Opinion
WR-94,578-01
09-27-2023
EX PARTE RICARDO LATRELLE TAYLOR, Applicant
DO NOT PUBLISH
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 007-1078-18-A IN THE 7TH JUDICIAL DISTRICT COURT FROM SMITH COUNTY
Richardson, J., filed a concurring opinion in which Slaughter, J., joined.
CONCURRING OPINION
I join with the Court to deny Applicant's petition for writ of habeas corpus without written order on findings of the trial court and on the court's independent review of the record. However, I write separately to remark on an instance of conduct under Applicant's claim of ineffective assistance of counsel. Specifically, the record shows that Applicant's trial counsel willfully ignored the trial court's order to submit a proposed self-defense instruction with accompanying brief in support during trial. Even in light of this conduct, this Court finds that this omission did not rise to the level of ineffective assistance of counsel.
During the criminal trial and on the eve of deliberations, Applicant's trial counsel was requested by the trial judge to prepare a proposed self-defense instruction with an accompanying brief in support by the next day. The record indicates that the trial judge was leaning against the self-defense instruction based on the evidence adduced during trial but ordered it anyway presumably to make an informed ruling and to afford Applicant every chance at a successful defense. Nevertheless, while complaining of already having had to cancel his personal plans on Valentine's Day the day before, trial counsel chose not to prepare the instruction because he essentially thought it was a waste of time. According to the record, trial counsel did not want to spend his evening preparing the material ordered by the court if he thought the court was going to rule against his client anyway. Trial counsel made this choice after having stated to the trial judge that he intended to use self-defense as the central point of his closing argument to the jury. Yet, the next morning, emptyhanded and facing an incredulous trial judge, trial counsel still asked for a self-defense instruction to be included in the jury charge.
The trial court ordered proposed jury charges from each side with briefs or case law in support. But at the end of that same day, the court said, "If you want to come back in the morning and not submit anything, you're welcome to do that, if that's what you decide to do with your time tonight. I don't control that." (16 RR 107).
Applicant did not admit to the underlying conduct and was, thus, not entitled to a self-defense instruction. See e.g., Gamino v. State, 537 S.W.3d 507, 512 (Tex. Crim. App. 2017). He denied shooting at the victim and even possessing a gun at the time of the offense in his statement to the police.
The next morning, trial counsel asked for the self-defense instruction to be included in the jury charge. The trial judge responded:
You elected not to follow the Court's order. Because I think I made it really clear.
Of course, then I did give you the option at the very end - because you were wanting me to rule last night so you wouldn't have to do any research or prepare a draft charge over the evening.
I perceived that you were thinking was going to be a waste of your time if I wasn't going to give it to you. Again, you don't have to do anything other than what you've done.
However, I find it incredible that you wouldn't be presenting some case law to the Court to support such a request, at this point, even if you didn't choose to go and research and prepare properly for the self-defense instruction.(17 RR 6).
This Court has never required perfect advocacy and understands that unintentional mistakes may happen in the course of representing a defendant. Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Willfully ignoring an opportunity central to a client's defense for something less than strategic reasons or good cause could rise to the level of ineffective assistance. But we reiterate here, there was no harm. Because at the end of the day, the facts did not give rise to a self-defense charge. With these thoughts, I join the Court.