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Prine v. State

Court of Criminal Appeals of Texas

September 20, 2017



          Keel, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Richardson, Yeary, Newell, and Walker, JJ., joined.


          Keel, J.

         A jury found Appellant guilty of sexual assault and sentenced him to 20 years' confinement and a fine of $8, 000. He claimed on appeal that his attorney was ineffective during the punishment phase of trial for calling three witnesses who gave damaging testimony on cross-examination. The Fourteenth Court of Appeals agreed and remanded the case for a new punishment hearing. Prine v. State, 494 S.W.3d 909, 929 (Tex. App.-Houston [14th Dist] 2016, pet. granted). We granted the State Prosecuting Attorney's petition for discretionary review on two grounds:

1. When the record is silent as to defense counsel's reasons for calling witnesses in support of probation, has the presumption of reasonable strategy been rebutted?
2. If the reasonableness presumption was rebutted, did defense counsel render ineffective assistance in calling witnesses who presented favorable evidence but also opened the door for damaging evidence?

         We reverse the judgment of the court of appeals and affirm that of the trial court.


         The evidence in the guilt phase of trial showed that during an alcohol-fueled celebration at the end of a trail ride in Dayton, Texas, the 54-year-old Appellant sexually assaulted the unconscious 19-year-old complainant. He was caught in the act by his friend, the complainant's boyfriend. Appellant tried to flee in his own pick-up while pulling his horse trailer, but a police officer caught him a short distance from the scene of the crime.

         In the punishment phase, the State presented the testimony of the complainant and rested on a Friday afternoon. But over the weekend, the prosecutor notified the defense attorney that he had just learned and intended to prove that, some 27 years earlier, Appellant had fathered a child with his children's 15-year-old babysitter.

         When the trial resumed on Monday morning, the defense called three witnesses to the stand: a probation officer and Appellant's aunt and sister. The testimony of each was a mixed bag for Appellant. The probation officer testified to Appellant's eligibility for probation and the strict supervision afforded sex offender probationers, but he opined on cross-examination that Appellant did not deserve probation. Appellant's aunt testified that he had been helpful to her and had always worked and supported his family until suffering multiple strokes and heart attacks. On cross she testified that he had fathered a child some 27 years earlier with his family's under-aged babysitter. Appellant's sister testified about his health problems and resulting physical limitations, his abstention from alcohol since his arrest and his life-saving support for her after her own rape and impregnation by their father. On cross she acknowledged Appellant's sexual relationship with the babysitter.

         The majority below held that counsel was deficient in (1) calling the probation officer "without first determining whether [he] would testify in a harmful way" and (2) failing to object to his opinion testimony. Prine, 494 S.W.3d at 926. It held that trial counsel compounded this error by calling Appellant's aunt and sister even after the State notified him of its intent to elicit testimony regarding a prior extraneous offense known by the family members. Id. It reasoned that these errors caused the near-maximum punishment verdict, and concluded that the defense attorney provided ineffective assistance of counsel in the punishment phase of Appellant's trial. Id. at 928.

         Ineffective Assistance of Counsel

         To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington. 466 U.S. 668, 687 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The defendant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. ...

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