Opinion of July 30, 2009, Withdrawn; Affirmed and Substitute Majority and Dissenting Opinions filed October 8, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-01061-CR

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MY THI TIEU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1495630

S U B S T I T U T E    D I S S E N T I N G   O P I N I O N

I respectfully dissent.^[1]  Trial counsel=s performance was tantamount to no counsel at all.  See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed.2d 657 (1984); Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir. 2001); Walker v. Tex. Dept. of Family & Protective Serv., No. 01-07-00867-CV,  2009 WL 1688469 (Tex. App.CHouston [1st Dist.] June 18, 2009, no. pet. h.) (Jennings, J., dissenting).  Where counsel allows in a deluge of dangerously prejudicial and irrelevant evidence without objection, a client  is no better served than if she had no counsel at all.  I would hold the trial court abused its discretion by denying appellant=s motion for new trial as to the guilt/innocence stage of her trial. 

Generally, a criminal defendant asserting claims for ineffective assistance of counsel based on the errors and omissions of his attorney must show that his attorney=s performance was deficient and below an objective standard of reasonableness and that the deficient performance prejudiced his defense.  Strickland, 466 U.S. at 687B88.  However, the Supreme Court in Strickland explained that in the context of certain ineffective assistance of counsel claims, Aprejudice is presumed.@  Id. at 692.  AActual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.@  Id. 

The Constitution=s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.  Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 322, 84 L. Ed. 377 (1940).  That a person who happens to be a lawyer is present at trial alongside the accused is not enough to satisfy the constitutional command.  Strickland, 466 U.S. at 685.  The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel playing a role that is critical to the ability of the adversarial system to produce just results.  Id.  If counsel entirely fails to subject the prosecution=s case to meaningful adversarial testingCthen there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.  Cronic, 466 U.S. at 659.   

I would hold in this case there was a breakdown in the adversarial process justifying a presumption that appellant=s conviction was insufficiently reliable to satisfy the Constitution.  Counsel failed to object to testimony and closing arguments connecting appellant with human trafficking, child pornography, drug cartels, and prostitution.  Specifically, the testimony regarding the activities of the vice squad was unduly prejudicial and irrelevant.  Counsel=s failure to object to this testimony is inexcusable.  Appellant was essentially tarred and feathered by this irrelevant testimony.  The jurors were given the impression she was connected with a seedy underworld of multifarious criminal enterprises. Furthermore, counsel stated in his own affidavit, entered into evidence during appellant=s hearing on her motion for new trial, that this testimony was irrelevant and not the result of any trial strategy.  The relevant portion of counsel=s affidavit is the following:

1.  Failure to Object to Inadmissible Evidence: Officer Miller

My failure to object to that testimony set out at pages 7-9 of the motion for new trial was not the result of any trial strategy.  I recognize that this testimony was irrelevant to the ultimate issue of whether Ms. Tieu had agreed to engage in sexual contact for a fee and was extremely prejudicial to the defense.

2.  Asking Irrelevant and Improper Questions During Cross-Examination of Officer Miller

I recognize that those questions that I asked during my cross-examination of Officer Miller that are set out at pages 11-12 of the motion for new trial did not help the defense=s case.  My conduct was not the result of any trial strategy.

3.  Failure to Object to Inadmissible Evidence: Sgt. Hendrickson

My failure to object to that testimony set out at pages 12-13 of the motion for new trial was not the result of any trial strategy.  I recognize that this testimony was irrelevant to the ultimate issue of whether Ms. Tieu had agreed to engaged in sexual contact for a fee and was extremely prejudicial to the defense.

4.  Failure to Object to Inadmissible Evidence: Sgt. Surginer

My failure to object to that testimony set out at pages 13-14 of the motion for new trial was not the result of any trial strategy.  I recognize that this testimony was irrelevant to the ultimate issue of whether Ms. Tieu had agreed to engage in sexual contact for a fee and was extremely prejudicial to the defense. 

 It was only upon prodding by the State during the hearing on the motion for new trial that counsel admitted in Aretrospect@ his actions could have constituted some form of trial strategy.  Ultimately, counsel could provide no real explanation for his lack of action during trial.  Where counsel cannot provide a valid explanation for hapless representation, it is logical to equate his representation to that of an unconscious lawyer. Counsel=s representation was on par with the infamous sleeping lawyer cases.  See Burdine, 262 F.3d at 345.  Because I would hold counsel=s representation was a constructive denial of appellant=s Sixth Amendment right to counsel, I would also hold this case merits a presumption of prejudice.  See id.

Appellant did not receive the meaningful assistance of counsel as envisioned by the Sixth Amendment.  Counsel was not merely incompetent, but inert, accordingly prejudice must be presumed.  See Strickland, 446 U.S. at 685.  Therefore, I would hold the trial court erred in denying appellant=s motion for a new trial as to guilt/innocence.  Furthermore, I would remand this case to the trial court in order to allow appellant to receive a fair trialCone where appellant receives the benefits of the adversarial process as required by the Constitution.

Defendant was so irretrievably tainted by the ineptitude of her counsel that the only remedy to pruge the taint is a new trial.

/s/      John S. Anderson

Justice

Panel consists of Justices Anderson, Guzman, and Boyce. (Boyce, J., Majority.)

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