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Click here for the full text of this decision FACTS:A jury convicted Scotty Harrison of sexual assault after a trial in which six witnesses testified. The first witness to appear for the prosecution was Christina Jones, the victim of the alleged sexual assault. Jones testified that before the sexual assault, she had been friends with Harrison for about five months and had previously had sex with Harrison on one occasion while using drugs. On July 17, 2000, Harrison came to her apartment at about 9 p.m. or 10 p.m., told her that he had broken up with his girlfriend and asked to take a shower. Jones told him that he could take a shower and that she was going to be on the couch, because she was not feeling well due to the herniated disks in her neck and back. Jones testified that she then fell asleep and that she woke up when Harrison sat at the end of the couch wearing only his boxer shorts. Next, she stated that Harrison engaged in forced sexual intercourse with her and that she heard something pop in her neck during the assault. After Harrison was finished, he put on his clothes and left. Due to her neck and back pain, Jones remained on the couch for several days until her stepfather came to her apartment and found her. Jones further testified that she was in the hospital for approximately four months following the assault. Jones also stated that, at the time of trial, she had not regained use of her legs and was living in a nursing home. On cross-examination, Dennis Jones, Harrison’s trial attorney, challenged Jones’ testimony. Trial counsel asked Jones whether she had consensual three-way sex with Harrison and another man, Tony West, on July 17, 2000. Jones responded that West was not at her apartment that night and that she did not have consensual three-way sex with Harrison and West that night. Trial counsel then asked Jones whether she had told Patricia Herron, an acquaintance and Jones’ drug supplier, that she had consensual three-way sex with Harrison and West which got rough and out-of-hand. Jones denied ever telling Herron about such an encounter, and she stated that she never had consensual three-way sex with Harrison and West. The second witness to testify for the prosecution was Jodi Cotner, a nurse at Baylor University Medical Center. Cotner testified that Jones suffered from extreme dehydration, paralysis and an infection when Jones was admitted to the intensive care unit on July 24, 2000. According to Cotner’s testimony, a rape examination was performed, and the results were “pretty normal,” except for some edema and swollen labia, which Cotner believed were consistent with sexual assault. The examination did not reveal evidence of seminal fluid or spermatozoa, but Cotner stated that she was not surprised that semen was not found due to the passage of time between the rape and Jones’ admission to the hospital. Charles Weise, Jones’ stepfather, was the final witness to appear for the prosecution. Weise testified that he went to Jones’ apartment on July 24, 2002, because he became concerned when he had not heard from Jones for several days. Weise went to his daughter’s apartment and discovered her lying on the couch. The prosecution rested its case after Weise’s testimony. Darlene Waddle was the first witness to appear on Harrison’s behalf. Waddle had known Harrison for about 10 years, and they had lived together for about five-and-a-half years beginning in 1991. Waddle related a conversation that she had with Jones in the summer of 2000 in which Jones stated that she was obsessed with Harrison. According to Waddle’s testimony, Jones became angry and would not speak to her after Jones learned that she had lived with Harrison. On cross-examination, Waddle admitted to a prior felony conviction for possession of methamphetamine and a prior misdemeanor theft conviction. Herron was the next witness to testify for the defense. She had known Harrison for about two or three years and had sold drugs to Jones. Herron testified that Jones told her that she severely injured her back while having rough three-way sex with Harrison and another man. Herron identified the other man as Brian Fincher. On cross-examination, Herron conceded that she did not know what happened at Jones’ apartment on July 17, 2000, and that she could not recall when the conversation with Jones took place. At the time of the trial, Herron was in jail awaiting sentencing after having pleaded guilty to a federal drug conspiracy charge. Herron also admitted that there were pending state charges relating to possession with the intent to deliver methamphetamine. Dana Hobbs was the final defense witness. She testified that she had known Harrison for about 14 years. Hobbs stated that Jones worked at the Eight Liners Heaven game room in July of 2000. Hobbs testified about Jones’ back condition prior to the assault. She stated that, although she had heard that Jones had a back injury, she had observed Jones cleaning up, doing odd jobs and running errands. The defense rested after Hobbs’ testimony. The following day, the jury returned a verdict that Harrison was guilty of sexual assault. Harrison subsequently appealed to the 10th Court of Appeals, which affirmed his conviction. Harrison did not seek discretionary review from the Court of Criminal Appeals. Harrison, proceeding pro se, submitted a state application for a writ of habeas corpus which alleged, among other claims, ineffective assistance of counsel. On Feb. 4, 2004, the CCA denied his application without a written order and without holding a hearing. Harrison then filed a federal petition for a writ of habeas corpus under 28 U.S.C. �2254, again alleging ineffective assistance of counsel. On Aug. 30, 2004, a magistrate judge issued a report recommending that the petition be denied. Over Harrison’s objection to the report, the district court adopted the magistrate judge’s findings and denied the petition. On Jan. 9, 2006, the 5th Circuit granted a certificate of appealability on Harrison’s ineffective assistance of counsel claim. HOLDING:Vacated and remanded. In its 1984 opinion in Strickland v. Washington, the U.S. Supreme Court articulated the standard for establishing an ineffective assistance of counsel claim. To satisfy Strickland, Harrison had to demonstrate both that: 1. his attorney’s performance was deficient; and 2. his attorney’s deficient performance prejudiced his defense. An attorney’s performance is deficient if it “fell below an objective standard of reasonableness.” Harrison alleged that his trial attorney provided ineffective assistance by not interviewing West pretrial and by not calling West as a witness at trial. Harrison claimed that West would have testified that he, Harrison and Jones had consensual three-way sex on July 17, 2000. According to Harrison, West made it known that he was willing to testify on behalf of Harrison. Harrison maintained that he advised trial counsel, verbally and in writing, in October and November of 2000 to contact West. Harrison also contended that he told trial counsel how to contact West, who was incarcerated in the Dallas County jail. If Harrison’s characterization of West’s potential testimony was accurate and West was willing to so testify, the court stated that then Harrison had a strong argument that trial counsel’s failure to interview West, a potential eyewitness, and call him as a witness at trial fell below the standard of a reasonably competent attorney. Contrary to the district court’s conclusion, the court stated, West’s potential testimony would not have been cumulative of Herron’s testimony. The defense’s theory was that Jones injured her back while having consensual, albeit rough, three-way sex with Harrison and West on July 17, 2000. Thus, if Harrison’s allegations were true, the court stated that Harrison would have a strong argument that his trial attorney’s performance fell below the standard of a reasonably competent attorney. Assuming Harrison’s allegations were true, the court stated that he had a strong argument that his trial attorney’s failure to interview West and have West testify at trial prejudiced his defense. The trial attorney’s failure to have West testify allowed the jury to draw a negative inference against Harrison’s defense based on West’s absence. But the court did not grant Harrison’s petition after suggesting that Harrison’s case met both prongs of Strickland. Ordinarily, the court stated, a defendant’s failure to present some evidence from the uncalled witness regarding that witness’ potential testimony and willingness to testify would be fatal to an ineffective assistance of counsel claim. The court remanded the matter to district court for further development of the record to determine if prison authorities improperly prevented Harrison from contacting West. OPINION:Prado, J.; Dennis, Clement and Prado, JJ.

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