           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                        NO. AP-76,455



                   EX PARTE ARTHUR LEE WILLIAMS, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 354897-A IN THE 208 TH DISTRICT COURT
                          FROM HARRIS COUNTY



       C OCHRAN, J., filed a concurring opinion in which H ERVEY, J., joined.

                                         OPINION

       This case was tried almost thirty years ago. The law concerning the punishment issues

in a death penalty case was much different then.1 The law concerning mitigation evidence


       1
          In Jurek v. Texas, 428 U.S. 262 (1976), the United States Supreme Court upheld the
constitutionality of the Texas capital-murder sentencing scheme based on its narrow definition of
capital murder and its special issues of future dangerousness, deliberation, and lack of
provocation. Until 1989, constitutional attacks upon the Texas statute based on the failure to
have a special mitigation issue were rejected. See, e.g, Demouchette v. State, 731 S.W.2d 75, 80
(Tex. Crim. App. 1986) (rejecting defendant’s argument that the special issues set out in the
capital-murder sentencing statute “do not allow for the jury to consider or apply mitigating
evidence in their deliberation” and do not “inform the jury how to apply the mitigating evidence
in light of the aggravating language of the special issues.”); Fierro v. State, 706 S.W.2d 310, 318
(Tex. Crim. App. 1986) (holding that the three statutory special issues were a sufficient basis for
                                                        Williams     Concurring Opinion     Page 2

was much different then.2 And the law concerning defense counsel’s constitutional duty to

investigate mitigating evidence was much different then.3


jury to consider defendant’s mitigating evidence); Stewart v. State, 686 S.W.2d 118, 121 (Tex.
Crim. App. 1984) (rejecting defendant’s claim that art. 37.071 was unconstitutional because it
did not contain a special mitigation issue; stating that jurors were not precluded from considering
mitigation evidence under then-existing Texas special issues). It was not until 1989, in Penry v.
Lynaugh, 492 U.S. 302, 323 (1989), that the Supreme Court held that the three special issues did
not always suffice to allow a Texas sentencing jury to fully consider some types of mitigating
evidence. This was six years after applicant’s trial.
       2
          Well into the 1990’s this Court held that the jury could take “remorse”and good
character into consideration through the “future dangerousness” special issue. Robison v. State,
888 S.W.2d 473, 488 (Tex. Crim. App. 1994); Burls v. State, 876 S.W.2d 877, 910 (Tex. Crim.
App. 1994) (evidence of limited intelligence, good behavior as a child, past good deeds, and
good behavior in prison may be addressed by the then-existing statutory special issues); Ex parte
Harris, 825 S.W.2d 120, 121-22 (Tex. Crim. App. 1991) (mitigating evidence of circumstances
surrounding murder and defendant’s expression of remorse and cooperation with police, which
suggested that defendant was not violent person, was directly within scope of second special
issue); Boyd v. State, 811 S.W.2d 105, 109-12 (Tex. Crim. App. 1991) (rejecting defendant’s
ineffective assistance of counsel claim based on counsel’s failure to request a special mitigation
issue because evidence of defendant’s remorse, good employment record, good character,
helpfulness to others, and good relations was given full effect within the “future dangerousness”
special issue).
       3
           In Burger v. Kemp, 483 U.S. 776 (1987)–four years after applicant’s trial–the Supreme
Court held that counsel for a capital-murder defendant was not constitutionally ineffective for
failing to further investigate or present potentially mitigating evidence of defendant’s
“exceptionally unhappy and unstable childhood.” Id. at 788-96. As the Court explained, counsel
could have reasonably decided “not to introduce the evidence out of apprehension that it would
contribute little to his client’s chances of obtaining a life sentence while revealing possibly
damaging details about his past and allowing foreseeably devastating cross-examination.” Id. at
790 n.7. The Court stated,
         The record at the habeas corpus hearing does suggest that [counsel] could well
         have made a more thorough investigation than he did. Nevertheless, in
         considering claims of ineffective assistance of counsel, “[w]e address not what is
         prudent or appropriate, but only what is constitutionally compelled.” We have
         decided that “strategic choices made after less than complete investigation are
         reasonable precisely to the extent that reasonable professional judgments support
         the limitations on investigation.”
Id. at 794 (citations omitted). The Court concluded that counsel had a reasonable basis for not
investigating the defendant’s background further and for not offering any mitigating evidence. Id.
                                                         Williams     Concurring Opinion     Page 3

       In Strickland v. Washington,4 the Supreme Court emphasized the importance of

judging trial counsel’s decisions and conduct by the “prevailing professional norms” at the

time that counsel had to make his decisions.5 “A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” 6

       Here, the reasonableness of counsel’s decisions not to request any special issue or

instructions regarding mitigation evidence must be judged by the prevailing professional

norms in a 1983 Texas capital murder trial. Applicant points to no Texas case or professional

standard then in existence that an objectively reasonable defense lawyer would have

requested an extra “mitigation” special issue or limiting instruction in the punishment phase

of a capital murder trial. There was no such case or professional standard in 1983. A lawyer

would reasonably consider the law on this issue settled. The notion of requiring a mitigation




at 795-96.
        It was not until the Supreme Court decisions in Williams v. Taylor, 529 U.S. 362 (2000),
and Wiggins v. Smith, 539 U.S. 510 (2003), that the Supreme Court made clear that counsel’s
constitutional duty required him to thoroughly investigate or explicitly articulate a reasonable
strategy for declining to (1) investigate further or (2) present evidence that might have potential
mitigating value.
       4
           466 U.S. 668 (1984).
       5
           Id. at 688.
       6
           Id. at 689.
                                                          Williams     Concurring Opinion     Page 4

instruction had been firmly rejected by this court in Lackey v. State7 in 1982. Counsel cannot

be found constitutionally deficient for declining to request a special mitigation instruction

in this 1983 trial when this court had just finished rejecting such a request in a capital case.8

       Not only was there no such thing as a “mitigation instruction” in 1983, there was

precious little legal development of “mitigation evidence” at that time. As applicant’s trial

counsel forthrightly noted in his affidavit,9 when he was appointed to represent applicant in

1982, there was little precedential or professional guidance for defense lawyers “regarding

the type of mitigating evidence that should be offered at the punishment phase of a capital

murder trial.” Trial counsel stated that he knew applicant’s mother and sister, knew that they

were both “presentable and articulate,” and knew that they could have testified about

applicant’s positive character traits. They were present in the courtroom during the trial.




       7
           638 S.W.2d 439 (Tex. Crim. App. 1982).
       8
          See id. at 455 (stating that defendant’s claim that he was entitled to mitigation
instruction or special issue had been rejected by the Supreme court in Jurek v. Texas). We
explained,
        The [Supreme] Court held that the statutory question concerning future
       dangerousness would allow a defendant to bring to a jury’s attention whatever
       mitigating circumstances he might show. Therefore, the statute is constitutional
       since mitigating factors can be shown. It is not constitutionally mandated that the
       jury be specifically instructed about mitigating factors as long as they are able to
       consider them in deciding the other questions.
Id.
       9
        Trial counsel’s affidavit is remarkable for its lengthy laundry list of “I should have . . .”
mea culpas without any explanation for “The reason that I did not do that is . . .” Trial counsel
had been a respected criminal defense lawyer for ten years before this trial, and, although he had
never been lead counsel before, had co-chaired at least one earlier capital murder trial.
                                                          Williams     Concurring Opinion      Page 5

Counsel said that he made a conscious decision not to call them “because [he] did not think

it would do any good.” That was not necessarily a bad decision, as most of the evidence

concerning mitigating character traits that applicant’s family members could testify to was

already in evidence, and they could have been cross-examined and impeached on other

matters.10 Sometimes a solid, silent presence provides greater support than a voluble, but

impeachable, one.

       Although several Houston criminal defense lawyers submitted affidavits in the mid-

1990’s concerning trial counsel’s failure to call mitigating witnesses during the 1983

punishment trial, none of these attorneys stated or suggested that their opinions were based

upon their understanding of the prevailing professional norms in 1983 rather than in 1993



       10
           The trial judge’s findings of fact state that “much of the alleged mitigating evidence
was presented during applicant’s trial, such as his obtaining a G.E.D. and pursuing college
credits, and could have been considered by the jury within the scope of the special issues.”
         Applicant testified during the guilt stage of the trial, and he said that he had received his
G.E.D. in 1976, and that he had obtained 16-18 college course credits from Saint Cloud State
University while in prison in Minnesota. He said that he tried to apply to TSU when he came to
Houston and had several job interviews. He related how he had previously been robbed by
someone posing as a police officer, but that, after a struggle over the robber’s gun in which the
robber was wounded, applicant helped to bind up his wound before telling him to go to
Rosewood Hospital for medical attention.
         Applicant testified to the unexpected confrontation with Detective Shirley in the
apartment breezeway and that he was frightened–“I was scared to death”–during the encounter.
After the shooting, he was “panicked,” “scared,” and “frightened.” When applicant left his
sister’s apartment and waited for a friend to pick him up, he was crying. “I felt sorry all the way
around. . . . It’s not that I am sorry that I got caught.” Applicant explicitly stated that he was
sorry that Detective Shirley got shot. Applicant’s expressions of remorse over the murder had
already been admitted at the guilt stage–and from the horse’s mouth–so there would be little
added value in calling his sister to reiterate that remorse and open her up to cross-examination on
other matters. All of the testimony offered at the guilt stage, including applicant’s testimonial
expressions of remorse, was reoffered at the punishment stage.
                                                    Williams    Concurring Opinion   Page 6

or 1994 when they signed their affidavits. A decade’s worth of hindsight in a changing legal

landscape is not the proper standard under Strickland.

       Because I am constrained to judge applicant’s trial counsel by the law and prevailing

professional norms that existed in 1983, I agree with the trial judge’s conclusion that

“applicant fails to show deficient performance, much less harm, based on trial counsel’s

defensive and punishment strategy.”

       With these comments, I join in the Court’s decision to deny relief.

Filed: June 13, 2012
Do Not Publish
