Douglas Shane Cosper v. State of Texas ( 2002 )

Douglas Shane Cosper v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-01-045-CR

     DOUGLAS SHANE COSPER,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # FCM-00-15602

O P I N I O N

      This case involves the effectiveness of trial counsel.

      Douglas Shane Cosper and his wife, Lisa, had been having marital problems for several years. Cosper eventually moved out of their house; Lisa stayed there with their twelve-year-old son. Cosper suspected Lisa was having an affair with Jeff Miller, but Lisa denied it.

      On March 24, 2000, about ten months after he moved from their house, Cosper learned that Lisa and Jeff might be together at the house. Cosper got his shotgun, went to the house, and entered; he found Lisa and Jeff sitting in the living room. Cosper shot and killed Lisa and Jeff, went back to his apartment, confessed to his son, called his step-father and confessed, and turned himself in to police. The next day, Cosper signed a written confession. The day after that, he made a tape-recorded confession. Both confessions were admitted into evidence at trial.

      Cosper was indicted for capital murder, and the State sought the death penalty. During opening statement (reserved until the end of the State’s evidence on guilt-innocence), defense counsel told the jury: “[W]hat happened happened. But what we think is important for you to see and for you to understand is why it happened. . . . I think [the evidence the defense will present is] going to make you understand that this may be one of those cases where you need to really seriously look at a lesser included offense of murder, because what’s important to this is what was in Doug’s mind, what was he thinking and why was he thinking it.” During the closing argument of the guilt-innocence phase, defense counsel argued: “Now, ladies and gentlemen, it doesn’t change the fact and it doesn’t change the tragedy of two deaths, but ladies and gentlemen, all of this goes to the issue of the defendant’s state of mind. It goes to intentional and knowingly, and it goes to heat of passion. You’ve got to look at this and you’ve got to go over the court’s charge. And ladies and gentlemen, if you find by any degree of less than a reasonable doubt because of his state of mind, you’ve got to acquit him.” After the jury convicted Cosper, at the punishment phase defense counsel called ten witnesses, including three doctors, whose testimony was designed to refute that Cosper was a continuing threat to society, and to show circumstances mitigating against imposition of the death penalty. The jury found sufficient mitigating circumstances for a life sentence rather than death. The court sentenced Cosper to life.

      On appeal, Cosper’s sole issue is that his trial counsel were ineffective because they presented a guilt-innocence defense of “sudden passion,” whereas that defense is available only in the punishment phase of a proceeding for regular murder. Tex. Pen. Code Ann. § 19.02(d) (Vernon 1994); Wesbrook v. State, 29 S.W.3d 103, 112-13 (Tex. Crim. App. 2000); Buhl v. State, 960 S.W.2d 927, 935 (Tex. App.—Waco 1998, pet. ref’d). He says that by pursuing a defensive theory that was doomed—he could not get a jury instruction on it—his trial counsel failed to pursue other lines of defense during the guilt-innocence phase. In the alternative, Cosper argues that his trial counsel should have more persuasively argued that it is unconstitutional to apply “sudden passion” to regular murder but not to capital murder.

      The State counters that, even though the defensive theory was not legally applicable during guilt-innocence, the thrust of it was pertinent to the “mitigating circumstances” issue during the punishment phase. Therefore, the development of “sudden passion” was useful to Cosper, as evidenced by the jury’s finding of mitigating circumstances. Furthermore, the State says, the defense never disputed that Cosper murdered Lisa and Jeff at the same time, and so there were no other defenses.

      Texas courts follow the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986), which adopted the standard in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)). Appellant must show: (1) counsel's assistance fell below an objective standard of reasonableness, and (2) counsel's deficient assistance, if any, prejudiced the defendant. Thompson, 9 S.W.3d at 812 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). 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, 9 S.W.3d at 812-13 (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) (quoting Strickland, 466 U.S. at 686, 104 S. Ct. at 2064)). There is a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. at 813 (citing Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). Appellant must prove ineffective assistance by a preponderance of the evidence. Id. at 813 (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).

      There is a presumption that the challenged act by defense counsel is trial strategy. Pena-Mota v. State, 986 S.W.2d 341, 346 (Tex. App.—Waco 1999, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). The record indicates that defense counsel attempted to persuade the court to follow the law prior to 1994, when amendments were made to the murder statutes deleting voluntary manslaughter as an offense and instituting “sudden passion” as a punishment issue for regular murder offenses. It is not clear whether Cosper’s trial counsel failed to understand that “sudden passion” is not a defense in a capital murder, or whether counsel had a trial strategy of weaving “sudden passion” into the trial in hopes of convincing a juror to acquit based on Cosper’s state of mind, even though that would not have been a proper finding under the charge. Statements made by defense counsel at the charge conference, indicating that they believed evidence of “sudden passion” was relevant because this was a case of domestic violence, do not clarify what their thinking was. Nevertheless, we need not decide this prong of the Strickland test, because Cosper cannot show that he was prejudiced thereby. Thompson, 9 S.W.3d at 812. The evidence, which included his written and recorded confessions, was overwhelming that he killed Lisa and Jeff during the same incident and that he knew what he was doing. Under these facts, there was no defense available to him.

      As for Cosper’s argument about the constitutionality of the statutory scheme regarding “sudden passion,” that issue has been decided approving the statute. Wesbrook, 29 S.W.3d at 112-13; Buhl, 960 S.W.2d at 935.

      We overrule the issues and affirm the judgment.

                                                                         BILL VANCE

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed May 29, 2002

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