Judge Michael McC _ nick - Voice For The Defense Online

~ -~~ ~PUNISHMENT AT SECOND TRIAL CONSTITUTE IN-EFFECTIVE ASSISTANCE? TCA answers "no" findingthat t/j was not limited by North Carolina v. Pierce tooriginally assess punishmentFACTS: D was convicted of delivery of heroin. T/J assessedpunishment at 15 years confinement. However, t/j later grantednew trial under former Article 40.09 V.A.C.C.P. on claim ofdeficiency in indictment's allegation. New indictment waspresented. New t/j was appointed to fill vacancy ontrial bench.Based on attorney's advice, D elected to have jury at second trialassess punishment. Punishment was assessed at 25 years afterjury found D guilty and he pled "true" to enhancement allegationof prior felony.HISTORY ON APPEAL: This opinion was on remand fromUnited States Supreme Court. Prior to that time case hadlengthy appellate history. In original appeal D complainedtrial attorney provided ineffective assistance by advisinghim to make jury election. D relied on North Carolina o.Pierce, 395 US. 711 (19691, fortheorythat second t/j wasbarred from assessing a greater punishment than first t/j -15 years. Thus, by electing to have jury assess punishmentat second trial, because that is what his attorney advisedhim, Dreceived 10 additional years of punishment.C/A held evidencesufficient to sustain conviction but initiallyremanded toT/C for hearingto determineif therewas "objective information" available which would have allowedthe secund t/j to assess a moresevere penalty. 640S.W.2d 323. Following evidentiary hearing. C/A determinedPierce applied, there was no objedive information,and D received ineffective assistance for sole reason ofhaving been advised to have jury assess punishment. Convictionwas reversed. 662 S.W.2d 74.State's PDR was granted and TCA affirmed judgment ofC/A -determining that prophylactic rule in Pierceapplied.TCA agreed that in electing to have jury rather than judgeassess punishment at second trial, limitation on unishmentrange was removed. Because trial attorney fail el to adviseD about impact of Pierce he was ineffective.State filed Petltion for Writ of Certiorari. Cert was grantedand case was remanded to TCA for further consideration inlight of Tern v. McCullougk, 475 US. 134 (19%). See, Texas v.Jackson, 475 US. 1114 (19%).Question before TCA is whether sole act of advising D to electto have jury assess punishment was ineffective assistance of counsel.A sub-issue, a critical issue in this case, was whether t/j waslimited by Pieree to the 15 years imprisonment originally imposed,when a jury would not have been so limited.Central to the prior decisions of TCA and of C/A was thatPierce would apply -in other words, that T/J at second trialwould have been "locked into" assessing no more than theoriginal 15 years. Obviously, if Piercedid no apply, t/j would beas free as jury to assess any term of years within lawful range forenhanced punishment.HELD: Based on Tern v. McCuliough, TCA found Pierce inapplicable. As inMcCullough, t/j granted Ws request for new trial.This action did not demonstratevindictiveness. Second, t/j hadno personal stake in prior conviction. If new t/j had been calledupon to assess punishment, there would have been different sentencersand Pierce presumption of vindictiveness would notapply. However, even if Pierce were a plicable,TCA found therecould have beenanother basis for tria f attorney not telling D thatt/j would belocked into prior punishment; new facts include: Wsfailure to appear, bond forfieture at second trial, and inclusion offive prior arrests in PSI not known to first t/j. Under allthesefacts, D did not satisfy two part test of Stricklnnd v. Washington,166 US. 668 (1984). Ws attorney satisfied standard of counsel"reasonably likely to render and rendering reasonably effective as-~istance!'TEXAS o. McCULLOUGH: D in McCullougk was convictedof mwder and received 20 years from jury at first trial. T/Cgranted new trial based on prosecutorial misconduct. Atsecond trial, t/j assessed punishment at 50 years, enteringfindings to justify the greater penalty imposed at the secondtrial ...-.-that .... two State's witnesses. who had not testified at the~~ - ~~first trial, added to credibility of key prosecution witnessesand detracted from Ws credibilitv and from defense witness;ncwtestimony dirwlly implicated Din murder andshcd new light on his life and conduct; and at second trial itwas learned for first time D had been released from prisononlv four months before murder. S/Ct. held due prowscla&e was not violated by impositionof 50 year sentence.Nothing in McCulloughfacts provided a basis for a Piercepresumption of vindictiveness - t/j at second trial providedan on therecord logical, non-vindictive reason for pesterpunishment. ~orehp&tantl~, even if Pieroe prcsimptiondid apply, t/j's finding for imposing greater punishmentovercame that presumption.~ ~ - ~ ~D1SSENT:Thc three judgeminority castigatcsmajorityooinion because it iudees the effectivenessof trial attorneyii 1981 based on ai9& opinion, and by so doing turns a .deaf car to thechant that comwtencvof rcprescntation isnot be judged by hind-sight.lohnnie Earl LINDSEY, No. 960-86 -on D's Motion forRehearing; Opinion by Judge Davis; Judges Onion, Clinton,Campbell and Duncan Dissent; November 23,1988.STATUTE OF LIMITATIONS - SEXUAL ASSAULT:This appeal involved the issue of whether Ws trial was barredoy statuteof limitations. It involves two 1983 amendments toV.A.C.C.P. On original submission, conviction was affirmed;TCAjtands by original opinion.1st amendment to Article 12.01 lengthened statute of limita-:ions for oHense of aggravated rape to-five 2nd amendment:nxtcd defense of sexual assault and prospectively abolished oflenseof rape; it further created a statuteof limitations for sexualxssault of 5 vcars. witha 3 years statuteof limitations for allothcrfelony offeises.Issue on appeal is whether the 2nd amendment implicityrepled 1st &ndment, thereby crratinga thrce ye& statuteofimitations for the former offense of aggravated rape. TCA huld itiid not hause effea of 2nd amendment was to create new ofbnseand abolish rape perspectiuely. Thus, 1st amendment did:reate anew statute of limitations for aggravated rape which apdied to D. Because D was tried within the5 year statute of limita-.ions applicable at the time of his indictment, conviction waslffirmed.Sammy Joe ADKINS, No. 512-87 - On D's PDR: Opinionby Judge Davis, with Judges Miller and White Concurringinresults; Dissenting Opinion by Judge Clinton,[oined by Judges Campbell and Duncan; DissentingJanuary 1989