Gonzales, Ex Parte Gabriel ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-73,775

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EX PARTE GABRIEL GONZALES, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN THE 144^TH JUDICIAL DISTRICT COURT, BEXAR COUNTY CAUSE NO. 94CR5865A

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   Cochran, J., filed a concurring opinion.

O P I N I O N

I join the Court's opinion. I write separately only to address a matter raised by Presiding Judge Keller in her dissenting opinion. Judge Keller states that, in Summerlin v. Schriro, ⁽¹⁾ "the Ninth Circuit may have suggested the same rule the Court announces in the present case." ⁽²⁾ If one inverts that sentence to read, "this Court may be suggesting the same rule the Ninth Circuit announced in Summerlin v. Schriro," I agree with her assessment. Although the majority in this case does not speak with the breadth of the Ninth Circuit, I think that any capital-murder defense counsel in Texas should read Summerlin before beginning his pretrial investigation.

The underlying message of Summerlin is that defense counsel must fully investigate any and all potential mitigating circumstances in his client's background which might conceivably persuade a jury not to impose the death penalty. The failure to investigate will not be excused simply because the defendant failed to mention such evidence himself. Indeed, under Rompilla v. Beard, ⁽³⁾ defense counsel may be required to investigate potential mitigating facts even when the defendant is "uninterested in helping" or is "even actively obstructive" in developing a mitigation defense. ⁽⁴⁾

Under both current Supreme Court standards and Texas statutes, defense counsel has a constitutional duty to seek out all of the "circumstances of the offense, the defendant's character and background, and [any evidence that lessens] the personal moral culpability of the defendant[.]" ⁽⁵⁾ At a minimum, defense counsel must privately quiz his client about any and all positive and negative facts about the defendant's upbringing, personality, social interactions, thoughts and feelings. It is not sufficient to inquire generally and leave it up to the defendant to raise topics or respond to open-ended questions. Like a doctor, defense counsel must be armed with a comprehensive check-list of possibilities, and forcefully inquire about each topic. Such topics might include:

* Childhood accidents and injuries;

* Trips to the emergency room;

* Serious illnesses at any time;

* Physical abuse to the defendant or any other member of the family;

* Any sexual abuse to the defendant or any other member of the family;

* Size of the immediate family, and a history of the physical, educational, and emotional background of each member;

* The defendant's relationship with and attitudes toward every member of the family;

* Drug or alcohol use or abuse by himself and any or all members of the family;

* Any mental health treatment of any member of the family, including the defendant;

* The cohesiveness of the family;

* The family's standard of living and living conditions;

* Any and all available school records;

* Any record of learning disabilities;

* Childhood and adult social relationships with members of the same and opposite sex;

* Any marriage, divorce, children, step-children, or surrogate family relationships, and their positive or negative influence upon the defendant;

* Any and all awards, honors, or special accomplishments, as well as any and all convictions, arrests, expulsions or suspensions from school, job firings, etc.;

* Any and all traumatic experiences;

* Any and all especially proud moments;

* Membership in religious, social, educational, charitable organizations;

* The client's five best and worst memories.

Only after a lengthy and thorough interview with his client will defense counsel be in a position to decide which are the most promising mitigation areas to pursue. Because of finite resources and time, capital counsel's strategic and tactical decisions regarding the further investigation, development, and use of potential mitigating evidence should be given great deference. But deference is not due to counsel who fails to interview his client at sufficient length and depth to discover, as accurately as possible, the unvarnished truth about his client. A particular defendant may be such an accomplished dissembler that he successfully hides important information from his own attorney; in that instance, of course, the defendant bears full responsibility for affirmatively hiding the truth. But capital counsel bears the responsibility for at least making every reasonable attempt to uncover possible mitigation facts from his client.

To that extent, at least, I think that the majority would agree with the reasoning of Summerlin, as do I.

Filed: October 18, 2006

Publish

1. 427 F.3d 623 (9

^th Cir. 2005), cert. denied, 126 S.Ct. 1880 (2006).

2.

Infra, slip op. at 4 (Keller, P.J., dissenting).

3. 545 U.S. 374 (2005).

4.

Id. at 381; Summerlin, 427 F.3d at 638 ("'a lawyer's duty to investigate is virtually absolute, regardless of a client's expressed wishes'") (quoting Silva v. Woodford, 279 F.3d 825, 840 (9^th Cir. 2002).

5.

See generally, Rompilla; Wiggins v. Smith, 539 U.S. 510 (2003); Tex. Code Crim. Proc. art. 37.071, § 2(e)(1). Because this offense was committed, investigated, and tried between 1994 and 1997, the current statutory mitigation issue was applicable to the punishment phase, as was counsel's duty to investigate all facts which might be relevant to that special issue.