Opinion
NO. WR-84,647-03
06-05-2019
EX PARTE BRIAN KEITH GORHAM, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2012-CR-10383-W2 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY
KEEL, J., filed a dissenting opinion.
I would file and set this case because the attorney's explanations given at the habeas stage for his trial performance are not plausible.
For example, during the guilt phase of trial defense counsel opened the door to Applicant's history of DWI convictions. At habeas he justified having done so because of the potential mitigation value of that history. It is doubtful that the evidence had any mitigation value, but even if it did, its admission at guilt was premature. More importantly, however, the trial court assessed punishment, so any mitigation value could not justify admitting this evidence before the jury.
Another justification for opening the door to the DWI evidence was that Applicant's "alcohol dependency and subsequent rehabilitation efforts would be relevant to Applicant's defenses." Applicant's only defense was that he did not commit the crime. His history of alcohol dependency was not relevant to that defense. Nor did it, as counsel also claimed, "neutralize" damaging testimony given by the complainant's mother. Instead, the DWI evidence confirmed her testimony that Applicant was a drunken lout.
Counsel also opened the door to testimony about Applicant's domestic violence against the complainant's mother. The attorney claims that he did so in order to reveal the mother's retaliatory motive in fabricating allegations against Applicant. But the question that opened the door - why did she call the police on a particular day - did not reveal any such motive and caused the admission of damaging evidence of domestic violence.
Counsel asked a CPS investigator whether she was "absolutely sure" that children who outcry about abuse are telling the truth. Asked by the trial judge about his basis for asking that question, the attorney answered that he had not yet "decided" if he had a strategy for the question. If he was telling the truth at trial and did not have a strategy when he asked the question, then he was not truthful at habeas when he claimed that he did have a strategy. If he did have a strategy - to show bias on the part of the witness - the question was unreasonable because the prosecution's case depended on the complainant's credibility, and the answer buttressed her credibility more than it demonstrated the witness's bias.
Finally, counsel failed to object to evidence of extraneous bad acts revolving around Applicant's relationship with the complainant, and counsel offered no explanation for that failure.
Defense counsel performed deficiently, and his explanations for his performance do not hold up to scrutiny. We should file and set this case for further evaluation. Since a majority of the court does not, I dissent. Filed: June 5, 2019 Do not publish