Ex Parte Raborn
Ex Parte Raborn
Opinion of the Court
OPINION
These proceedings involve post-conviction applications for writs of habeas corpus under Article 11.07, V.A.C.C.P.
At the trial for burglary of a habitation the jury convicted and assessed each applicant’s punishment at twenty (20) years’ imprisonment. In their habeas applications the applicants allege that they were denied effective assistance of counsel at trial.
Several affidavits were filed in connection with the applications including one by the trial counsel who confessed that he had failed to interview the State’s witnesses, inspect the physical evidence, make proper explanation of the law to the applicants, etc., and had thus deprived them of the effective assistance of counsel.
After an evidentiary hearing in which trial counsel testified and adopted his affidavit, the court found that there had been effective assistance of counsel at trial. The record was forwarded to this court.
These proceedings were then filed and set. One of the reasons for such action was to determine what effect a finding of professional misconduct in a criminal case by a State Bar Grievance Committee has on a subsequent habeas corpus proceeding.
After further examination of the record and research, we find that the action of the District 7-A Grievance Committee concerning the attorney here involved was based in part on matters other than the question of effective assistance of counsel at trial. See Texas Bar Journal, Vol. 45, No. 9, p. 1282 (October, 1982). See also finding No. 8 of the trial judge in the instant post-conviction habeas corpus proceedings after evidentiary hearing. A finding of professional misconduct based on other matters as well as actions of counsel at trial should have no bearing on a subsequent Article 11.07, V.A.C.C.P., proceedings alleging solely the ineffective assistance of counsel at trial. We decline to discuss such matter as an abstract subject.
Looking at the other facts, we noted that the trial attorney, although with sixteen years of experience in the practice of criminal law, did not talk to the State’s witnesses
It appears that most of the omissions attributed to trial counsel arose from his failure to conduct an independent factual investigation. This is an essential element of the standard of effective assistance of counsel as applied by this court. See Ex parte Duffy, supra. The State attempted to show counsel discussed the case with the prosecutor, but reliance upon such conversations and discussions for all information is no substitute for an independent investigation of the facts, particularly when there was no effort to examine physical evidence or to talk to the State’s witnesses.
Further, counsel did not evaluate the State’s offer of probation for the applicants, and indeed because of his failure to investigate and to prepare for trial he was not in a position to do so.
Considering the particular circumstances of the case, and the totality of the representation and the standard to be applied, we conclude that applicants did not have the effective assistance of counsel at trial.
The judgment of conviction in Trial Court Cause Nos. 26,093 and 26,094 is vacated and set aside. Each applicant is remanded to the custody of the Sheriff of Parker County to answer the indictment, and the clerk of this court is directed to forward a copy of this opinion to the Texas Department of Corrections.
It is so ordered.
. It appears that retained trial counsel was retained to handle the appeals. Notice of appeal was given, but counsel failed to pay the court reporter and no statement of facts was filed, no bills of exception were filed and no briefs were filed. The Ft. Worth Court of Appeals affirmed the convictions. Appellants retained a different attorney who filed a motion for rehearing in the said appellate court. That court abated the appeals and directed the trial court to hold a hearing to determine if applicants had been effectively represented on appeal. The trial court found the original attorney’s failure to properly pursue the appeal was without applicants’ knowledge and consent. The Court of Appeals ordered an extension of time in order to allow the applicants to pursue their appellate remedies. The transcription of the court reporter’s notes were obtained and filed, but thereafter the applicants gave written notice of their desire to withdraw their appeals. Their requests were granted on September 8, 1982. Applicants forewent any chance to raise the question of ineffective assistance of counsel at trial on direct appeal.
. Trial counsel learned the name of the State’s witnesses and that some of the witnesses could place the applicants at or near the scene of the alleged burglary. It was stipulated that none of the State’s witnesses were interviewed.
. Trial counsel knew the prosecution had some Texas Instruments watches, which are very common. The watches in question had a cracked crystal on one and a personalized band on the other.
.The affidavit of counsel in the record suggests he was unaware of much of this testimony.
Concurring Opinion
concurring.
As the Court points out, one reason we ordered these matters filed and set was in order to consider what bearing, if any, a finding of professional misconduct in representing clients may have in a subsequent postconviction habeas corpus proceeding brought by them pursuant to Article 11.07, V.A.C.C.P. alleging ineffective assistance of counsel. My purpose is to demonstrate why it should have none — generally and in this cause.
Constitutional underpinnings support due process principles that every accused who asserts the right to an attorney is entitled to “the guiding hand of counsel at every step in the proceedings against him” — counsel “giving of effective aid in the preparation and trial of the case,” Powell v. Alabama, 287 U.S. 45 at 68-71, 53 S.Ct. 55, at 64-65, 77 L.Ed. 158 at 170-172 (1932); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Ex parte Duffy, 607 S.W.2d 507, at 513-516 (Tex.Cr.App. 1980). This Court continues to use “the standard of ‘reasonably effective assistance of counsel’ to test adequacy of representation afforded an accused,” Ex parte Duffy, supra, at 516. That is, “counsel reasonably likely to render and rendering reasonably effective assistance,” McKenna v. Ellis, 280 F.2d 592 (CA5 1961) as quoted approvingly by the Court in Caraway v. State, 417 S.W.2d 159, 162 (Tex.Cr.App. 1967), and reaffirmed in Ex parte Duffy, supra, at 514, n. 14, and at 516, n. 17. The standard is applied to the totality of representation afforded the client by trial counsel in the case at hand,
On the other hand, the duty of a district grievance committee is “to receive complaints of professional misconduct alleged to have been committed by an attorney ...,” Title 14 App., Article 12, § 11. “Professional misconduct” is misconduct that is specified in DR 1-102, Code of Professional Responsibility,
As originally enacted, the State Bar Act, Article 320a-l, V.A.C.S.,
All things considered, it is my best judgment that an ultimate finding by a griev-
Therefore, I concur in the order of the Court.
. DR 1-102 Misconduct:
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
. V.T.C.A. Penal Code, § 38.12.
. Well aware that the State Bar Act was substantially amended by Acts 1979, 66th Leg., ch. 510, p. 1081, effective June 11, 1979, and that on June 19, 1979 the Supreme Court of Texas promulgated an Order, also effective June 11, 1979, we do not at all undertake to interpret and construe Article 320a-l, as thus revised, or the June 19 Order. In this opinion we are treating a grievance committee and its procedures in a general way, and it is not to be considered as an expression of views regarding Article 320a-l, as revised, or the June 19 Order of the Supreme Court.
.Article 320a-l, § 13(b) provides: “Committee records are confidential and are not subject to the open records law.... The final action of a committee resulting in a vote to ... suspend ... shall be made public.... All records shall be forwarded to the general counsel and he shall maintain a permanent record of such actions, which will be public records for statistical purposes but which are subject to the provisions above concerning privacy.”
Reference
- Full Case Name
- Ex Parte Michael Allen RABORN. Ex Parte Michael Dan WETZEL
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