PD-0451-24 12/18/2024
1. “Whether the Court of Appeals erred in finding that the Petitioner failed to satisfy the Strickland test for ineffective Assistance of Counsel Claim.”
2. “Whether the Court of Appeals erred in finding that the record lacked any showing the need for an expert.”
Jackson was convicted by a jury of continuous sexual abuse of a child under fourteen and indecency with a child by exposure, and went to the judge for punishment. Just before the punishment phase began, defense counsel reurged his pretrial motion for funds to hire a mitigation expert. This was denied. Thereafter, counsel informed the trial court at various points in the hearing that he would not participate because his request for an expert was denied. The trial court sentenced Jackson to life imprisonment on the continuous and twenty years on the indecency.
On appeal, Jackson argued that the trial court erred in denying his motion for funds for an expert. The court of appeals rejected this because neither the written motion nor counsel’s oral reurging of the motion included any explanation or justification for an expert. Jackson also claimed that he was “completely abandoned” by counsel at the punishment hearing. Jackson acknowledged there was no evidence of what mitigating evidence might have been presented, but said that no sound strategy comports with counsel’s actions and the result was a maximum sentence on both counts. The court of appeals rejected this claim, too. Counsel did not withdraw as counsel, and there is no evidence he ever disengaged from listening to the proceedings. Instead, he reemphasized his overarching complaint about the lack of an expert when declining an invitation to offer an opening or closing statement or cross-examine the victim. The court of appeals rejected the idea that such statements were evidence of a strategy and pointed out that none of those decisions are deficient per se. For example, defense counsel could have declined to cross-examined the victim during punishment because he cross-examined and otherwise attacked her credibility during the guilt phase. The court of appeals also noted its reluctance to find that refusal to participate, without more, is deficient performance because it could motivate counsel to repeat this practice in the hopes of a good outcome while generating an ineffective-assistance claim for appeal.
Jackson challenges both holdings in his petition. As to the ineffective-assistance claim, he relies on Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008), which held that a similar refusal during the guilt phase amounted to a constructive denial of counsel. He argues that counsel’s explanation to the trial court is all the record he needs to prove abandonment, and that there is no need to show prejudice because he was completely deprived of counsel and received the maximum sentence on both counts. Jackson also argues that disciplinary rules will prevent future defense counsels from using this tactic to build in reversible error.
