Kane v. State

¶1concurring.

¶2The majority correctly tracks controlling decisions from the Court of Criminal Appeals and conscientiously applies the tests and presumptions mandated by those decisions.1 I respectfully disagree, however, with the mandate that we must presume trial counsel advised Appellant of the merit (or lack of merit) in filing a motion for new trial and that Appellant rejected that ad*697vice, when there is no basis in the record to support this presumption.2 And I respectfully disagree with the mandate that, on the basis of that unsupported presumption, we must then presume effective representation in the face of a record that affirmatively shows that counsel failed to perform as counsel for Appellant in any way during the thirty-day period for filing a motion for new trial.3 Even attorneys who certify an appeal as frivolous are required to make an actual showing that counsel has adequately informed the defendant of his appellate rights and the controlling timetables.4 The United States Supreme Court announced this requirement in Anders v. California.5

¶3Rather than grounding a presumption of effective assistance of counsel on nothing more than another presumption of conversations that the record does not show occurred, I believe that we should apply the standard for gauging effectiveness of counsel that we apply in most other circumstances, the Strickland standard.6

¶4The burden of showing ineffective representation of counsel rests on the party claiming ineffectiveness; thus under the Strickland standard, the appellant must show that his counsel’s performance was deficient.7 While cases speak of the strong presumption that counsel performed effectively, I believe that the correct presumption should be that counsel’s decisions were reasonable. Indeed, cases that speak of the difficulty of an appellant’s sustaining his burden on direct appeal point out that “[t]he reasonableness of counsel’s choices often involves facts that do not appear in the appellate record.”8 As the Texas Court of Criminal Appeals has stated:

In the case at bar, the record that appellant brought to the Court of Appeals failed to rebut this strong presumption of reasonable counsel, and, therefore, we hold that the Court of Appeals erred in concluding counsel was ineffective based on the record before it. A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation.9

¶5Because this court has no choice but to follow the precedent established by the Texas Court of Criminal Appeals, I am compelled to concur in the majority’s analysis. I would respectfully urge the Texas Court of Criminal Appeals, however, to consider applying, as it does in other circumstances, a reasonableness standard to actions and omissions of counsel during the thirty-day period for filing a motion for new trial. Similarly, I respectfully urge it to reconsider its decisions to presume ae-*698tions by trial counsel when those presumptions have no support in the record.