
Opinion issued September 20, 2007 





 




     






In The
Court of Appeals
For The
First District of Texas




NO. 01-05-01184-CR




ARCHIE DOYLE MARTIN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1006695




DISSENTING  OPINION

            The record establishes that, throughout the trial below, Walter Boyd, trial
counsel for appellant, Archie Doyle Martin, Jr., not only acted bizarre, but actually
demonstrated in front of the jury patent contempt for his client.  Boyd, in his scorn
for his client, most notably through direct examination, effectively became a second
prosecutor in the case.   The majority erroneously concludes that Boyd merely
“acknowledg[ed] the shortcomings” of appellant and was trying to “win over” his
audience with “empathy,” like Aristotle.  In reaching its result, the majority
misapplies the United States Supreme Court’s opinion and holding in Yarborough v.
Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 9 (2003).  Accordingly, I respectfully dissent.
          In part of his issue presented to this Court, appellant argues that Boyd’s 
conduct violated the Sixth Amendment of the United States Constitution
 because his 
“highly prejudicial manner” and “bizarre and unprofessional” actions in front of the
jury effectively deprived him of counsel during the trial.  He notes that an accused
“cannot receive a fair trial through the adversarial process when his own trial attorney
tells the jury that he agrees with the prosecutor that [a]ppellant is ‘a liar, you’ve
covered up, you’re a thief, you’re a drug dealer, you’re all those things, and you’ve
committed so many dad-gum crimes you cannot even remember them all.’”  
          To prevail on a claim of ineffective assistance of counsel, a defendant must
prove, by a preponderance of the evidence, that (1) his counsel’s representation fell
below an objective standard of professional norms and that, (2) but for counsel’s
errors, there is a reasonable probability that the result of the proceedings would have
been different.  Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct.
2052, 2064–65, 2068 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999); McKinny v. State, 76 S.W.3d 463, 470 (Tex. App.—Houston [1st Dist.] 2002,
no pet.).  “Reasonable probability” means a “probability sufficient to undermine
confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068.  Our review of
counsel’s representation is highly deferential and presumes that counsel’s actions fell
within the wide range of reasonable and professional assistance.  Bell v. State, 90
S.W.3d 301, 307 (Tex. Crim. App. 2002); McKinny, 76 S.W.3d at 470.  A Strickland
claim must be “firmly founded in the record,” and the “record must affirmatively
demonstrate” the meritorious nature of the claim. Thompson, 9 S.W.3d at 813;
McKinny, 76 S.W.3d at 470.   However, a single egregious error of omission or
commission by counsel may constitute ineffective assistance, even in the absence of
a record setting forth counsel’s reasons for the challenged conduct.  McKinny, 76
S.W.3d at 470–71. 
          Appellant asserts that the trial record “is full of instances” where Boyd’s
behavior prejudiced his case.  Two specific instances of such conduct stand out as
particularly egregious.  First, Boyd’s questioning of appellant on redirect examination
during the guilt phase of trial was hostile and antagonistic to appellant’s case as
exemplified in the following exchange:
[Boyd]:Well, Mr. Martin, your life is a dad-gum mess.  Do
you admit that?
[Appellant]:I admit I’ve made some mistakes, yes, sir.
[Boyd]:You’re not only—like the prosecutor says—and I’d
have to agree—you’re a liar, you’ve covered up,
you’re a thief, you’re a drug dealer, you’re all of
those things, and you’ve committed so many dad-gum crimes you cannot even remember them all.  Is
that right or not?
          [Appellant]:           No, that’s not correct.
          [Boyd]:                  Well, I’m probably exaggerating a bit.
          [Appellant]:           No, that’s not correct.
[Boyd]:But you’ve got a lot of them.  And now you
say—and by the way, you know—I’m going to bring
this up because I think I’m doing it with your
permission.  I advised you not to testify, didn’t I?
          [Appellant]:           Yes, you did.
          [Boyd]:                  Now, I told you your personality sucks, didn’t I?
[Appellant]:Well, that’s from each person’s point of view, I
guess.  Some people think my personality sucks and
some people don’t.
 
[Boyd]:You’re coming across as an arrogant, audacious,
spoiled brat. That’s where you’re coming over with
this jury, I can tell you.  My personality is bad
enough, but the two of us . . . .
 
[Appellant]:Well, if I am coming off that way to the members of
the jury, I do apologize because I am not that way
normally.
 
[Boyd]:Now, you’re saying you’re a nice guy, but you’ve
gotten awful mad at me, haven’t you?
 
[Appellant]: Yes, I have.
 
          . . . .
 
[Boyd]:The prosecutor asked you, am I employed? Why am
I even on this case? That’s what I want to know.
 
[Appellant]: This is true.  Because I did ask for you not to even
show up.

          Second, when the trial court expressed its concern about Boyd’s advocacy for
his client and admonished Boyd during voir dire about the possibility that his
advocacy could be considered ineffective, Boyd acted defiant:  
[Trial Court]:I’m foreseeing—I mean, if your client gets convicted
and the case gets appealed, the record is replete with
evidence of your client being asleep during jury
selection and no effort was made to kind of remedy
the prejudicial impact that may have on the jury. 
You know, I’m concerned about this case being set
up for a reversal, for, you know, your client being
asleep during jury selection and no effort was made
to remedy it, and as a result of his counsel not
making any effort to make sure the jurors would not
hold it against him, you know.
[Boyd]:Well, I am not worried about the reflection it may
have on me.
[Trial Court]:Maybe ineffective assistance of counsel.
[Boyd]:I know when I’m effective and when I am not.
[Trial Court]:Well, unfortunately, you don’t get to decide that, the
Court of Appeals gets to decide that.
[Boyd]:Well, they can take a flying leap, if they want to.  I
just know I’ve already assessed the thing, it’s gone
through my brilliant mind as to how I want to handle
this, and I would prefer that it just be left alone. . . .

          The Texas Supreme Court has recently emphasized,
In Texas, we hold attorneys to the highest standards of ethical conduct
in their dealings with their clients.  The duty is highest when the
attorney . . . takes a position adverse to his or her client’s interests.  As
Justice Cardozo observed, “[a fiduciary] is held to something stricter
than the morals of the marketplace.  Not honesty alone, but the punctilio
of an honor the most sensitive, is then the standard of behavior.”
Accordingly, a lawyer must conduct his or her business with inveterate
honesty and loyalty, always keeping the client’s best interest in mind. 
Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 560–61 (Tex. 2006) (emphasis
added) (citations omitted).  The Texas Disciplinary Rules of  Professional Conduct
provide, “As advocate, a lawyer zealously asserts the client’s position under the rules
of the adversary system.”  Preamble: A Lawyer’s Responsibilities 2.  Moreover,
“a lawyer should act with competence, commitment and dedication to the interest of
the client and with zeal in advocacy upon the client’s behalf.”  Tex. Disciplinary R.
Prof’l Conduct 1.01 cmt. 6.   Thus, “[l]oyalty is an essential element in the lawyer’s
relationship to a client.”  Tex. Disciplinary R. Prof’l Conduct 1.06 cmt. 1.  A
lawyer simply should not represent a client “if undertaking the representation would
result in an improper conflict of interest, for example, when the client is so repugnant
to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s
ability to represent the client.”  Tex. Disciplinary R. Prof’l Conduct 6.01 cmt. 1
(emphasis added).   
          The application of these principles in regard to the representation of an accused
in a criminal case is no less stringent.  Boyd engaged in conduct that is simply
unacceptable and totally at odds with the fiduciary duties that he owed to his client. 
He aligned himself with the State, treated appellant as a hostile witness, and called
him “a liar” when appellant’s case depended upon his credibility.  He brought up his
disagreement with appellant over his decision to testify in front of the jury, told him
that his personality “sucks,” and queried that although appellant was saying he was
“a nice guy,” appellant in fact had “gotten awful mad” at Boyd.  In fact, the
relationship between appellant and Boyd had deteriorated to the point that appellant
had asked Boyd not to show up at trial. When the trial court expressed its concern
about Boyd’s conduct early in the process during voir dire, Boyd clearly did not care
about the consequences of his behavior and his omissions in his representation.
          In reaching its conclusion that Boyd was simply “acknowledging the
shortcomings” of appellant, the majority misapplies the United States Supreme
Court’s opinion and holding in Gentry, which is not at all “similar.”  See Gentry, 540
U.S. 1, 124 S. Ct. 1.  In Gentry, Gentry complained on direct appeal that “his trial
counsel’s closing argument deprived him of his right to effective assistance of
counsel.”  540 U.S. at 4 , 124 S. Ct. at 5.  The California Court of Appeal rejected his
contention, and the California Supreme Court denied review.  Id.  Although the
United States District Court denied Gentry’s petition for federal habeas relief, the
United States Court of Appeals for the Ninth Circuit reversed.  Id.  The Supreme
Court then reversed the Ninth Circuit, holding that it “erred in finding the California
Court of Appeal’s decision objectively unreasonably.”  Id., 540 U.S. at 4, 124 S. Ct.
at 6. 
          In reaching its decision, the Ninth Circuit discussed a number of “flaws” in the
closing argument of Gentry’s trial counsel.  It focused primarily on the failure of
Gentry’s counsel to “highlight various . . . potentially exculpatory pieces of
evidence.”  Id., 540 U.S. at 3, 124 S. Ct. at 3–4.  It also found fault in the following
portion of counsel’s argument:
The question is, did he intend to stab her? He said he did it by accident.
If he’s lying and you think he’s lying then you have to convict him. If
you don’t think he’s lying, bad person, lousy drug addict, stinking thief,
jail bird, all that to the contrary, he’s not guilty. It’s as simple as that. I
don’t care if he’s been in prison. And for the sake of this thing you
ought not care because that doesn’t have anything to do with what
happened on April 30th, 1994.

Id., 540 U.S. at 5, 124 S. Ct. at 6.    The Ninth Circuit was concerned that counsel had
taken “a gratuitous swipe” at his client’s character.  Id., 540 U.S. at 6, 124 S. Ct. at
9.  The Supreme Court rejected the Ninth Circuit’s concerns, emphasizing that
although the right to effective assistance of counsel extends to closing arguments, 
counsel has wide latitude in deciding how best to represent a client, and
deference to counsel’s tactical decisions in his closing presentation is
particularly important because of the broad range of legitimate defense
strategy at that stage.  Closing arguments should “sharpen and clarify the
issues for resolution by the trier of fact,” but which issues to sharpen and
how best to clarify them are questions with many reasonable answers.
Indeed, it might sometimes make sense to forgo closing argument
altogether. Judicial review of a defense attorney’s summation is
therefore highly deferential—and doubly deferential when it is
conducted through the lens of federal habeas.
 
Id., 540 U.S. at 4, 124 S. Ct. at 5–6 (citations omitted).  In regard to counsel’s
argument about Gentry’s credibility, the Supreme Court noted that,
 
By candidly acknowledging his client’s shortcomings, counsel might
have built credibility with the jury and persuaded it to focus on the
relevant issues in the case.
 
Id., 540 U.S. at 6, 124 S. Ct. at 9.
 
          Here, in stark contrast, Boyd was not making a closing argument and he was
in no way persuading the jury to focus on other relevant issues in the case.  His
treatment of his client as a hostile witness on direct examination, re-emphasizing the
State’s impeachment of his credibility, can in no rational sense be considered sound
trial strategy.  Boyd went out of his way to ensure that the jury would remember that
appellant was “a liar” and his personality “sucked.”  
          Moreover, Gentry is also inapplicable given its procedural posture.  As noted
by the Supreme Court,
If a state court has already rejected an ineffective-assistance claim, a
federal court may grant habeas relief if the decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” Where, as
here, the state court’s application of governing federal law is challenged,
it must be shown to be not only erroneous, but objectively unreasonable. 

Id., 540 U.S. at 4, 124 S. Ct. at 5 (citations omitted).  Thus, not only is Gentry
different factually, its “doubly deferential” standard of review is inapplicable as well. 
          I would hold that Boyd’s conduct, involving violations of his fiduciary duties
to appellant, constituted ineffective assistance of counsel.  Moreover, his conduct was
deficient to the point that it undermines confidence in the outcome of the trial. 
Accordingly, I would sustain this portion of appellant’s issue, reverse the judgment
of the trial court, and remand the case for a new trial.  The majority’s conclusion to
the contrary is in serious error.




                                                             Terry Jennings
                                                             Justice
 
Panel consists of Justices Nuchia, Jennings, and Higley.
Justice Jennings, dissenting.
Publish.  Tex. R. App. P. 47.4.
