






 


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1882-03


MELVIN GOODSPEED, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

BOWIE COUNTY



 Holcomb, J., filed a dissenting opinion, in which Meyers, J., joined.

O P I N I O N

 

	I respectfully dissent.  I would hold that trial counsel's errors were such that
appellant's claim of ineffective assistance of counsel is properly reviewable on direct appeal. 
See Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999).  I would further hold
that trial counsel's performance was deficient and tantamount to no counsel at all.  See
Strickland v. Washington, 466 U.S. 668 (1984); Gideon v. Wainwright, 372 U.S. 335, 344-45
(1963); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). 
	First, I agree with the court of appeals' conclusion that there could be no sound reason
for trial counsel to entirely waive voir dire.  Goodspeed v. State, 120 S.W.3d 408, 411-12
(Tex. App.--Texarkana 2003)(citing Miles v. State, 644 S.W.2d 23, 24 (Tex. App.--El Paso
1982, no pet.)).  The right to question prospective jurors is implicit in the right to counsel and
the right to an impartial jury.  Trevino v. State, 572 S.W.2d 336, 336-37 (Tex. Crim. App.
1979).  The voir dire process is designed to insure that an intelligent, alert, disinterested,
impartial, and truthful jury will perform the duty assigned to it.  Armstrong v. State, 897
S.W.2d 361, 363 (Tex. Crim. App. 1995).  Moreover, this Court has said that defense counsel
has an obligation to ask questions calculated to bring out information tending to show a
juror's inability to be impartial and truthful.  See id. at 363-64 (citing Jones v. State, 596
S.W.2d 134, 137 (Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds, Sneed v.
State, 670 S.W.2d 262, 266-67 (Tex. Crim. App. 1984)).  To say now that there may be some
conceivable reason to waive voir dire, and therefore, defense counsel must have an
opportunity to explain why he chose to waive that right, is not sound policy and conflicts
with precedent from this court.  Linnell v. State, 935 S.W.2d 426, 428 (Tex. Crim. App.
1996) (embodied in the right to counsel is the right to question venire so that counsel may
intelligently exercise peremptory challenges and challenges for cause). 
	And, as a practical matter, voir dire provides the accused with the opportunity to
employ several tactical advantages.  In addition to those noted by the court of appeals, (1) it is 
common for attorneys to question prospective jurors to establish a rapport between the
attorney and the prospective jurors, as well as to "humanize" the accused.  See Texas
Litigation Primer 57-58 (Trial Advocacy Institute, 2d ed.).  This tactic would have been
especially useful here as appellant was charged with aggravated sexual assault of a child.  
	More importantly, however, there is simply no excuse for failing to question the
prospective jurors about whether they could consider the full range of punishment, which
would include community supervision in this case.  Goodspeed v. State, 120 S.W.3d at 413
(noting that the State did not address the range of punishment in its voir dire).  Because the
process of jury selection is one of the most critical parts of a criminal trial, it defies logic to
insist that appellant bring these particular Sixth Amendment claims on habeas review so that
trial counsel may offer a conceivable strategy for waiving his client's right to counsel, to a
fair trial, and to a fair and impartial jury.  See Miles v. State, 644 S.W.2d at 24.
	Second, there can be no legitimate reason for a lawyer to use two peremptory strikes
on prospective jurors who have been excused for cause.  Allowing trial counsel an
opportunity to explain this plain error would be a waste of judicial resources.  And as Judge
Meyers noted in Thompson v. State, forcing habeas review of ineffective assistance of
counsel claims for errors that are plain on the face of the record prevents indigent appellants
from obtaining a county-funded appellate record and the assistance of appointed counsel. 
9 S.W.3d at 817 n.4 (Meyers, J., dissenting).
	Even though the record does not definitively reflect the reasons trial counsel acted as
he did, I do not believe there is anything he could say under these circumstances to show that
his actions were the product of a sound trial strategy. (2) Therefore, I believe this is one of the
classic instances in which ineffective assistance of counsel may be adequately argued and
reviewed on direct appeal, despite the lack of a record developed at a motion for new trial
which gives trial counsel an opportunity to explain his actions.  See Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002) (generally, the record on direct appeal will not be
sufficiently developed to show that counsel's representation was deficient under first prong
of Strickland); Thompson v. State, 9 S.W.3d at 814 n.6 (noting that holding should not be
construed to mean that an ineffective assistance claim can never be adequately reviewed on
direct appeal); see also Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)
(record insufficient to show ineffective assistance of counsel where no peremptory strike or
motion for cause was used on prospective juror who said he could not be impartial); Delrio
v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). 
	As to the question of prejudice, I do not disagree with the court of appeals resolution,
but I would not apply the standard harm analysis to the errors made here, because the impact
of the error could never be adequately shown.  See, e.g., Gray v. Mississippi, 481 U.S. 648
(1987) (requiring automatic reversal even where a single juror was excluded
unconstitutionally and there was no suggestion of bias on the part of the jurors actually
seated); Batson v. Kentucky, 476 U.S. 79, 106 (1986); Gonzalez v. State, 994 S.W.2d 170,
172 (Tex. Crim. App. 1999) (Price, J., dissenting); Slone v. State, 809 S.W.2d 234, 238 (Tex.
App.--Tyler 1988, pet. dism'd improvidently granted).  
	In Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), we stated that, except
for certain federal constitutional errors deemed structural by the United States Supreme
Court, no error is categorically immune from a harmless error analysis.  The situation here
is different and is analogous to not having an attorney in the courtroom at all.  See Gideon
v. Wainwright, 372 U.S. at 344-45 (the total deprivation of counsel at trial is structural error). 
I would hold that the right to have counsel conduct voir dire is a right so basic to a fair trial
that its infraction could never be treated as harmless error.  See United States v. Cronic, 466
U.S. 648, 659 n. 25 (1984); see, e.g., Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir.2001)
(sleeping counsel is equivalent to no counsel; counsel was absent at critical stage within
meaning of Strickland and Cronic).  The Supreme Court has uniformly found constitutional
error without any showing of prejudice when counsel was either totally absent or prevented
from assisting the accused during a critical stage of the proceeding.  See Burdine v. Johnson,
262 F.3d at 345.  The error here defies a harm analysis because subjecting the error to
Strickland prejudice would render meaningless the protections afforded by the right to
counsel. (3) See e.g., Penson v. Ohio, 488 U.S. 75 (1988) (reasoning that applying Chapman
to an Anders violation would leave defendant without the very protection that Anders sought
to provide) (4); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (error in denying Sixth
Amendment right to self-representation not subject to harmless error analysis).  
	The court of appeals filed a thoughtful and well-reasoned unanimous opinion to
address a clear question of legal non-representation.  I applaud their effort to show that this
type of malfeasance is wrong and harmful.  Apparently we have now relegated this question
to the highly problematic and uncertain world of habeas corpus.  Unfortunately, this negates
a scholarly opinion from the court of appeals.  
 I would affirm the judgment of the court of appeals rather than insisting that appellant
bring his ineffective assistance claims on collateral review. (5) 
DELIVERED: April 6, 2005.
PUBLISH
1.   See Goodspeed, 120 S.W.3d at 411 (citing 3 Texas Criminal Practice Guide: Trial
§ 72.03[1] (Matthew Bender & Co. ed., Aug. 2003)). 
2.   In his brief comments to the venire, trial counsel reveals at least some of his reasons for
failing to ask any questions.  Specifically, trial counsel told the venire "I am fairly brief in what I
have to say and I will not take up all the time that she has taken in explaining this, that, and the
other....Well, I've listened to her for two hours more or less, and she's covered everything, even
my side of the case...."  Despite the fact that trial counsel's reasoning is reflected in the record,
the majority believes we must give trial counsel yet another opportunity to explain why he
waived voir dire and wasted two peremptory strikes.  See Mitchell, 68 S.W.3d at 642 (a petition
for writ of habeas corpus usually is the appropriate vehicle in which to present ineffective
assistance of counsel claims because the reasonableness of counsel's choices often involves facts
that do not appear in the appellate record).  Here, counsel's reasons for waiving voir dire appear
in the record.  
3.   However, even when applying the standard harm analysis, the error here could not be
found harmless because, by effectively allowing the State to conduct voir dire for appellant,
Strickland's central holding was violated; i.e., "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."  See
Strickland, 466 U.S. at 686 (emphasis added); see also, United States v. Cronic, 466 U.S. at 656-57 (critical question is whether counsel's performance was so deficient that the process lost its
character as a confrontation between adversaries).
4.   Chapman v. California, 386 U.S. 18, 23-24 (1967); Anders v. California, 386 U.S. 738
(1967).
5.   See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); see also Mallett v.
State, 65 S.W.3d 59, 70 (Tex. Crim. App. 2001) (Meyers, J., dissenting) (prior rejection of an
ineffective assistance of counsel claim on direct appeal will not bar relitigation of the claim when
an applicant offers evidence not contained in the direct appeal record).
