Walker, Samuel Richmond

PRICE, J.,

filed a concurring statement

in which KELLER, P.J., joined.

I concur with the Court’s denial of relief in this application for a writ of habeas corpus. I write separately to address some of the concerns raised by Judge Al-cala in her dissenting statement. I express no opinion as to whether, in the words of the dissenting statement, “[h]ad defense counsel objected to the back-door hearsay elicited at trial by the State, the trial court would have erred by permitting the evidence.”¹ But even assuming ar-guendo that it would have, I do not think that the applicant has met his burden to prove that his counsel on retrial performed deficiently — nor that, assuming his representation was deficient, such deficiency prejudiced the applicant.

1. Deficient Performance

In concluding that counsel retained by the applicant for his robbery retrial performed deficiently by failing to object on hearsay and Confrontation Clause grounds to the testimony of Detective Parinello, the dissent seems to place great weight on the fact that initial counsel’s overruled Confrontation Clause objections resulted in a reversal of the applicant’s first conviction on appeal.

But “[e]ven the best criminal defense attorneys would not defend a particular client in the same way” — and indeed, “[t]here are countless ways to provide effective assistance in any given case.”² It is not our task, in' other words, to undertake an apples-to-oranges-like comparison of “Trial Strategy No. 1” to “Trial Strategy No. 2” and determine which strategy we think preferable.³ Instead, our task is simply to fairly determine whether subsequent counsel’s strategic decision was “reasonable considering all the circumstances” ⁴ — or, alternatively, whether counsel committed an “error[ ] so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”⁵ When we make this determination, we are to bear in mind that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time” the decision was made.⁶

Furthermore, and perhaps most relevant to the question before us, “[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” ⁷ The Fifth Circuit has said, in this context, that when counsel makes a “conscious and informed decision on trial tactics and strategy,” that decision should not be deemed to be constitutionally deficient unless it was “so ill chosen that it permeates the entire trial with obvious unfairness.”⁸ This Court has, in addition, noted that when important trial decisions are made for “strategic reasons,” the fact that those decisions would seem “risky” or “undesirable to most criminal attorneys” will not suffice to establish deficient performance under Strickland.⁹ It is only when “no reasonable trial attorney would pursue such a strategy under the facts of th[e] case” that this Court may grant relief for an unreasonable strategic decision that was made after deliberation and under advisement.¹⁰

Judging by some of the considerations it identifies as supporting the conclusion that counsel’s performance was objectively unreasonable, the dissenting statement fails to pay full and proper heed to the Supreme Court’s admonition regarding the “distorting effects of hindsight.” Specifically, in its discussion of counsel’s alleged deficiencies, the dissent finds it significant that “[t]he State ran with [Parinello’s] hearsay, essentially arguing in its closing statement that the probability that applicant did not commit this offense was one in four million.”¹¹ The dissent also concludes from a review of the record that “the jury gave significant weight to Dangerfield’s statements that ‘Low Down’ gave her the complainant’s stolen property.” ¹² But each of these considerations is utterly irrelevant in determining the extent of counsel’s deficiency as of the time of his decision. Of course, we now know that counsel’s trial strategy failed — his client was, after all, convicted. However, we cannot say on the basis of either of these considerations that his strategy was ex ante unreasonable.

Focusing on the consideration that is relevant to the issue of whether or not counsel performed deficiently — that counsel chose not to object on hearsay or Confrontation grounds despite his knowledge of former counsel’s (ultimately vindicated) decision to do so — I conclude that the applicant has failed to carry his burden to prove that counsel’s decision was “so ill chosen” as to “permeate[ ] the entire trial with ... unfairness.”¹³ The applicant does not point to anything in the record that suggests that counsel’s strategy (which was, apparently, to suggest that the State went down a “rabbit trail” in investigating the applicant when it relied upon the “ridiculous” story provided by a self-serving arrestee) was illogical, implausible, or patently doomed from the outset to failure. He does not argue it would be unreasonable for an attorney, in the exercise professional judgment, to think that the identification testimony of the complainant’s son, if potentially questionable, might still be enough to convince a jury to convict — and that in order to counter this evidence, it would be necessary to proactively suggest that the State had investigated and implicated the wrong man. And he does not explain why it is that no reasonable trial attorney would conclude, as did counsel, that the rewards of such an approach might outweigh the risks — nor why a miscalculation in this regard would constitute an “error[ ] so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”¹⁴

Instead, the applicant (rather conclusorily) states that his counsel “knew or should have known” to object to the hearsay testimony, given the outcome of the applicant’s first direct appeal. But this bare assertion effectively begs the question: Given that counsel knew the testimony was objectionable, was it nevertheless unreasonable for him to make the decision to admit it without objection?¹⁵ The applicant fails to explain why it was. In light of this, I cannot conclude that the applicant has carried his burden to prove by a preponder-anee of the evidence that his attorney’s conduct fell below an “objective standard of reasonableness.” On this basis alone, I would concur with the Court’s decision to deny this application for writ of habeas corpus.

2. Prejudice

But I also believe that the Court’s decision to deny relief on the applicant’s ineffective-assistance claim is justified by the applicant’s failure to show prejudice. The dissenting statement identifies three considerations that would arguably support a finding that the applicant suffered prejudice at the hands of his trial counsel: (1) counsel’s claim that he “spoke with at least two jurors who told [him] that [Parinello’s] testimony was the deciding factor in convicting” the appellant¹⁶; (2) that the jury “requested and was permitted to review Parinello’s testimony that the computer database matched applicant to ‘Low Down[ ]’ ”¹⁷; and (8) that the only evidence to link the applicant to the offense (aside from the objectionable hearsay testimony) was the “unreliable” identification by the complainant’s son.¹⁸ Respectfully, I do not think that these considerations suffice to establish by a preponderance of the evidence that there is a “reasonable probability” that the verdict would have been different absent counsel’s decision to allow Parinello’s testimony without objection.

As to the first of these considerations, I note that we are never to take these kinds of juror impact statements into account in determining the legality of a conviction.¹⁹ Difficult though it may be to unring this bell, the Rules of Evidence make clear that we are not to consider any statement by a juror as to the “effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment.” ²⁰ As to the second of these considerations, I am not convinced that the fact that the jury requested to review Parinel-lo’s testimony cuts in favor of either conclusion (that is, that the applicant was either prejudiced or not prejudiced). All we know is that the jury requested to review this testimony; we do not know that this request was made so that the jury might weigh the testimony in favor of conviction. It seems to me that any further claim about the import of the jury’s request is largely speculative — and is, as a result, not particularly probative.

With respect to the sole consideration that is probative as to prejudice (i.e., the balance of the evidence aside from the out-of-court identification), I note that the jury was presented with conflicting accounts of Erik’s relative levels of confidence in his identification of the applicant and his ability to recall the numbers of the license plate. On direct examination of the circumstances under which he attempted to ascertain the license plate of the getaway car, Erik testified as follows: “I got — I think I got the last two numbers and my brother got like the first four numbers or the first letters or numbers.” On cross-examination, Erik responded affirmatively to the following question by defense counsel: “When you chased after the vehicle, you and your brother, and you got the partial license plate and wrote it down, were you sure that that was the right number?”²¹ While this portion of the record is arguably consistent with the notion that Erik’s “certain” identification of the applicant was just as questionable as his “certain” recall of the license plate, it is also consistent with the notion that Erik was certain of the portion of the license plate that he — rather than his brother— was able to recall. And given that Detective Parinello never testified as to which characters of the license-plate number were inconsistent with the actual license plate of the red Ford Focus, the jury was never actually given any indisputable evidence that the portion of the license plate that Erik provided was wrong.

In other words, the jury could have reasonably inferred exactly what the dissenting statement apparently concludes: that Erik’s identification of the applicant was both “shaky” and “unreliable.”²² But it was not bound to make that inference. It could just as reasonably have inferred that Erik’s identification of the applicant was in no way tarnished by the fact that the license-plate number provided to the detective by Erik and his brother turned out to be wrong.. On the face of this record these inferences stand in equipoise. That being the case, and given that it is the applicant who bears the burden to prove prejudice by a preponderance of the evidence, this equipoise bodes poorly for the applicant’s claim — it means that the possibility that the jury discounted Erik’s testimony and convicted instead on the basis of Parinello’s hearsay testimony is merely “conceivable.”²³ Without some additional showing by the applicant of why the remainder of the habeas-record evidence would move the needle (so to speak) from equipoise to a “preponderance of the evidence,” I cannot conclude that the fact that the jury might have had doubts about the accuracy of Erik’s identification is sufficient to “undermine confidence in the outcome” of the applicant’s trial.²⁴ Accordingly, I do not think the applicant has carried his burden to prove prejudice.²⁵

CONCLUSION

For an applicant to obtain relief, in a post-conviction application for writ of ha-beas corpus, on a claim that he received ineffective assistance from his trial counsel, the applicant bears the burden to show, by a preponderance of the evidence, “that his counsel’s performance was deficient and that there is a ‘reasonable probability’ — one sufficient to undermine confidence in the result — that the outcome would have been different but for his counsel’s deficient performance.”²⁶ Reviewing the habeas record before me, I do not believe that the applicant in this case has met his burden to show either of these elements. In light of this, I concur with the Court’s denial of relief in the instant application for writ of habeas corpus.

1 . Dissenting Statement at 276.

2 . Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

3 . See, e.g., Ex parte Ewing, 570 S.W.2d 941, 944 (Tex.Crim.App.1978) (“The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.”).

4 . Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

5 . Id. at 687, 104 S.Ct. 2052.

6 . Id. at 689, 104 S.Ct. 2052.

7 . Id. at 690, 104 S.Ct. 2052 (emphasis added).

8 . E.g., Pape v. Thaler, 645 F.3d 281, 291 (5th Cir.2011).

9 . Ex parte Ellis, 233 S.W.3d 324, 331 (Tex.Crim.App.2007).

10 . See id. (emphasis added) (''[TJrial counsel's strategic reasons [for offering otherwise inadmissible evidence] were not unreasonable [because] [although the defensive course chosen by counsel was risky, and perhaps highly undesirable to most criminal defense attorneys, we cannot say that no reasonable trial attorney would pursue such a strategy under the facts of this case.”).

11 . Dissenting Statement at 279.

12 . Id. at 279.

13 . Pape, 645 F.3d at 291.

14 . Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

15 . The dissent points to counsel’s objections to Parinello’s testimony regarding the applicant’s and Noralva Ramos's aliases in an effort to cast counsel's invocation of strategy as a post hoc rationalization. See Dissenting Statement at 13-15. But trial counsel’s objections were not inconsistent with the strategy he now invokes. Counsel objected to the State’s introduction of the applicant's database-provided alias, and deliberately withheld objection when the State elicited testimony as to the more questionable aspects of Parinel-lo’s investigation. Indeed, in an attempt to exploit this weakness in the State's case, counsel elicited from Parinello the fact that his investigation arguably involved crediting the finger-pointing of a drunk with stolen property in her purse. It is not inconsistent with counsel’s presently-invoked strategy (i.e., exposing the absurdity of the State's investigation) that he should wish to exclude, on hearsay grounds, the fact that a computer search would turn up the applicant's alias and yet simultaneously seek to present to the jury the fact that the State had pursued an investigation on the basis of a less-than-credible lead.

16 . Dissenting Statement at 276.

17 . Id. at 275.

18 . Id. at 281.

19 . See Tex.R. Evid. 606(b) ("Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes.”); Ex parte Parra, 420 S.W.3d 821, 827 (Tex.Crim.App.2013).

20 . Id. To make matters worse, we do not, strictly speaking, yet have before us a statement by a juror as to any matter affecting his or her decision to vote "guilty.” We have a sworn statement from counsel relaying the gist of two jurors’ comments to him. Ironically, then, in the course of expressing his (by all appearances, quite sincere) contrition for failing to object to hearsay at the applicant's trial, counsel presents us with statements that arguably themselves constitute hearsay. See Tex.R. Evid. 801.

21 . (emphasis added).

22 . Dissenting Statement at 279, 281.

23 . See Strickland, 466 U.S. at 693, 104 S.Ct. 2052 ("It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”).

24 . Id. at 694, 104 S.Ct. 2052.

25 . The dissent argues that the "importance of Dangerfield’s hearsay statements is evident in that their admission led to the reversal of applicant's first conviction because of their prejudicial impact on the trial.” Dissenting Statement at 281. There are two reasons why the fact that the applicant’s initial conviction was reversed on the basis of a Confrontation Clause violation is not inconsistent with the applicant's failure to prove prejudice pursuant to a claim of ineffective assistance of counsel in this habeas corpus proceeding. First, there are different standards for obtaining relief on direct appeal, on the one hand, and in a post-conviction habeas application, on the other. On direct appeal from the applicant’s initial conviction, the court of appeals applied the constitutional-error harm analysis contained in Rule 44.2(a) of the Texas Rules of Appellate Procedure. See Tex. R.App. P. 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction ... unless the court determines beyond a reasonable doubt that the error did not contribute to the convictionf.]”). The court of appeals could not, pursuant to that provision, "determine beyond a reasonable doubt that the challenged testimony did not contribute to appellant's conviction.” Walker v. State, 180 S.W.3d 829, 835-36 (Tex.App.-Houston [14th Dist.] 2005). In other words, the court of appeals concluded that there was a reasonable doubt that the testimony did contribute to the appellant's conviction. On the other hand, in a post-conviction application for a writ of habeas corpus, the applicant bears the burden to show, by a preponderance of the evidence, that he is entitled to relief. E.g., Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App.2005) (citations omitted). The existence of a reasonable doubt (as on direct appeal) does not suffice to establish a preponderance of the evidence (as in post-conviction habeas corpus review). As a result, the fact that the applicant has failed to meet his burden in the post-conviction context is not at all inconsistent with his obtaining relief originally on direct appeal.

Second, a claim of harm resulting from a violation of one's rights under the Confrontation Clause is different from a claim that one was prejudiced by counsel's deficient representation. In the former, the operative question is whether or not the error "contribute [d] to the conviction.” See TexR.App. P. 44.2(a) (emphasis added). In the latter, the operative question is whether there is a " ‘reasonable probability’ — one sufficient to undermine confidence in the result' — that the outcome would have been different but for his counsel’s deficient performance.” Chandler, 182 S.W.3d at 353 (citations omitted). Even assuming that the evidence presented at each trial was identical to the other, to say that a Confrontation Clause violation contributed to the conviction in the first case is not necessarily to say that there is a reasonable probability that, but for this violation, the result would have been different in the second case. For this reason as well, a finding of a lack of prejudice in this habeas proceeding is not at all inconsistent with the court of appeals’s inability to deem the constitutional violation "harmless” in the applicant’s direct appeal from his first trial.

26 . E.g., Chandler, 182 S.W.3d at 353 (citations omitted).