
Opinion issued July 30, 2009 









 
     


In The
Court of Appeals
For The
First District of Texas




NO. 01-07-00824-CR




LEEROY CESAR CARBALLO, Appellant

v.

THE STATE OF TEXAS, Appellee




On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1097497




CONCURRING  OPINION

          Against the expressly stated decision of appellant, Leroy Cesar Carballo, his
trial counsel, during the punishment phase of trial, failed to question appellant as a
witness before the jury about “the events surrounding” the offense of which he was
accused.  There can be no sound trial strategy in an attorney unilaterally overruling
his client’s decision to testify in his own defense, an absolute right under the United
States Constitution and the Texas Constitution.  See U.S. Const. amends. V, VI,
XIV; Tex. Const.  art. I, § 10.  This Court’s conclusion to the contrary in Agosto v.
State, No. 01-08-00319-CR, 2009 WL 566334, at *2 (Tex. App.—Houston [1st Dist.]
Mar. 5, 2009, no pet. h.), is in serious error.  Accordingly, although I join the majority
opinion, I write separately to address this Court’s error in Agosto.
          As stated by the United States Supreme Court, “it cannot be doubted that a
defendant in a criminal case has the right to take the witness stand and to testify in his
or her own defense.”  Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708
(1987).  As explained in Rock:
          The right to testify on one’s own behalf at a criminal trial has
sources in several provisions of the Constitution.  It is one of the rights
that “are essential to due process of law in a fair adversary process.” . . .
The necessary ingredients of the Fourteenth Amendment’s guarantee
that no one shall be deprived of liberty without due process of law
include a right to be heard and to offer testimony. . . .  
 
The right to testify is also found in the Compulsory Process
Clause of the Sixth Amendment, which grants a defendant the right to
call “witnesses in his favor,” a right that is guaranteed in the criminal
courts of the States by the Fourteenth Amendment. . . .  Logically
included in the accused’s right to call witnesses whose testimony is
“material and favorable to his defense,” . . . is a right to testify himself,
should he decide it is in his favor to do so. In fact, the most important
witness for the defense in many criminal cases is the defendant himself.
There is no justification today for a rule that denies an accused the
opportunity to offer his own testimony.
 
. . . .
 
. . . [T]he Sixth Amendment “grants to the accused personally the right
to make his defense. It is the accused, not counsel, who must be
‘informed of the nature and cause of the accusation,’ who must be
‘confronted with the witnesses against him,’ and who must be accorded
‘compulsory process for obtaining witnesses in his favor.’”
 
Even more fundamental to a personal defense than the right of
self-representation, which was found to be “necessarily implied by the
structure of the Amendment,” . . . , is an accused’s right to present his
own version of events in his own words. A defendant’s opportunity to
conduct his own defense by calling witnesses is incomplete if he may
not present himself as a witness. 
 
The opportunity to testify is also a necessary corollary to the Fifth
Amendment’s guarantee against compelled testimony. . . . th[is] Court
[has] stated: “Every criminal defendant is privileged to testify in his own
defense, or to refuse to do so.”
 
483 U.S. at 51–53, 107 S. Ct. 2708–10 (citations omitted).
          Likewise, the Texas Constitution guarantees every person accused of a crime 
“the right of being heard by himself or counsel, or both . . . .”  Tex. Const. art. I,
§ 10.  The Texas Court of Criminal Appeals has also recognized that an accused’s
right to testify on his own behalf is “fundamental” and “personal” to the accused. 
Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim App. 2005).  In Johnson, the court
stated that “defense counsel shoulders the primary responsibility to inform the
defendant of his right to testify, including the fact that the ultimate decision belongs
to the defendant.”  Id. at 235 (emphasis added).  In fact, the Texas Disciplinary Rules
of Professional Conduct clearly state that “a lawyer shall abide by a client’s decision”
as to “whether the client will testify.”  Tex. Disciplinary R. Prof’l Conduct
1.02(a)(3).   
          In Agosto, defense counsel, after the defendant had been cross-examined by the
State and stated his desire to be able to give his testimony “about how things really
were,”  unilaterally “chose not to” ask the accused about his version of events.  2009
WL 566334, at *2, *4.   Although this Court, citing Johnson,  recognized that an
accused’s right to testify is “fundamental and personal” to the accused, it, regardless,
held that defense counsel’s omission did not fall below a reasonable level of
professional assistance.  Id. at *2–3; see Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984).  This Court’s holding in Agosto, standing in contrast
as to how the Texas Court of Criminal Appeals acted in Johnson, is in serious error. 
          In Johnson, the Texas Court of Criminal Appeals actually held that when a
defense counsel’s conduct deprives an accused of his constitutional right to testify,
“this type of claim is properly characterized as one of ineffective assistance of
counsel and that the usual analysis of prejudice under Strickland v. Washington
applies.”  169 S.W.3d at 225; see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064
(requiring two-step analysis whereby appellant must show that (1) counsel’s
performance fell below objective standard of reasonableness and (2) but for counsel’s
unprofessional error, there is reasonable probability that result of proceedings would
have been different.).  The court in Johnson did not, as this Court did in Agosto,
address the issue under the first prong of Strickland.  Rather, the Texas Court of
Criminal Appeals explained that the denial of a defendant’s right to testify by his trial
counsel “is the type of violation that can be subjected to a harm/prejudice inquiry.”
Johnson, 169 S.W.3d at 239 (emphasis added).  Obviously, an attorney’s unilateral
decision to overrule his client’s decision to testify, i.e., to relate his version of events
to the fact-finder, violates the client’s constitutional right to testify on his own behalf. 
Thus, the Court of Criminal Appeals proceeded straight into its harm analysis under
the second prong of Strickland.
          Here, we correctly do likewise, and appellant’s ineffective assistance claim 
fails under the second prong of Strickland.  Given the record before us, appellant did
not chose to testify until the punishment phase of trial.  The jury had already found
him guilty of the offense, and, as explained by the court in Johnson, appellant’s
testimony “could have hurt him at the punishment stage because of its tendency to
show that, even at the time of trial, he refused to accept his share of the blame for
what [had] happened.”  Id. at 240.  Appellant did have the right to testify about the
“events surrounding” the offense in the punishment stage of trial.  However, it was
too late to undo the jury’s finding of guilt, and such testimony was more likely to
have harmed appellant than to have helped him.
          In sum, I agree that appellant has failed to demonstrate that he was actually
harmed by his trial counsel’s failure to abide by his decision to testify. However, 
defense counsel’s unilateral decision to override appellant’s right to testify about the
“events surrounding” the offense in the punishment stage of trial fell below a
reasonable level of professional assistance.  This Court, having previously held to the
contrary, should now overrule Agosto.  
                 
 
                                                             Terry Jennings
                                                             Justice
 
Panel consists of Justices Jennings, Keyes, and Higley.
 
Justice Jennings, concurring.
 
Publish.  See Tex. R. App. P. 47.2(b).
