STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
FOURTEENTH COURT OF APPEALS LIBERTY COUNTY
J., delivered the opinion of the Court in which Keller, P.J.,
and Keasler, Hervey, Richardson, Yeary, Newell, and Walker,
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?
reverse the judgment of the court of appeals and affirm that
of the trial court.
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.
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.
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
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.
Assistance of Counsel
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. ...