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Click here for the full text of this decision FACTS:A jury convicted appellant Jared Lloyd Shanklin of murder and assessed his punishment at 60 years in prison. On Nov. 18, 2002, appellant and his friends, John Shanklin and Darrell Willis, went to a night- club. While in the nightclub, appellant and the complainant got into an altercation. When the nightclub closed, appellant and the complainant met outside and continued their argument. The altercation ended when appellant shot the complainant two times at close range, killing him. Shortly thereafter, police on the scene arrested appellant. At trial, appellant raised the defenses of self-defense and defense of a third person. After the jury convicted him of murder, appellant filed a motion for new trial alleging ineffective assistance of counsel. The trial court conducted the motion for new trial hearing by affidavits. Appellant’s defense counsel filed an affidavit stating that a number of his decisions provided ineffective assistance of counsel and were not the result of any reasoned trial strategy. The state filed a controverting affidavit executed by the trial prosecutor. At the end of the hearing, the trial court overruled appellant’s motion for new trial. HOLDING:The court affirms the judgment of the trial court, which finds appellant guilty of murder. Because appellant’s defense counsel provided ineffective assistance of counsel during the punishment phase of trial, the court reverses the judgment of the trial court and remands the cause for a new punishment hearing. The appellant argues that his defense counsel should have requested an instruction on the lesser included offense of manslaughter and that his failure to do so was ineffective assistance of counsel. He contends that defense counsel’s affidavit demonstrates that his decision not to request the lesser offense was not the result of trial strategy. In light of the testimony presented, the court holds that there is some evidence that appellant acted recklessly and that the jury could have rationally found that appellant, if guilty, was guilty only of manslaughter. Construed in the light most favorable to appellant, the evidence presented shows that appellant did not intend to kill the complainant, but rather to scatter the group of men who were hitting his friend. The court concludes that appellant was entitled to an instruction on the lesser included offense of manslaughter. Although defense counsel stated that his failure to request this lesser included offense was not the result of trial strategy, his affidavit provides no explanation regarding why he chose not to ask for the lesser offense and no live testimony was presented on this issue. The court assumes a strategic motive if any can be imagined; and counsel’s performance was deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Defense counsel’s decision not to request the lesser included offense of manslaughter was not so outrageous that no competent attorney would have engaged in it. The court also observes that there were good reasons for defense counsel to pursue an all-or-nothing strategy in this case, the most important of these is that the facts were more consistent with an intentional killing in defense of self and others. Appellant’s defense counsel also did not act deficiently in failing to request the lesser included offense of aggravated assault. Having concluded that appellant was not entitled to an instruction on aggravated assault and that defense counsel had a sound strategy for not requesting an instruction on manslaughter, it would have been inconsistent with appellant’s defenses of self-defense and defense of a third party to present evidence that appellant did not intend to shoot the complainant. Therefore, defense counsel was not deficient for not eliciting such evidence. Although the prosecutor’s closing argument combined self-defense and defense of a third party, the retreat portion was used only in application of the self-defense theory, “you’ve got to figure out, could he retreat and was deadly force being used against him.” Accordingly, appellant has not shown that defense counsel acted deficiently. The appellant argues that defense counsel failed to investigate 20 potential witnesses or to call them to testify during the punishment stage of trial. The record clearly shows that defense counsel not only failed to call any other witnesses besides appellant, but also did not investigate punishment witnesses to determine whether they could provide meaningful testimony. Defense counsel’s failure to investigate and call any punishment witnesses amounts to deficient performance. The court concludes that appellant has demonstrated prejudice in this case, even though it cannot be said for certain that appellant’s character witnesses would have favorably influenced the jury’s assessment of punishment. Defense counsel’s failure to interview or call a single witness, other than appellant, deprived him of the possibility of bringing out even a single mitigating factor. Mitigating evidence clearly would have been admissible, the court states. Appellant argues that the trial court improperly admitted evidence during the motion for new trial hearing. Specifically, appellant argues that the trial court erred when it admitted the prosecutor’s affidavit. appellant has preserved only his Rule 401, 402 and 602 objections. The prosecutor pointed out that a possible sound trial strategy regarding lesser included offenses would have been not to ask for contradictory defenses. Appellant’s defense counsel was not deficient for failing to ask for jury instructions on the lesser included offense of manslaughter so as not to present inconsistent defenses to the jury. The court concludes the affidavit has some relevance. The trial court did not abuse its discretion in overruling appellant’s Rule 401 and 402 objections. Portions of the prosecutor’s affidavit were made with personal knowledge, and therefore, the trial court did not abuse its discretion in overruling appellant’s Rule 602 objection. The court concludes that the trial court did not abuse its discretion in admitting the prosecutor’s affidavit. OPINION:Taft, J.; Taft, Keyes and Hanks, JJ. DISSENT:Keyes, J. “I agree with the majority that appellant is entitled to a new hearing on punishment. However, I do not see how the jury could appropriately assess punishment without retrial of the merits, particularly when appellant’s trial counsel took the strategically risky route of failing to seek an instruction on manslaughter, a lesser included offense supported by the record that has a much lower punishment range than murder. I find it impossible to say with any degree of certainty that the jury would have convicted appellant of murder, as opposed to manslaughter, and sentenced him to 60 years in prison when the jury was offered neither the opportunity to consider the lesser included offense nor any of the mitigating evidence available to the defense. I believe appellant’s trial counsel’s strategy, if any, was unreasonable as a matter of law at both the trial and the punishment stage.”

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