Texas Stamp


PD-1180-16 11/09/2016

  1. "When the record is silent as to defense counsel's reasons for calling witnesses in support of jury-ordered probation, has the presumption of reasonable strategy been rebutted?"
  2. "If the reasonableness presumption was rebutted, did defense counsel render ineffective assistance in calling witnesses who presented favorable evidence but also opened the door for damaging evidence?"

Prine was convicted of sexual assault. The day before the punishment stage, the prosecutor informed defense counsel that he planned to present evidence that Prine impregnated his family's fifteen-year-old babysitter about twenty-years earlier, which he had just learned of the day before. At punishment, defense counsel called the local probation officer. He testified about the general operation of probation, including its terms and conditions, but opined that Prine did not deserve it. Defense counsel also called Prine's aunt and sister. Both testified that they knew of his relationship with the babysitter but nevertheless believed he was a good candidate for probation.

A majority of the court of appeals held that defense counsel rendered ineffective assistance. It held that no reasonable defense attorney would have called these witnesses. With regard to prejudice, the majority noted: (1) the probation officer opined that Prine did not deserve probation; (2) the credibility of Prine's family was "tarnished with evidence of [his] prior sexual relationship with a fifteen-year-old and with their apparent assent" to it; (3) the State repeatedly emphasized the relationship at closing; and, (4) the jury assessed a maxim sentence of imprisonment and nearly a maximum fine. The dissent stated that the majority erred to conclude that there was no valid strategy because counsel had no opportunity to respond to the allegation. The dissent listed a variety of questions that counsel could have posed in making a tactical decision, and he noted that Prine's aunt and sister gave favorable testimony in addition to acknowledging the babysitter evidence.
Citing the dissent's litany of unanswered questions, the State contends that Prine failed to rebut the presumption that counsel performed deficiently. And, even if it was rebutted, counsel acted reasonably. The probation officer set up the framework for the jury to recommend probation instead of immediate imprisonment. His opinion about Prine's worthiness of probation arguably did not outweigh the benefit of his testimony. It was based on incomplete information, and counsel's generic set-up with the officer was followed-up by an individualized approach: he relied on Prine's family—with whom Prine had a lifelong history with—to prove eligibility and persuade the jury. Without their testimony, Prine would have had no evidence demonstrating that he was eligible, would not be a threat to the community because of his good character when sober and recent physical disabilities, would comply with probation conditions, and had strong family ties and loyalty. Finally, the State argues that Prine was not prejudiced because the damaging evidence had limited value.

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