Albert Foley, Jr. v. State ( 2010 )

NUMBER 13-09-00473-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

ALBERT FOLEY, JR.,                                                                   Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                 Appellee.

____________________________________________________________

                           On appeal from the 329th District Court

                                      of Wharton County, Texas.

____________________________________________________________

                 CONCURRING MEMORANDUM OPINION

                     Before Justices Yañez, Garza, and Benavides

Concurring Memorandum Opinion by Justice Yañez

Although I agree with the majority=s disposition of appellant=s complaint of ineffective assistance of counsel, I write separately to express my view regarding one of his complaints. Accordingly, I respectfully concur with the majority=s disposition.

By a sub-issue, appellant complains that his trial counsel rendered ineffective assistance by, among other omissions, only visiting him once in the jail before trial.  Appellant=s trial counsel, Richard L. Manske, submitted an affidavit in which he states, in relevant part, that he Amet with [his] client at least once in the jail and several times in court when [appellant] made various appearances.@ 

Although the majority falls short of endorsing such a practice, it declines to find that a trial counsel=s failure to meet with a client more than onceCnot counting during court  appearancesCconstitutes performance so deficient that it falls below an objective standard of reasonableness.^[1] I disagree.  Conferring with a client immediately prior to, or during, a court appearance cannot provide the privacy and confidential circumstances necessary to develop an effective strategy.  I would therefore not presume that counsel=s failure to meet with appellant more than onceCother than at court appearancesCfell within the wide range of reasonable professional assistance.^[2]

However, I agree with the majority that even assuming, as I do, that counsel=s conduct fell below the objective standard of reasonableness, appellant failed to establish that a different result would have occurred had his counsel acted differently.^[3] Accordingly, I would overrule his issue.

LINDA REYNA YAÑEZ,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Concurring Memorandum Opinion delivered and filed the

21st day of December, 2010.

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^[1] See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

^[2] See id. at 813. 

^[3] See id. at 812.