The court of criminal appeals "has repeatedly stated that claims of ineffective assistance of counsel are generally not successful on direct appeal and are more appropriately urged in a hearing on an application for a writ of habeas corpus." Id - in Brister v. State, 2012
stating that a defendant claiming ineffective assistance of counsel may re-urge a claim in a habeas corpus application that he had previously raised in a direct appeal if he provides additional evidence to prove his claim - in Ex parte Brown, 2006
1) IATC- "totality of the representation" standard of review
2) Trial counsel error
3) Writ appeals tactics IATC
4) Two prong test- Hernandez, Strickland
5) direct appeal record , Torres
6) IATC-jury instructions, necessity, self defense
7) .IATC-police opinion failure to object
8) Hernandez v. State, 726 SW 2d 53 - Tex: Court of Criminal Appeals 1986
9) Thompson v. State, 9 SW 3d 808 - Tex: Court of Criminal Appeals 1999
10) EBIKAM v. State, Tex: Court of Criminal Appeals 2020 (Nailor confession and avoidance doctrine)
11) Moore v. State, Tex: Court of Appeals, 2nd Dist. 2021
12) EX PARTE WHITE, Tex: Court of Criminal Appeals 2021-IARC-plea, false testimony
13) Ex parte Weinstein, 421 SW 3d 656 - Tex: Court of Criminal Appeals 2014
14) Curlee v. State, 620 SW 3d 767 - Tex: Court of Criminal Appeals 2021, lay opinions in trial
15) Reedy v. State, Tex: Court of Appeals, 3rd Dist. 2021
16) Sandoval v. State, 409 SW 3d 259 - Tex: Court of Appeals, 3rd Dist. 2013
17) the trial court's evidentiary ruling is reasonably supported by the record and correct on any theory of law applicable to that ruling, we will uphold the decision. - in Edwards v. State, 2014
18) Kyles v. Whitley, 514 US 419 - Supreme Court 1995, materiality of omitted exculpatory evidence
19) Strickler v. Greene, 527 US 263 - Supreme Court 1999
20) A Brady violation has three components: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued - in People v. Glover, 2020
21) Padilla v. McDaniel, 122 SW 3d 805 - Tex: Court of Criminal Appeals 2003-DNA to lower courts
22) Strickland v. Washington, 466 US 668 - Supreme Court 1984
23) To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. - in Cobb v. US, 2017
24) United States v. Agurs, 427 US 97 - Supreme Court 1976
25) Fairow v. State, 943 SW 2d 895 - Tex: Court of Criminal Appeals 1997
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IATC- "totality of the representation" standard of review |
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In this case we must decide whether ineffective assistance of counsel claims rejected on direct appeal must be reconsidered along with other claims of deficient attorney conduct raised on a writ of habeas corpus under the "totality of the representation" standard of review.[1] The Fourteenth Court of Appeals held that appellant's failure to offer additional evidence in support of those specific allegations of deficient performance already rejected by the Fourth Court of Appeals barred relitigation of those claims on habeas corpus review.[2] The Fourteenth 128*128 Court of Appeals also held that trial counsel was not ineffective for: (1) relying upon a defensive theory of "accidental injury" or "no intent to harm" rather than the law of self-defense; and (2) failing to object to a police officer's opinion testimony that appellant was not "attacked." We agree with the Fourteenth Court of Appeals on all three issues and therefore affirm its judgment. |
[1] We granted appellant's petition for discretionary review on the following three grounds: (1) The court of appeals erred in refusing to consider allegations of trial counsel's deficient performance that were rejected on appeal in determining whether the totality of the representation was ineffective; (2) The Fourteenth Court of Appeals erred in holding that counsel was not ineffective in relying on a defense that the Fourth Court of Appeals held was not raised by the evidence; and (3) The court of appeals erred in holding that counsel was not ineffective in failing to object to a police officer's opinion regarding the ultimate issue. [2] Appellant was convicted in County Court at Law No. 9 of Harris County. Appellant's conviction was affirmed on direct appeal to the Fourth Court of Appeals. Nailor v. State, No. 04-00-00642-CR, 2001 WL 840553, 2001 Tex.App. LEXIS 4899 (San Antonio, July 25, 2001, pet. denied) (not designated for publication). This appeal comes to us by way of the Fourteenth Court of Appeals which affirmed the trial court's denial of a writ of habeas corpus. Ex parte Nailor, 105 S.W.3d 272 (Tex.App.-Houston [14th Dist.] 2003). |
Trial counsel error[3] There was some discrepancy between the witnesses whether the object involved was a ceramic or porcelain figurine of a cat or a brass eagle. [4] These four allegations were that trial counsel: (1) elicited evidence that applicant had been previously convicted of assaulting Ella; (2) failed to present independent evidence of Ella's mental problems and her previous assault on applicant; (3) failed to request a limiting instruction that the jury could consider applicant's prior assault conviction only in determining his credibility and not as substantive evidence of his guilt; and (4) introduced a letter that was inconsistent with the defense theory. [5] These five allegations were that trial counsel: (1) failed to object to the prosecutor cross-examining applicant about his prior drug use; (2) failed to object to the prosecutor asking applicant whether he beat his ex-wife and, despite his denial, arguing during summation that he was a wife-beater who liked to beat women; (3) failed to object to a police officer's opinion that applicant had not been attacked; (4) failed to object to Ella's daughter's opinion as to why Ella did not testify at trial; and (5) failed to object to argument that applicant had threatened to hurt Ella if she testified. |
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Writ appeals tactics IATCjury convicted appellant of misdemeanor assault and he was sentenced to 120 days confinement in the Harris County Jail. After hiring new counsel, appellant filed a motion for new trial. In this motion, appellant made four allegations of ineffective assistance of counsel (the "first four allegations"[4]). After a hearing in which appellant's trial counsel testified, the trial court denied the motion. On direct appeal to the Fourth Court of Appeals, appellant alleged the same four grounds of ineffective assistance that he had raised in 129*129 the motion for new trial and added another five allegations of ineffective assistance (the "additional five allegations"[5]). The Fourth Court of Appeals found that trial counsel's representation was not deficient with respect to the first four allegations. With respect to the additional five allegations, the Fourth Court of Appeals found that the record was inadequate to evaluate appellant's claims. Thus, on direct appeal, the Fourth Court of Appeals rejected the first four allegations on their merits and did not reach the merits of the additional five allegations.[6] Next, appellant filed a writ of habeas corpus in the trial court alleging ten allegations of ineffective assistance of counsel (the first four allegations, plus the additional five allegations, plus a new one[7]). Because the Fourth Court of Appeals had determined that the direct appeal record was inadequate to address the additional five allegations, appellant sought to develop a habeas record with respect to these additional five allegations, plus the new one (the "additional six allegations"), by submitting the affidavit of trial counsel. Trial counsel's affidavit addressed only the issues raised by the additional six allegations.[8] |
[6] Nailor v. State, No. 04-00-00642-CR, 2001 WL 840553, 2001 Tex.App. LEXIS 4899 (San Antonio, July 25, 2001, pet. denied) (not designated for publication). [7] The new allegation was that trial counsel erroneously relied on the law of self-defense, which was not raised by the evidence. [8] According to appellant, he did not develop additional evidence on the first four allegations that were rejected on their merits by the Fourth Court of Appeals because "[t]here was no reason for counsel to address the issues about which he had already testified." |
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The habeas court denied relief, and appellant appealed to the Fourteenth Court of Appeals. In its thorough and thoughtful opinion, that court refused to consider the merits of the first four allegations because these claims had already been rejected by the Fourth Court of Appeals, and this Court had denied appellant's petition for discretionary review in that appeal. However, the Fourteenth Court of Appeals did address the merits of the additional six allegations raised by appellant in his application for a writ of habeas corpus which the Fourth Court of Appeals, in its equally thorough opinion, had not rejected on the merits. It found that two of the additional six allegations constituted deficient performance.[9] However, appellant did not prove, by a preponderance of the evidence, that these two deficiencies prejudiced his defense.[10] Thus, while appellant satisfied the first prong of Strickland, he failed to satisfy the second prong, and therefore the court of appeals affirmed the trial court's denial of habeas relief. |
[9] Ex parte Nailor, 105 S.W.3d at 278-80. [10] Id. at 280. |
Two prong test- Hernandez, StricklandIn Hernandez v. State,[11] this Court adopted the two-prong test articulated 130*130 by the United States Supreme Court in Strickland v. Washington[12] for analyzing ineffective assistance of counsel claims.[13] Under this well-established standard, "[a]ny allegation of ineffectiveness must be firmly founded in the record."[14] First, a defendant must show, by a preponderance of the evidence, that counsel's performance was constitutionally deficient.[15] Second, the defendant must show that this deficient performance prejudiced his defense.[16] Under this two-pronged analytical framework, a defendant must overcome the "strong presumption that counsel's performance fell within the wide range of reasonable professional assistance."[17] Moreover, "[a]ppellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance."[18] Usually, ineffective assistance of counsel claims are analyzed under the "totality of the representation" standard.[19] That is, when a reviewing court considers a claim of ineffective assistance of counsel, it must first analyze all allegations of deficient performance, decide whether counsel's conduct was constitutionally deficient, and, if so, then consider whether those specific deficient acts or omissions, in their totality, prejudiced the defense. |
[11] 726 S.W.2d 53 (Tex.Crim.App.1986). [12] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [13] Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). "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." Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App.1999). [14] Thompson, 9 S.W.3d at 813. [15] Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. [16] Id. at 687, 104 S.Ct. 2052. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. [17] Thompson, 9 S.W.3d at 813 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). [18] Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). [19] Thompson v. State, 9 S.W.3d at 813; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986); Ex parte Raborn, 658 S.W.2d 602 (Tex.Crim.App.1983). But see Thompson, 9 S.W.3d at 813 (stating that "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") (internal quotations omitted). |
direct appeal record , TorresClaims of ineffective assistance of counsel are frequently raised on direct appeal without the benefit of an adequate record and then re-urged on a writ of habeas corpus after they have been adequately developed in a post-conviction evidentiary hearing.[20] In Ex parte Torres,[21] we held that "[b]ecause the direct appeal record 131*131 contained insufficient evidence to evaluate the ineffective assistance issue, ... the rejection of [applicant's] claim on direct appeal does not bar relitigation of his claim on habeas corpus to the extent that applicant seeks to gather and introduce additional evidence not contained in the direct appeal record."[22] Claims raised and rejected on direct appeal are generally not cognizable on habeas corpus.[23] However, in Ex parte Torres we stated: "this doctrine should not be applied where [1] direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and [2] the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding."[24] Thus, if the appellate court rejects a claim of ineffective assistance of counsel because the record on direct appeal does not contain sufficient information to adequately address and resolve a particular allegation of counsel's deficient performance, the defendant may re-urge consideration of that specific act or omission in a later habeas corpus proceeding if he provides additional evidence to prove his claim. The exception articulated in Ex parte Torres does not apply here because the record on direct appeal was adequate to evaluate the first four ineffective assistance allegations. On direct appeal, the Fourth Court of Appeals found that these first four allegations did not satisfy the first prong of Strickland, i.e., appellant did not establish, by a preponderance of the evidence, that trial counsel's performance was deficient.[25] These four claims were rejected on their merits. Appellant then filed an application for a writ of habeas corpus in the trial court, and raised the same nine allegations of ineffective assistance of counsel, plus a new one. In support of his writ of habeas corpus, appellant submitted the affidavit of his trial counsel to develop the habeas record on the additional six allegations. The trial court denied relief. Appellant appealed the denial of habeas relief to the Fourteenth Court of Appeals. That court concluded that the first four allegations of ineffective assistance could not be reconsidered on habeas review because appellant did not provide additional evidence in support of these specific allegations.[26] We agree with the court of appeals. We hold that specific allegations of deficient attorney performance that were rejected on direct appeal are not cognizable on habeas corpus as a part of a larger ineffective 132*132 assistance of counsel claim when the defendant does not offer additional evidence to support that specific claim of deficient performance in the habeas proceeding.[27] We therefore overrule appellant's first ground for review. |
[20] See Bone, 77 S.W.3d at 833 (stating that "[u]nder normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. As this Court recently explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: `in the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failing of trial counsel'"). [21] 943 S.W.2d 469 (Tex.Crim.App.1997). [22] Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997). [23] See Ex parte Acosta, 672 S.W.2d 470, 471-72 (Tex.Crim.App.1984); Ex parte Schuessler, 846 S.W.2d 850, 852 n. 6 (Tex.Crim.App.1993); Ex parte Torres, 943 S.W.2d at 475. [24] Ex parte Torres, 943 S.W.2d at 475. [25] Nailor v. State, No. 04-00-00642-CR, 2001 WL 840553, 2001 Tex.App. LEXIS 4899 (San Antonio, July 25, 2001, pet. denied) (not designated for publication). The Fourth Court of Appeals also held that the direct appeal record was inadequate to address the additional five allegations of ineffective assistance. Id. [26] Ex parte Nailor, 105 S.W.3d at 275-76. The Fourteenth Court of Appeals also held that appellant's first four allegations could not support his application for habeas relief under the law-of-the-case doctrine because the Fourth Court had already concluded that counsel's performance was not deficient with respect to the first four allegations. Id. at 276 n. 3. We need not resolve the issue of the applicability of the law-of-the-case doctrine because that was an alternate holding in the court below. It is sufficient for present purposes that appellant's four previously rejected claims—whether they were rejected on the merits or because the record evidence was insufficient to prove them—were not furthered developed during the habeas proceeding. [27] In this case, we are not faced with the converse situation in which a reviewing court on direct appeal finds that trial counsel provided constitutionally deficient assistance in some specific regard, but it cannot assess the merits of other claims because the record is insufficient, and therefore concludes that, under the totality of circumstances, the deficient performance did not prejudice the defendant. The defendant then files a writ of habeas corpus, setting out all of the same allegations and offers additional evidence on the claims that had not been addressed on direct appeal. |
IATC-jury instructions, necessity, self defenseIn his second ground for review, appellant argues that "[t]he Fourteenth Court of Appeals erred in holding that counsel was not ineffective in relying on a defense that the Fourth Court of Appeals held was not raised by the evidence." On direct appeal, appellant argued that his trial counsel was ineffective for not objecting to the trial court's omission of self-defense from the jury charge. The Fourth Court of Appeals held that appellant was not entitled to an instruction on self-defense and therefore his trial counsel was not ineffective for failing to object to its omission. In his application for a writ of habeas corpus, appellant argued that trial counsel was ineffective for relying on a defense that was not raised by the evidence. According to appellant, trial counsel surely must have been ineffective one way or the other. We disagree and conclude that appellant's trial defense was two-fold: (1) he did not intend to cause any harm; and (2) his acts were solely defensive in nature and were intended only to prevent Ella from injuring him with the brass eagle. A defendant is entitled to an instruction on the law of self-defense if there is some evidence that he intended to use force against another and he did use force, but he did so only because he reasonably believed it was necessary to prevent the other's use of unlawful force.[28] In Ferrel v. State,[29] this Court stated that "[a] defendant is entitled to an instruction on self-defense if the issue is raised by the evidence."[30] However, "if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue."[31] On direct appeal in this case, the Fourth Court of Appeals held that "because Nailor testified and argued that the victim was accidently injured and that he did not strike the victim with his hand as alleged by the State, Nailor was not entitled to a jury instruction on self-defense."[32] In his opening statement, trial counsel argued that it was an accident that the brass eagle struck the complainant. Similarly, appellant testified that when he raised his arms he accidently knocked the brass eagle out of Ella's hands and it then fell and hit her in the face. Appellant did not, at least overtly, rely on the law of self-defense; he 133*133 testified to the lack of a culpable mens rea, and he denied that the act the State alleged as causing her injury—striking Ella with his hand—was, in fact, the cause of her injury. According to appellant, it was the falling brass eagle that caused her injury. Therefore, appellant's defense was more in the nature of a denial of two of the State's alleged elements, rather than an admission of those elements with a legal justification for them.[33] This case, then, is analytically similar to our decision in Young v. State.[34] In Young, the defendant argued that his attorney was constitutionally deficient because the defendant's testimony raised the legal defense of necessity, but trial counsel failed to request a jury instruction on the law of necessity.[35] This Court disagreed and held that the defendant denied committing the acts alleged and denied acting with any intent to cause the victim's death; therefore, his testimony disputed the elements of the State's case; it did not justify those intentional acts with a distinct legal defense. We explained: In the present case, Appellant did not present the defense of necessity at trial. While trial counsel argued Appellant acted reasonably, according to Appellant's testimony regarding his actions, and that these actions were necessary to save his life, such an argument does not present the defense of necessity. To raise necessity, Appellant must admit he committed the offense and then offer necessity as a justification. Here, Appellant did not admit to attempted murder, albeit one that was justified by the defense of necessity. Appellant argued he did not commit the offense because he did not have the requisite intent and he did not perform the actions the State alleged. Appellant was therefore not entitled to a jury instruction on the defense of necessity. Because Appellant was not entitled to a jury instruction on necessity, Appellant has not shown that counsel's performance in failing to request an instruction was deficient under the first part of 134*134 the Strickland test.[36] Similarly, appellant did not rely upon the law of self-defense at trial. Both trial counsel's argument and appellant's testimony centered on a lack of intent, i.e., it was an accident. As in Young, appellant argued that "he did not have the requisite intent and he did not perform the actions the State alleged."[37] Accordingly, appellant was not entitled to an instruction on self-defense. Because appellant has not shown that his trial counsel relied on the statutory law of self-defense, he has failed to establish, by a preponderance of the evidence, that his trial counsel was deficient either in failing to request an instruction on the law of self-defense or, conversely, in relying upon the defensive position that appellant's testimony raised. Appellant's second ground for review is overruled. |
[28] TEX. PENAL CODE § 9.31(a) ("a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force"). [29] 55 S.W.3d 586 (Tex.Crim.App.2001). [30] Ferrel v. State, 55 S.W.3d 586 (Tex.Crim.App.2001). [31] Id. at 591. [32] Nailor v. State, 2001 WL at *1, 2001 Tex.App. LEXIS 4899 at *3. [33] See generally, Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App.1986), limited by Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990). In Sanders, this Court explained the nature of statutory legal defenses and when they are raised so as to require a jury instruction: A perusal of the new Penal Code assures one that a defense does not merely negate an element of an offense. Rather, in all of the Code's defenses, one principle runs consistently throughout: evidence which constitutes a defense requires the accused to admit the commission of the offense, but to justify or excuse his actions so as to absolve him of criminal responsibility for engaging in conduct which otherwise constitutes a crime.... Such a defense would consist of facts which exonerate the defendant and do not simply disprove an element of the offense. ... This Court has long held that, if the alleged defensive theory merely negates an element of the offense, then no affirmative charge must be given.... The confusion perhaps lies in this Court's failure to define the term "defense" and its ambiguous use of the terms "defensive theory or defensive issue." Id. at 81 (emphasis in original; citations omitted). In Willis, this Court stated that "the Sanders Court spoke too generally in deciding that all defenses were in the nature of confession and avoidance. But having disavowed this language from Sanders and determining that in some circumstances the defendant will be entitled to defensive instructions although he has not admitted the crime," 790 S.W.2d at 314, a defensive theory of "accidental injury" or "no intent to injure" in an assault prosecution clearly disputes the elements of the offense. Such a defensive theory does not necessarily negate or prohibit an alternative theory of self-defense, but it does not necessarily invoke such a theory either. [34] 991 S.W.2d 835 (Tex.Crim.App.1999). [35] Young v. State, 991 S.W.2d 835, 836 (Tex.Crim.App.1999). [36] Young, 991 S.W.2d at 839. [37] Id. |
.IATC-police opinion failure to objectIn his third and final ground for review, appellant argues that "the [Fourteenth] Court of Appeals erred in holding that counsel was not ineffective in failing to object to a police officer's opinion regarding the ultimate issue." Specifically, appellant complains that appellant's trial counsel was constitutionally deficient because he did not object to Officer Ludwig's opinion testimony that appellant had not been attacked.[38] Under Texas Rule of Evidence 704, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."[39] Rule 701[40] permits a lay witness to offer opinion testimony if that opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."[41] 135*135 Because a lay witness may offer an opinion on an ultimate issue, appellant's contention that his trial counsel fell below an objective standard of reasonable competence for failing to object to Officer Ludwig's testimony regarding an ultimate issue is without merit. Whether the officer's testimony might have been objectionable on another basis is a question of the law of evidence that does not require decision in this case. All we must, and do, decide is that a competent trial counsel is not required to object to opinion evidence on the ground that it goes to an ultimate issue. Appellant's third ground for review is overruled. Having rejected appellant's three grounds for review, we affirm the judgment of the court of appeals. |
[38] The pertinent testimony was: State: When you saw the defendant that evening did he have any cuts, bruises on him? Was there any evidence that he had been physically attacked? A: No, ma'am. State: Did you have any reason to think that he had been attacked? A: No, ma'am. State: Was it your opinion based on your training and experience that he had not been attacked? A: Yes, ma'am. [39] TEX.R. EVID. 704. See, e.g., Fairow v. State, 943 S.W.2d 895, 897 n. 5 (Tex.Crim.App.1997) (noting that "it is no longer permissible to exclude opinion testimony" simply because it embraces an ultimate issue); Johnson v. State 970 S.W.2d 716, 720 (Tex.App.-Beaumont,1998, no pet.) (noting that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact"). [40] Texas Rule of Evidence 701 provides: If the witness is not testifying as an expert, the witnesses' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. [41] See, e.g., Fairow, 943 S.W.2d at 898-99 (police officer may testify to his opinion concerning an individual's mental state); Reece v. State, 878 S.W.2d, 320, 325 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (police officer may testify based on his training and experience, that the actions he observed were consistent with someone selling drugs); Austin v. State, 794 S.W.2d 408, 410-11 (Tex.App.-Austin 1990, pet. ref'd) (police officer allowed to testify that, based on his personal experience, it was his opinion that "Swedish deep muscle rub" was a code for prostitution); Williams v. State, 826 S.W.2d 783, 785 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (police officer could testify, as either a lay witness or an expert, that he interpreted the defendant's actions to be a drug transaction). |
To establish ineffective assistance of counsel, appellant must show:(1) his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different.- in Dorsey v. State, 2001
ollowing the Court of Appeals' decision, the United States Supreme Court handed down its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The opinion in Strickland established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertaining 55*55 when such ineffectiveness is prejudicial.
Accordingly, prior to examining the facts of the instant case, we determine whether under Art. I, Sec. 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P. we must apply higher standards than those enumerated in Strickland.
With respect to determining ineffectiveness, the general standard established in Strickland differs little or not at all from this Court's standard, which in turn is based on Fifth Circuit precedents.
In Ex parte Duffy, 607 S.W.2d 507 (Tex. Cr.App.1980), and its progeny we stressed that effective counsel is counsel "rendering and likely to render" reasonably effective assistance.
The Supreme Court in Strickland noted:
"As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance ... When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.
"More specific guidelines are not appropriate... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms ...
"... A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 104 S.Ct. at 2064-66.
Since we find that the threshold standard for determining effective assistance of counsel enunciated in Strickland is not substantively different from the standard this Court has propounded in recent years, there is no reason for refusing to apply the Strickland standard to cases arising under Art. I, Sec. 10 of the Texas Constitution or Art. 1.05, V.A.C.C.P.
The test for determining prejudice or reversible error resulting from ineffective assistance of counsel was also spelled out in Strickland:
"... The defendant must show that there is 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." 104 S.Ct. at 2068.[2]
This test, at least in certain circumstances, differs from the tests devised by our Court to determine prejudice in ineffective assistance cases. See, for example, Ex parte Duffy, supra, where we held, again based on Fifth Circuit precedent, that effective assistance was so important a right to a petitioner condemned to death that its infraction could never be treated as harmless error. Does our recent case law or the language and history of Art. I, Sec. 10, or Art. 1.05, V.A.C.C.P., suggest that a defendant should be put to a lesser standard of proof in establishing prejudice than the Strickland standard?
Starting with the opinion in Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), this Court has consistently applied the test for effectiveness of counsel employed by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). That is, this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases and has utilized the standards enunciated by the Fifth Circuit in the absence of an authoritative and comprehensive opinion from the 56*56 Supreme Court. See Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981). In Strickland, the Supreme Court clearly set forth the federal constitutional standard to be followed.
As far as the language of Art. I, Sec. 10 is concerned (as well as the identical language in Art. 1.05, V.A.C.C.P.),[3] in no way can it be independently interpreted to provide greater protection for a defendant beset by ineffective assistance of counsel than the protection provided by Strickland. The language of Art. I, Sec. 10, insuring that a defendant "shall have the right of being heard by himself or counsel, or both," can be traced back to the 1836 Constitution of the Republic of Texas and was obviously modeled on the Sixth Amendment to the federal constitution[4] which guarantees the accused's right, "to have the Assistance of Counsel for his defense."
The Sixth Amendment right to be heard by counsel was originally understood, and understood throughout all of the 19th and the earlier part of the 20th century, to encompass the right of a defendant to retain counsel of his own choice for the preparation and trial of a case. The provision was not yet understood to include the right of an indigent defendant to have counsel appointed at State expense or the right of any defendant to enjoy effective assistance of counsel.[5]
The right to effective assistance of counsel as we understand it today was derived from the right to be heard by counsel.[6] Accordingly, in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland.
An examination of this Court's case law regarding effective assistance in the years before the Sixth Amendment was incorporated into the Fourteenth[7] and applied to the States only serves to buttress the point.
Ineffective counsel or counsel not permitted by the trial court to be effective was tantamount to no counsel at all and hence a violation of Art. I, Sec. 10. Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954); Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). Even "no counsel at all," however, did not result in reversible error in the absence of a showing of harm. See Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (Tex.Cr.App.1931). See also Fletcher v. State, 396 S.W.2d 393 (Tex.Cr. App.1965), and Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), two cases decided shortly after Gideon v. Wainwright, supra, where a showing of harm was required of defendants asserting ineffective assistance claims.
In short, our constitutional and statutory provisions do not create a standard in 57*57 ineffective assistance cases that is more protective of a defendant's rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom.
"Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." - in IN THE MATTER OF JAL, 2008
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below t he standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. - in Beech v. State, 2009
Texas courts adhere, as we must, to the United States Supreme Court's two-pronged Strickland[4] test to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right to counsel. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim. App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Ex Parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993). Second, assuming appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. McFarland v. State, 928 S.W.2d at 500. 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. Hernandez v. State, 726 S.W.2d at 55. This two-pronged test is the benchmark for judging whether counsel's conduct so undermined the proper functioning of the adversarial process 813*813 that the trial cannot be relied on as having produced a reliable result. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993).
The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App.1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d at 500. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Ibid. Absent both showings an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854 S.W.2d at 131. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Ex Parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991). 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. Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim.App.1985) (failure of trial counsel to advise appellant that judge should assess punishment amounted to ineffective assistance of counsel) (modified on other grounds on remand from U.S. Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988)). See also Ex parte Felton, 815 S.W.2d at 735 (failure to challenge a void prior conviction used to enhance punishment rendered counsel ineffective). 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. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 2046 n. 20, 80 L.Ed.2d 657 (1984). 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. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).
We have sometimes said that certain defenses require a "confession and avoidance." See, e.g., Gamino v. State, 537 S.W.3d 507, 511 (Tex. Crim. App. 2017) (self-defense); Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (necessity). We have sometimes imposed the requirement without naming it. See Ex parte Nailor, 149 S.W.3d 125, 132-33 (Tex. Crim. App. 2004); Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999).
[Moore contends in her fourth argument that her trial counsel was ineffective for failing to seek a self-defense instruction. To be entitled to a self-defense instruction, a defendant must first admit to all elements of a crime charged before claiming that the conduct was legally justified. See Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex. Crim. App. 2004).]
Moore contends in her fourth argument that her trial counsel was ineffective for failing to seek a self-defense instruction. To be entitled to a self-defense instruction, a defendant must first admit to all elements of a crime charged before claiming that the conduct was legally justified. See Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex. Crim. App. 2004). Counsel is not ineffective for failing to request an instruction to which the defendant is not entitled. See id. at 133-34. Here, Moore was not entitled to a self-defense instruction because she testified that her action of striking the complainant was involuntary; thus, her testimony negated that she had acted with the necessary mental state required for assault. Therefore, her trial counsel was not ineffective for failing to request a self-defense instruction to which she was not entitled. See id. at 134; cf. Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding that appellant was not entitled to a jury instruction on the defense of necessity when appellant "argued [that] he did not commit the offense because he did not have the requisite intent").
Still, even if Moore were entitled to an instruction on self-defense, failing to request an instruction on self-defense does not mean that her trial counsel was ineffective. Because defensive issues largely depend on trial strategy and tactics, a competent defense attorney may decide that it would be inappropriate or ineffective to pursue a particular defense in a given case. See generally Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) ("[J]ust because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she could also decide it would be inappropriate to propound such a defense in a given case."). When a defendant's testimony centers on a lack of intent, courts have held that trial counsel is not deficient for failing to request jury instructions on defenses, such as self-defense. See Nailor, 149 S.W.3d at 134, Dannhaus v. State, 928 S.W.2d 81, 85-87 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Accordingly, trial counsel was not ineffective for not requesting an instruction on self-defense.
Applicant was convicted of possession of methamphetamine and sentenced to fifteen years' imprisonment. The thirteenth Court of Appeals affirmed his conviction. White v. State, No. 13-18-00292-CR (Tex. App.-Corpus Christi del. Jul. 18, 2019); see also Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant argues that trial counsel was ineffective regarding: (1) Applicant's desire to accept a pretrial plea offer; and (2) extraneous offense testimony that was admitted against him at trial, which testimony Applicant alleges was false. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) . There is no response from counsel in the habeas record or findings from the trial court. Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
—false testimony is material if there is a reasonable likelihood that it affected the judgment of the jury
- in EX PARTE BROWN, 2017 a
We defer to the trial court's ruling on mixed questions of law and fact, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor.
"On post-conviction review of habeas corpus applications, the convicting court is the `original factfinder,' and this Court is the ultimate factfinder."[12] Thus we generally defer to the convicting court's findings of fact that are supported by the record.[13] We also afford that same level of deference to a habeas judge's ruling on mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.[14] However, "[w]hen our independent review of the record reveals that the trial judge's findings and conclusions are not supported by the record, we may exercise our authority to make contrary or alternative findings and conclusions."[15] And we review de novo "mixed questions of law and fact" that do not depend upon credibility and demeanor.[16]
We review factual findings concerning whether a witness's testimony is perjurious or false under a deferential standard, but we review the ultimate legal conclusion of whether such testimony was "material" de novo.[17]
Generally, our review of a habeas corpus claim involves a two-pronged inquiry. First, we decide if the applicant has established a cognizable constitutional violation.[18] Second, if a constitutional violation is shown, we determine whether the applicant was harmed by the error.[19] An 665*665 applicant demonstrates such harm with proof "by a preponderance of the evidence that the error contributed to his conviction or punishment."[20]
However, habeas claims challenging the use of false testimony are reviewed under a slightly different analysis. The State's use of material false testimony violates a defendant's due-process rights under the Fifth and Fourteenth Amendments to the United States Constitution.[21] Therefore, in any habeas claim alleging the use of material false testimony, this Court must determine (1) whether the testimony was, in fact, false, and, if so, (2) whether the testimony was material.[22]
The second prong in a falsetestimony claim is materiality, not harm. Only the use of material false testimony amounts to a due-process violation. And false testimony is material only if there is a "reasonable likelihood" that it affected the judgment of the jury.[23] Thus, an applicant who proves, by a preponderance of the evidence, a due-process violation stemming from a use of material false testimony necessarily proves harm because a false statement is material only if there is a reasonable likelihood that the false testimony affected the judgment of the jury.[24] The applicant must still prove his habeas-corpus claim by a preponderance of the evidence, but in doing so, he must prove that the false testimony was material and thus it was reasonably likely to influence the judgment of the jury.
"The sufficiency of the evidence is measured by comparing the evidence produced at trial to `the essentialelements of the offense as defined by the hypothetically correct jury charge.'"
et the State does not cite any authority in support of its position that a lay witness opinion, standing alone, can constitute legally sufficient evidence.[26] While a lay witness may provide an opinion, such an opinion must be rationally based on the witness's perception and helpful to clearly understanding the witness's testimony or to determining a fact in issue. Tex. R. Evid. 701. Absent the bases upon which Smejkal's opinion was formed, his opinion that the playground was open to the public was a factually unsupported inference or presumption. "[J]uries are not permitted to come to conclusions based on `mere speculation or factually unsupported inferences or presumptions.'" Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018) (quoting Hooper, 214 S.W.3d at 15).
As for Appellant's failure to object to Smejkal's opinion, this has no bearing on how the opinion should be treated on sufficiency review. Sufficiency review is not dependent upon whether or not there was an objection to the evidence at trial. See Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) ("A claim regarding the sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so."); Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012). "In assessing the sufficiency of the evidence to support conviction, a reviewing court must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider." Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988) (emphasis in original); Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).
[26] The State's brief cites authority holding that lay witness opinions are admissible and that the issue of whether a lay witness is competent to provide an opinion is subject to forfeiture under issue preservation rules. Br. for the State 16 (citing Fairow v. State, 943 S.W.2d 895, 898-99 (Tex. Crim. App. 1997), Ex parte Nailor, 149 S.W.3d 125, 134 n.41 (Tex. Crim. App. 2004), and Moff v. State, 131 S.W.3d 485, 491 (Tex. Crim. App. 2004)).
To preserve an evidentiary objection for appellate review, the complaining party must present the trial court with "a timely request, objection, or motion that . . . state[s] the grounds for the ruling that the complaining party s[eeks] from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." See Tex. R. App. P. 33.1(a)(1)(A); see also Russo v. State, 228 S.W.3d 779, 796-97 (Tex. App.-Austin 2007, pet. ref'd) (requiring appellate complaints about admission of evidence to meet requirements of Rule of Appellate Procedure 33.1). This rule requires "the party complaining on appeal . . . about a trial court's admission, exclusion, or suppression of evidence" to, "at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise application to the evidence in question." Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App. 2018). "The issue . . . is not whether the trial court's ruling is legally correct in every sense, but whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal." Id.
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On the merits, the parties raise competing lines of authority. Reedy relies on longstanding authority forbidding all witnesses, whether expert or lay and including law enforcement, from opining about guilt or innocence. See Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974); Sandoval v. State, 409 S.W.3d 259, 292 (Tex. App.-Austin 2013, no pet.); DeLeon v. State, 322 S.W.3d 375, 383 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd); Huffman v. State, 691 S.W.2d 726, 730 (Tex. App.-Austin 1985, no pet.) (per curiam). The State relies on longstanding authority allowing admission of opinion testimony even when it "embraces an ultimate issue." Tex. R. Evid. 704; see Ex parte Nailor, 149 S.W.3d 125, 134-35 (Tex. Crim. App. 2004); Fairow v. State, 943 S.W.2d 895, 897 n.5 (Tex. Crim. App. 1997).
Boyde resolves any conflict between the competing lines of authority as applied here. The Court in Boyde treated the rule forbidding opinion testimony about guilt like an exception to the rule forbidding exclusion of testimony just because it embraces an ultimate issue:
While this Court has recognized for all practical purposes, the invasion of the province of the jury rule is and has been long dead, it should be noted that the expression of guilt or innocence in this case was a conclusion to be reached by the jury based upon the instruction given them in the court's charge, coupled with the evidence admitted by the judge through the course of the trial. Thus, no witness was competent to voice an opinion as to guilt or innocence.
513 S.W.2d at 590 (internal quotations omitted). Boyde has not been overruled on this issue,[1] and courts continue to cite it for the rule forbidding opinion testimony about guilt. See, e.g., Viscaino v. State, 513 S.W.3d 802, 812 (Tex. App.-El Paso 2017, no pet.); Ex parte Skelton, 434 S.W.3d 709, 724 (Tex. App.-San Antonio 2014, pet. ref'd); Sandoval, 409 S.W.3d at 292.
Boyde's analysis also finds support in the plain language of Texas Rule of Evidence 704. The rule protects from exclusion a broad class of opinions—any opinion that simply "embraces an ultimate issue." See Tex. R. Evid. 704 (emphasis added). But an opinion may "embrace" an ultimate issue yet still fail to answer the ultimate issue of guilt. See Fed. R. Evid. 704(a) (also using "embraces an ultimate issue"); United States v. Duncan, 42 F.3d 97, 102 (2d Cir. 1994) ("[T]he Agent did not comment as to whether Duncan was guilty of . . . the crimes with which Duncan was charged. He merely posited factual conclusions which are not prohibited even if they embrace an ultimate issue." (internal quotation omitted) (citing Fed. R. Evid. 704(a))); United States v. Mohney, 949 F.2d 1397, 1406 (6th Cir. 1991) (distinguishing inadmissible "opinion about whether appellant was guilty" from admissible "opinion regarding whether tax was due and owing for the years in question in order to assist the jury in determining a fact in issue" (citing Fed. R. Evid. 704(a))). Thus, the rule forbidding opinion testimony about guilt should control because it is more specific to opinion testimony about guilt than is the more-general rule forbidding exclusion of testimony just because it embraces an ultimate issue. See Tex. R. Evid. 101(d) ("Despite these rules, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals. If possible, a court should resolve by reasonable construction any inconsistency between these rules and applicable constitutional or statutory provisions or other rules."); Dixon v. State, 2 S.W.3d 263, 267 (Tex. Crim. App. 1998) ("The Rules of Evidence provide specific and general directives and are meant to work in conformity. Should an inconsistency arise, it should be removed by reasonable construction. Simply stated, general rules are not meant to super[s]ede specific rules."), overruled on other grounds on reh'g, 2 S.W.3d 263, 270-74 (Tex. Crim. App. 1999) (op. on reh'g).
Finally about the merits, we note that the State's cases do not address opinion testimony that a defendant was guilty. See Nailor, 149 S.W.3d at 134-35 (opinion that assault victim had not attacked defendant); Fairow, 943 S.W.2d at 897 (opinion about whether co-conspirator "accidentally" shot victim). In all, we conclude that the trial court abused its discretion by overruling Reedy's objection and admitting the opinion that he was guilty of murder. See Boyde, 513 S.W.2d at 590; Sandoval, 409 S.W.3d at 292; see also Viscaino, 513 S.W.3d at 812 (holding that trial court abused its discretion by overruling objection to State's question, "I need you to tell me what your opinion is of—as to who took the money from the Clerk's Office").
To support reversal, the admission of the opinion about Reedy's guilt must have affected his substantial rights. See Tex. R. App. P. 44.2(b); Sandoval, 409 S.W.3d at 287. "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); accord Sandoval, 409 S.W.3d at 287-88. "But if the improperly admitted evidence did not influence the jury or had but a slight effect upon its deliberations, such non-constitutional error is harmless." Coble, 330 S.W.3d at 280; accord Sandoval, 409 S.W.3d at 287. "In making a harm analysis, we examine the entire trial record," including the other evidence admitted, the jury instructions, the parties' theories of the case, closing arguments, and voir dire, "and calculate, as much as possible, the probable impact of the error upon the rest of the evidence." See Coble, 330 S.W.3d at 280; Sandoval, 409 S.W.3d at 288. We must "assess harm after reviewing the record, and the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on either the appellant or the State." Coble, 330 S.W.3d at 280.
When analyzing harm under these standards, we remember that "each case must be examined on its own facts, taking into account the specific evidence and the probable impact of the erroneously admitted expert evidence upon the jury's decisionmaking in the particular case." Id. at 281. Five factors guide our analysis here: (1) whether "ample other evidence" supported Reedy's guilt; (2) whether "[t]he same basic" evidence as Sgt. Jones's opinion about his guilt "was admissible and admitted, without objection, through other" sources; (3) whether the admitted but inadmissible opinion was "particularly powerful, certain, or strong"; (4) whether the opinion "was effectively rebutted and refuted" elsewhere; and (5) whether the State emphasized the opinion. See id. at 286-87; Jessop v. State, 368 S.W.3d 653, 678 (Tex. App.-Austin 2012, no pet.). If after the comprehensive review we are left with "`grave doubt' about whether the result of the trial was free from the substantial influence of the error," we must reverse. Sandoval, 409 S.W.3d at 288; accord Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011). "`Grave doubt' means that in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Barshaw, 342 S.W.3d at 94 (internal quotation omitted).
the trial court's evidentiary ruling is reasonably supported by the record and correct on any theory of law applicable to that ruling, we will uphold the decision.
We must now address whether the erroneous removal of Juror Brooks from the jury was harmful to appellant. For purposes of this opinion, we will assume, without deciding, that the trial court's erroneous removal of Juror Brooks constituted statutory error and must therefore be analyzed under Texas Rule of Appellate Procedure 44.2(b).[10] See id. at 786; Tex.R.App. P. 44.2(b). Under Rule 44.2(b), "[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Scales, 380 S.W.3d at 786 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim.App.2010).
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We review a trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011). A trial court abuses its discretion only if its decision "lies outside the zone of reasonable disagreement." Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's decision if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex.Crim.App. 2009).
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The erroneous admission of evidence is non-constitutional error. Kirby v. State, 208 S.W.3d 568, 574 (Tex.App.-Austin 2006, no pet.); see Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App.2007). Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See Tex.R.App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.App.2011). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby, 208 S.W.3d at 574.
Id. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." - in US v. Scott, 2015
Evidence is material if "there is a reasonable probability, that had it been disclosed to the defense, the result of the proceeding would have been different." Id - in United States v. Jones, 2020
A prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. - in Davis v. State, 2002
In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U. S. 667 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i. e., the "specific-request" and "general- or no-request" situations. Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 434*434 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment).
Four aspects of materiality under Bagley bear emphasis. Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). Id., at 682 (opinion of Blackmun, J.) (adopting formulation announced in Strickland v. Washington, 466 U. S. 668, 694 (1984)); Bagley, supra, at 685 (White, J., concurring in part and concurring in judgment) (same); see 473 U. S., at 680 (opinion of Blackmun, J.) (Agurs "rejected a standard that would require the defendant to demonstrate that the evidence if disclosed probably would have resulted in acquittal"); cf. Strickland, supra, at 693 ("[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case"); Nix v. Whiteside, 475 U. S. 157, 175 (1986) ("[A] defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland "). Bagley `s touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Bagley, 473 U. S., at 678.
The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory 435*435 evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.[8]
Third, we note that, contrary to the assumption made by the Court of Appeals, 5 F. 3d, at 818, once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment), necessarily entails the conclusion that the suppression must have had "`substantial and injurious effect or influence in determining the jury's verdict,' " Brecht v. Abrahamson, 507 U. S. 619, 623 (1993), quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946). This is amply confirmed by the development of the respective governing standards. Although 436*436 Chapman v. California, 386 U. S. 18, 24 (1967), held that a conviction tainted by constitutional error must be set aside unless the error complained of "was harmless beyond a reasonable doubt," we held in Brecht that the standard of harmlessness generally to be applied in habeas cases is the Kotteakos formulation (previously applicable only in reviewing nonconstitutional errors on direct appeal), Brecht, supra, at 622-623. Under Kotteakos a conviction may be set aside only if the error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, supra, at 776. Agurs, however, had previously rejected Kotteakos as the standard governing constitutional disclosure claims, reasoning that "the constitutional standard of materiality must impose a higher burden on the defendant." Agurs, 427 U. S., at 112. Agurs thus opted for its formulation of materiality, later adopted as the test for prejudice in Strickland, only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos. In sum, once there has been Bagley error as claimed in this case, it cannot subsequently be found harmless under Brecht.[9]
The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item.[10] As Justice Blackmun emphasized in the portion of his opinion written for the Court, the Constitution is not violated every time the 437*437 government fails or chooses not to disclose evidence that might prove helpful to the defense. 473 U. S., at 675, and n. 7. We have never held that the Constitution demands an open file policy (however such a policy might work out in practice), and the rule in Bagley (and, hence, in Brady ) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate. See ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993) ("A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused"); ABA Model Rule of Professional Conduct 3.8(d) (1984) ("The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense").
…
Even if Kyles's lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect on their knowledge of Beanie's statements and so have attacked the reliability of the investigation in failing even to consider Beanie's possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted. See, e. g., Bowen v. Maynard, 799 F. 2d 593, 613 (CA10 1986) ("A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation"); Lindsey v. King, 769 F. 2d 1034, 1042 (CA5 1985) (awarding new trial of prisoner convicted in Louisiana state court because withheld Brady evidence "carried within it the potential . . . for the . . . discrediting . . . of the police methods employed in assembling the case").[15]
In a a sensible system of criminal justice, wrongful conviction is avoided by establishing, at the trial level, lines of procedural legality that leave ample margins of safety (for example, the requirement that guilt be proved beyond a reasonable doubt)—not by providing recurrent and repetitive appellate review of whether the facts in the record show those lines to have been narrowly crossed. The defect of the latter system was described, with characteristic candor, by Justice Jackson:
"Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done." Brown v. Allen, 344 U. S. 443, 540 (1953) (opinion concurring in result).
Since this Court has long shared Justice Jackson's view, today's opinion—which considers a fact-bound claim of error rejected by every court, state and federal, that previously heard it—is, so far as I can tell, wholly unprecedented. The Court has adhered to the policy that, when the petitioner claims only that a concededly correct view of the law was incorrectly applied to the facts, certiorari should generally (i. e., except in cases of the plainest error) be denied. United States v. Johnston, 268 U. S. 220, 227 (1925). That policy has been observed even when the fact-bound assessment of the federal court of appeals has differed from that of the district court, Sumner v. Mata, 449 U. S. 539, 543 (1981); and under what we have called the "two-court rule," the policy has been applied with particular rigor when district 457*457 court and court of appeals are in agreement as to what conclusion the record requires. See, e. g., Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949). How much the more should the policy be honored in this case, a federal habeas proceeding where not only both lower federal courts but also the state courts on post conviction review have all reviewed and rejected precisely the factspecific claim before us. Cf. 28 U. S. C. § 2254(d) (requiring federal habeas courts to accord a presumption of correctness to state-court findings of fact); Sumner, supra, at 550, n. 3. Instead, however, the Court not only grants certiorari to consider whether the Court of Appeals (and all the previous courts that agreed with it) was correct as to what the facts showed in a case where the answer is far from clear, but in the process of such consideration renders new findings of fact and judgments of credibility appropriate to a trial court of original jurisdiction. See, e. g., ante, at 425 ("Beanie seemed eager to cast suspicion on Kyles"); ante, at 441, n. 12 ("Record photographs of Beanie . . . depict a man possessing a medium build"); ante, at 449, n. 18 ("the record photograph of the homemade holster indicates . . .").
The Court says that we granted certiorari "[b]ecause `[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case,' Burger v. Kemp, 483 U. S. 776, 785 (1987)." Ante, at 422. The citation is perverse, for the reader who looks up the quoted opinion will discover that the very next sentence confirms the traditional practice from which the Court today glaringly departs: "Nevertheless, when the lower courts have found that [no constitutional error occurred], . . . deference to the shared conclusion of two reviewing courts prevent[s] us from substituting speculation for their considered opinions." Burger v. Kemp, 483 U. S. 776, 785 (1987).
A Brady violation has three components: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued - in People v. Glover, 2020
Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." - in United States v. HOSSAIN, 2020
In summary, petitioner has established cause for failing to raise a Brady claim prior to federal habeas because (a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution's open file policy as fulfilling the prosecution's duty to disclose such evidence; and (c) the Commonwealth confirmed petitioner's reliance on the open file policy by asserting during state habeas proceedings that petitioner had already received "everything known to the government."[35] We need not decide in this case whether any one or two of these factors would be sufficient to con…
Despite our repeated explanation of the shorthand formulation in these words, the continued use of the term "probability" raises an unjustifiable risk of misleading courts into treating it as akin to the more demanding standard, "more likely than not." While any short phrases for what the cases are getting at will be "inevitably imprecise," United States v. Agurs, 427 U. S. 97, 108 (1976), I think "significant possibility" would do better at capturing the degree to which the undisclosed evidence would place the actual result in question, sufficient to warrant overturning a conviction or sentence.
To see that this is so, we need to recall Brady `s evolution since the appearance of the rule as originally stated, that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U. S. 83, 87 (1963). Brady itself did not explain what it meant by "material" (perhaps assuming the term would be given its usual meaning in the law of evidence, see United States v. Bagley, 473 U. S. 667, 703, n. 5 (1985) (Marshall, J., dissenting)). We first essayed a partial definition in United States v. Agurs, supra, where we identified three situations arguably within the ambit of Brady and said that in the first, involving knowing use of perjured testimony, 299*299 reversal was required if there was "any reasonable likelihood" that the false testimony had affected the verdict. Agurs, supra, at 103 (citing Giglio v. United States, 405 U. S. 150, 154 (1972), in turn quoting Napue v. Illinois, 360 U. S. 264, 271 (1959)). We have treated "reasonable likelihood" as synonymous with "reasonable possibility" and thus have equated materiality in the perjured-testimony cases with a showing that suppression of the evidence was not harmless beyond a reasonable doubt. Bagley, supra, at 678-680, and n. 9 (opinion of Blackmun, J.). See also Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (defining harmless-beyond-areasonable-doubt standard as no "`reasonable possibility' that trial error contributed to the verdict"); Chapman v. California, 386 U. S. 18, 24 (1967) (same). In Agurs, we thought a less demanding standard appropriate when the prosecution fails to turn over materials in the absence of a specific request. Although we refrained from attaching a label to that standard, we explained it as falling between the more-likely-than-not level and yet another criterion, whether the reviewing court's "`conviction [was] sure that the error did not influence the jury, or had but very slight effect.' " 427 U. S., at 112 (quoting Kotteakos v. United States, 328 U. S. 750, 764 (1946)). Finally, in United States v. Bagley, supra, we embraced "reasonable probability" as the appropriate standard to judge the materiality of information withheld by the prosecution whether or not the defense had asked first. Bagley took that phrase from Strickland v. Washington, 466 U. S. 668, 694 (1984), where it had been used for the level of prejudice needed to make out a claim of constitutionally ineffective assistance of counsel. Strickland in turn cited two cases for its formulation, Agurs (which did not contain the expression "reasonable probability") and United States v. Valenzuela-Bernal, 458 U. S. 858, 873-874 (1982) (which held that sanctions against the Government for deportation of a potential defense witness were appropriate only 300*300 if there was a "reasonable likelihood" that the lost testimony "could have affected the judgment of the trier of fact").
The circuitous path by which the Court came to adopt "reasonable probability" of a different result as the rule of Brady materiality suggests several things. First, while "reasonable possibility" or "reasonable likelihood," the Kotteakos standard, and "reasonable probability" express distinct levels of confidence concerning the hypothetical effects of errors on decisionmakers' reasoning, the differences among the standards are slight. Second, the gap between all three of those formulations and "more likely than not" is greater than any differences among them. Third, because of that larger gap, it is misleading in Brady cases to use the term "probability," which is naturally read as the cognate of "probably" and thus confused with "more likely than not," see Morris v. Mathews, 475 U. S. 237, 247 (1986) (apparently treating "reasonable probability" as synonymous with "probably"); id., at 254, n. 3 (Blackmun, J., concurring in judgment) (cautioning against confusing "reasonable probability" with more likely than not). We would be better off speaking of a "significant possibility" of a different result to characterize the Brady materiality standard. Even then, given the soft edges of all these phrases,[3] the touchstone of the enquiry 301*301 must remain whether the evidentiary suppression "undermines our confidence" that the factfinder would have reached the same result. stitute cause, since the combination of all three surely suffices.
[12] Although the parties have not advanced an explanation for the nondisclosure of the documents, perhaps it was an inadvertent consequence of the fact that Harrisonburg is in Rockingham County and the trial was conducted by the Augusta County prosecutor. We note, however, that the prosecutor is responsible for "any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U. S. 419, 437 (1995). Thus, the Commonwealth, through its prosecutor, is charged with knowledge of the Stoltzfus materials for purposes of Brady v. Maryland, 373 U. S. 83 (1963).
Appeal of a motion for forensic DNA testing now follows the same path; in death penalty cases the appeal is to this court, and in other cases the appeal is to a court of appeals.[7]
The Constitution gave, and still gives, the courts of appeals the general appellate jurisdiction to which we have referred and "such other jurisdiction, original and appellate, as may be prescribed by law."[8] As to mandamus, the law before 1983 gave the courts of appeals mandamus jurisdiction and authority in certain election matters,[9] and authority to issue the writ of mandamus to protect its appellate jurisdiction[10] or to compel a judge of the district or county court to proceed to trial and judgment in a cause.[11] Otherwise the "Court of Civil Appeals ha[d] no power to mandamus the district court."[12]
ickens v. Second Court of Appeals, 727 S.W.2d 542, 546 (Tex.Cr.App.1987) ("Given the plain language of the statute, it would seem that courts of appeals have original jurisdiction to issue writs of mandamus against any judge of a district or county court, without any restriction upon the subject matter of the writ").
[15] Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 584-86 (Tex.Cr.App.1993).
[16] TEX.R.APP. P. 52.3(E). The rule goes on to say, "If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals."
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense.
- in Cobb v. US, 2017
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U. S. 361, 364-365 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure 692*692 that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
…
The principles governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. As indicated by the "cause and prejudice" test for overcoming procedural waivers of claims of error, the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. See United States v. Frady, 456 U. S. 152, 162-169 (1982); Engle v. Isaac, 456 U. S. 107, 126-129 (1982). An ineffectiveness claim, however, as our articulation of the standards that govern decision of such claims makes clear, is an attack on the fundamental fairness of the proceeding whose result is challenged. Since fundamental fairness is the central concern of the writ of habeas corpus, see id., 698*698 at 126, no special standards ought to apply to ineffectiveness claims made in habeas proceedings.
Finally, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U. S. C. § 2254(d). Ineffectiveness is not a question of "basic, primary, or historical fac[t]," Townsend v. Sain, 372 U. S. 293, 309, n. 6 (1963). Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact. See Cuyler v. Sullivan, 446 U. S., at 342. Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d), and although district court findings are subject to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.
…
Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. Cf. United States v. Johnson, 327 U. S. 106, 112 (1946). An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.
Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U. S., at 104, 112-113, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, supra, at 872-874. The defendant must show that there is 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.
There the court identified three distinct situations to which the Brady rule might apply:(1) those cases in which "the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury"; - in State v. Cohane, 1984
The conviction "must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." - in Breest v. Perrin, 1979
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt.[20] Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record.[21] If there is no reasonable doubt about 113*113 guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
This statement of the standard of materiality describes the test which courts appear to have applied in actual cases although the standard has been phrased in different language.[22] It is also the standard which the trial judge applied in this case. He evaluated the significance of Sewell's prior criminal record in the context of the full trial which he recalled in detail. Stressing in particular the incongruity of a claim that Sewell was the aggressor with the evidence of his multiple wounds and respondent's unscathed condition, the trial judge indicated his unqualified opinion that respondent was guilty. He 114*114 noted that Sewell's prior record did not contradict any evidence offered by the prosecutor, and was largely cumulative of the evidence that Sewell was wearing a bowie knife in a sheath and carrying a second knife in his pocket when he registered at the motel.
A lay witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. - in Lee v. State, 2017
A witness's opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness's objective - in Brown v. State, 2011
On appeal and in his petition for discretionary review to this Court, appellant asserts that the trial judge improperly excluded evidence of Middleton's opinion regarding whether Mosby intentionally caused the death of Joseph Young.[3] Appellant contends that Middleton's opinion was admissible under Rule 701,[4] which allows witnesses to give opinion or inference testimony provided that the opinion is rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. In affirming appellant's conviction, the Court of Appeals rejected his contention and held that a "speculative opinion, such as what someone else is thinking at a specific time, does not help the jury." Fairow, at 361.[5] Today, we are called upon to determine whether a lay 898*898 opinion regarding culpable mental state is admissible under Rule 701, and, if so, whether the Court of Appeals in this case erred by agreeing with the trial court's decision to exclude such an opinion.
When conducting a Rule 701 evaluation,[6] the trial court must decide (1) whether the opinion is rationally based on perceptions of the witness and (2) whether it is helpful to a clear understanding of the witness's testimony or to determination of a fact in issue. See Rule 701. The initial requirement that an opinion be rationally based on the perceptions of the witness is itself composed of two parts. First, the witness must establish personal knowledge of the events from which his opinion is drawn and, second, the opinion drawn must be rationally based on that knowledge. See Wendorf, Schlueter & Barton, Texas Rules of Evidence Manual, § VII, p. 5, (4th ed.1995).
For the foregoing reasons, I would re-affirm Bigby, supra, and Arnold, supra, and adopt a bright line rule that lay witness opinion testimony concerning a third person's culpable mental state is not admissible. Because the majority does not, I join only the judgment of the court.
[1] Subsequent references to Rules refer to the Texas Rules of Criminal Evidence unless otherwise indicated.
[2] Because the trial court prevented Middleton from answering, the State argues that the substance of his testimony is not preserved for review. The State further argues that appellant failed to preserve error by not attempting to place Middleton's opinion testimony in front of the jury. While it is true that appellant made no offer of proof indicating Middleton's answers to the questions, the substance of the evidence is apparent from the context within which the questions were asked. See Tex.R.Crim. Evid. 103(a)(2).
[3] Whether Mosby acted intentionally is vital to Appellant's conviction. The trial court instructed the jury on the law of parties and asked it to choose between finding appellant not guilty, guilty of capital murder, guilty of felony murder, or guilty of aggravated robbery. Had the jury concluded that Mosby did not act intentionally, they could not have convicted him of capital murder, as that crime requires that the death be caused "intentionally." See Tex. Penal Code Ann. § 19.03(a)(2).
[4] Rule 701 provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
[5] Prior to its analysis under Rule 701, the Court of Appeals stated that it agreed with the principles of Klein v. State, 662 S.W.2d 166 (Tex.App.— Corpus Christi 1983, no pet.) and of Taylor v. State, 774 S.W.2d 31 (Tex.App.—Houston [14th Dist] 1989, pet. ref'd). In Klein, the court held that the witness could not testify to the defendant's culpable mental state (i.e. intent) because it was an ultimate issue for the jury. The court in Taylor cited Klein for the same proposition. Taylor at 34. It should be noted, however, that it is no longer permissible to exclude opinion testimony on that basis. Rule 704 states that an opinion otherwise admissible "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
[6] Though the State failed to invoke Rule 701 by name when objecting to Middleton's testimony, the trial judge sustained the State's objection at least once on the basis that defense counsel's question called "for an opinion from" the witness. Therefore, proper disposition of this case includes analysis under Rule 701.
[7] Rule 602 provides that a witness may not testify to a matter unless "evidence is introduced sufficient to support a finding that he has personal knowledge of the matter."
[8] The concurring opinion claims that there should be a bright-line rule excluding all opinion testimony regarding culpable mental state because one can never have personal knowledge of another's mental state. The concurring opinion, however, fails to recognize that there is a difference between testifying to another's mental state and giving an opinion, based on perceived events, as to another's mental state.
Falkenberg:
The Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” Strickland
Strickland is a landmark case and it is full of guidance beyond the standard it sets forth. Even practitioners familiar with the case should re-read it every so often.
For a successful ineffective assistance claim, the applicant must show that counsel erred and that the error prejudiced the applicant. The Supreme Court said it this way:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless the defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 693 (1984).
Obviously, the crucial aspect of showing attorney error is demonstrating that counsel actually erred. Two common claims are that counsel did not object and that counsel did not discover and present helpful evidence or testimony. “To show ineffective assistance of counsel for the failure to object during trial, the applicant must show that the trial judge would have erred in overruling the objection.” Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (citing Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim.
App. 1996)). To show that counsel erred in not calling witnesses, the applicant must show that the witnesses were available, and that the applicant would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (citing Hunnicutt v. State, 531 S.W.2d 618 (Tex. Crim. App.
1976)).
Counsel’s alleged legal errors must be judged on the state of the law at the time of the action. The Court will not “find counsel ineffective for failing to take a specific action on an unsettled issue.” State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013).
Ineffective assistance claims are judged by the “prevailing law” at the time of the habeas application, so if the law that made counsel ineffective at the time of the trial has changed, the applicant will no longer be entitled to relief based on counsel’s errors. Ex parte Butler, 884 S.W.2d 782 (Tex. Crim. App. 1994) (citing Lockhart v. Fretwell, 506 U.S. 364 (1993)).
Applicants sometimes point to incidents of professional misconduct to bolster their claims. This is usually unavailing. “A finding of professional misconduct based on other matters as well as actions of counsel at trial should have no bearing on a subsequent Article 11.07 . . . proceedings alleging solely the ineffective assistance of counsel at trial. We decline to discuss such matter as an abstract subject.” Ex parte Raborn, 658 S.W.2d 602, 604 (Tex. Crim. App. 1983).
To meet this burden, the applicant “must show that there is 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.” Strickland v. Washington,
466 U.S. at 694. Though advocates and courts often think of this in “but for” causation shorthand, that overstates the burden. The trial facts matter, and the successful applicant must delve into them. Naturally, “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 696.
When the alleged attorney error happened during the punishment phase of trial, the harm inquiry focuses on that phase of the case. The applicant “must prove that there is a reasonable probability that, but for counsel’s errors, the sentencing jury would have reached a more favorable verdict.” Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (quoting Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005)). Two of the Court’s more recent published cases granting relief based on ineffective assistance of counsel involved errors at the punishment phase. Ex parte Lane, 303 S.W.3d 702 (Tex.
Crim. App. 2009) (failure to object to inadmissible punishment evidence); Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012) (failure to investigate extraneous offense evidence admitted at punishment).
Claims relating to counsel’s ineffectiveness in the plea bargaining process face a slightly higher burden in Texas after the Supreme Court decided a pair of companion cases.15 Following the Supreme Court’s lead the Court of Criminal Appeals adjusted its standard. and held that to show prejudice when the applicant was not made aware of a plea offer or rejected one based on bad advice, “the applicant must show a reasonable probability that: (1) he would have accepted the earlier offer if counsel had not given ineffective assistance; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not have refused to accept the offer.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App.
2013).
15 Missouri v. Frye, 566 U.S. 134 (2012); Lafler v. Cooper, 566 U.S.
156 (2012)Cronic The harm analysis is short circuited when there is an “actual breakdown
of the adversarial process” in a case. The Supreme Court suggested that in situations where the
“process loses its character as a confrontation between adversaries, the [Sixth Amendment]
constitutional guarantee is violated,” and no inquiry into harm is necessary. United States v.
Cronic, 466 U.S. 648, 656–59 (1984). The Court observed that this was the case when the
accused is denied counsel at a critical stage, when counsel “fails to subject the
prosecution’s case to meaningful adversarial testing,” when counsel was “denied the
right of effective cross examination,” and when the “surrounding circumstances made it so
unlikely that any lawyer could provide effective assistance.” Cronic, 466 U.S. at
659–61.
True Cronic cases are rare. A lawyer who practiced while his license was suspended for failure to respond to grievances was not incompetent as a matter of law, however, it remains a possibility under different circumstances of suspension. Cantu v. State, 930 S.W.2d 594, 603 (Tex. Crim. App. 1996). “[A] defendant is denied counsel not only when his attorney is physically absent from the proceeding, but when he is mentally absent as well, i.e., counsel is asleep, unconscious, or otherwise actually non compos mentis.” Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005). When the applicant was represented by two lawyers, one of whom slept during trial, the Court found no Cronic violation when he “did have the constant, actual and active participation of a second lawyer,” though the participating lawyer was less experienced. McFarland, 163 S.W.3d at 753.
Trial counsel’s responsibilities consist of a two-step process. First, the attorney must ascertain whether the defendant wishes to appeal. The decision to appeal lies solely with the defendant, and the attorney’s duty is to advise him as to the matters described above. If the defendant does not wish to appeal, trial counsel’s representation ends. If the defendant decides to appeal, the attorney must ensure that written notice of appeal is filed with the trial court. At this point, trial counsel has two options. He may sign the notice himself, in which case, he effectively ‘volunteers’ to serve as appellate counsel. Alternatively, the defendant may file the notice pro se, which serves as “an indication that trial counsel does not wish to pursue his client’s appeal. A ‘contemporaneous’
presentation of the pro se notice with a motion to withdraw by trial counsel serves as actual notice to the trial court of the defendant’s desire to appeal. Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (internal citations omitted).
“[T]hat retained counsel did not intend to handle the resultant appeal does not justify his failing to assist his allegedly indigent client in giving notice of appeal.” Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988).
A defendant may waive appeal as part of a plea bargain, and the Court has held that a defendant may knowingly and intelligently waive his entire appeal as part of a plea, even when sentencing is not agreed upon, where consideration has been given for the waiver. Ex parte Broadway, 301 S.W.3d 694 (Tex.
Crim. App. 2009). It remains to be seen how the Supreme Court’s recent decision in Garza will factor into evaluating appellate waivers followed by the desire to appeal. Garza v. Idaho, 139 S. Ct. 738 (2019). In Garza, the Supreme Court concluded that prejudice is presumed without regard to the merits when a lawyer does not perfect an appeal that the defendant would have otherwise pursued, “even when the defendant has, in the course of pleading guilty, signed what is often called an ‘appeal waiver’ that is, an agreement forgoing certain, but not all, possible appellate claims.” Garza, 139 S. Ct. at 742. You must read that case before going further in that situation.
The Rules of Appellate Procedure codify the steps that appellate lawyers must take when a conviction is affirmed on appeal. The lawyer must, within five days of the opinion’s release, send the client a copy of the opinion and notification of the right to file a pro-se PDR. The notification must be sent to the defendant by certified mail, return receipt requested, and the lawyer must send the appellate court a letter certifying compliance with the rule with a copy of the return receipt. Tex. R. App. P. 48.4. The Rule has been in place for well over a decade, but the Court still sees valid out-of-time PDR claims based on counsel errors on a weekly basis. The Court has not yet said that failure to comply with Rule 48.4 is prima facie evidence of attorney error.
iii. Suppression of Exculpatory Evidence Brady claims are appropriately raised in post-conviction habeas corpus because they implicate a constitutional right and require suppressed evidence, which was necessarily unavailable at the time of trial. Untimely disclosure of exculpatory evidence that is discovered at the time of trial proceedings can and should be litigated at trial and on appeal. If trial court litigation of belated discovery was impossible for some reason, the habeas applicant should acknowledge the issue and argue it.
In Brady this Court held ‘that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ Brady v. Maryland, 373 U.S. 83, 87 (1963). We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ Id. at 682; see also Kyles v. Whitley, 514 U.S. 419, 433– 34 (1995). Moreover, the rule encompasses evidence ‘known only to police investigators and not to the prosecutor.’ In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ Kyles, 514 U.S. at 437. Strickler v. Greene, 527 U.S. 263, 280–81
(1999).
Just as the knowledge of police investigators is imputed to all prosecutors, the knowledge of one prosecutor is imputed to others who may work on the case in the future. “[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” In Giglio, the grand jury prosecutor made a promise to a co-conspirator that if he testified before the grand jury and at trial, he would not be prosecuted. Other prosecutors did not know about this and he testified at trial that nobody told him he wouldn’t be prosecuted. Giglio v. U.S., 405 U.S. 150, 151–54 (1971).
“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999).
The State’s constitutional duty to preserve evidence is limited to that which could be expected to play a significant role in the defense of the case. Rejecting an argument that the State should have preserved breath samples, the Supreme Court has held that to meet this materiality standard, “the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means” Cal. v. Trombetta, 467 U.S. 479, 488–89 (1984) (internal citations omitted). “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Ariz. v. Youngblood, 488 U.S. 51, 58 (1988).
“Bagley’s touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective
is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
It is not the applicant’s burden to prove there would have been an acquittal in view of the exculpatory evidence. A Brady violation is proven “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 434–35. Suppressed evidence should be considered collectively, not item by item, and courts should resist making independent materiality evaluations and should look to a cumulative evaluation. Kyles, 514
U.S. at 436, 441. Evidence is material “when there is ‘any reasonable likelihood’ it could have ‘affected the judgment of the jury,’” and to prevail on a Brady claim, the applicant does not need to show the new evidence would have resulted in an acquittal, but “only that the new evidence is sufficient to ‘undermine confidence’ in the verdict.” Wearry v. Cain, 577 U.S. 385, 392 (2016) (internal citations omitted).
Like ineffective assistance claims, the battle of Brady claims is often focused on the culpability of the State and the alleged devilry of the prosecutor or police officer who buried exculpatory evidence. Of course, the applicant must show that the evidence was suppressed, but I believe the real fight should usually be over materiality. Applicants must focus their energy on the materiality argument and might consider looking at Supreme Court decisions focusing on materiality to emulate the analysis. Kyles and Strickler both provide excellent examples of materiality analysis.16
Following Chabot, the applicable standard was the subject of some dispute, with arguments that different burdens should apply depending on the State’s (or witness’s) culpability and the prior availability of the claim. Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) (Keller, P.J., dissenting). However, the Court appeared to settle on a straightforward standard in Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). The Court requires that testimony be false and material. Materiality is necessary to make a due process violation, and testimony is material only when “there is a ‘reasonable likelihood’ that the false testimony affected the judgment of the jury. The applicant must still prove his habeas corpus claim by a preponderance of the evidence, but in doing so, he must prove that the false testimony was material and thus it was reasonably likely to influence the judgment of the jury.” Weinstein, 421 S.W.3d at 665.
In guilty plea false evidence cases, the applicant faces the same situation raised by an ineffective assistance claim. The proof must show that, with knowledge the evidence was false, the applicant would have insisted on going to trial. The false evidence is “material” when the applicant would have chosen a trial. Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App. 2015).
The Court has held that a medical examiner who no longer stood by a prior opinion and testimony about cause of death constituted “scientific knowledge” under the statute. Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014).17 Similarly, new DNA technology (Y-STR) has resulted in 11.073 relief on an 11.07 application. Ex parte Kussmaul, 548 S.W.3d 606 (Tex. Crim. App. 2018). Finally, the Court agreed that evolving scientific knowledge underlying the field of bitemark comparisons contradicted scientific evidence relied on at trial. Ex parte Chaney, 563 S.W.3d 239, 257–61 (Tex. Crim. App. 2018).
The statute contains its own language relating to subsequent writs, clarifying that a claim could not have been presented in a prior writ if it is based on scientific evidence that was not ascertainable by reasonable diligence on or before the date of filing the prior writ. Tex. Code Crim. Proc. art. 11.073(c). The article itself provides a new legal basis for false evidence claims that were rejected prior to its enactment “in the small number of cases where the applicant can show by the preponderance of the evidence that he or she would not have been convicted if the newly available scientific evidence had been presented at trial.” Ex parte Robbins, 478 S.W.3d 678, 690 (Tex. Crim. App. 2014); Ex parte Kussmaul, 548 S.W.3d 606, 633 (Tex. Crim. App. 2018).
However, litigants should be aware that Article 11.073 does not apply to evidence adduced at the punishment phase of a trial because the statutory language conditions relief upon whether the person would not have been “convicted.” Ex parte White, 506 S.W.3d 39 (Tex. Crim. App. 2016). The legislature has yet to correct this (if it is a bug in the statute), but litigants may still attempt to lodge false evidence claims for punishment evidence in lieu of expansion of 11.073’s applicability. See Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) (new punishment hearing granted based on false evidence).
v.Actual Innocence Like Texas false evidence jurisprudence, its actual innocence jurisprudence is recent. For lawyers licensed since the mid 90s, it’s almost impossible to conceive that innocence was once manifestly not relevant on habeas. The principle that habeas corpus was not concerned with guilt or innocence or “newly discovered evidence” was part of the bedrock of our law. Ex parte Binder, 660 S.W.2d 103, 106 (Tex. Crim. App. 1983). The theory was that these were issues to be raised with the Governor (or President) in pursuit of executive clemency.
In 1993, the Supreme Court (reviewing a Texas death penalty case) assumed for the sake of argument without deciding that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional . . .” Herrera v. Collins, 506 U.S. 390, 417 (1993).
The Supreme Court still has not held that a showing of actual innocence is a matter of constitutional concern. However, the Court of Criminal Appeals decided that it is “clear . . . that the incarceration of an innocent person is as much a violation of the Due Process Clause as is the execution of such a person. It follows that claims of actual innocence are cognizable by this Court in a postconviction habeas corpus proceeding whether the punishment assessed is death or confinement.” Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996).
16 In Kyles, the applicant prevailed, and in Strickler, the State prevailed.
17 This pre‐dated amendments to Article 11.073 that have since codified the holding.