By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
I recently learned that you can sigh in relief and groan in bewilderment at the same time. It happened when I was forwarded an email chain between three of my appellate prosecutor brethren in different jurisdictions. The topic was a recent opinion out of the Court of Criminal Appeals, Jefferson v. State,[1] about which they were deeply dismayed and concerned. I sighed in relief that somebody else saw the same problems that I did, and I groaned in bewilderment because I was lead counsel on the appeal.
The primary holding interpreting Code of Criminal Procedure Art. 28.10(c) is straightforward enough, but hidden in the weeds is some troubling interpretation of the ineffective assistance standard under Strickland v. Washington[2] that should concern prosecutors and defense counsel alike. Ineffective assistance claims are serious and damaging to both our hard-worked cases and the reputations of the defense attorneys who try them, and prosecutors want to see those claims carefully scrutinized not merely to protect convictions but out of simple fairness and integrity to the process.
Background
The victim, C.N.M., was a 15-year-old runaway. The defendant, Harold Gene Jefferson, was indicted on two counts, with two priors alleged in each: sexual assault of a child and indecency with a child by contact. Based on additional outcry from the child shortly before trial, the trial prosecutor filed a motion to amend the indictment pursuant to Code of Criminal Procedure Art. 28.10 to add two more counts of sexual assault of a child that arose out of the same incident on the same date. Article 28.10, “Amendment of Indictment or Information,” states that:
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the defendant’s request, the court shall allow the defendant not less than 10 days, or a shorter period if he requests, to respond to the amended indictment or information.
(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.
(c) An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the defendant’s substantial rights are prejudiced.
The trial prosecutor relied on Duran v. State,[3] which held that amending an indictment to add additional counts of the same statutory offense is allowed under Art. 28.10(c), citing Flowers v. State.[4] There was no caselaw directly to the contrary. Jefferson’s attorney requested and received the 10-day trial postponement he was entitled to under Art. 28.10(a). Jefferson was convicted of all four counts, receiving 35 and 25 years on the original two counts and 45 years on each of the amended counts.
Jefferson’s appellate counsel filed a motion for new trial but did not argue that the indictment was improperly amended or that trial counsel was ineffective for not objecting to the indictment. Rather, the argument was chiefly that Jefferson’s trial counsel did not seek to admit medical records and expert testimony regarding Jefferson’s impotence and prescription for erectile dysfunction (ED), and that trial counsel did not adequately inform him of the amended indictment, which led “to a loss of trust, loss of confidence, and an inability to properly communicate” between the two. At the hearing on the motion for new trial, after lengthy questioning on why he chose not to pursue a Viagra defense, Jefferson’s trial counsel was asked why he did not object to the amended indictment, and he responded that he did object. No follow-up questions were asked.
On appeal, Jefferson argued that the judgment was rendered void by the amended indictment under Nix v. State;[5] he also included four discrete arguments that his trial counsel was ineffective. One through three dealt with trial counsel’s alleged failure to investigate, present, and secure an expert to present a defense on erectile dysfunction. The fourth error dealt with trial counsel’s alleged failure to object to the indictment, arguing that the timing between the filing of the motion to amend and its grant by the court showed a lack of notice that trial counsel should have objected to.
As to the void judgment argument, the court of appeals observed “an indictment that is improperly amended under Art. 28.10 is not void but, rather, is only voidable, and a defendant waives any error to an amended indictment by failing to object to it at trial,”[6] which Jefferson did not do. The court of appeals further held that the trial court did not abuse its discretion in denying the motion for new trial based on Jefferson’s argument that trial counsel should have presented evidence of his erectile dysfunction, noting that there was a factual dispute as to whether he actually told trial counsel that he had ED. Additionally, his medical records contained a diagnosis of antisocial personality disorder, which trial counsel testified would have been devastating at trial.
As to Jefferson’s fourth ineffective assistance argument, the court of appeals noted that under Art. 28.10(c), an indictment may not be amended over the defendant’s objection as to form or substance if the amended indictment charges the defendant with an additional or different offense or prejudices his substantial rights, and that the Court of Criminal Appeals held in Flowers v. State[7] that an amended indictment charges a defendant with a different offense if the amendment changes the statutory offense. The Court further noted that at least one court of appeals had interpreted Flowers to say that an amended indictment does not allege an additional offense if it adds another count of the same charged offense: the aforementioned Duran case. Because there was some authority for the amendment, and also authority that defense counsel may strategically decide not to oppose an amendment to avoid unnecessary delay,[8] trial counsel was not ineffective in not objecting to the amended indictment (forcing the State to return to grand jury would have delayed the trial by weeks or months while his client sat in jail).
As the judges saw it
Jefferson petitioned the Court of Criminal Appeals on two issues:
1) that the trial court erred in allowing the amendment of the indictment to add additional counts, and
2) that his trial counsel was ineffective for failing to object to the amended indictment.
As to the first issue, the State responded that Jefferson did not raise that issue in the trial court and that his argument in the court of appeals was that the judgment was void. Writing for a unanimous court, Presiding Judge Keller agreed that “it is true that Appellant’s claim does not appear in the trial record. But Appellant did claim on appeal that counsel was ineffective for failing to preserve error with respect to the new counts in the amended indictment, and the court of appeals addressed that claim in part by relying upon an unpublished court-of-appeals opinion construing Art. 28.10. Whether the court of appeals’s reliance upon that opinion was correct is directly relevant to its resolution of Appellant’s ineffective-assistance claim.” The Court ultimately held that Art. 28.10 does not allow the indictment to be amended to add additional counts, and that “if Duran held that Flowers authorized additional counts of the same statutory offense, it read too much into Flowers.”
On the ineffective assistance issue, the State noted that the court has been unequivocal that “we have repeatedly declined to find counsel ineffective for failing to take a specific action on an unsettled issue”[9] and that “legal advice which only later proves to be incorrect does not normally fall below the objective standard of reasonableness under Strickland.”[10] Here, the Duran opinion appeared to support the amendment of the indictment, there were no court of appeals opinions to the contrary, and no caselaw from the Court directly addressed the same issue. The Court disagreed and said that Jefferson’s trial counsel could not have reasonably relied on Duran because it was an unpublished case: “An attorney’s failure to raise a claim is not deficient if the law is unsettled, but an unpublished court-of-appeals opinion in a criminal case does not constitute precedent, so it cannot create an uncertainty when the law is otherwise clear.” The Court did not address the court of appeals’s finding that trial counsel may have had a strategic reason for not objecting (i.e., delaying a seemingly inevitable indictment while the client sat in jail) for an unusual reason. The Court stated that trial counsel’s statement that he did object to the indictment seemed to be at odds with the court of appeals’s finding that he may have had a strategy for not objecting, and it remanded back to the court of appeals for further proceedings, saying, “We think more explanation is required to resolve this apparent inconsistency than what was given by the court of appeals.” The court of appeals’s finding that there was caselaw supporting an attorney’s strategic decision to not object to avoid delay on a seemingly inevitable indictment when the client was awaiting trial in jail was not addressed.
The takeaway
The primary holding of the case is that Art. 28.10(c) doesn’t allow the amendment of an indictment to add additional counts. That’s not surprising, and it’s not controversial; that’s exactly the sort of question we expect the Court to resolve for us, and it did so succinctly and cogently.
But the Court’s ineffective assistance analysis is deeply troubling, and it also affects prosecutors in our trials and appeals. To be blunt, the Court’s holding that defense counsel couldn’t have relied on an unpublished court of appeals opinion is not the law, or at least it wasn’t at the time of trial. The law at the time of trial was the Court’s pronouncement in Ex parte Roemer,[11] which held that trial counsel is not ineffective in relying on an unpublished case:
Similarly, in this case, the applicant was encouraged to plead guilty to felony DWI when he was charged with only a Class A misdemeanor DWI. This is the basis for the applicant’s ineffective-assistance claim. His attorney states that he “intensively researched” the issue of whether the prior conviction could be used to enhance the offense to a felony. <He determined that the enhancement was proper based on an unpublished memorandum opinion by the First District Court of Appeals,> Louviere v. State.[12] On facts similar to the applicant’s case, Louviere allowed the use of a past involuntary manslaughter conviction for enhancement purposes based on the determination in Gowans v. State,[13] that, although involuntary manslaughter under former Penal Code §19.05(a)(2) was modified into intoxication manslaughter, “the offense remained substantively the same.”
However, the issue in Gowans was whether criminally negligent homicide was a lesser-included offense of intoxication manslaughter. The court’s conclusion was simply that, when involuntary manslaughter under former Penal Code §19.05(a)(2) was modified into intoxication manslaughter, the offense still did not require proof of a culpable mental state for conviction. <Rather than advise his client that the enhancement was proper under Louviere, the applicant’s attorney could have argued that Louviere was incorrect because it not only mischaracterized Gowans’s statement that the offense remained substantively the same as the court’s “holding,” but also took the statement totally out of context. However, because counsel’s decision was based on existing caselaw, it was not ineffective assistance for counsel to advise the applicant to accept the plea.>[14]
There were dissenting opinions in Rohmer, but the dissents agreed that trial counsel was not ineffective when he relied on an unpublished case, even though he could have argued that the unpublished case mischaracterized published caselaw. The Court’s opinion at the time of Jefferson’s trial was unanimous: Counsel is not ineffective when he makes a strategic decision based on unpublished caselaw, even if he could have made an argument to the contrary. Presiding Judge Keller wrote that Duran could have been distinguished because in that case the language of the indictment could have been split into two counts at the time of grand jury, but there are two problems with that. One, “could have been” is just another way of saying “wasn’t,” and that distinction didn’t make any difference to the defendant in that case who was indicted for one count and sentenced for two. Second, the Court’s opinion in Rohmer didn’t hold counsel ineffective for not arguing that the case could have been distinguished or was being used out of context, even though he could have. We don’t expect trial lawyers to know how the Court will rule in the future.
Rohmer makes sense, for a number of reasons. The value of an opinion isn’t just its use as precedent, it’s in the reasoning of the judges who wrote it; as the Court has said, “a defendant will have difficulty in establishing that his counsel provided constitutionally deficient legal advice when that advice is precisely in accord with many of the justices of our state’s intermediate appellate courts.”[15] That’s right in line with the standard of Strickland, which warns explicitly against second-guessing defense attorneys with 20/20 hindsight.[16] We also don’t find lawyers ineffective when it’s a point on which reasonable lawyers could disagree,[17] and reasonable lawyers did exactly that here. The reasoning in Duran that supported the amendment is clearly erroneous now that the Court has disavowed it, but it was found reasonable by the three court of appeals justices that issued it, plus the trial prosecutor, the trial court judge, the three justices in the Eastland Court of Appeals, and State’s appellate counsel. Now that the case is on remand, the Eastland Court is put in the uncomfortable position of having to decide whether Jefferson’s trial counsel was constitutionally ineffective in reaching the same conclusion that it did.
Another problem is the remand back to Eastland for further explanation of what Jefferson’s trial counsel meant when he said that he “did object” to the amended indictment when no such objection appears in the record. What the court of appeals is being asked to do here isn’t clear, because the U.S. Supreme Court has repeatedly held that Strickland says we don’t look at what trial counsel subjectively thought, only what he did and whether it was objectively reasonable: “Strickland, however, calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.”[18] The reasonable explanation is that trial counsel meant that he objected to proceeding on the date set and requested the additional 10 days he was entitled to by statute,[19] and if an objectively reasonable explanation exists, the reviewing court is required to accept it under Strickland.[20] A court of appeals can’t explain his subjective intent; only the attorney can do that, and only in the context of an 11.07 writ of habeas corpus, which is why the Court has repeatedly said that statute is the better vehicle for an ineffective assistance claim.[21]
Judge Yeary’s concurrence lamented that Jefferson’s petition didn’t pursue his void judgment claim, in which he saw some merit and which “might even have mooted his ineffective assistance of counsel claim.” That would have been the preferable claim and outcome to be sure. The Court was rightly concerned here with the defendant’s rights and an interpretation of the Code of Criminal Procedure that the judges found lacking, and one can’t criticize that well-placed concern. Unfortunately, the result seems to have pulled the rug out from under defendant’s trial counsel, who appears to have been only following the law as it existed at the time of trial. Let’s hope those equities can be balanced in the opinions to come. i
Endnotes
[1] Jefferson v. State, No. PD-0677-21, —- S.W.3d —-,2022 WL 2961846, 2022 Tex. Crim. App. LEXIS 469 (Tex. Crim. App. July 27, 2022).
[2] 466 U.S. 668 (1984).
[3] No. 07-07-0110-CR, 2008 Tex. App. LEXIS 2160 (Tex. App.—Amarillo Mar. 26, 2008, pet. ref’d) (mem. op).
[4] 815 S.W.2d 724, 725-727 (Tex. Crim. App. 1991) (per curiam).
[5] 65 S.W.3d 664 (Tex. Crim. App. 2001).
[6] Jefferson v. State, No. 11-18-00184-CR, 2021 Tex. App. LEXIS 4843, at *6-7 (Tex. App.—Eastland June 17, 2021) (mem. op.) (citing Trevino v. State, 470 S.W.3d 660, 663 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); Woodard v. State, 322 S.W.3d 648, 657 (Tex. Crim. App. 2010)).
[7] 815 S.W.2d at 728.
[8] Stewart v. State, No. 05-95-01056-CR, 1997 Tex. App. LEXIS 2103, 1997 WL 196357, at *4 (Tex. App.—Dallas Apr. 23, 1997, no pet.) (not designated for publication).
[9] State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013) (refusing to find trial counsel ineffective when statute of limitations question is unsettled).
[10] Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005).
[11] 215 S.W.3d 887 (Tex. Crim. App. 2007).
[12] No. 01-02-00504-CR, 2003 Tex. App. LEXIS 1583 (Tex. App.—Houston [1st Dist.] February 20, 2003) (not designated for publication), 2003 Tex. App. LEXIS 1583.
[13] 995 S.W.2d 787, 792 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
[14] Ex parte Roemer, 215 S.W.3d at 891 (italics added).
[15] Chandler, 182 S.W.3d at 358.
[16] “It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689.
[17] “When a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” Chandler, 182 S.W.3d at 354.
[18] Harrington v. Richter, 562 U.S. 86, 110 (2011).
[19] At least one case shows “objection to the indictment amendment” being used when what was meant was a demand for 10 days to prepare. “Failure to Object to Indictment Amendment: McAfee claims that trial counsel’s failure to object to the State’s motion to amend the indictment constitutes ineffective assistance of counsel. <Specifically, he claims that in waiving the 10-day period, counsel did not have time to adequately prepare his defense.”> McAfee v. State, No. 01-03-01041-CR, 2004 WL 2966361, 2004 Tex. App. LEXIS 11722, at *9 (Tex. App.—Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem. op.) (italics added).
[20] “Surmounting Strickland’s high bar is never an easy task”; a reviewing court is “required not simply to ‘give the attorneys the benefit of the doubt,’ but to affirmatively entertain the range of possible ‘reasons…counsel may have had for proceeding as they did.’” Cullen v. Pinholster, 563 U.S. 170, 196 (2011).
[21] “The better procedural mechanism for pursuing a claim of ineffective assistance is almost always through writ of habeas corpus proceedings.” Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); see also Trevino v. Thaler, 569 U.S. 413 (2013) (observing that it is “‘virtually impossible’ for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim” on direct review).