Opinion · Court of Criminal Appeals of Texas
Shanklin v. State
Shanklin v. State, No. PD. 0026-06, UP1791736 (Tex. Crim. App. Jan. 10, 2007)
- Type
- Opinion
- Court
- Court of Criminal Appeals of Texas
- Jurisdiction
- Texas
- Date
- 2007-01-10
- Topic
- general
reversing for new trial on punishment due to counsel’s failure to investigate and present mitigating evidence | reversing for new trial on punishment due to counsel’s failure to investigate and present mitigating evidence | reviewing the Strickland analysis through an abuse of discretion standard and viewing the evidence in the light most favorable to the ruling | reviewing the Strickland analysis through an abuse of discretion standard and viewing the evidence in the light most favorable to the ruling | reversing for new trial on punishment due to counsels failure to investigate and present mitigating evidence | “The trial court is not required to believe factual statements contained within an affidavit, even when they are uncontradicted by other affidavits.” | the court is not required to believe factual statements contained in an affidavit, even if there is no evidence to controvert it | “The court may consider the interest and bias of any witness and is not required to accept as true the testimony of the accused or any defense witness simply because it was uncontradicted.”
Citator
- Cited by
- 27 opinions
OPINION
JOHNSON, J.,delivered the opinion of the unanimous Court.
A grand jury indicted appellant for murder. Tex. Penal Code § 19.02. Appellant plead not guilty. A jury sentenced appellant to sixty years’ imprisonment in the Texas Department of Criminal Justice- — • Correctional Institutions Division.
After sentencing, appellant filed a motion for new trial, alleging ineffective assistance of counsel. The trial court denied appellant’s motion for new trial. Appellant appealed, asserting that the trial court erred in finding that appellant’s counsel did not render ineffective assistance during both the guilt and punishment phases of trial. Shanklin v. State, 190 S.W.3d 154 (Tex. App.-Houston [1st Dist.] 2005).
The court of appeals found that appellant was entitled to a lesser-included offense instruction on manslaughter, but concluded that trial counsel’s decision not to request a jury instruction on the lesser-included offense was not so outrageous that no competent attorney would have engaged in the conduct. The court of appeals also determined that trial counsel provided ineffective assistance by failing to interview or call a single witness to testify on appellant’s behalf during the punishment phase, particularly when approximately twenty witnesses volunteered and were available to do so. Consequently, the court of appeals affirmed the trial court’s guilty verdict, but remanded the cause for a new punishment hearing.
Appellant petitioned for discretionary review, and we granted review on appellant’s sole ground. 1 After reviewing the *316 briefs of the parties, examining the relevant portions of the record, and hearing oral arguments, we conclude that our decision to grant appellant’s petition was improvident. Accordingly, we dismiss appellant’s petition. Tex.R.App. PROC. 69.3.
. "A divided panel of the First Court of Appeals erred in holding that defense counsel's failure to request a jury instruction on the lesser-included offense of manslaughter was *316 not objectively deficient conduct when the evidence warranted this instruction and where defense counsel admitted that his failure to seek such an instruction was not the result of any trial strategy.”