By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Court of Appeals says hearsay evidence of
unadjudicated juvenile offenses is admissible at the penalty stage of a criminal
trial [Manley v. State] (00-3-32)
On August 31, 2000, the Texarkana Court of Appeals, in the context of an
ineffective assistance of counsel claim, approved of the use of hearsay to prove
unadjudicated juvenile offenses at the penalty stage of a criminal trial.
00-3-32. Manley v. State, ___ S.W.3d ___, No. 06-98-00318-CR, 2000 WL 1228780,
2000 Tex.App.Lexis ___ (Tex.App.—Texarkana 8/31/00)[Texas Juvenile Law 237
(4th Edition 1996)].
Facts: Adrin L. Manley appeals from his conviction for murder. He entered a plea
of not guilty, and a jury trial was held. The jury found him guilty, and
assessed his punishment at imprisonment for ninety-nine years and a fine of
$10,000.00. The court sentenced him in accordance with the jury's verdict.
On appeal, Manley contends that the trial court erred in permitting his motion
for new trial to be denied by operation of law, that he suffered ineffective
assistance of counsel, that a defense witness' testimony was erroneously
excluded, and that the court erred in admitting an unrecorded oral statement
made during a custodial interrogation.
On July 17, 1996, Manley was riding in a vehicle with James Hughey, Gene Paxton,
and Tory Blair in Texarkana, Texas. All three men testified that when the car
approached a crowd of people on Blanton Street, Manley rose up out of the
vehicle through the passenger's side window, leaned over the roof of the car,
and said, "What's up, Cuz?" Roderick Adams then stepped forward and
raised his arms, and multiple gunshots were fired. While all three men testified
that they heard the gunshots and that Manley had a weapon, Hughey further
testified that it was Manley who fired the shots. A .25 caliber semiautomatic
Raven pistol was found at the home of Manley's mother (where Manley also
resided). That pistol was determined by ballistics testing to be the weapon that
killed Roderick Adams.
Held: Affirmed.
Opinion Text: Next, Manley contends that he did not receive effective assistance
of counsel during the punishment phase of his trial. Specifically, Manley claims
that his trial counsel was ineffective for failing to object to testimony
concerning Manley's criminal history and his gang affiliation. Manley claims
that this testimony was inadmissible and therefore should have been objected to,
because the State never introduced any adjudications for the alleged offenses.
He argues that according to the Texas Code of Criminal Procedure, Article 37.07,
only adjudicated offenses punishable by incarceration and occurring after
January 1, 1996, may be introduced into evidence. See Tex.Code Crim. Proc. Ann.
art. 37.07, § 3(a), (h) (Vernon Supp.2000).
The standard of testing all claims of ineffective assistance of counsel requires
the appellant to show by a preponderance of the evidence both that (1) counsel's
representation fell below the objective standard of reasonableness, based on
prevailing professional norms; and (2) but for counsel's unprofessional errors,
the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also
Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986) (adopted the
two-pronged test set out in Strickland ). In other words, the appellant must
prove both a deficiency and prejudice resulting from that deficiency. See
Garrett v. State, 998 S.W.2d 307, 312 (Tex.App.-Texarkana 1999, pet. ref'd,
untimely filed). An isolated failure to object to improper evidence does not
necessarily constitute ineffective assistance of counsel. See Bridge v. State,
726 S.W.2d 558, 571 (Tex.Crim.App.1986). The failure to object to admissible
evidence cannot be ineffective assistance. Burruss v. State, No. 06-99-00039-CR,
2000 WL 497242, at *8 (Tex.App.-Texarkana Apr.27, 2000, pet. filed).
Manley contends that his trial counsel was deficient in not objecting to
testimony concerning Manley's alleged gang involvement and his prior criminal
violations. Manley complains about two witnesses that the State called to
testify during the punishment phase. One such witness was Preston Long, a
detective with the gang intelligence unit, who testified that while doing
surveillance, he "witnessed several ... criminal violations that included
Mr. Manley and his fellow gang members." The other witness was Bill
Anderson, a probation officer, who testified that he had researched Manley's
prior juvenile activity, in order to prepare for the certification and transfer
of Manley from juvenile authority to adult authority, and he discovered the
following:
In Arkansas, Adrian [sic] [Manley] has eleven arrests. Half a dozen of those were for battery, for assaultive offenses. He's currently being certified on two felony charges over there of battery and aggravated robbery. That's pending. Now, in Texas, he was arrested with--His only history in Texas was being involved in another shooting where his brother shot a man in the chest in the street in Texarkana. But Adrian [sic] [Manley] was originally charged with attempted murder along with his brother. I also certified his brother on that charge and he got time in the Texas State Penitentiary. Adrian [sic] [Manley] was not prosecuted for that, but he was arrested for another attempted murder.
Manley contends that his trial counsel was ineffective since he failed to object to any of this testimony.
Based on his argument presented for appeal, Manley apparently believes that the State was required to introduce court-ordered adjudications in order for the above-referenced testimony to be admissible under Article 37.07; however, this article clearly allows for evidence other than adjudications to be introduced during the punishment phase of trial. Article 37.07 states that evidence is admissible as to any matter that the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a). The testimonies of both Long and Anderson regarding Manley's extraneous crimes and bad acts are admissible. See Cain v. State, 976 S.W.2d 228, 236-37 (Tex.App.-San Antonio 1998, no pet.); see also Rodriguez v. State, 975 S.W.2d 667, 686-87 (Tex.App.- Texarkana 1998, pet. ref'd). Therefore, counsel could not have been ineffective for failing to object. Burruss, 2000 WL 497242, at *8. This point of error is overruled.
[Editor’s Comment: This opinion really is remarkable. Until I read IT, I had believed that the Confrontation Clause applied at the penalty stage of a trial before a jury. But apparently not, since the probation officer was permitted to testify to all manner of things of which he did not possess personal knowledge. Yet the Texarkana Court of Appeals appears to be saying that the testimony would be admissible even in the face of a timely, pointed objection. The ability to prove unadjudicated offenses at penalty is based on their being proved by admissible evidence, not by rumor, gossip or hearsay. The witness can’t just read the defendant’s rap sheet to the jury.]