Opinion
NO. WR-85,011-01 NO. WR-85,011-02 NO. WR-85,011-03 NO. WR-85,011-04
10-05-2016
EX PARTE EDUARDO ENRIQUE ALFARO, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W401-82026-2011-HC1, W401-82025-2011-HC1, W401-82025-2011-HC2, & W401-82026-2011-HC2 IN THE 401ST JUDICIAL DISTRICT COURT FROM COLLIN COUNTY ALCALA, J., filed a dissenting opinion in which JOHNSON, J., joined. DISSENTING OPINION
I respectfully dissent from this Court's judgment that denies post-conviction habeas relief to Eduardo Enrique Alfaro, applicant. Unlike this Court's judgment in this case, I conclude that applicant may have received ineffective assistance of counsel due to counsel's failure to conduct a reasonable investigation for mitigating evidence to be presented at the punishment phase of applicant's trial. I would, therefore, remand this case to the habeas court for a hearing to address this allegation.
Applicant was convicted of sexual assault of a child, continuous sexual abuse of a child, aggravated sexual assault of a child, and indecency with a child. He received prison sentences of forty years, fifty years, forty years, and twenty years, respectively. He filed this application for a writ of habeas corpus alleging, among other things, that he is entitled to a new sentencing hearing because trial counsel failed to investigate and present mitigating evidence at the punishment phase of trial. Applicant contends that trial counsel should have consulted an expert to develop evidence showing that applicant is at low risk to re-offend. As proof, applicant has supplied an affidavit from a board-certified forensic psychologist stating that his risk of recidivism appears low, as does his risk for violating the terms of community supervision. The psychologist administered three risk-assessment instruments, among other psychological testing, and applicant's scores indicate a low risk of recidivism. Trial counsel filed an affidavit responding to applicant's allegations, stating that he did not consult a mitigation expert because he "did not think it was needed" and he "did not typically consult with a mitigation expert."
The three tests administered were the Level of Service/Risk, Need Responsivity (LS/RNR), the STATIC-99R, and the Risk for Sexual Violence Protocol (RSVP). --------
Trial counsel was obligated to conduct a reasonable investigation into possible mitigating evidence on behalf of his client. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). To establish a claim of ineffective assistance of counsel on the basis of counsel's failure to conduct a reasonable investigation for mitigating evidence, applicant must show deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court has clarified the deficient-performance prong in the context of the failure to investigate for mitigating evidence, saying that the "principal concern in deciding whether [trial counsel] exercised reasonable professional judgment is . . . whether the investigation supporting counsel's decision not to introduce mitigating evidence . . . was itself reasonable." Wiggins, 539 U.S. at 522-23 (citations and quotations omitted). A decision not to investigate is itself subject to review for reasonableness. Id. at 533. Here, counsel's decision not to conduct any investigation into mitigating evidence was based on his view that it was unnecessary. In light of the number of charges and severity of punishment applicant was exposed to, counsel's decision to forgo further investigation may have been unreasonable. See, e.g., Lopez v. State, 462 S.W.3d 180, 188-90 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that evidence that counsel "did not participate in collecting mitigation evidence," and "did not present any mitigation evidence on his client's behalf," showed that "counsel failed to perform as a reasonably competent attorney"); Lampkin v. State, 470 S.W.3d 876, 925-26 (Tex. App.—Texarkana 2015, pet. ref'd) (reversing due to counsel's failure to adequately investigate and present mitigating evidence). Therefore, I conclude that the habeas court should permit applicant to present evidentiary support for his argument that counsel performed deficiently in presenting only applicant's two daughters as mitigation witnesses and in failing to conduct a full mitigation investigation.
I note that, although the habeas court has made findings of fact and conclusions of law recommending that relief be denied in this case, this particular allegation of ineffectiveness has not been adequately considered by the habeas court with the benefit of a complete evidentiary record. That is because, due to a clerical oversight, applicant initially failed to attach the psychologist's report to his application, and the habeas court's findings and conclusions were made prior to applicant supplementing the record with this key piece of evidence. Thus, the habeas court's previous finding that applicant has failed to present any evidence in support of this claim and has "wholly fail[ed] to allege what investigation and testimony a consultation with a mitigation expert would have led to" is no longer correct. Remand is necessary to permit the habeas court to consider this evidence and make supplemental findings and conclusions addressing it.
Because I conclude that applicant may have received ineffective assistance of counsel due to counsel's failure to conduct a reasonable mitigation investigation, I would remand this case to the habeas court to address this claim with the benefit of a full record. I, therefore, respectfully dissent. Filed: October 5, 2016 Do Not Publish