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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
 


NO. WR-73,965-04




EX PARTE SAMUEL RICHMOND WALKER, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 943669-B IN THE 351ST DISTRICT COURT
FROM HARRIS COUNTY



            Alcala,  J., filed a dissenting statement in which Johnson, J., joined.
 
DISSENTING STATEMENT

           Rather than employing a Rube Goldberg-type analysis to uphold a conviction at all
costs, a habeas court should grant relief when a defense attorney’s clearly deficient trial
performance prejudicially impacted a defendant’s case.  This is such a case.  It is clear that
defense counsel’s errors resulted in the jury hearing testimonial and hearsay evidence that
linked Samuel Walker, applicant, to the complainant’s stolen property, and that this evidence
heavily prejudiced applicant because, without it, the State’s case consisted solely of a shaky
single eyewitness identification by a child.  In this application for a writ of habeas corpus,
applicant contends that, during his second trial for aggravated robbery, his defense counsel
rendered ineffective assistance by permitting the introduction of harmful, inadmissible
evidence linking applicant to the complainant’s recovered stolen property.  See Strickland
v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052 (1984).  I agree.  I would hold that
defense counsel rendered ineffective assistance, and I, therefore, respectfully dissent from
the Court’s denial of this application for a writ of habeas corpus.
I.  Background
           A.  The Facts
           On a summer morning in 2002, Matilde Delgado, the complainant, was in her car in
a parking lot with three of her children when she was approached by a black male who
pointed a gun at her and threatened to kill her if she did not give him her purse.  Delgado, a
native Spanish speaker, had to turn away for several seconds to have the robber’s words
translated to her by her then-thirteen-year-old son Erik, who sat in the front passenger’s seat
during the incident.   The man took her purse and returned to a red car that quickly drove
away. A police officer who responded to a call made by bystanders obtained a partial
license-plate number from Erik and his brother.
  Although Erik was absolutely positive that
the plate number was correct, police officers were unable to find any vehicle in the police
database with that number or any variations of the number.
 
           Two days later, during an unrelated arrest for public intoxication, Deidre Dangerfield
was found in possession of the complainant’s stolen purse, which contained some of its
original contents and a handgun.  Because she possessed the complainant’s property,
Dangerfield was interviewed in jail by Detective Parinello, the sheriff’s officer investigating
the robbery.  While questioning Dangerfield about her knowledge of the robbery, Parinello
learned that “Low Down” and “Pocahontas” had given her the complainant’s property. 
Parinello entered the aliases into the Gang Task Force police computer database, which
revealed that these were the nicknames of applicant and Noralva Ramos, respectively. 
Parinello acquired their photographs for use in photo spreads that he showed to the
complainant and her sons Erik and Edgar.  Only Erik identified applicant as the perpetrator. 
When the photo spreads were shown to her, Dangerfield identified applicant as “Low Down”
and Ramos as “Pocahontas.” 
           B.  Applicant’s First Trial
           At applicant’s first trial, Parinello testified over applicant’s former defense counsel’s
objection on confrontation grounds that Dangerfield had identified applicant as “Low Down”
and Ramos as “Pocahontas,” and that Dangerfield had received the complainant’s stolen
property from “Low Down.” Dangerfield did not testify at that trial.  Applicant was convicted
by the jury and sentenced to forty-five years’ imprisonment.  On direct appeal, the court of
appeals reversed and remanded for a new trial because Dangerfield’s unavailability at trial
and her testimonial jailhouse statements resulted in constitutional error that violated
applicant’s confrontation right under the Supreme Court’s ruling in Crawford v. Washington,
541 U.S. 36, 57–60, 124 S. Ct. 1354 (2004).  See Walker v. State, 180 S.W.3d 829, 836 (Tex.
App.—Houston [14th Dist.] 2005).
           C.  Applicant’s Second Trial
           At applicant’s second trial, Dangerfield again did not appear to testify.  The State
introduced evidence that, although different in form, was the same in substance as the
evidence introduced at the first trial.  This evidence came before the jury, initially through
back-door hearsay introduced by the State, and later through questioning by defense counsel,
who elicited Dangerfield’s specific testimonial hearsay statements.
  First, during the State’s
questioning of Parinello, the State introduced back-door hearsay about “Low Down’s”
connection to this offense without any objections from defense counsel asserting that the
evidence violated applicant’s rights under the Confrontation Clause, and with only two
hearsay objections that were ineffectually lodged at inappropriate times.  Parinello’s
testimony indirectly implicated applicant by establishing that his investigation focused on
applicant only after speaking to Dangerfield about a person named “Low Down.”  Second,
through his own questions posed to Parinello during cross-examination, defense counsel
elicited Dangerfield’s specific hearsay statements that she had personally received the stolen
property from “Low Down.”

           During closing argument, the State relied heavily on the hearsay testimony from
Parinello to corroborate Erik’s identification testimony.  The prosecutor effectively argued
that the probability that applicant had committed this offense was four million to one because
there was only one “Low Down” in the police database for Houston.  The prosecutor’s
closing argument, in relevant part, stated,
So, what you have is your credible witness. Find the amount of credibility in
[Erik’s] certainty. That’s all you need, folks. That’s all you need under the law.
But you have more. What do you have? You have the victim’s address, you
have the address of the offense, you have the address of the defendant, all in
the same part of town. You have the complainant’s property found two days
later not more than four blocks from that spot, found on [Dangerfield], who we
didn’t have the benefit of hearing in this case. But what we do know is from the
officer’s visit with her, they came into information of [sic] a Low Down. And
out of a city of 4 million people, they only find one Low Down. And Detective
Parinello went forward with the knowledge that Low Down and the defendant,
Samuel Walker, are the same person.

           The record shows that the jury was heavily persuaded by the testimony and closing
argument linking “Low Down” to the stolen property and applicant.  After retiring to
deliberate, the jury requested and was permitted to review Parinello’s testimony that the
computer database matched applicant to “Low Down.”  The jury retired again before
convicting applicant, who was sentenced to forty-five years’ imprisonment.
           On direct appeal, the court of appeals affirmed applicant’s conviction, explaining that
counsel waived his claim against “backdoor hearsay” because “he brought out sufficiently
similar evidence in his cross-examination of Parinello.”  Walker v. State, No. 14-07-00461-CR, 2008 Tex. App. LEXIS 3360, 2008 WL 1991774, at *6 (Tex. App.—Houston [14th
Dist.] May 8, 2008).  Because applicant did not assert that his rights under the Confrontation
Clause had been violated, the court of appeals did not address that matter on direct appeal. 
At some point after applicant’s trial, counsel was disbarred for events unrelated to this case.
           D.  This Post-Conviction Application
           In his hand-written writ application, applicant challenges the effectiveness of his
counsel on the grounds that counsel failed to timely object to inadmissible hearsay evidence
and “failed to protect applicant’s federal rights to Confrontation.”  The State submitted a
responsive brief acknowledging its understanding that applicant was complaining of his
counsel’s ineffectiveness in failing to object to the hearsay evidence offered by the State and
in eliciting the improper evidence during counsel’s questioning of Parinello.  The State noted
that “applicant appears to be claiming . . . that trial counsel should have objected to the
testimony of Detective Parinello . . . and further, counsel should not have elicited testimony
from Parinello regarding his dealings with Dangerfield.”  The State contends that counsel’s
“actions were the product of a strategic decision” and that applicant, therefore, had failed to
prove both prongs of Strickland.
           The trial court did not have an evidentiary hearing on the merits of the application but
instead reviewed the record, the State’s response, and counsel’s two affidavits submitted on
applicant’s writ.  In those affidavits, counsel invoked strategy as his reason for not objecting
to the hearsay testimony: 
First, I wanted no ambiguity. I fear blank spaces in evidence. If the detective
was simply to testify that his investigation led him to the Defendant, the jury
might fill in the gaps on their own. I am never comfortable with that type of
ambiguity. I think juries are inclined to believe that the detective simply
followed some routine procedure and found the Defendant. I wanted the
detective to identify and discuss the witness that led him to Defendant.
Secondly, and closely tied to the first reason, is that the person who identified
Defendant gave a ridiculous story and I find it amazing that both the police and
the jury believed it. She was arrested in possession of property stolen in the
crime. She matched the description of one of the two people who robbed the
victims and when questioned about where the property came from, she said,
she got it from “Low Dog.” There was no further description of this “Low
Dog” and the fact that the police failed to realize that she matched the
description of one of the robbers and followed her rabbit trail was amazing to
me.


Counsel’s affidavits, however, also indicate that he knew before trial that the State could not
produce Dangerfield to testify: 
I knew before trial that the State was unable to produce the witness that would
directly prove the link between Defendant and the crime scene at trial.

Explaining that he was “wrong” not to object to the inadmissible evidence, counsel falls on
his sword, stating, 
I made the choice to let in that evidence because I erroneously believed that it
helped exonerate my client and because I wanted to eliminate ambiguity that
may have been construed in favor of the State. And I was very, very wrong.
After the conviction, I spoke with at least two jurors who told me that this
particular testimony was the deciding factor in convicting him.

           After making findings of fact, the trial court concluded that defense counsel’s
performance was not deficient and that he did not render ineffective assistance, and it
recommended that this Court deny relief.
II.  Applicant’s Defense Counsel Rendered Ineffective Assistance
           This Court applies Strickland’s ineffectiveness standard that requires an applicant to
prove by a preponderance of the evidence that (A) counsel’s performance “fell below an
objective standard of reasonableness under prevailing professional norms,” and (B) the
applicant was so prejudiced by counsel’s errors that a “reasonable probability” exists that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.  Strickland, 466 U.S. at 687–88,694; Ex parte Martinez, 330 S.W.3d 891, 900–01
(Tex. Crim. App. 2011).  Applying this standard, I conclude that counsel was ineffective. 
           A.  Counsel’s Performance Fell Below an Objective Standard of Reasonableness
           In evaluating counsel’s performance, I determine that the trial court would have erred
by overruling a proper and timely defense objection to Parinello’s testimony and that
counsel’s actions in failing to properly object were objectively unreasonable.  See Ex parte
White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (to establish ineffectiveness based on
defense counsel’s failure to properly object to evidence, defendant must show that trial court
would have erred by overruling objection). 
           1.  Trial Court Would Have Erred By Overruling Objection

           Had defense counsel objected to the back-door hearsay elicited at trial by the State,
the trial court would have erred by permitting the evidence.  An “out-of-court ‘statement’
[under Texas Rule of Evidence 801] need not be directly quoted in order to run afoul of the
hearsay rules.”  Head v. State, 4. S.W.3d 258, 261 (Tex. Crim. App. 1999) (citing Schaffer
v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989)); see Tex. R. Evid. 801(a), (d).  Under
the Texas Rules of Evidence, the statutory definition of a hearsay “statement” includes
“proof of the statement whether the proof is direct or indirect.”  Id.; see 2 Steven Goode,
Olin Guy Wellborn III, & M. Michael Sharlot, Texas Practice Series: Guide to the
Texas Rules of Evidence § 801.2 (3d ed. 2013).  Indirect hearsay appears “[w]here there
is an inescapable conclusion that a piece of evidence is being offered to prove statements
made outside the courtroom,” although it further depends on how strongly the content of the
out-of-court statement, in context, supports an inference that the State was “attempting to do
indirectly what it could not do directly.” Head, 4 S.W.3d at 261 (quoting Schaffer, 777
S.W.2d at 114); see Poindexter v. State, 153 S.W.3d 402, 408 n.21 (Tex. Crim. App. 2005). 
By asking parallel questions to Parinello whether his investigation focused on “Low Down”
prior to and after speaking to Dangerfield, the prosecutor strongly indicated the content of
the out-of-court statement by Dangerfield to Parinello.  See Head, 4 S.W.3d at 261 (“Whether
the disputed testimony violates the hearsay prohibition necessarily turns on how strongly the
content of the out-of-court statement can be inferred by the context.”).  Had counsel objected
to this indirect hearsay evidence, the trial court would have erred by admitting the testimony. 
           Furthermore, but for defense counsel’s introduction of Dangerfield’s out-of-court
statements during his cross-examination of Parinello, the trial court would have erred by
permitting the introduction of that evidence, which violates the Confrontation Clause of the
Sixth Amendment.  Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005) (citing
Crawford, 541 U.S. at 59); see U.S. Const. amend. VI.  In Crawford, the Supreme Court
observed that “[s]tatements taken by police officers in the course of interrogations are also
testimonial under even a narrow standard” and “fall squarely within [the] class” of
testimonial hearsay.  Crawford, 541 U.S. at 52-53.  The Court later refined Crawford by
holding that a statement given during police interrogation is testimonial “when the
circumstances objectively indicate that there is no . . . ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.”  Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266
(2006). 
           In this case, Dangerfield was interviewed in jail by a police officer about her
knowledge of the robbery because she was found in possession of the complainant’s stolen
property.  The circumstances objectively indicate that, at the time Dangerfield made her
statement to the police officer, there was no ongoing emergency, and the primary purpose of
the interrogation was to establish or prove past events potentially relevant to later criminal
proceedings.  See Davis, 547 U.S. at 822.  Because the admission of Dangerfield’s out-of-court statements violated the Confrontation Clause, the trial court would have erred by
permitting them into evidence had counsel not asked his own questions designed to introduce
the same evidence.
           2.  Counsel’s Actions Were Objectively Unreasonable
           Having determined that the trial court would have erred by admitting Dangerfield’s
statements over a proper defense objection, I next explain why I conclude, (a) applying the
appropriate legal standard to this case, that (b) the record shows that counsel’s actions
objectively demonstrate deficient performance.  Furthermore, I also note that (c) the trial
court’s findings of fact and conclusions of law are ineffectual in this case. 
            a.  The Appropriate Legal Standard is Objective Reasonableness
           I recognize that a court indulges a “strong presumption” that counsel’s conduct “falls
within the wide range” of reasonable professional assistance and that “under the
circumstances, the challenged action might be considered sound trial strategy.”  Martinez,
330 S.W.3d at 900 (quoting Strickland, 466 U.S. at 689).  When, however, “no reasonable
trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an
objective standard of reasonableness as a matter of law, regardless of whether the record
adequately reflects the trial counsel’s subjective reasons for [his actions].”  Andrews v. State,
159 S.W.3d 98, 102 (Tex. Crim. App. 2005); see also Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999) (reviewing court looks to “the totality of the representation and the
particular circumstances of each case” to evaluate effectiveness of counsel).  In reviewing
whether an attorney was ineffective, great deference is given to those who have conducted
substantial investigations, made informed decisions, and exercised professional judgment. 
The Supreme Court has explained,
If counsel conducts such substantial investigations, the strategic choices made
as a result “will seldom if ever” be found wanting.  Because advocacy is an art
and not a science, and because the adversary system requires deference to
counsel’s informed decisions, strategic choices must be respected in these
circumstances if they are based on professional judgment.

Strickland, 466 U.S. at 681.  An objective examination of the record shows that, here, rather
than showing the exercise of professional judgment, this now-disbarred attorney, through his
actions and omissions, permitted inadmissible evidence that provided the sole non-eyewitness link between applicant and the offense, thereby undermining the whole point of
the adversary system by substantially bolstering the strength of the State’s case.
           b.  The Record Objectively Demonstrates Deficient Performance
           Although he has invoked a subjective claim of strategy in his habeas affidavit by
claiming that he laid out all his cards for the jury so that there would be no “blank spaces in
evidence,” the record shows that counsel initially ineffectually attempted to exclude this
evidence and, only after the evidence was admitted over his untimely and improper objection,
did counsel decide to let the jury hear the otherwise inadmissible evidence.  The record
shows the following exchange during Detective Parinello’s direct examination: 
[Prosecutor]: Now, during the pendency of your investigation, did you
learn any aliases of [applicant]? 
 
[Defense counsel]: Objection, calls for hearsay.
 
[Trial Court]: Overruled. That’s a yes-or-no question.
 
[Parinello]: Yes, I did.
 
[Prosecutor]: And what was that alias?
 
[Parinello]: Low Down.
 
[Prosecutor]: What is it you did with that, Detective?
 
[Parinello]: Well, I started researching our computers regarding a
Low Down and I could not find anything in our computer
system.
. . . . 
 
[Prosecutor]: At any point during your investigation, were you
provided information that led you to a Norvala[sic]
Ramos? 
 
[Parinello]: That’s correct. 
[Prosecutor]: And during your investigation, did you learn of any
aliases of Norvala[sic] Ramos?
 
[Parinello]: Well, yes. Do you want me to give you the name?
[Defense counsel]: Objection. Calls for hearsay.
[Prosecutor]: Did you learn of an alias?
[Parinello]: Yes, I did. I’m sorry.
[Prosecutor]: What was that alias?
[Parinello]:Pocahontas.
           Had counsel really had a strategy to leave no blanks for the jury, he would not have
objected to the State’s questions asking about the aliases of applicant and Ramos.  Rather,
based on counsel’s objections to that evidence, the record conclusively demonstrates that
counsel’s decision to lay all his cards out on the table came only after he was too unskilled
in the law to lodge the appropriate objections to exclude the evidence.  Once his  inadequate
objections failed to exclude the inadmissible evidence, counsel then apparently decided to
go further himself by asking questions to elicit additional evidence that would otherwise have
been inadmissible. As had occurred at the first trial, Detective Parinello was the only witness
to make any mention of “Low Down.” Counsel’s mid-trial decision to lay out all his cards
for the jury only after ineffectually attempting to exclude the evidence cannot objectively be
characterized as the result of engaging in strategic choices, making an informed decision, or
exercising a reasonable professional judgment. 
           Additionally, in light of the jury’s questions asking for specific testimony during their
deliberations, the record indicates that the jury gave significant weight to Dangerfield’s
statements that “Low Down” gave her the complainant’s stolen property.  My assessment
here does not rest on post-conviction statements by jurors who indicated that this hearsay
evidence was the deciding factor in convicting applicant.  I agree with the concurring
opinion’s observation that it is improper for courts to consider that type of evidence.  See Ex
parte Parra, No. AP-76,781, 2013 WL 5221110, at *4 (Tex. Crim. App. Sept. 18, 2013)
(citing Tex. R. Evid. 606(b)).   But that is a different matter from, in analyzing whether
certain evidence was material to the jury’s verdict, considering that the jury did submit a
question to the trial court requesting that testimony be read back to them by the court
reporter.  See, e.g., Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (deciding
whether record showed egregious harm by examining jury’s question asking that certain
evidence be read back to them).  Here, the request that testimony about “Low Down” be read
back to the jury shows that the jury was concerned about this matter in its deliberations and
that this topic affected its decision, particularly because the evidence about “Low Down”
supplied the sole non-eyewitness identification evidence linking applicant to the offense.  
           Although the concurring statement suggests that my analysis is based on the benefit
of hindsight, my analysis is instead based on a review of counsel’s performance at the time
of the trial.  An objective assessment of counsel’s performance in this case reveals that no
effective attorney would have engaged in actions permitting this highly prejudicial evidence
to be admitted into evidence.  Even this attorney initially attempted to keep out this evidence,
but he was so unskilled in the law that he was unable to do so.  The State ran with this
hearsay, essentially arguing in its closing statement that the probability that applicant did not
commit this offense was one in four million.  Counsel’s actions in allowing evidence linking
applicant to the property was objectively unreasonable, therefore, because the evidence
substantially strengthened the State’s case from one based on the testimony of a single shaky
eyewitness to one in which a computer gave the odds that the applicant did not commit the
offense at one in four million. 
           c.  The Habeas Court’s Fact Findings and Conclusions of Law Are Ineffectual
           Although it purported to make findings of fact in this case, the habeas court’s first two
findings merely describe the existence of applicant’s conviction and the last three findings
are actually conclusions of law.
  See State v. Sheppard, 271 S.W.3d 281, 292 (Tex. Crim.
App. 2008) (noting problem of “mixing the apples of explicit factual findings with the
oranges of conclusions of law”).  The trial court did, however, factually state that he found
defense counsel’s affidavit “true and credible,” but this finding is immaterial because even
though the habeas court believed that counsel subjectively invoked a strategy, that does not
answer the question whether that strategy was objectively reasonable.  See Ex parte Ellis, 233
S.W.3d 324, 330 (Tex. Crim. App. 2007) (“[A]n attorney’s cited strategy does not prevent
us from determining whether a specific act or omission was ‘outside the wide range of
professionally competent assistance.’”).  Furthermore, although this Court ordinarily defers
to findings of fact by the trial court, this Court is the ultimate fact finder in applications for
writs of habeas corpus.  See Ex parte Flores, 387 S.W.3d 626, 634–35 (Tex. Crim. App.
2012).  I would hold that, contrary to the trial court’s determination, applicant has shown
counsel’s actions fell below an objective standard of professional reasonableness.
           Applying an objective standard to this case, defense counsel should have known that,
under the applicable law, this evidence was inadmissible both as back-door hearsay and as
a violation of applicant’s constitutional right to confront witnesses, and he should have
precluded the admission of this highly prejudicial, inadmissible evidence by timely and
properly objecting and by not himself introducing the evidence.  See Ex parte Moody, 991
S.W.2d 856, 858 (Tex. Crim. App. 1999); Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim.
App. 1998) (defense counsel’s misunderstanding of law governing probation eligibility
constituted ineffective assistance of counsel).  I would hold that counsel was objectively
unreasonable in his subjective strategy to play possum while inadmissible evidence was
presented to the jury.    
           B.  Defense Counsel’s Actions Prejudiced Applicant
           I conclude that absent the inadmissible evidence that Parinello’s investigation focused
only on “Low Down” after talking to Dangerfield and that Dangerfield had received the
complainant’s stolen property from “Low Down,” there is a reasonable probability that
applicant would not have been convicted.  A “reasonable probability” means one “sufficient
to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694. The elimination of
Dangerfield’s identification of applicant would have left only the single eyewitness
identification of a child, Erik.  Although Erik was certain about the identification of
applicant, he was also certain about the license-plate number, which was proven to be
incorrect.  The police officer who obtained the license-plate number from Erik and his
brother noted that he tried multiple variations of the number and none of them were accurate
according to the police computer.  This heavily undermines Erik’s testimony because he was
as certain about the identification of applicant as he was in the mistaken license-plate
number.  And absent the inadmissible evidence about “Low Down,” the jury would have
been left solely with Erik’s shaky identification.  The importance of Dangerfield’s hearsay
statements is evident in that their admission led to the reversal of applicant’s first conviction
because of their prejudicial impact on the trial.
           Without Dangerfield’s statements, at best, this case comes down to the unreliable
testimony of a single eyewitness, which is similar to many of the other cases that have led
to the release of wrongly convicted innocent people.  According to the Innocence Project,
eyewitness misidentification is the single greatest cause of wrongful convictions nationwide,
playing a role in nearly seventy-five percent of convictions overturned through DNA testing.
 
Furthermore, that source suggests that more than 300 innocent people have been released
from prison nationwide largely due to faulty identifications.
  I discuss this source, not to
suggest that these numbers are precisely correct, but rather to show that today’s jurors are
aware of the large numbers of people who have been released from prison based on
misidentification.  Absent the inadmissible evidence linking applicant to the property, there
is a reasonable probability that the jury, aware of the problems of misidentification, would
have found the shaky identification by a single child-eyewitness an inadequate basis upon
which to convict applicant.    
III. Conclusion
           I would hold that counsel rendered ineffective assistance by permitting the
introduction of evidence that was inadmissible as back-door hearsay and violated applicant’s
Confrontation rights.  I respectfully dissent from the Court’s denial of this application for a
writ of habeas corpus.
Filed: March 12, 2014
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