Affirmed and Majority and Dissenting Opinions filed October 31, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00400-CR

                        HAPPY TRAN PHAM, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1096930

                            DISSENTING OPINION

      Strategy without investigation is no strategy at all. The majority relies on a
series of assumptions to find counsel’s performance and preparation in the
punishment phase of appellant’s trial sufficient. Because I would find counsel’s
performance deficient and prejudicial, I dissent.

      Trial counsel executed an affidavit in which he stated that he failed to
interview any potential mitigation witnesses, he made conclusory assumptions
about what those witnesses might know about appellant’s life, and his decision not
to interview any potential witnesses was not based on trial strategy. Twenty
affidavits of potential punishment witnesses were submitted to the trial court along
with appellant’s motion for new trial. Each represented a potential avenue for
investigation and an opportunity to present mitigating evidence to the jury.
However, trial counsel assumed that these potential witnesses would be more
harmful than helpful, neglected to speak to a single person, and failed to prepare
for the punishment phase of the trial. In finding counsel’s performance and
preparation sufficient, the majority substitutes its own determination of proper trial
strategy for trial counsel’s—having neither interviewed witnesses nor ascertained
what those witnesses would have said.

      Counsel’s affidavit states that he made a conclusory assumption that
appellant’s friends and family would not have made good punishment witnesses
and this assumption, combined with his solitary focus on self-defense, caused him
to conduct no investigation into any potential punishment witnesses. At
punishment, no doubt surprised by the verdict, counsel threw appellant’s two
brothers on the witness stand to testify without having prepared either of them. As
he candidly admits, counsel’s failure to investigate was not based on any trial
strategy. The majority presumes to know that the witnesses had no knowledge of
appellant’s current character, assumes that their testimony would have been
harmful, and determines that counsel’s failure to investigate is a reasonable
strategic decision. However, this goes against a basic tenet of strategy—how does
counsel strategically decide to forego calling a witness to testify if counsel has
absolutely no idea what that witness might say? Similarly, how does this court
deign to know what those witnesses would have said without having heard from
the witnesses themselves?

      The decision whether to present witnesses is largely a matter of trial

                                          2
strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.]
2005, pet. dism’d). “[A]n attorney’s decision not to present particular witnesses at
the punishment stage may be a strategically sound decision if the attorney bases it
on a determination that the testimony of the witnesses may be harmful, rather than
helpful, to the defendant.” Id. (citing Weisinger v. State, 775 S.W.2d 424, 427
(Tex. App.—Houston [14th Dist.] 1989, pet. ref’d)). However, a failure to present
mitigating evidence “cannot be justified as a tactical decision when defense
counsel has not conducted a thorough investigation of the defendant’s
background.” Id. (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Rivera v.
State, 123 S.W.3d 21, 31 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)).
Counsel is ineffective when he fails to investigate and interview potential
punishment witnesses, despite their availability and willingness to testify on
appellant’s behalf, and counsel can only make a reasonable decision to forego
presentation of mitigating evidence after evaluating available testimony and
determining it would not be helpful. Milburn v. State, 15 S.W.3d 267, 270–71
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

      The majority’s reliance on Humphrey, and by extension Wiggins, in
condoning the trial counsel’s inaction is misplaced. Humphrey’s trial counsel
interviewed potential witnesses and made a strategic decision not to present their
testimony. Humphrey v. State, 501 S.W.3d 656, 664 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d). Humphrey’s trial counsel also had the benefit of a prior
parole hearing to evaluate what testimony likely would have been elicited from one
potential witness. Id. at 663. Here, however, counsel assumed he knew what the
witnesses would say and, without speaking to a single potential mitigation witness,
decided that all of their testimony would have been unhelpful. Counsel’s own
affidavit states that “my failure to investigate the possibility that favorable


                                         3
punishment witnesses existed was not based on any trial strategy.”

      In Humphrey, as in Wiggins, the attorney knew about the evidence, made an
initial investigation into the information, and then made a strategic choice not to
investigate further or use the information at trial. Wiggins, 539 U.S. at 534;
Humphrey, 501 S.W.3d at 663–64; see also Burger v. Kemp, 483 U.S. 776, 794–95
(1987). Here however, counsel did not know about the available mitigation
evidence because he did absolutely no investigation into the matter. Therefore, his
decision not to present mitigation evidence was not strategy. For this court to state
that counsel’s failure to investigate was strategic, it is effectively making a
strategic decision for trial counsel based on information neither obtained nor
analyzed by trial counsel. Courts are “not required to condone unreasonable
decisions parading under the umbrella of strategy, or to fabricate tactical decisions
on behalf of counsel when it appears on the face of the record that counsel made no
strategic decision at all.” Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir.
2009).

      The majority’s conclusion that prioritizing appellant’s self-defense claim
over mitigation witnesses was strategic is also misplaced. “[A] tactical choice not
to pursue one course or another ‘should not be confused with the duty to
investigate.’” Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (quoting
Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir. 1981)). The majority’s own words
show the danger in this—in stating that these mitigation witnesses “had no
knowledge of appellant’s current character, or possibly had knowledge of
appellant’s drug-dealing activities, or possibly had helped appellant elude capture,”
the majority presumes to know what the witnesses would have known about the
appellant and further presumes to know what testimony would have been elicited.
Failure to present mitigating evidence “cannot be justified as a tactical decision

                                          4
when defense counsel has not conducted a thorough investigation of the
defendant’s background.” Shanklin, 190 S.W.3d at 164. Counsel had a duty to
make a reasonable investigation and not rely solely on the client to provide
information. Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990). If
counsel had investigated, determined that the witnesses were unhelpful, and then
decided not to call them, that is defensible trial strategy. If counsel fails to
investigate, that is deficient performance.

      “The sentencing stage of any case, regardless of the potential punishment, is
the time at which for many defendants the most important services of the entire
proceeding can be performed.” Vela v. Estelle, 708 F.2d 954, 964 (5th Cir.1983).
Where the potential punishment is imprisonment for life, as in the instant matter,
the sentencing proceeding takes on added importance. See id.; Milburn, 15 S.W.3d
at 269.

      Strickland does not require that counsel investigate every possible line of
mitigating evidence, but counsel can only make a reasonable decision to present no
mitigating evidence after evaluating available testimony and determining it would
not be helpful. Milburn, 15 S.W.3d at 270. Counsel’s performance is deficient
when counsel fails to conduct an investigation of a defendant’s background for
potential mitigating evidence. Wiggins, 539 U.S. at 533–35; Milburn at 269–70.
Counsel here has admitted that he neither investigated nor evaluated any available
avenues for punishment evidence.

      Arguably, trial counsel’s failure to investigate even a single avenue of
mitigation could mean that appellant was constructively denied any defense at all
in the penalty phase of his trial. “Actual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice.” Strickland v.
Washington, 466 U.S. 668, 692 (1984). “Prejudice in these circumstances is so

                                          5
likely that case-by-case inquiry into prejudice is not worth the cost.” Id.
Regardless, I would find that appellant has demonstrated prejudice in this case
because counsel’s lack of investigation deprived appellant of bringing any
meaningful mitigation evidence to the jury to offset the State’s aggravating factors.
The painful and joyful parts of appellant’s childhood, his family’s story in escaping
the harsh and violent world of Vietnam, and his interactions and relationships with
family, friends, and community members are all relevant pieces of information that
the jury could have considered. I would conclude that a reasonable probability
exists that appellant’s sentence would have been less severe had the jury balanced
knowledge of his life with the aggravating factors, particularly in light of the fact
that the jury ultimately sentenced him to life in prison.




                                        /s/       Frances Bourliot
                                                  Justice


Panel consists of Chief Justice Frost and Justices Bourliot and Poissant.
Publish — Tex. R. App. P. 47.2(b).




                                              6
