Opinion
NO. WR-88,657-02
03-11-2020
EX PARTE DAVID DEWAYNE KEELIN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HALL COUNTY
KEEL, J., filed a dissenting opinion in which RICHARDSON, NEWELL, and WALKER, JJ., joined. DISSENTING OPINION
The trial court adjudicated Applicant guilty of possession with intent to deliver methamphetamine, revoked his probation, and sentenced him to 50 years in prison. Applicant now claims that his attorney was ineffective at the adjudication hearing for failing to challenge the evidence of the probation violations. The trial court entered findings of fact and recommended that relief be denied. Those findings overlooked some of the evidence and mistook an attorney's duty to investigate for a defendant's duty to disclose. Under such circumstances, we should not rely on the trial court's findings but exercise our own judgment. See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). In my judgment, the record supports Applicant's ineffective assistance claim because his attorney failed to raise meritorious objections to the evidence the State offered in support of its allegations. Thus, I would grant relief. Since the majority does not, I dissent.
An ineffective-assistance-of-counsel claimant must demonstrate that his attorney's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). An attorney has a duty to make reasonable investigations of law and fact to guide his strategic choices in representing a criminal defendant. Id. at 690-91. The failure to object to inadmissible evidence may be deficient performance. See Ex parte Lane, 303 S.W.3d 702, 709 (Tex. Crim. App. 2009). The claimant must show that the trial judge would have erred to overrule the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).
The trial court found that Applicant violated his probation in two ways: using cocaine one time and failing to immediately report that he had been fired from his job. These two violations were each supported by a single piece of objectionable evidence, but Applicant's attorney either raised a non-meritorious objection or no objection at all to that evidence. The third alleged violation—failure to perform community service—was found not true, and there were no other possible probation violations.
The cocaine use allegation was supported by Applicant's admission to his probation officers, Mark White and Marc Latimer, that he used cocaine one time while on probation. Applicant claims that his admission was involuntary because it was induced by White's promise that he would get drug treatment if he admitted to his drug use. His attorney, Earl Griffin, Jr., did not object to the admission on this basis. The evidence about whether the promise was made is conflicting.
Latimer testified at the adjudication hearing that he did not tell Applicant what would result from a drug-use admission. At the habeas stage, Latimer did not remember saying anything about what would result from either an admission or a denial of drug use. Latimer never testified about whether White promised Applicant drug therapy, and White did not testify at all. Applicant's attorney at the adjudication hearing, Earl Griffin, Jr., testified at the habeas stage that he did not remember whether Applicant was promised anything in exchange for his admission.
Applicant's claim that White promised him drug rehabilitation is credible because a felony probationer is unlikely to admit drug use without either having been promised a benefit or having been confronted with other evidence of such use. In this case, there was no other evidence of drug use, so it is likely that Applicant was induced by a promise to make the admission. That likelihood is supported by two sources of habeas evidence that the trial court failed to mention in its findings.
First, a letter from White. White wrote the letter in response to Applicant's post-conviction request for written confirmation of the promised rehabilitation. White explicitly refused to give such a confirmation, citing Griffin's earlier access to the probation records and a general policy against discussing probation cases. But he added that "there were other violations that occurred during that time frame" that led to the motion to adjudicate. The mention of other violations would have been superfluous if no promise had been made to secure the drug-use admission. Thus, White's letter inadvertently confirmed the promise.
Second, an affidavit from Applicant's friend, Ellen Dehass. She testified that White told her that drug therapy had been promised to Applicant but later withdrawn because of "other violations." This testimony, given before White wrote his letter, echoes the phrasing of White's letter. White's letter thus supports Dehass's testimony.
Based on this record, I would find that the promise was made. Since the record shows the promise was made but the objection was not, it is reasonable to infer that Griffin failed to ask Applicant about the circumstances surrounding his admission or overlooked it as a basis for objection. Either of those failures would be deficient performance if the promise rendered Applicant's confession inadmissible.
A promise will render a confession inadmissible if the promise is positive, made by a person in a position of authority, and likely to make one falsely confess. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). The first two criteria are met because White's promise of drug rehabilitation was positive, and White was in authority over Applicant as his probation officer. As for the third criteria, the promise was likely to make Applicant falsely confess because of his vulnerable position as a probationer and the implied jeopardy he faced if he persisted in his denial. This view is supported by Fisher v. State, 379 S.W.2d 900 (Tex. Crim. App. 1964).
Fisher was accused of stealing on the job, and he initially denied it. Id. at 901. But one of his employers promised him that he would not be fired, and the police would not be called. Id. In assessing whether the employer's promises were likely to cause Fisher to speak untruthfully, we took note of his criminal history and reasoned that he would "be inclined to admit a crime he had not committed which would not be prosecuted, rather than risk the loss of his freedom for life if he were prosecuted. Also, in this regard, [Fisher]'s job was also in jeopardy had he not admitted the theft, whereas he had reason to believe there was no danger in admitting it." Id. at 902-03.
Likewise here, Applicant would have been inclined to admit drug use that would not be prosecuted rather than risk the loss of his freedom. White had assured him that "everyone deserves a chance" and that he would get therapy if he made the admission, but there were no assurances of what would happen if he did not make the admission. The implicit threat was that if he persisted in a denial and then failed the threatened urine test, the drug therapy opportunity would be forfeited, and he would be at risk for revocation. Under such circumstances, Applicant would have believed himself better off by making the admission, so his admission was involuntarily induced. See id. at 902 (if the inducement "was such as to make the defendant believe his condition would be bettered by making a confession, true or false, then the confession should be excluded").
No reasonable strategy objective was served by Griffin's failure to object to the admission of drug use as involuntarily induced, and the trial court would have erred to overrule the objection. See Searcy v. State, 13 S.W. 782, 782 (Tex. Ct. App. 1890) (sheriff's promise to do all he could for defendant in his case was "calculated to make the defendant believe that his condition would be bettered by making the confession" and rendered the confession inadmissible). Griffin performed deficiently in not raising the objection.
As for the allegation that Applicant failed to report his job loss in a timely manner, the alleged firing was proven by Latimer's testimony that he had been advised of it in a phone conversation. Latimer's testimony on this point was hearsay. See TEX. R. EVID. 801(d). Griffin did not object to Latimer's testimony on this point, and no other evidence showed that Applicant had been fired. The trial court would have erred to overrule a hearsay objection to Latimer's testimony about what he had been told over the phone. See TEX. R. EVID. 802. Since the only evidence of the firing was inadmissible hearsay, Griffin performed deficiently in failing to object to it on that basis.
Moreover, it seems there was no firing. Applicant's employer testified via affidavit at the habeas stage that Applicant was employed by him continuously during the relevant period. So besides being supported only by inadmissible evidence, the allegation was simply untrue.
In sum, the adjudication was based on two probation violations that were proven by inadmissible evidence. But for Griffin's failure to raise meritorious objections to that evidence, it would not have been admitted, and the reasonable likelihood is that the trial court would not have adjudicated Applicant guilty. Applicant should prevail on his claim of ineffective assistance of counsel. I would grant relief. Since the majority does not, I dissent. Filed: March 11, 2020 Do Not Publish