Robert Earl Hart v. the State of Texas ( 2021 )

Affirmed in Part, Reversed in Part, and Remanded, and Majority and
Dissenting Opinions filed May 13, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00591-CR
ROBERT EARL HART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1524656
DISSENTING OPINION
The majority eviscerates any discretion that seasoned criminal defense
attorneys may exercise to pursue one defensive strategy over another. I must
respectfully dissent.
* * *
This court should apply the strong presumption that, in the absence of
counsel being afforded an opportunity to explain his actions, counsel’s decision not
to request a jury instruction on a defensive issue1 was the result of reasonable
strategy. See Rios v. State, 990 S.W.2d 382, 836 (Tex. App.—Amarillo 1999, no
pet.) (overruling ineffective assistance claim; “In light of the absence of proof as to
trial counsel’s reasons for or strategy in not requesting the sudden passion
mitigating instruction, we will not speculate on trial counsel’s strategy, mental
processes, or reasons for not requesting the instruction.”).
Even if, as the majority concludes, appellant would have been entitled to an
instruction on sudden passion if counsel requested it, “the failure to request the
instruction was not objectively unreasonable because defensive issues frequently
depend upon trial strategy and tactics.” Okonkwo v. State, 398 S.W.3d 689, 697
(Tex. Crim. App. 2013) (quotation omitted) (reversing court of appeals and
holding that trial counsel was not ineffective for failing to request a mistake of fact
instruction). “[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.” Id.
(alteration in original) (quoting Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex.
Crim. App. 1992)).
If the record in this case reveals anything about counsel’s reason for not
requesting a sudden passion instruction, it is that counsel affirmatively considered
the merits of requesting the instruction and rejected it. In light of counsel’s
consideration of case law that counsel determined was “directly on point,” counsel
1
See Simpson v. State, 548 S.W.3d 708, 710–11 (Tex. App.—Houston [1st Dist.] 2018,
pet. ref’d) (holding that the accused must request an instruction on sudden passion to preserve
error because it is a defensive issue); Newkirk v. State, 506 S.W.3d 188, 191–92 (Tex. App.—
Texarkana 2016, no pet.) (same); Espinoza v. State, No. 14-99-00570-CR, 2000 WL 1591061, at
*3–4 (Tex. App.—Houston [14th Dist.] Oct. 26, 2000, pet. ref’d) (mem. op., not designated for
publication) (same); see also Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015)
(referring to sudden passion as a “defensive issue”).
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concluded that he did not want a sudden passion instruction. Appellate court
justices reviewing a cold record years after the fact have no idea what case law trial
counsel considered and whether counsel’s decision not to pursue a sudden passion
instruction was the product of reasonable trial strategy. The majority cites not a
single analogous case to undermine counsel’s reasoned conclusion that appellant
was not entitled to the instruction. And the majority ignores key tenants of review:
“A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
Based on his review of pertinent case law, counsel at that moment may have
reasonably decided that appellant was not entitled to a sudden passion instruction.
Cf. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (no deficient
performance for failing to object to inadmissible testimony when “counsel at that
moment may have reasonably decided that the testimony was not inadmissible and
an objection was not appropriate”).
At punishment, counsel portrayed appellant not as a hot-headed man who
was overcome with emotions, but as a considerate family-man who wanted to
protect his daughter from a persistent problematic boyfriend. Counsel argued that
appellant simply “had enough” of the complainant. Given the modicum of
evidence in this case that might have conceivably supported an instruction on
sudden passion, counsel could not be held ineffective for pursuing an alternate
strategy. Cf. Okonkwo, 398 S.W.3d at 697 (concluding that “counsel was not
objectively unreasonable by failing to request an instruction on mistake of fact
because that theory was inconsistent with a theory that counsel advanced at trial”);
Dannhaus v. State, 928 S.W.2d 81, 86–87 (Tex. App.—Houston [14th Dist.] 1996,
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pet. ref’d) (recognizing that counsel’s choice of focusing the jury on the
defendant’s culpable mental state, rather than requesting instructions and pursuing
other defenses for which the evidence was not strong, was not objectively
unreasonable); Martini v. State, No. 05-17-00693-CR, 2018 WL 3598978, at *3
(Tex. App.—Dallas July 27, 2018, no pet.) (mem. op., not designated for
publication) (“Where the evidence of guilt is overwhelming, and the evidence to
support an affirmative defense is weak, a strategy of focusing the jury on the
strongest theory of innocence supported by the evidence is not objectively
unreasonable.”); Roberts v. State, No. 01-16-00059-CR, 2016 WL 6962308, at *5
(Tex. App.—Houston [1st Dist.] Nov. 29, 2016, pet. ref’d) (mem. op., not
designated for publication) (“Assuming without deciding that Appellant’s
testimony provides sufficient facts to warrant a self-defense instruction,
Appellant’s counsel could have reasonably determined that the evidence was weak
enough that to include the instruction in the charge could risk credibility with the
jury.”); Alonzo v. State, No. 03-05-00849-CR, 2006 WL 2589194, at *4 (Tex.
App.—Austin Sept. 8, 2006, no pet.) (mem. op., not designated for publication)
(reasoning that counsel “might have decided for strategic reasons not to request the
instruction on self-defense because of the risk of alienating the jury by arguing a
point that, if supported by any credible evidence at all, was certainly weak”).2
2
We cannot say that counsel’s determination that appellant was not entitled to a sudden
passion instruction was unreasonable in light of the video evidence that the jury undoubtedly
relied upon to reject appellant’s claim of self-defense. The video shows that the complainant
parked in front of appellant’s house, got out of his car, removed his shirt, and began to smoke a
cigarette. Appellant, wielding a pistol in his hand and carrying a revolver in his pocket, exited
the safety of his own home and approached the complainant on the street. When the complainant
held his arms outstretched to the side, appellant shot the complainant six times, including twice
in the back while the complainant was running away. After the complainant collapsed, appellant
removed the revolver from his pocket, fired it once into the ground, and placed it in the
complainant’s hand to stage a claim of self-defense.
4
The majority’s analysis focuses solely on whether appellant would have
been entitled to a requested instruction on sudden passion, not whether trial
counsel might reasonably have decided not to pursue the instruction. In this
regard, the majority fails to correctly apply the relevant legal principles for claims
of ineffective assistance.
For these reasons, I dissent.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Spain. (Spain, J., majority).
Publish — Tex. R. App. P. 47.2(b).
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