            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 208TH DISTRICT COURT
                           FROM HARRIS COUNTY

       K EASLER, J., filed a concurring opinion, in which H ERVEY, J., joined.

       To prove ineffective assistance of counsel under Strickland v. Washington,1 an

applicant must demonstrate that counsel’s performance was deficient and that the deficiency

prejudiced the defense.2 Assuming Arthur Lee Williams has established that counsel’s

performance was deficient because counsel failed to investigate and present mitigating

evidence at the punishment phase, I agree with the majority that Williams has failed to

establish resulting prejudice. I write separately to emphasize the weakness of the habeas

evidence in support of Williams’s claim of prejudice. It is not reasonably probable that the


       1
           466 U.S. 668 (1984).
       2
           Id. at 687.
outcome of Williams’s sentencing would have been different had this evidence been

admitted.

         Counsel’s errors prejudice the defense when they deprive an applicant of a fair

proceeding.3 Establishing prejudice requires showing “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” 4

“[T]he difference between Strickland’s prejudice standard and a more-probable-than-not

standard is slight and matters ‘only in the rarest case.’ The likelihood of a different result

must be substantial, not just conceivable.” 5

         Because Williams complains of counsel’s failure to investigate and offer mitigating

evidence, he must show that had counsel presented the available mitigating evidence, it is

reasonably probable that at least one juror would have decided the issues differently.6 “In

assessing prejudice, we reweigh the evidence in aggravation against the totality of available




         3
             Strickland, 466 U.S. at 686–89.
         4
             Id. at 694; accord Ex parte Gonzalez, 204 S.W.3d 391, 393–94 (Tex. Crim. App.
2006).
         5
         Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (quoting Strickland, 466 U.S.
at 693, 697) (citation omitted).
         6
             Wiggins v. Smith, 539 U.S. 510, 537 (2003).
mitigating evidence,”7 including the evidence at trial and the habeas evidence.8 We consider

the weight of the evidence, not just its relevance or admissibility.9

         The State admitted the following evidence in aggravation: Eight witnesses testified

that Williams had a bad reputation for being peaceable and law-abiding. Officer Michael

Blood, who apprehended Williams, testified that he stopped Williams’s car in Edina,

Minnesota. Williams exited his car, with one hand in his pocket, and walked toward Officer

Blood’s vehicle. After Williams was handcuffed, Officer Blood found an empty holster on

Williams’s person and bullets in his pockets. The police frisked the passenger who was

riding in Williams’s car, and found a pistol in her possession. The pistol, which fit the

holster Williams was wearing, had been reported stolen from Burger Brothers Sporting

Goods in Edina. Gregory John Lonke, manager of Burger Brothers, testified that the pistol

found on Williams’s passenger had been stolen during the break-in at his store.

         Adline Rivard’s testimony followed Lonke’s. She testified that one morning around

4:00 a.m. while she was working at a Holiday Inn, Williams robbed her at gunpoint. She

stated that he jumped over the counter, put his hand over her mouth, put a gun to her head,



         7
             Id. at 534; accord Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim. App.
2006).
         8
        Porter v. McCollum, 130 S. Ct. 447, 453–54 (2009); Williams v. Taylor, 529
U.S. 362, 397-98 (2000).
         9
         See Wiggins, 539 U.S. at 534. See, e.g., Ex parte Gonzalez, 204 S.W.3d at 399
(characterizing the applicant’s relevant habeas evidence as “substantially greater and
more compelling” than what was presented at trial); Ex parte Martinez, 195 S.W.3d at
731 (characterizing the aggravating factors as “severe” and the omitted habeas evidence
as “strong”).
tied her up, and then took money from the register. Juan Jorge testified after Rivard. He laid

the foundation for the introduction of Williams’s documented criminal history, which

included two convictions for aggravated robbery, a conviction for escape from custody, and

a conviction for aggravated criminal damage to property.

       Counsel presented nothing in Williams’s defense at the punishment hearing, but he

asked the jury to consider all of the evidence admitted at the guilt phase. The guilt-phase

evidence showed that Williams had close relationships with his family; was twenty-two years

old at the time of the offense; had expressed remorse after the offense; had obtained a GED;

and had taken college courses while he was previously incarcerated.

       On habeas, Williams only presented two affidavits to support his claim in mitigation.

One affidavit was from Joyce Williams, Williams’s mother, and the other was from Deborah

Williams, one of Williams’s sisters. Joyce’s affidavit reads as follows:

               [Williams]’s father and I were divorced before [Williams] was born.
       I raised him as a single parent, although his father would occasionally stay in
       the home. His father was an alcoholic who was often in prison and jail. When
       he stayed with us, he would often beat me. He would then leave the home, but
       inevitably would return and beat me again. [Williams], our only son, was
       exposed to his father’s constant abuse.
               Because [Williams]’s father was a poor role model and I was often in
       poor health, [Williams] had little parental supervision. This led him to follow
       older teenagers, usually into trouble. He was often beaten and bullied by
       others. At an early age he was exposed to the drugs which were prevalent in
       our community. He abused both alcohol and drugs. Although he became
       chemically dependent, he never received any treatment.
               Williams had many good qualities. As a young boy, he was active in
       the Boy Scouts and played on teams in hockey, basketball and baseball. He
       loved animals. He obtained a GED at age 18 and took college courses while
       in prison. He was an avid reader, wrote poetry and was adept with computers.
       He pursued numerous cultural interests, such as crafts, photography,
       calligraphy, art, music and dancing. Most important, he was a devoted son and
       brother who cared deeply about his family.

Deborah’s affidavit was almost identical; she repeated the same general facts but from her

point of view. Joyce and Deborah stated that they had been present and willing to testify at

Williams’s trial.

       I would not give much weight to these affidavits. They contain only generalized

statements and subjective descriptors, such as “often,” “constant,” and “usually.” Neither

affidavit specifically describes or illustrates, for example, the family abuse; how “often”

Williams was bullied; what kind of drugs Williams abused; how often Williams abused those

drugs and alcohol; or how Williams would get “into trouble.” They also failed to explain

how Williams demonstrated that he “was a devoted son and brother who cared deeply about

his family.”    Moreover, the affidavits speculate that Williams became “chemically

dependent” on alcohol and drugs. The affidavits are almost word-for-word, suggesting that

Joyce and Deborah had nothing more specific or unique to add to the other’s testimony.

Because the affidavits are so general and duplicative of each other, the evidence is weak and

unlikely to have persuaded a juror to decide the issues differently.10

       The dissent concludes that the mitigating evidence found in the habeas record

“substantially alters the sentencing profile that was presented to the jury” and as such

“establishes a probability of a different outcome sufficient to undermine confidence in the

jury’s imposition of the death penalty.” But it reaches this conclusion without looking


       10
         Cf. Cullen v. Pinholster, 131 S. Ct. 1388, 1409–10 (2011) (judging duplicative
evidence less likely to affect an outcome if evidence of the same facts already has been
admitted).
through the proper lens of Strickland’s prejudice analysis in this context: that but for his

counsel’s deficiency, there is a reasonable probability he would have received a different

sentence.11       To support its conclusion, the dissent analogizes this case to Porter v.

McCollum.12

       The record in Porter stands in sharp contrast to the record before us today. The Porter

Court indeed did find the required prejudice because the habeas evidence “described his

abusive childhood, his heroic military service and the trauma he suffered because of it, his

long-term substance abuse, and his impaired mental health and mental capacity.” 13 But it did

so (1) because the record significantly and substantially supported these claims and (2) only

after balancing the mitigation evidence in its entirety against the introduced aggravating

factors.    The record in Porter contained depositions from Porter’s brother and sister

describing his abusive childhood including the frequency of his abuse, details of particular

abusive episodes, and routinely witnessing his father abuse his mother resulting in substantial

injury.14 The record also contained testimony from Porter’s commanding officer who

recounted, in vivid detail, Porter’s traumatic experience both during the Korean War and its

lasting effects.15 And according to Porter’s brother, Porter began drinking heavily and would



       11
            Porter v. McCollum, 130 S. Ct. 447 (2009).
       12
            Id.
       13
            Id. at 449.
       14
            Id.
       15
            Id. at 450.
often get into fights without remembering them.16 Further, there was testimony from a

neuropsychologist who, after examining Porter, concluded he suffered from brain damage

that “substantially impaired his ability to conform his conduct to the law and suffered from

an extreme mental or emotional disturbance” as well as experiencing “substantial difficulties

in reading, writing, and memory.” 17

       The evidence Williams offers in support of his prejudice claim is decidedly weaker

than that in Porter and does not support the conclusion that there is a reasonable probability

that at least one juror would have answered the issues differently. Without weighing the

mitigating evidence against the case’s “many aggravating factors,”18 the dissent’s general

conclusion that the mitigation evidence found in the habeas record undermines the

confidence in the jury’s imposition of the death penalty is akin to stating the evidence

appears to be mitigating and therefore could raise a conceivable likelihood of a different

result.19 The Supreme Court has stated this type of analysis is insufficient.20

       Based on the foregoing, I do not believe that Williams has shown resulting prejudice.


DATE FILED: June 13, 2012
DO NOT PUBLISH


       16
            Id. at 451.
       17
            Id.
       18
            Post, at 18 (Alcala, J., dissenting).
       19
          See Harrington, 131 S. Ct. at 792 (“The likelihood of a different result must be
substantial, not just conceivable.”)
       20
            Id.
