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Click here for the full text of this decision FACTS:On July 20, 1994, the applicant and four other members of the Crips gang committed robbery at a pawn shop to get firearms and money. Only the applicant and one other suspect were armed with guns. While his accomplices were smashing display cases and stealing guns, the applicant chased one of the proprietors of the shop into the back of the store and shot her. Then he returned to the cash register and forced an employee to open it. On Feb. 19, 1997, he was convicted of capital murder and sentenced to death. The Court of Criminal Appeals (CCA) affirmed his conviction on direct appeal. In his application for a writ of habeas corpus, the applicant presented six claims for relief. After a hearing, the convicting court made findings of fact and conclusions of law, recommending that relief be denied. The CCA took the case to consider the applicant’s claim that his trial counsel provided ineffective assistance under the Sixth Amendment by failing to present, at the punishment phase of his trial, mitigating evidence of the abuse that the applicant suffered at the hands of his father and the effects it had on him. HOLDING:Writ granted; remanded for a new punishment hearing. To show that his trial counsel was ineffective, the court stated, the applicant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). First, the court stated, he must show that his counsel’s performance was deficient. In order to satisfy this prong, the applicant must demonstrate that counsel’s performance fell below an objective standard of reasonableness, considering the facts of the particular case and judged at the time of counsel’s conduct. Second, the court stated, the applicant must show that counsel’s performance prejudiced his defense at trial. Developments in constitutional and statutory law, the court stated, have made it necessary to consider mitigating evidence in preparation for the trial of a capital case. Such evidence, the court stated, could include the circumstances of the defendant’s childhood and his physical and mental health. The court found that at the time of the applicant’s trial, an objective standard of reasonable performance for defense counsel in a capital case would have required counsel to inquire whether the defendant had been abused as a child. Counsel’s performance fell below this standard, the court held. The court went on to state its belief that the mitigating evidence presented at the habeas hearing was substantially greater and more compelling than that actually presented by the applicant at his trial. The court stated that it could not say with confidence that the facts of the capital murder and the aggravating evidence originally presented by the state would clearly outweigh the totality of the applicant’s mitigating evidence if a jury had the opportunity to evaluate it again. In short, the court concluded that the applicant’s available mitigating evidence, taken as a whole, “might well have influenced the jury’s appraisal” of the applicant’s moral culpability. Therefore, in holding that prejudice occurred satisfying the second prong of Strickland, the court stated that there was at least a reasonable probability that, had the mitigating evidence been available at the applicant’s original punishment hearing, a different result would have occurred. OPINION:Womack, J., delivered the opinion of the court, in which Meyers, Price, Johnson, Holcomb and Cochran, J.J., joined. Cochran, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion. Hervey, J., did not participate. CONCURRENCE: Cochran, J. “[C]apital counsel bears the responsibility for at least making every reasonable attempt to uncover possible mitigation facts from his client.” Cochran stated that under both current Supreme Court standards and Texas statutes, defense counsel has a constitutional duty to seek out all of the “circumstances of the offense, the defendant’s character and background, and [any evidence that lessens] the personal moral culpability of the defendant[.]” At a minimum, Cochran stated, defense counsel must privately quiz his client about any and all positive and negative facts about the defendant’s upbringing, personality, social interactions, thoughts and feelings. Such topics, Cochran stated, might include: 1. Childhood accidents and injuries; 2. Trips to the emergency room; 3. Serious illnesses at any time; 4. Physical abuse to the defendant or any other member of the family; 5. Any sexual abuse to the defendant or any other member of the family; 6. Size of the immediate family, and a history of the physical, educational, and emotional background of each member; 7. The defendant’s relationship with and attitudes toward every member of the family; 8. Drug or alcohol use or abuse by himself and any or all members of the family; 9. Any mental health treatment of any member of the family, including the defendant; 10. The cohesiveness of the family; 11. The family’s standard of living and living conditions; 12. Any and all available school records; 13. Any record of learning disabilities; 14. Childhood and adult social relationships with members of the same and opposite sex; 15. Any marriage, divorce, children, step-children or surrogate family relationships and their positive or negative influence upon the defendant; 16. Any and all awards, honors or special accomplishments, as well as any and all convictions, arrests, expulsions or suspensions from school, job firings and similar events; 17. Any and all traumatic experiences; 18 Any and all especially proud moments; 19. Membership in religious, social, educational and charitable organizations; and 20. The client’s five best and worst memories. Cochran concluded: “Only after a lengthy and thorough interview with his client will defense counsel be in a position to decide which are the most promising mitigation areas to pursue. Because of finite resources and time, capital counsel’s strategic and tactical decisions regarding the further investigation, development, and use of potential mitigating evidence should be given great deference. But deference is not due to counsel who fails to interview his client at sufficient length and depth to discover, as accurately as possible, the unvarnished truth about his client . . . . [C]apital counsel bears the responsibility for at least making every reasonable attempt to uncover possible mitigation facts from his client.” DISSENT:Keller, P.J. “In the present case, counsel did talk to applicant and members of the family, and the interviews afforded the opportunity to talk about the abuse applicant now alleges he suffered. I respectfully disagree with the Court’s claim that reasonably competent counsel would have known, at the time he represented applicant in this case (1994-1997), that he had a duty to specifically raise the topic of abuse in the absence of any indication whatsoever that any abuse had occurred.” Keasler, J., dissented separately without an opinion.

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