APPELLANT v. STATE FROM OF COUNTYSTATE MOTION FOR REHEARING 31 2011 10 000

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Court of Appeals of Texas, Waco.

Kenyon Grady Cox APPELLANT v. The State of Texas STATE FROM Criminal District Court No. 2 OF Tarrant COUNTYSTATE'S MOTION FOR REHEARING After considering the State's motion for rehearing, we deny the motion, but we withdraw our opinion and judgment of March 31, 2011 and substitute the following.  A jury convicted Appellant Kenyon Grady Cox of two counts of aggravated sexual assault of a child and two counts of indecency with a child by contact and assessed his punishment at life imprisonment and a $10,000 fine on each count.  The trial court sentenced him accordingly, ordering the sentences to be served consecutively.  In eight points, Appellant contends that the trial court abused its discretion by stacking the sentences and that he received ineffective assistance of counsel at trial.  We hold that defense counsel rendered ineffective assistance at trial by misstating the application of the stacking law to the venire panel and by not ensuring that such misstatement was corrected before the jury delivered its punishment verdict, but we also hold that the trial court did not reversibly err and that Appellant has not proved his remaining claims of ineffective assistance.  We therefore affirm the trial court's judgment as to Appellant's convictions but reverse the trial court's judgment as to punishment and remand this case for a new trial on punishment only.

NO. 02–09–00297–CR

Decided: November 18, 2011

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1 ON

In Andrews v. State, the Texas Court of Criminal Appeals concluded that “there could be no legitimate trial strategy in failing to object to the prosecutor's misstatement” in the State's closing argument regarding the stacking law, especially when Andrews's defense counsel knew that the State had filed a motion to cumulate the sentences.19  The court also noted that “[h]ad defense counsel objected on the basis that the prosecutor's argument was a misstatement of the law, the trial court could have corrected the misstatement and told the jury not to consider whether the court could or would cumulate the sentences.” 20  The Texas Court of Criminal Appeals explained,

[W]e have said that the record on direct appeal is in almost all cases inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance and that the better course is to pursue the claim in habeas proceedings.   But, when no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did.21

The Texas Court of Criminal Appeals reminded us that Strickland not only requires that our review be “highly deferential”;  it also requires that reviewing courts “keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work.” 22  The Texas Court of Criminal Appeals concluded,

Defense counsel has a duty to correct misstatements of law that are detrimental to his client.   This duty derives from counsel's function to make the adversarial testing process work․  There can be no reasonable trial strategy in failing to correct a misstatement of law that is detrimental to the client.23

On the second Strickland prong, the Texas Court of Criminal Appeals concluded that “[b]ecause the jury received incorrect information about [Andrews's] punishment, the record supports the conclusion that there is a reasonable probability that the result would have been different.” 24

Here, the following discussion took place during voir dire:

VENIREPERSON:  I just had a question.   I don't know if I missed what he was saying, but there's going to be three charges that we're going to judge innocent or guilt, and as far as the punishment phase, does that mean they're separate or do they run concurrent if we do so find him guilty?

[DEFENSE COUNSEL]:  And in this case they would run concurrent.

[PROSECUTOR]:  They'll get a charge on that.

[DEFENSE COUNSEL]:  And so you would also get a—a legal charge.   Again, that's a legal question, with a legal answer, which you will get

PANEL:  LIVINGSTON, C.J.;   DAUPHINOT and GABRIEL, JJ.

Tex.R. App. P. 47.2(b)

DELIVERED:  November 17, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN5. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984);  Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005);  Mallett v. State, 65 S.W.3d 59, 62–63 (Tex.Crim.App.2001);  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999);  Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999)..  FN5. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984);  Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005);  Mallett v. State, 65 S.W.3d 59, 62–63 (Tex.Crim.App.2001);  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999);  Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999).

FN6. Thompson, 9 S.W.3d at 813..  FN6. Thompson, 9 S.W.3d at 813.

FN7. See Strickland, 466 U.S. at 688–89, 104 S.Ct. at 2065..  FN7. See Strickland, 466 U.S. at 688–89, 104 S.Ct. at 2065.

FN8. Salinas, 163 S.W.3d at 740;  Mallett, 65 S.W.3d at 63..  FN8. Salinas, 163 S.W.3d at 740;  Mallett, 65 S.W.3d at 63.

FN9. Salinas, 163 S.W.3d at 740;  Thompson, 9 S.W.3d at 813–14..  FN9. Salinas, 163 S.W.3d at 740;  Thompson, 9 S.W.3d at 813–14.

FN10. Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63)..  FN10. Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

FN11. Id. (quoting Thompson, 9 S.W.3d at 813)..  FN11. Id. (quoting Thompson, 9 S.W.3d at 813).

FN12. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007)..  FN12. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007).

FN13. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064..  FN13. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

FN14. Id. at 694, 104 S.Ct. at 2068..  FN14. Id. at 694, 104 S.Ct. at 2068.

FN15. Id..  FN15. Id.

FN16. Id. at 697, 104 S.Ct. at 2070..  FN16. Id. at 697, 104 S.Ct. at 2070.

FN17. Tex. Penal Code Ann. § 3.04(c) (West 2011)..  FN17. Tex. Penal Code Ann. § 3.04(c) (West 2011).

FN18. Id. § 3.03(b)(2)..  FN18. Id. § 3.03(b)(2).

FN19. 159 S.W.3d 98, 100, 103 (Tex.Crim.App.2005)..  FN19. 159 S.W.3d 98, 100, 103 (Tex.Crim.App.2005).

FN20. Id.;   see also Tex. Penal Code Ann. § 3.03(b)(2)(A)..  FN20. Id.;   see also Tex. Penal Code Ann. § 3.03(b)(2)(A).

FN21. Id. at 102 (citations omitted)..  FN21. Id. at 102 (citations omitted).

FN22. Id..  FN22. Id.

FN23. Id. (citations and internal quotation marks omitted)..  FN23. Id. (citations and internal quotation marks omitted).

FN24. Id. at 103..  FN24. Id. at 103.

FN25. See Tex. Penal Code Ann. § 3.03(b)(2)(A)..  FN25. See Tex. Penal Code Ann. § 3.03(b)(2)(A).

FN26. Andrews, 159 S.W.3d at 103;  see also Tex. Penal Code Ann. § 3.03(b)(2)(A)..  FN26. Andrews, 159 S.W.3d at 103;  see also Tex. Penal Code Ann. § 3.03(b)(2)(A).

FN27. Andrews, 159 S.W.3d at 103;  see also Tex. Penal Code Ann. § 3.03(b)(2)(A)..  FN27. Andrews, 159 S.W.3d at 103;  see also Tex. Penal Code Ann. § 3.03(b)(2)(A).

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