Opinion
No. 05-15-01539-CR
08-11-2017
DEVANTE JEROME FOSTER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F14-31115-R
CONCURRING OPINION
Before Justices Francis, Brown, and Schenck
Concurring Opinion by Justice Schenck
I join in the Court's decision affirming the trial court's judgment. I agree with the Court's conclusion that Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003) is a reverse course from Kirtley v. State, 56 S.W.3d 48 (Tex. Crim. App. 2001), at least and especially where non-capital sentencing is concerned. I write separately only to underscore the context in which the error asserted here arises and why I believe it does not support presumed harm or reversal following Routier.
No one doubts that a defendant has a right to counsel at all stages of a criminal proceeding and that the sentencing phase of trial is important and subject to due process considerations. Nevertheless, there are material distinctions between the different phases of trial that inform our analysis and the decision whether to treat an error as presumptively harmful. For instance, after a defendant is convicted, the pre-conviction presumption of innocence, and many of the associated heightened constitutional rights—including the right to bail (except in capital cases) and the right to have the facts defining the offense found by a jury, and only on proof beyond a reasonable doubt—all disappear. The decision of what particular punishment to assess within the statutorily prescribed range for a given offense is a normative, discretionary function and is different from the guilt-innocence determination and is not subject to any presumption. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 2(b)(2); Barrow v. State, 207 S.W.3d 377, 379-80 n.9 (Tex. Crim. App. 2006). Subject only to a very limited gross-disproportionality review, a punishment that falls within the legislatively prescribed range and that is based upon the sentencer's informed normative judgment is unassailable on appeal. Ex parte Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App. 2006). Indeed, because non-capital sentencing "may involve informal proceedings and standardless discretion," the Supreme Court openly questioned whether the ineffective assistance standard should be retained in that context in Strickland v. Washington, 466 U.S. 668, 686 (1984).
E.g., TEX. CONST. art. 1, §§ 11, 15; TEX. CODE CRIM. PROC. ANN. art. 38.03 (West 2016); Williamson v. United States, 184 F.2d 280, 281 (2d Cir. 1950); Nixon v. State, No. 05-15-00485-CR 2015 WL 4628230, at *2 (Tex. App.—Dallas Aug. 4, 2015, pet. ref'd) (mem. op., not designated for publication); Martin v. State, 753 S.W.2d 384, 388 (Tex. Crim. App. 1988).
Likewise, no one doubts that the sentence here is substantial and, like any judgment depriving a citizen of life, liberty, or property, is subject to due process requirements. Still, these interests are not positioned in equipoise, and the distinctions between them are reflected in the procedural protections they are afforded. E.g., Abbington v. Texas, 441 U.S. 418 (1979). Capital cases like Routier are not about mere property or even liberty. Rather, the penalty of death is qualitatively different from a sentence of imprisonment, however long. Woodson v. North Carolina, 428 U.S. 280, 305 (1976) ("Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two."). As Justice Scalia observed, "death is different," and compels "protections that the Constitution nowhere else provides." Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (Scalia & Rehnquist, JJ., concurring). But unlike Routier or other capital cases—and all in which the death penalty is sought—neither of these interests were at stake here.
"On the other hand, because there is a qualitative difference between death and any other permissible form of punishment, 'there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.'" Zant v. Stephens, 462 U.S. 862, 884-85 (1983) (quoting Woodson v. North Carolina, 428 U. S. at 305); see also Lockett v. Ohio, 438 U.S. 586 (1978) ("in all but the rarest kind of capital case, [the sentence should] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record . . . . in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes."). While "not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error." Zant, 462 U.S. at 885.
A sentence of life imprisonment without parole has also been subject to heightened scrutiny. See Graham v. Florida, 560 U.S. 48 (2010). In a capital felony case like Routier in which the State seeks the death penalty, the defendant adjudged guilty will be punished by imprisonment for life without parole or by death. TEX. PENAL CODE ANN. § 12.31(a) (West Supp. 2016). In capital cases in which the State does not seek the death penalty, a defendant who is found guilty receives an automatic life sentence without parole, unless the defendant was younger than 18 at the time of the offense, in which case he may be eligible for parole. Id. In a first degree felony case, such as the case here, an individual who has been adjudged guilty shall be punished by imprisonment for life or for any term of not more than 99 years or less than 5 years. Id. § 12.32(a) (West 2011).
As an intermediate court we are bound by the judgments of the Court of Criminal Appeals. Routier involved a mother who had been convicted of capital murder and sentenced to death for the murder of her son. Routier, 112 S.W.3d 554. In that case, the court reporter was unable to produce a reliable transcript of either the guilt-innocence or the punishment proceedings. Id. at 557—58. As described by the Court of Criminal Appeals, the reporter's "credibility [had] been seriously called into question." Id. at 569. The reporter eventually invoked her Fifth Amendment privilege against self-incrimination during the trial court's efforts to reconstruct the record, necessitating the retention of an expert to assemble an alternate version. Id. That expert, despite finding and correcting numerous, material errors in the original record, was unable to certify 53 pages from one day of the guilt-innocence proceedings—a gap likely approximating the sentencing hearing at issue here. Id. at 570. "In addition, the trial judge who presided over the correction of the record had no personal knowledge of the proceedings at trial because he did not preside over the trial." Id. at 569. In addressing the lost portion of the record—as opposed to the corrected portions—the court accepted that Routier, like Foster, had not agreed to forego or accept an alternate to that portion of the verbatim transcript. Still, and despite the capital context, the court subjected the error to a harm analysis, including a substantive examination of necessity of the transcript to the appeal. I believe that holding leaves no room for Foster's argument here.
If a rule of presumed error of harm obtained, it is difficult to imagine why counsel would ever agree to replace a lost or destroyed record to assist in prosecuting the appeal. Cf. United States v. Sierra, 981 F.2d 123, 127 (3d Cir. 1992).
Foster's right to counsel includes both the sentencing phase of his trial and this appeal of the life sentence. But the question presented here is by necessity one of defaults and presumptions. The presumption of regularity has been overcome insofar as the transcription error is concerned—there is none for the punishment phase of trial. We must decide whether that error presupposes (i.e., creates a presumption of) another viable error in the form of incompetence of counsel that might be explored by appellate counsel. Any rule that presumes reversible error would apply equally regardless of whether the defendant received the maximum sentence, as here, or the minimum plus one day, or whether the gap in the transcript is large or small, as it is here. That is a conceptually viable rule, but contrary to Routier. Rather than start with a presumption of reversible error as a necessary companion to a lost sentencing transcript, we should start with the presumption applicable to the suspected error—here a presumption of competency of trial counsel and impartiality of the presiding judge who conducted both the sentencing and hearing on the lost transcript—and let that presumption inform our determination of whether the transcript is necessary to the appeal's resolution. See Strickland, 466 U.S. at 689; Tapia v. State, 462 S.W.3d 29, 44 (Tex. Crim. App. 2015).
Such a presumption might as easily reach to the sentencing judge's willingness to consider the full range of punishment or errors in instructing the jurors as alleged in Routier. One difference here is that the error asserted here—possible ineffective assistance of counsel—is itself subject to a presumption of competency that is contrary to the relief sought.
To the extent Routier left us free to create an assumption about the likelihood of actionable incompetence at sentencing that would have appeared on the transcript, empirical analysis would not support it. In the hundreds of thousands of sentencings conducted in Texas since Routier, only a handful involved actionable incompetence by defense counsel taking place during the proceedings and not developed in a subsequent motion for new trial. Had such a spectacular failing taken place, either the trial judge or others present would have presumably recalled same.
While Foster complains about the lack of his verbatim punishment phase transcript, he does not suggest that the reconstructed record, such as it is, omits any ruling by the trial judge that might have constituted error, let alone reversible error. Instead, Foster quite candidly concedes that the transcription error has the effect of hampering his appellate counsel's search for possible ineffective assistance at the punishment hearing. Not all errors are equal. In this case the need to rely on a reconstructed telling of the events in order to determine the necessity of the transcript under Rule 34.6(f) merely impedes a fishing expedition for deficient performance that no one who attended the sentencing is aware of. But, the ability to complain about the ineffectiveness of counsel on direct appeal, even where it is known and revealed by the transcript, is hardly a bedrock norm that would warrant treating the error here as structural. In fact, the proceeding is unique to Texas and a handful of other states that permit ineffective assistance to be raised on direct appeal, as opposed to habeas corpus where collateral investigation of the facts and counsel's strategy can be pursued. E.g., TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015). And, within that extraordinary direct appeal posture, we would require error in the form of lawyer incompetence or malfeasance that could not be explained, with the benefit of a presumption of competence, by any form of trial strategy and that likely resulted in an improper sentence even if some claimed error by the attorney could be found. Strickland, 466 U.S. at 689; McCoy v. State, 996 S.W.2d 896, 900 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd). Instead, the error in the trial court insofar as it related to the appeal was redressed to the extent possible in the district court with all parties having the opportunity to relate their recollection of events, including the judge who actually presided and imposed the sentence. With no evidence of deficient performance by Foster's attorney being offered in that process, the harm we now address is confined to this appeal and is purely conjectural and contrary to a presumption of competence.
The defendant and his counsel were present for the sentencing hearing and the judge conducted a hearing to reconstruct the events. No one, however, has alleged that the State introduced improper testimony over an objection or that the defendant was unable to call a witness or to ask a question of a witness because of a ruling by the judge. Instead, there is no doubt that the defendant called seven witnesses and was able to ask them whatever question he felt germane and to conclude that effort in less than an hour.
Foster cites us to no examples of deficient performance by counsel actually fitting within the narrow grounds available in direct appeal so as to result in immediate reversal, and offers no hint as to why such an error might have occurred here.
See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 278-79 (1993) (cataloging errors exempt from harm analysis).
Eve Brensike Primus, Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures, 122 YALE L.J. 2604, 2625 n.16 (2013) (citing Commonwealth v. Grant, 813 A.2d 726, 734-36 (Pa. 2002)).
The Court of Criminal Appeals in Kirtley found the defendant required the punishment phase transcript to pursue his ineffective assistance theory on appeal, and thus presumed harm from its loss. Kirtley, 56 S.W.3d at 52. It did so, however, near the end of an era that afforded relief for any ineffective assistance in a non-capital case regardless of its effect on the outcome. See, e.g., Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (finding proof of harm necessary and rejecting contrary prior precedent); cf. TEX. R. APP. P. 44.2(b). Given that Routier involved a capital trial and a transcription error that reached into the guilt-innocence as well as the punishment phase, and the loss of 53 pages of the record from the guilt-innocence phase, I agree with the Houston Court of Appeals decision in Nava v. State that Routier reverses Kirtley and forecloses relief on direct appeal based on the naked assertion that a missing record may establish ineffective assistance of counsel. Nava v. State, 379 S.W.3d 396, 413 (Tex. App.—Houston [14th Dist.] 2012), aff'd on other grounds, 415 S.W.3d 289 (Tex. Crim. App. 2013). Read together, Routier and Rule 34.6(f) clearly require an appellant to do more than merely suggest the missing portion of the record might have revealed reversible error in order for review of that portion to be necessary. TEX. R. APP. P. 34.6(f). While Foster speculates that a missing record might have shown ineffective assistance during the brief punishment hearing, that speculation is not grounds for relief.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 151539CF.P05