Storr, Ellsworth Swaindell v. State ( 2004 )

Affirmed in Part, Reversed and Remanded in Part, Judgment Reformed, and Majority and Dissenting Opinions filed January 22, 200

Affirmed in Part, Reversed and Remanded in Part, Judgment Reformed, and Majority and Dissenting Opinions filed January 22, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01018-CR

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ELLSWORTH SWAINDELL STORR, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 98-02-9312

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D I S S E N T I N G   O P I N I O N

            The majority correctly notes that, in some instances, trial counsel’s error may be so egregious that the appellant need not produce evidence regarding trial strategy because no strategic motivation could be imagined.  Trial counsel’s actions in this case — the failure to request or object to the absence of a special issue on voluntary release in a safe place — raises serious questions, and the majority’s analysis concluding there could be no strategic motivation for this failure is compelling.  However, this court should affirm based on the direction given by the Court of Criminal Appeals for deciding direct appeals of ineffectiveness claims in the face of a silent record, most recently set forth in Freeman v. State.  See — S.W.3d —, 2003 WL 22510582, No. 2156-01 (Tex. Crim. App. Nov. 5, 2003).  Because the court fails to do so, I respectfully dissent.

            As the majority and appellant acknowledge, the record in this case contains no evidence of trial counsel’s strategy.  Nonetheless, appellant urges that trial counsel’s failure to obtain a jury instruction on mitigation of punishment based on voluntary release in a safe place could not conceivably have been an exercise of reasonable trial strategy.  See Tex. Pen. Code § 20.04(d) (Vernon Supp. 2002).  Therefore, appellant argues, and the majority agrees, the first prong of the Strickland test^[1] is satisfied without any evidence of trial strategy in the record. 

            Though the majority explains its rationale for finding trial counsel’s actions in this case to be one of the rare instances in which no possible strategic motivation can be imagined, it fails to address Freeman.^[2]  See — S.W.3d —, 2003 WL 22510582, No. 2156-01 (Tex. Crim. App. Nov. 5, 2003).  In this recently issued case, the trial judge, who was a possible witness to the charged offense, made statements during pretrial hearings indicating he thought the appellant was guilty and was a bad actor. See Freeman, — S.W.3d at —, 2003 WL 22510582, at *2–*5 (Price, J., dissenting).  The appellate record in Freeman reflected the presence of Freeman’s trial counsel at hearings that provided compelling reasons why the trial judge’s impartiality might reasonably be questioned.  See id.  The record also reflected that Freeman’s trial counsel did not move to recuse the trial judge.  See Tex. R. Civ. P. 18b (2). The court of appeals held that, although there was no evidence in the record regarding trial strategy, none was needed because, under the unusual circumstances of that case, there was no objectively reasonable trial strategy for trial counsel’s failure to file a motion to recuse.  See Freeman, — S.W.3d at —, 2003 WL 22510582, at *5.  The State did not contest that Freeman had satisfied the second prong of Strickland.  See Strickland v. Washington, 466 U.S. 668, 691–92, 104 S. Ct. 2052, 2066–67, 80 L. Ed. 2d 674 (1984); Freeman, — S.W.3d at —, 2003 WL 22510582, at *5.  Further, in its briefing in the Court of Criminal Appeals, the State asserted several potential trial strategies that it claimed might have motivated Freeman’s trial counsel not to move to recuse the trial judge.  See Freeman, — S.W.3d at —, 2003 WL 22510582, at *2 (Meyers, J., dissenting) & at *12 (Price, J., dissenting).  Nonetheless, the Court of Criminal Appeals did not address whether there was a conceivable trial strategy for counsel’s failure to seek recusal; rather, our high court summarily reversed the court of appeals, holding that trial counsel’s alleged ineffectiveness was not so apparent from the record as to allow a finding of ineffectiveness without evidence regarding counsel’s trial strategy.  See Freeman, — S.W.3d at —, 2003 WL 22510582, at *1. 

            By its very recent opinion in Freeman, the Court of Criminal Appeals has forcefully reiterated that only in extremely rare cases will the record support ineffective assistance of counsel on direct appeal without evidence of trial strategy.  In Freeman, our high court also indicated that the dictum from Massaro cited by the majority does not change the ineffective-assistance analysis.  See id. (discussing effect of dictum in Massaro v. United States, — U.S. —, —, 123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003)).  Though the facts of the instant case are not the same as those in Freeman, the alleged ineffectiveness of counsel in this case is no more apparent from the record than was the alleged ineffectiveness in Freeman. This court could speculate as to the strategy, if any, of trial counsel in not seeking a safe-release instruction. For example, the court could surmise that this action was based on a trial strategy of not wanting to jeopardize the defense’s credibility by arguably contradicting the guilt-innocence argument, which indicated appellant was not involved in the kidnapping. However, based on recent precedent, especially Freeman, this court should allow appellant to develop his ineffectiveness argument and adduce evidence of counsel’s trial strategy, or lack thereof, by means of an application for writ of habeas corpus.  See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (granting habeas relief and holding counsel ineffective for failing to object to omissions in the jury charge or request an instruction, although court previously had rejected this claim based on a silent record on direct appeal).  This is the procedural course we have been instructed to follow.  See id.

            The court’s disposition of this case is contrary to the Rios opinion and to unpublished cases from other courts of appeals.  See Rios v. State, 990 S.W.2d 382, 386 (Tex. App.—Amarillo 1999, no pet.) (holding counsel’s failure to seek mitigation instruction on sudden passion did not constitute ineffective assistance of counsel when record was silent as to counsel’s strategy); Hernandez v. State, No. 05-02-00238-CR, 2003 WL 21212814, at *1 (Tex. App.—Dallas May 27, 2003, no pet.) (not designated for publication) (same); Davis v. State, No. 01-01-00990-CR, 2002 WL 1822159, at *3–*4 (Tex. App.—Houston [1st Dist.] Aug. 8, 2002, pet. ref’d) (not designated for publication) (finding no ineffectiveness of counsel based on silent record where appellant asserted counsel did nothing to obtain a lower sentence for appellant, who received a 50-year sentence for aggravated kidnapping, in case in which counsel did not seek or object to the absence of a special issue under section 20.04(d) of the Texas Penal Code); Nail v. State, No. 01-98-00509-CR, 1999 WL 1063434, at *2 (Tex. App.—Houston [1st Dist.] Nov. 24, 1999, pet. ref’d) (not designated for publication) (finding trial counsel was not ineffective for not requesting a special issue under section 20.04(d) of the Texas Penal Code because record was silent as to trial counsel’s strategy). 

            The majority cites to Ex parte Ballard, a case in which the Court of Criminal Appeals granted habeas relief based on trial counsel’s ineffective assistance in failing to argue the defendant had voluntarily released the complainant in a safe place.  The majority’s reference to Ballard, however, does not support today’s holding in this direct appeal.  See Ex parte Ballard, No. 74823, 2003 WL 22508414, at *1 (Tex. Crim. App. Nov. 5, 2003) (not designated for publication).  The Court of Criminal Appeals has stated that an application for a writ of habeas corpus is the more appropriate vehicle to raise claims of ineffective assistance of counsel; ordinarily, these claims should not be resolved on a direct appeal in which the record is silent as to trial strategy because trial counsel should be given an opportunity to explain their actions before being denounced as ineffective.  See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); see also Ex parte Varelas, 45 S.W.3d at 632 (granting habeas relief, although court had previously rejected ineffective-assistance claim on direct appeal based on silent record).  If this court declined to address appellant’s ineffective-assistance claim on direct appeal based on the lack of evidence of trial strategy, appellant could seek and might very well obtain habeas relief based on this claim. The availability of the habeas corpus procedure, which would give trial counsel an opportunity to explain his actions and any trial strategy, weighs against, not in favor of, an ineffective-assistance determination on direct appeal based on a record that is silent regarding trial strategy.

            The majority also cites Vasquez v. State.  Not only was Vasquez decided before the landmark case of Jackson v. State, but the facts of Vasquez differ in notable ways from the facts in this case.  See Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994); Vasquez v. State, 830 S.W.2d 948, 949–51 (Tex. Crim. App. 1992).  In Vasquez, appellant testified, admitted the elements of the charged offense, and asserted only one defensive theory — necessity.  See Vasquez, 830 S.W.2d at 949–51. Vasquez’s assertion of a single defensive theory in the guilt-innocence phase, if successful, would have resulted in a verdict of not guilty.  See id.  In this case, appellant did not testify and did not admit that he committed the offense; rather, appellant’s trial counsel indicated appellant was not involved in the kidnapping and attacked the reliability of the complainant’s identification of appellant as one of the kidnappers.  Furthermore, the alleged ineffectiveness in this case was counsel’s failure to seek a special issue on a punishment-phase mitigation question that would limit punishment rather than result in a not-guilty verdict.  The differences between Vasquez and this case are not insignificant.  See Vasquez, 830 S.W.2d at 949–51; Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (distinguishing Vasquez as involving a defendant who admitted he committed the offense and as involving failure to request an instruction regarding defendant’s only available defense).  In light of these differences, this court should be guided by Freeman rather than by Vasquez.  Compare Freeman v. State, — S.W.3d at —, 2003 WL 22510582, at *1 with Vasquez, 830 S.W.2d at 949–51.

            Based on the most recent guidance provided by the Court of Criminal Appeals in Freeman, this court should not determine appellant’s ineffective assistance of counsel claim on direct appeal. The court should affirm the trial court’s judgment as reformed.^[3]

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Judgment rendered and Majority and Dissenting Opinions filed January 22, 2004.

Panel consists of Justices Yates, Hudson, and Frost (Yates, J., majority).

Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  See Strickland v. Washington, 466 U.S. 668, 691–92, 104 S. Ct. 2052, 2066–67, 80 L. Ed. 2d 674 (1984).

            ^[2]  The majority also states that this case is unique because the evidence conclusively establishes that appellant voluntarily released the complainant in a safe place. The majority’s assessment is flawed. The record does not establish as a matter of law that appellant released the complainant in a safe place.  See Nolan v. State, 102 S.W.3d 231, 238 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  The complainant stated he was released in his car, near a post office station on the campus of Prairie View A&M University.  The complainant also testified he was released at approximately 11:00 p.m. during the winter break, at a time when there was nobody on campus except for some members of the school’s marching band.  The record is silent concerning the following factors: (1) the proximity of authorities or persons who could aid or assist, (2) the climactic conditions, and (3) the character of the location or surrounding neighborhood.  See id.  The record does not show whether the surrounding area was generally safe or crime-ridden.  While the record contains evidence that would raise a fact issue on the safe-release defense, it does not prove safe release as a matter of law.  See id. (holding appellant did not prove safe release as a matter of law because the evidence did not address several critical factors regarding this issue).  To the extent the majority relies on Lavarry v. State as authority in support of its conclusion that the record proves safe release as a matter of law, that case is not on point because it held, under the former version of section 20.04 of the Penal Code, the State did not prove beyond a reasonable doubt that appellant released the victims in an unsafe place. See Lavarry v. State, 936 S.W.2d 690, 695–97 (Tex. App.—Dallas 1996, pet. dism’d).  Under the current statute, the accused has the burden of proof on this issue.  See Tex. Pen. Code § 20.04(d).

            ^[3]  The majority correctly grants appellant’s unopposed request that the trial court’s judgment be reformed to reflect that appellant pleaded “not guilty” rather than “guilty.”