             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-78,986-01


                 EX PARTE DARRELL LYNN COCKRELL, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 1184 IN THE 31st DISTRICT COURT
                              OF LIPSCOMB COUNTY

                Keller, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ.,
joined.

        I disagree with the Court because I believe that it misconstrues Article 38.31, it fails to give

appropriate deference to the habeas court, and it misreads the record as to some significant facts.

I respectfully dissent.

        First, Article 38.31 contains a broad definition of “deaf person,” but the only remedy it

provides is the appointment of an interpreter. The Court says that a deaf person is entitled to an

interpreter “or other hearing assistance,” and it refers to “special equipment, a stenographer, or a real-

time reporter” as options. However, other hearing assistance, special equipment, a stenographer, and

a real-time reporter are not options under the statute. I believe that the Court errs to rely on Article

38.31 because applicant, not understanding sign language, would not have been helped by the
                                                                        COCKRELL DISSENT - 2

remedy provided by that statute. In addressing his ineffective-assistance-of-counsel claim, the issue

should instead be whether his rights under the Constitution were violated. If defense counsel failed

in his duty toward applicant, it was in failing to protect his constitutional rights, not in failing to

invoke Article 38.31.

       Second, the Court views the record in the light most favorable to applicant rather than in the

light most favorable to the habeas court’s recommendation to deny relief. For instance, the Court

notes that, at the hearing on applicant’s motion for new trial, applicant testified that he had heard

“none of” or “very little” of the trial proceedings. The Court concludes that applicant “was unable

to hear most of the proceedings at trial.” But the habeas court believed otherwise as to at least part

of the proceedings, finding that, “Defendant did not have difficulty understanding most of the

District Attorney’s questions during trial.” Applicant said that in spite of his hearing aids he was

“unable to hear” and that he understood others solely by reading lips. The court found, however,

that, “Defendant was wearing hearing aids during trial,” and that “hearing aids help the Defendant

with understanding word [e]nunciation.” The court also found that, “Defendant testified at the

[motion for new trial] hearing without difficulty and without hearing assistance.” The trial court did

not have to believe Applicant’s testimony regarding the extent of his hearing difficulty, and in fact

it did not believe his testimony. And to the extent that we may still infer credibility determinations

from a recommendation to deny relief, we should infer that the habeas court did not believe

applicant.

       The trial court presided over the trial, the motion for new trial, and the habeas hearing.

Unlike this Court, the trial court was able to view applicant’s behavior during all three proceedings

and decide on that basis whether applicant failed to hear adequately what was going on. That court
                                                                        COCKRELL DISSENT - 3

said, “I always watch the Defendant pretty closely and I never detected that there was a problem of

the hearing issue.” The court said that it never saw “any evidence” of a hearing impairment. Since

the court also acknowledged at trial that it knew applicant was “hard of hearing,” I understand the

above statements to mean that the court never saw any evidence that applicant’s hearing difficulty

caused a problem with his ability to understand the proceedings. The court did not believe

applicant’s testimony at the motion-for-new-trial hearing, and, as shown below, the record itself

supports the trial court’s findings and recommendation.

       Testimony at the guilt phase of applicant’s trial lasted two days. The reporter’s record of that

portion of the trial is two volumes that comprise 364 pages. The only mention of anything related

to applicant’s hearing occurred at the beginning of trial:

       THE COURT: If you would stand, sir. Are you Darrell Lynn Cockrell?

       MR. HERRMANN: He’s hard of hearing, Judge.

       THE COURT: Are you Darrell Lynn Cockrell?

       DEFENDANT: Yes, sir.
                                                 ...

       THE COURT: Mr. Cockrell, you heard the reading of the indictment, how do you
       wish to plea?

       DEFENDANT: I’m not guilty, Your Honor.

       Moreover, during direct examination of the complaining witness, the trial court interrupted

her testimony to make sure that everyone could hear her. It looks like this was in response to the one

time that applicant complained to his attorney that he could not hear a witness. The court asked:

       Can you hear? Okay. Can the jury - - can everybody hear? She’s just real soft
       spoken. I just wanted to make sure that everybody could hear her. Okay. Go ahead.
                                                                         COCKRELL DISSENT - 4

Applicant said nothing afterwards, so the court was justified in assuming that when the complainant

spoke up, applicant could hear her.

        Applicant did not testify at the guilt phase of trial, but he testified at punishment. When he

first took the stand, defense counsel told the judge that applicant was “very hard of hearing” and that

was why he was “yelling.” The judge acknowledged that he knew of applicant’s hearing problem

and he also said, “Let us know, Mr. Cockrell, if you can’t hear a question, okay?” In the twenty-six

pages of applicant’s testimony, I count five instances in which applicant required that a question be

repeated. Each time, once the question was repeated, applicant answered it. In one or two of these

instances, it is not even clear that applicant failed to hear the question, as opposed to simply failing

to understand the meaning of it. He answered every question that was asked of him with an

appropriate answer, only a few questions had to be repeated, and no question had to be repeated more

than once.

        When the judge asked at the motion-for-new-trial hearing whether applicant could hear him,

he said, “No, sir,” but that he could read lips. Of the roughly twenty-two questions posed to

applicant, six required repetition. Again, applicant was able to answer the questions after they were

repeated, although, when answering the prosecutor’s questions, he sometimes required a second

repetition.

        The court told applicant to let them know if he could not hear a question, and that is exactly

what applicant did. The record fully supports the trial court’s findings regarding applicant’s ability

to hear the proceedings.

        Third, the Court is mistaken in finding significance in the fact that counsel’s legal assistant

communicated with applicant during trial by written notes. The Court believes that this was an
                                                                         COCKRELL DISSENT - 5

example of an ineffectual and inadequate attempt by trial counsel to ensure that applicant could hear

the testimony and assist in his own defense. It was not. Counsel said that that is his customary way

of communicating with defendants during trial “because it is easier and less disruptive.”

Communicating by notes during trial was not related to applicant’s hearing impairment.

        The Court is also mistaken in saying that counsel knew applicant was “deaf.” To the

contrary, counsel said that he knew applicant had a hearing problem but he could always

communicate with his client, and that only applicant could speak as to how much he heard after the

first break. Counsel said that “[i]t may be” that he did not know the extent of the problem. Counsel

clearly did not believe that applicant was deaf: counsel explained in his affidavit that the reason that

he did not make arrangements for hearing assistance at the trial was that he could always

communicate with his client. Yes, counsel knew applicant had a hearing impairment, but if

counsel’s efforts to accommodate applicant’s impairment resulted in applicant understanding what

went on at trial, then applicant’s constitutional rights were not violated, and counsel’s representation

was not deficient. As a practical matter, not every hearing-impaired defendant needs an interpreter.

Sometimes informal accommodation is all that is necessary.

        The Court says that the issue here is not whether applicant could communicate with his

attorney, but whether he could hear the witnesses against him. As to his hearing loss, however,

applicant’s amended motion for new trial alleges otherwise. It claims only that:

        The Defendant in this cause is hearing-impaired by law and receives disability from
        such impairment. Defendant was unable to effectively communicate with his trial
        counsel, Paul Herrmann, as a result of this impairment and; therefore, could not
        adequately assist in his own defense.

As noted above, applicant did testify at the hearing on the motion for new trial that he could not hear

most of what the witnesses said, but that was not the allegation in his motion for new trial. And, of
                                                                        COCKRELL DISSENT - 6

course, the trial court appears, by its recommendation, to have rejected this testimony.

       The question here is not whether applicant would have been entitled to an interpreter if

counsel had asked for one at trial. The question is whether a defendant who alleges any degree of

hearing impairment may wait until after trial to claim that he could not understand the proceedings

For all I can tell from the record, this was just a normal trial, where counsel and the trial court were

aware that applicant had difficulty hearing, where that difficulty was adequately accommodated by

informal measures, and where applicant was able to understand the proceedings, even if a few

questions did have to be repeated. There is absolutely nothing in the record of the trial proper that

would even suggest anything else. Viewed in the light most favorable to the trial court’s ruling, the

record does not support the Court’s conclusion that these informal measures were ineffectual or that

counsel rendered ineffective assistance.

       I respectfully dissent.

Filed: March 12, 2014
Publish
