Desmond Ledet v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00281-CR
DESMOND LEDET APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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CONCURRING OPINION
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Respectfully, I cannot agree with the majority’s analysis that appears to justify
mistakes of the police and the prosecutor, inadvertent though they may be, and I
therefore concur only in the result. If we do not say that the conduct is wrong, then
we approve it by our silence, and that conduct will be repeated. Our duty is not to
find a way to justify the actions of either the State or the defense, but to rule on
issues brought before us with total impartiality and to provide guidance to the bar
and to the bench as objectively as possible in accordance with the law.
Appellant appears to confuse charge error with sufficiency in his seventh
point. Even if the trial court improperly charged the jury on the lesser included
offense of sexual assault when trial evidence showed only the greater offense, the
evidence is nevertheless sufficient to support a conviction for the lesser offense if it
is subsumed in the greater offense that was proved. 1 To the extent the majority so
holds, I agree with the majority.
But I cannot agree with the majority’s conclusion that Appellant did not invoke
his right to have counsel present for police questioning. The majority relies on
Pecina v. State for the rule that a defendant’s invoking his right to counsel does not
really invoke his right to counsel if he does it formally before the magistrate and in
writing. 2 Rather, under Pecina, the defendant must invoke his right to counsel
informally before police officers with no witnesses and orally in order for the
invocation to be “real.” 3 I suggest that until someone explains that distinction to the
defendant who is not schooled in the niceties of the law, the foolish defendant may
likely believe that a written invocation of his right to counsel actually invokes his right
to counsel as explained in the Miranda warnings. In the case now before this court,
the police either knew or should have known that Appellant had invoked his right to
counsel but went on to question him anyway.
1
Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006).
2
See 361 S.W.3d 68, 75 (Tex. Crim. App.), cert. denied, 133 S. Ct. 256
(2012).
3
See id. at 78, 80.
2
Nor can I agree that the majority should offer the advisory opinion that
Appellant could not have prevailed on a motion to suppress. This unlitigated issue
is far from clear. The record reflects that Appellant was trying to find out what the
police were accusing him of. They told him that before they could tell him, they had
to read him his Miranda warnings. Specifically, they told Appellant, “You signing this
does not mean anything except that you understand. Do you understand the rights
that he read to you?” But the form also includes a waiver above the signature line.
Did Appellant intend to waive his rights and provide information, or did he believe
that his signature meant only that he understood his rights and that the only way he
could find out what police were accusing him of was to sign the form agreeing that
he knew his rights? According to the transcription of the interview, he said, “I can
get a lawyer to come here with me on (unintelligible). I’m trying to just (unintelligible)
right now. Tell me what the accusation is.” Or does the record reflect that in return
for his waiver, the police offered an explanation of the accusation against him? Is
that an offer of something in exchange for his waiver? What is the import of
Appellant’s later statement in the interview: “No, because I end this interview. I
end—”?
I do not believe that this court is in a position to rule on the admissibility of that
interview based on the record before us. It is not clear to me from the record
whether Appellant affirmatively waived his rights or whether he believed the police
when they told him that his signature simply indicated his understanding but not
waiver. Nor is it clear from the record whether the statement met the requisites of
3
article 38.22 of the Texas Code of Criminal Procedure. 4 And Pecina
notwithstanding, I cannot join the majority’s analysis of the improper use of the
police interrogation after Appellant clearly indicated that he did not want to talk
anymore. Nor can I join the majority’s conclusion that as constitutional violations go,
this one was not so bad.
The majority correctly states that there is a two-pronged test for determining
whether an appellant prevails on an ineffective assistance of counsel claim. 5 This
test is not composed of magic words that we must intone to avoid breaking our
mother’s back or to allow us to take two steps forward. As the Texas Court of
Criminal Appeals reminds us, “In order for an appellate court to find that counsel
was ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial
record; the court must not engage in retrospective speculation.” 6 The claimed
deficiency here was trial counsel’s failure to challenge the admissibility of the
confession. The majority does not appear to address whether the first prong was
satisfied. That means the majority has not addressed the question of whether trial
counsel’s deficiency is or is not affirmatively demonstrated in the trial record. The
majority instead jumps immediately to the second prong, holding that Appellant has
not shown that but for trial counsel’s failure to object, the outcome of the trial would
4
See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005).
5
See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
6
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
4
have been different. Rather than analyze the sufficiency of the evidence of guilt had
the complained-of evidence been excluded, as did the Texas Court of Criminal
Appeals in Ex parte Martinez, 7 the majority speculates whether the unlitigated
motion to suppress would have been granted had it been litigated. The majority
relies on the statement in Jackson that if it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, the court should do so. 8
The majority seems to suggest that the Texas Court of Criminal Appeals has
abandoned the precedent it established in Thompson v. State:
Texas courts adhere, as we must, to the United States Supreme
Court’s two-pronged Strickland test to determine whether counsel’s
representation was inadequate so as to violate a defendant’s Sixth
Amendment right to counsel. The defendant must first show that
counsel’s performance was deficient, i.e., that his assistance fell below
an objective standard of reasonableness. Second, assuming
appellant has demonstrated deficient assistance, it is necessary to
affirmatively prove prejudice. In other words, appellant must show 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. This two-pronged test is the benchmark for judging whether
counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a reliable result.
The assessment of whether a defendant received effective
assistance of counsel must be made according to the facts of each
case. Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Failure to make the required showing of either
7
330 S.W.3d 891, 902 (Tex. Crim. App.), cert. denied, 131 S. Ct. 3073 (2011).
8
Majority Op. at 8–9 (also citing Strickland, 466 U.S. at 697, 104 S. Ct. at
2069).
5
deficient performance or sufficient prejudice defeats the ineffectiveness
claim. Absent both showings an appellate court cannot conclude the
conviction resulted from a breakdown in the adversarial process that
renders the result unreliable. Appellant bears the burden of proving by
a preponderance of the evidence that counsel was ineffective. An
appellate court looks to the totality of the representation and the
particular circumstances of each case in evaluating the effectiveness of
counsel. However, while this Court has been hesitant to designate any
error as per se ineffective assistance of counsel as a matter of law, it is
possible that a single egregious error of omission or commission by
appellant’s counsel constitutes ineffective assistance. This position
finds support in opinions of the United States Supreme Court, which
has also held that a single egregious error can sufficiently demonstrate
ineffective assistance of counsel. When handed the task of
determining the validity of a defendant’s claim of ineffective assistance
of counsel, any judicial review must be highly deferential to trial counsel
and avoid the deleterious effects of hindsight. There is a strong
presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance. 9
To fail to address whether Appellant satisfied the first prong under the facts of
this case means that the majority must either guess what evidence would have been
presented to the trial court in a motion to suppress in order to opine in advance that
it would have been inadequate to satisfy the second prong or must assume the
exact evidence actually admitted at trial, no more and no less, would have been
presented had Appellant litigated his motion to suppress. How can the majority
know whether the outcome would or would not have been different had we been
presented with a different record? Either (1) the record is inadequate to satisfy the
first prong of the test, and we do not know from the record that trial counsel’s
performance was inadequate or (2) we have sufficient information to satisfy the first
9
Thompson v. State, 9 S.W.3d 808, 812–813 (Tex. Crim. App. 1999)
(emphasis added) (footnotes omitted) (citations omitted) (internal quotation marks
omitted).
6
prong, and it tells us what evidence trial counsel could have marshaled to convince
the trial court to grant his motion to suppress Appellant’s statement.
I disagree with the majority’s conclusion that we are intended to offer
speculative, advisory opinions to guess how a trial court would have ruled on an
issue never joined before it. I believe the post-Thompson court was explaining that,
although the record may reflect a failure on the part of trial counsel, a minor mistake
does not require reversal. In Martinez, 10 the Texas Court of Criminal Appeals held
that trial counsel’s failure to continue to object to gang evidence did not rise to a
level requiring reversal because exclusion of the evidence not objected to would not
have rendered the remaining evidence insufficient to support conviction beyond a
reasonable doubt. The court stated, “When the [unobjected-to] evidence is
disregarded, the remaining evidence against Applicant, in its totality, is strong and
would support a finding by the jury that Applicant was a party to the offense.” 11 A
failure that is inconsequential does not rise to the level of ineffective assistance of
counsel and, therefore, will not be designated ineffective assistance.
The majority, however, interprets this language to mean that we no longer
take the prongs in logical order. Rather, the majority concludes, when the record
fails to satisfy the first prong, as in the case now before this court, we jump to the
second prong to first determine whether the outcome would have been different had
10
330 S.W.3d at 902.
11
Id.
7
trial counsel tried the case differently. Consequently, because there was no motion
to suppress, the majority concludes there is no evidence to show that the
complained-of evidence would have been suppressed, changing the outcome of the
case. Of course, the record does not clearly show that the outcome would have
been different because the issue of suppression was never joined. If the record did
show that the outcome would have been different had the motion to suppress been
litigated, then the record would satisfy the first prong, showing on its face that trial
counsel’s performance was so deficient that it fell below an objective standard of
reasonableness.
Had we been presented a different record showing that the outcome would
have been different, the majority would not have had to jump to the second prong
without addressing the first because ineffectiveness would have been shown on the
face of the record. As Judge Teague explained in his dissenting opinion in Derrick
v. State,
[T]o the extent that Strickland’s second prong requires an analysis
different than the first, it is surely wrong-headed, as are all typical
formulations of the harmless error doctrine which impose upon
appellate court judges a responsibility to predict what the outcome of
trial would have been absent the error. Because the system offers no
objective method according to which such predictions can be made,
reviewing courts must determine the question subjectively. It would
nearly always be possible, of course, to summon back the jurors and
require them to testify regarding the basis for their verdict. In this way,
some reasonably pertinent evidence might be obtained concerning the
probability of a different result. But again, our system seems to
preclude any such methodology.
Accordingly, requiring the defendant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
8
result of the proceeding would have been different” produces a catch-
22 in the law. It imposes a burden of proof on the one hand and
withholds the only real evidence available to meet it on the other.
Appellate court judges are left to speculate regarding the probable
impact of deficient representation on the unknown cogitations of
particular jurors, which is precisely what the Supreme Court proceeded
to do in Part V of its Strickland opinion. 12
And, finally, I cannot agree with the majority’s conclusion that the prosecutor’s
“Wheel of Fortune” analogy was a proper hypothetical fact situation to explain the
State’s burden of proof. As explained to the jury, the burden of proof is merely a
best guess standard. The analogy could have been used if the prosecutor had said,
“When you have enough letters, you are no longer guessing. You know. And you
know beyond any reasonable doubt. And when we bring you enough proof, you will
know beyond any reasonable doubt.” 13 But telling the jury that their best guess is
proof beyond a reasonable doubt is a misstatement of the law, 14 and we should say
so. 15
12
773 S.W.2d 271, 280–81 (Tex. Crim. App.) (Teague, J., dissenting)
(footnotes omitted) (citation omitted), cert. denied, 493 U.S. 874 (1989).
13
See Tex. Penal Code Ann. § 2.01 (West 2011); Whiting v. State, 797
S.W.2d 45, 48 (Tex. Crim. App. 1990); Dent v. State, 43 Tex. Crim. 126, 65 S.W.
627, 642 (Tex. Crim. App. 1901) (op. on reh’g) (Henderson, J., dissenting).
14
See Tex. Penal Code Ann. § 2.01; Dingler v. State, 705 S.W.2d 144, 146
(Tex. Crim. App. 1984) (“The State of Texas is not permitted under our law to prove
its allegations through speculation, guesses, or surmises, but is required to prove its
allegations beyond a reasonable doubt . . . .”); see also, e.g., Johnson v. State, 604
S.W.2d 128, 141 (Tex. Crim. App. [Panel Op.] 1980) (Clinton, J., dissenting).
15
See Whiting, 797 S.W.2d at 48.
9
I concur in the result because, unless the record reflects deficient
representation so egregious as to have no possible justification, a lawyer must be
allowed to explain whether his or her actions or inaction were part of trial strategy. 16
Some of history’s greatest lawyers have based their trial performance on novel, if
not bizarre, trial strategy. There is no single script for proper trial performance.
I would hold only that the record is not sufficient to support Appellant’s claim
of ineffective assistance of counsel and resist the temptation to jump to the second
prong of the test by offering a speculative advisory opinion of the success or lack
thereof that Appellant would have enjoyed had we been presented with a different
record. Because trial counsel had no opportunity to explain trial decisions, I concur
in the result only.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 2, 2013
16
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
10