Perry, Benjamin ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-68,344-01 & WR-68,344-02

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EX PARTE BENJAMIN PERRY, Appellant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NUMBERS 2003-CR-9679-W1 & 2003-CR-9680-W1 IN THE 187^TH JUDICIAL DISTRICT COURT BEXAR COUNTY

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   Cochran, J., filed a concurring statement.

CONCURRING STATEMENT

I agree with the Court's denial of relief in this application for a writ of habeas corpus alleging ineffective assistance of counsel. I add these comments only to explain why I agree that "the trial court's conclusions of law are not supported by the record and that Applicant's claims of ineffective assistance of counsel are without merit." ⁽¹⁾

Applicant was indicted for aggravated assault with a deadly weapon and aggravated robbery with a deadly weapon. He retained the services of a private law firm. One member of that law firm negotiated a plea agreement with the State that included the following: (1) an eight-year cap on the sentences; (2) a $2,000 fine in each case; (3) a deadly weapon finding in each case; (4) concurrent sentences; and (5) an agreement that the State would make no recommendation on applicant's request for deferred adjudication. The State reserved the right to speak to relevant factual matters at the punishment hearing. After applicant entered his plea of nolo contendere, the case was reset for a punishment hearing. In the interim, the original attorney left the law firm, so a second member of the firm took over applicant's representation. The defense sponsored one character witness at the punishment hearing. The trial judge then sentenced applicant to eight years' imprisonment on each charge and ordered that the sentences be served concurrently.

Applicant was later represented by a third attorney (one not affiliated with the original law firm) who filed a motion for new trial, alleging that the second attorney had provided ineffective assistance because "counsel was not aware of the strategy that his prior counsel was going to present at sentencing as previously discussed with prior counsel." This third attorney signed an affidavit to that effect and attached it to the motion for new trial. That affidavit also alleged that the second attorney spoke only briefly with applicant before the sentencing hearing. The record before us does not contain any additional affidavits from applicant or either his first or second attorneys. The trial judge denied the motion for new trial, and applicant appealed, again claiming ineffective assistance of the second counsel.

The Fourth Court of Appeals held that applicant had not pointed to any place in the record showing that his second attorney's failure to present certain evidence that he claimed was mitigating was "due to ineffective assistance rather than trial strategy. When the appellate record contains no evidence of the reasoning behind trial counsel's action, the reviewing court cannot conclude that counsel's performance was deficient, because such determination would be based on speculation." ⁽²⁾ The court of appeals affirmed applicant's two convictions.

Applicant then filed a pro se application for writ of habeas corpus, making the same ineffective assistance of counsel claim that he had made in his motion for new trial and on appeal. He failed to specify precisely what evidence he thought his second attorney should have offered at the sentencing hearing. He alleged that his second attorney never conducted an independent investigation, never interviewed the victims, and never hired an investigator to look into his background, education, or medical history. He did not include any affidavits from either of his first or second attorneys. He did not name any specific witnesses who should have been called at the sentencing hearing or set out what their testimony would have been, nor did he allege that they were available to testify and would have testified.

The trial court did not obtain any further information from applicant, nor did it obtain affidavits from any of applicant's prior attorneys. In its findings of fact, it lists the evidence that is in the court's file, including the police report and applicant's statement to police. It quotes the affidavit signed by applicant's third attorney that was attached to the motion for new trial (a motion that the trial court had previously rejected), which apparently ⁽³⁾ does not set out the names or anticipated testimony of any specific witnesses who were available to testify at sentencing.

A habeas corpus applicant must establish the detailed facts which give rise to and compel each legal conclusion. The trial court recommends granting relief in this habeas corpus application and finds that the affidavit filed with the motion for new trial is credible, but gives no indication of why its decision has changed during the interim without any additional facts presented.

There are not sufficient facts in this habeas corpus record (just as there were insufficient facts presented in the direct appeal) that show, by a preponderance of the evidence, that applicant's second counsel's performance was deficient and that this deficient performance prejudiced applicant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1984). Furthermore, applicant's second attorney has never been afforded an opportunity to respond to these allegations and explain the basis for his actions and decisions. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective."). Absent such an opportunity, a court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Counsel's conduct is reviewed with great deference, without the distorting effects of hindsight, especially when counsel's reasons for failing to do something do not appear in the record. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). I, like the court of appeals before us, conclude that applicant's second counsel may have had strategic reasons for not putting on more evidence at the sentencing hearing. At least, there is nothing in this record which shows that he did not have such strategic reasons.

Therefore, I agree that the present record does not show that applicant has proven, by a preponderance of the evidence, his ineffective assistance of counsel claim.

Filed: October 31, 2007

Do Not Publish

1. Order at 2.

2.

Perry v. State, No. 04-05-00506-CR, No. 04-05-00507-CR, 2006 Tex. App. LEXIS 8108 *3 (Tex. App.-San Antonio 2006, no pet.).

3. The motion for new trial and the attached affidavit are not contained in the habeas corpus record.