Mitchell v. State
Mitchell v. State
Opinion of the Court
delivered the opinion of the Court, in which
The question in this case is whether the appellant has established his claim that he
This case is before us a second time. On appeal, a panel of the Fourth Court of Appeals reversed the conviction because of the claim of ineffective assistance.
All agree that the legal standard was provided by the United States Supreme Court in Strickland.- v. Washington,
Generally the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient as to meet the first part of the Strickland standard.
The State argues that the court of appeals erred by holding that the appellant’s trial counsel was deficient because the record does not show that his action was not a tactical decision. The State is foreclosed from raising that argument at this stage of the process. In its petition for discretionary review of the first deci
The Court of Appeals held that since the venire saw the appellant in the shirt, the entire trial was so infected with the error that the presumption of innocence was tainted from the beginning.
The appellant was undoubtedly harmed by proof that he chose to wear a shirt like that the robber wore, and by the jury’s seeing him with the shirt on in the courtroom. But the record shows that the proof was independent of the appellant’s wearing the shirt to court, and that counsel could not have prevented the wearing of the shirt in the courtroom.
The crucial fact is that the appellant was wearing the shirt by his own choice the day after the robbery when he was arrested and taken to jail. The fact that he was arrested in the shirt was in evidence independent of his wearing it in front of the venire. Officer McGhee testified that he was wearing that shirt when he was arrested, and Detective Ward, who interviewed the appellant at the station, also testified that he was wearing the shirt. Ms. Spiegel, the custodian of property that is brought to jail by detainees, brought the shirt to court and testified to its chain of custody. The shirt was introduced into evidence without objection. The appellant did not object to any of this testimony, and all this evidence could have come in whether or not he wore the shirt to court. This would have proved that the appellant was known to wear a shirt like the robbers. When “the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal.”
The appellant came to court in the shirt because he had no other clothes than his jail uniform, and the State’s action was directed to avoiding the prejudicial effect of his appearing in jail garb.
That the jury saw the appellant in the shirt during voir dire does not show a reasonable probability that the result of the proceeding would have been different but for his counsel’s performance. The appellant has failed to affirmatively show that he was prejudiced by his counsel’s performance.
We vacate the judgment of the Fourth Court of Appeals and remand this cause for consideration of the appellant’s remaining points of error.
. Mitchell v. State, 974 S.W.2d 161, 167 (Tex.App.-San Antonio 1998) (presuming prejudice from ineffective assistance).
. Mitchell v. State, 989 S.W.2d 747, 748-49 (Tex.Cr.App. 1999).
. See Mitchell v. State, 23 S.W.3d 582, 588-89 (Tex.App.-San Antonio 2000).
. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Strickland, 466 U.S. at 687.
. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App. 1996).
. Strickland, 466 U.S. at 687; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986).
. See Ex parte Duffy, 607 S.W.2d 507, 512-13, 517-18 (Tex.Cr.App. 1980) (noting that alleged errors of omission often require explanation beyond that contained in the record); see also Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Cr.App. 1999).
. We do not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal in this situation. "In most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.” Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Cr.App. 1997).
. See Mitchell, 23 S.W.3d at 588 ("In the State’s petition for discretionary review the State conceded that: 'The error in the instant case may or may not have been "egregious,” but it was ineffective to not notice and timely object to the defendant appearing for trial in the same T-shirt he wore to commit the offense. ... We do believe that the error in the instant case was harmless.’ ”).
. Mitchell, 989 S.W.2d at 748-49.
. Mitchell, 23 S.W.3d at 588.
. Hughes v. State, 878 S.W.2d 142, 156 (Tex.Cr.App. 1992).
. See Mitchell, 989 S.W.2d at 748 (“any state action in this case was directed toward preventing appellant from standing trial in jail clothes.").
. See Taylor v. State, 474 S.W.2d 207, 210 (Tex.Cr.App. 1971)("And it has been held proper during a trial to require the defendant to stand, put on a hat, remove his glasses or make a footprint for the purpose of identification”); Holder v. State, 837 S.W.2d 802 (Tex.App.-Austin 1992, pet. ref'd); Timothy E. Tra-vers, Annotation, Propriety of Requiring Criminal Defendant to Exhibit Self, or Perform Physical Act, or Participate in Demonstration, During Trial and in Presence of Jury, 3 A.L.R.4th 374 § 25 (Supp. 2001).
Dissenting Opinion
dissenting with note.
I respectfully dissent in accordance with my dissenting opinion in Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001).
Reference
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- William MITCHELL, Appellant, v. the STATE of Texas
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