” which may not be properly made by the State. We reject this contention. We have never held that a challenge for cause which generally inures to the benefit of a defendant becomes the sole province of the defendant. E.g., Bodde v. State, 568 S.W.2d 344, 349 (Tex.Cr.App.1978) (juror would hold State to higher burden of proof on second special issue); Moore v. State, 542 S.W.2d 664, 668-69 (Tex.Cr.App.1976) (State’s challenge for inability to consider minimum punishment for a lesser included offense). Finally, even if trial counsel had a valid objection to excusal of these prospective jurors or of the State’s manner of conducting this voir dire, appellant has failed to assert that there were no valid, tactical reasons why trial counsel would have wanted these jurors excluded. And, if appellant had made such an assertion, the record is devoid of any support for that position. Appellant has failed to satisfy the second prong of the Strickland standard. Points of error three through six are overruled.

In his seventh point of error appellant alleges that trial counsel failed on numerous occasions to make contemporaneous objections. Appellant fails to cite to a single example of default in the record. For this reason, nothing is presented for review. Point of error seven is overruled.

Appellant argues in his final point of error that he was denied effective assistance of counsel because his trial attorney opened the door to evidence that appellant was a prostitute and a homosexual and that the deceased was peacable and not a violent person.

The State offered a portion of appellant’s extrajudicial, tape-recorded confession, in which appellant stated, “But I was sitting there and he [the deceased] came up and then went into the bedroom and I just whipped out my knife and stabbed him.” This statement represents a severely abridged version of appellant’s actual confession. Trial counsel introduced all of the remainder of appellant’s confession into evidence, which reflects that the deceased physically overpowered the appellant and threw him onto a bed, whereupon appellant struggled free and warned the deceased against further attacks. Only after the deceased then repeated his assault did the appellant, according to his full confession, stab the deceased with a knife. Unfortunately, the appellant’s full confession also includes the following statement: “He [the deceased] had no clothes on and he tried— he tried to tell me that he wanted to do something. I told him ‘No.’ I said, ‘there ain’t no way. I don’t mess around that way.’ ”

This statement seemingly invited testimony regarding appellant’s previous homosexual activities, some of which constituted prostitution and the “rolling” of his sexual partner. Accordingly, appellant now characterizes his trial attorney’s judgment as uncritical, suggesting that counsel might instead have offered that portion of the confession necessary to place self-defense in issue without also intimating that appellant’s encounter with the deceased was homosexual in nature. Essential to this argument is the notion that, had the State then been forced to introduce these parts of the confession, it would have been bound by them. Particularly, it is now appellant’s contention that the prosecution would not have been permitted to disprove the statement, “I don’t mess around that way,” with prejudicial evidence of appellant’s prior homosexual conduct.

Of course the matter is not quite so simple as this. The State is bound to disprove defensive, and perhaps any exculpatory, material which it has put into evidence through a confession of a defendant. Palafox v. State, 608 S.W.2d 177 (Tex.Cr.App.1980).² However, it is not bound to disprove, let alone accept as true, every incidental averment of the confessions it introduces, nor is the jury obliged to believe all such averments. Whether appellant was a practicing homosexual cannot fairly be described as a defensive issue.

On the other hand, the State may not set up a straw man to knock down with unfairly prejudicial evidence. See Bates v. State, 587 S.W.2d 121, 140 (Tex.Cr.App.1979) (opinion on appellant’s motion for rehearing). Had trial counsel not introduced those parts of appellant’s confession which suggested a homosexual encounter, he might have sought to bar the prosecution from introducing them upon the ground that their prejudicial effect far outweighed their probative value. Indeed, he might fairly have argued that the statements had no probative value and were, thus, irrelevant.

Failing this, if the prosecution had then contended for admissibility to show motive or context, the most plausible basis for allowing the evidence would have been to prove that the appellant was moved to homicide in part by a personal aversion to homosexual contact. Given this purpose, however, the prosecution could not fairly be permitted to disprove its own theory of motive by evidence of appellant’s past homosexual activity. See Bates, supra.

This brings us to the question of whether evidence concerning appellant’s past homosexual activity was, indeed, objectionable. Appellant’s contentions imply that such evidence would not have come in had defense counsel not opened the door. But, this is not clear to us from an examination of the appellate record. To the extent that the homosexual encounter between appellant and the deceased provided the occasion, motive, opportunity, and was arguably part of a continuing scheme by appellant to commit robbery of homosexual victims in Houston, evidence of appellant’s past criminal and homosexual conduct might arguably have been relevant to prove intent, without trial counsel first opening the door. As such, the only remaining question would be whether the unfair prejudice of the testimony would substantially outweigh its probative value. See Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985).

While we express no opinion concerning the admissibility of evidence under any of the theories or strategies discussed above, we note that a very complex problem has been grossly over simpified by the appellant in his brief to this Court. The very complexity of this issue serves to place trial counsel’s decision to introduce the remainder of the confession well within the bounds of acceptable professional representation. Absent some further showing concerning the basis for trial counsel’s reason for making this decision, we find that he did not violate the first part of the Strickland test by introducing the remaining portions of appellant’s confession. Point of error eight is overruled.

Finding each of appellant’s individual allegations of ineffective assistance of counsel to be without merit, we also find that counsel’s overall representation was effective.

The judgment of the trial court is affirmed.

CLINTON, TEAGUE and DUNCAN, JJ., dissent with opinion.

1 . We note that even appellant’s counsel on the instant appeal has argued before this Court that such information would be useful to a defense attomey in exercising his peremptory challenges. See Hogue v. State, 711 S.W.2d 9, 27 (Tex.Cr.App.1986).

2 . However, see current Tex.R.Crim.Ev. 607, not in effect at the time of appellant’s trial.