Cronic presumption in Texas

2021We concluded that for Cronic’s presumption to apply, counsel’s failure to test the State’s case “must be complete” and “bad lawyering, regardless of –9– how bad, does not support the . . . presumption of prejudice under Cronic.” Id. (citing Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997)).

2016Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997). “[B]ad lawyering, regardless of how bad, does not support” applying the Cronic standard.

2015See United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (collecting cases in which closing statements admitting guilt on the only disputed fact issues was Cronic error).

2015See United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (discussing cases in which closing statements admitting guilt on the only disputed fact issues was Cronic error); but see Florida v. Nixon, 543 U.S. 175, 190-91 (2004) (concession of guilt as part of strategy in capital case where guilt was clear was not Cronic error).

2015United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 (1984) However, even if the Court declines to apply the Cronic presumption, it is clear appellant was denied the effective assistance of counsel under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 (1984) Given the number and gravity of counsel’s professional errors there is a reasonable probability that the outcome would have been different; i.e. “a probability sufficient to undermine confidence in the outcome.” Id. at 2068 Among the professional errors the record reveals are counsel’s lack of fa

2015United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 (1984) However, even if the Court declines to apply the Cronic presumption, it is clear appellant was denied the effective assistance of counsel under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 (1984) Given the number and gravity of counsel’s professional errors there is a reasonable probability that the outcome would have been different; i.e. “a probability sufficient to undermine confidence in the outcome.” Id. at 2068 Among the professional errors the record reveals are counsel’s lack of fa

2025Under a Cronic claim, if a claimant demonstrates that his counsel “‘entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,’ so that there was a constructive denial of the assistance of counsel altogether, then prejudice, because it is ‘so likely,’ is legally presumed.” Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim.

2025Under a Cronic claim, if a claimant demonstrates that his counsel “‘entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,’ so that there was a constructive denial of the assistance of counsel altogether, then prejudice, because it is ‘so likely,’ is legally presumed.” Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim.

2024See Ex parte McFarland, 163 S.W.3d at 760 (“[A]lthough one of his attorneys slept through portions of the trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times.”). 12 Whether addressed under the Strickland standard or the Cronic standard, Washington’s ineffective assistance of counsel claim fails.

2024See Ex parte McFarland, 163 S.W.3d at 760 (“[A]lthough one of his attorneys slept through portions of the trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times.”). 12 Whether addressed under the Strickland standard or the Cronic standard, Washington’s ineffective assistance of counsel claim fails.

2016See McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990).

2016See McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990).

2017See, e.g., In re K.B., No. 05-17-00428-CV, 2017 WL 4081815 , at *7 (Tex. App.—Dallas Sept. 15, 2017, no pet. h.) (mem. op.); In re J.M.O., 459 S.W.3d 90, 94 (Tex. App.—San Antonio 2014, no pet.); Lockwood v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00062-CV, 2012 WL 2383781 , at *5 (Tex. App.—Austin June 26, 2012, no pet.) (mem. op.); see also P.W. v. Dep’t of Family & Protective Servs., 403 S.W.3d 471 –7– (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.) (concluding that because record did not show “actual or constructive denial of counsel,” Cronic standard was inapplicable)

2016See U.S. v. Barton, 526 Fed.Appx. 360, 362 (5th Cir.2013), citing Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir.2000)(concluding Strickland rather than Cronic applies when defendant’s attorney lodged objections, examined witnesses, and argued case to jury at trial); see also In re V.V., 349 S.W.3d 548, 560 (Tex.App.—Houston [1st Dist.] 2010, pet. denied)(rejecting Cronic standard where attorney had not entirely failed to subject the Department of Family and Protective Services’ case to adversarial testing).

2020App. 2008). 8 Bad lawyering does not support applying the Cronic standard; prejudice will be presumed only when the criminal defendant can establish that counsel was “not merely incompetent but inert.” Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000).

2020App. 2008). 8 Bad lawyering does not support applying the Cronic standard; prejudice will be presumed only when the criminal defendant can establish that counsel was “not merely incompetent but inert.” Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000).

2016The Court noted that it required “[n]o specific showing of prejudice in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been ‘denied the right of effective cross-examination’ which ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’” Cronic, 466 U.S. at 659 (quoting Davis, 415 U.S. at 318 ); see also Nixon, 543 U.S. at 190-91 (further discussing Cronic standard); Bell, 535 U.S. at 4 696-97 (under Cronic, attorney's failure to test the prosecution's case must be “complete”).6 The Court of Criminal Appeals has appli

2015See United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (discussing cases in which closing statements admitting guilt on the only disputed fact issues was Cronic error); but see Florida v. Nixon, 543 U.S. 175, 190-91 (2004) (concession of guilt as part of strategy in capital case where guilt was clear was not Cronic error).

2017See, e.g., In re K.B., No. 05-17-00428-CV, 2017 WL 4081815 , at *7 (Tex. App.—Dallas Sept. 15, 2017, no pet. h.) (mem. op.); In re J.M.O., 459 S.W.3d 90, 94 (Tex. App.—San Antonio 2014, no pet.); Lockwood v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00062-CV, 2012 WL 2383781 , at *5 (Tex. App.—Austin June 26, 2012, no pet.) (mem. op.); see also P.W. v. Dep’t of Family & Protective Servs., 403 S.W.3d 471 –7– (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.) (concluding that because record did not show “actual or constructive denial of counsel,” Cronic standard was inapplicable)

2015See P.W., 403 S.W.3d at 478 (substance of appellant’s argument challenged certain aspects of counsel’s 27 performance and not complete failure and therefore did not support application of Cronic presumption); see also TEX.

2017See, e.g., In re K.B., No. 05-17-00428-CV, 2017 WL 4081815 , at *7 (Tex. App.—Dallas Sept. 15, 2017, no pet. h.) (mem. op.); In re J.M.O., 459 S.W.3d 90, 94 (Tex. App.—San Antonio 2014, no pet.); Lockwood v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00062-CV, 2012 WL 2383781 , at *5 (Tex. App.—Austin June 26, 2012, no pet.) (mem. op.); see also P.W. v. Dep’t of Family & Protective Servs., 403 S.W.3d 471 –7– (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.) (concluding that because record did not show “actual or constructive denial of counsel,” Cronic standard was inapplicable)

2015See J.M.O., 459 S.W.3d at 94 (applying Cronic presumption of prejudice when trial counsel failed to appear for trial because he was in different courtroom when trial began); Lockwood v. Tex. Dep’t of Family & Protective Servs., No. 03–12–00062–CV, 2012 WL 2383781 (Tex. App—Austin June 26, 2012, no pet.) (explaining Cronic presumption of prejudice applied because parent’s attorney did not appear at trial).

2015See U.S. v. Russell, 205 F.3d 768, 772 (5th Cir. 2000) (holding that the Cronic presumption should apply where counsel was absent for two days during which “the probability of his guilt increased during the government’s presentation of evidence against his co-conspirators).

2015See U.S. v. Russell, 205 F.3d 768, 772 (5th Cir. 2000) (holding that the Cronic presumption should apply where counsel was absent for two days during which “the probability of his guilt increased during the government’s presentation of evidence against his co-conspirators).

2011A. Applicant Has Failed to Prove that Counsel Was Constitutionally Deficient. actually non compos mentis.”). 22 See United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (collecting cases in which closing statements admitting guilt on the only disputed fact issues was Cronic error). 23 Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim.

2011Ex parte Reed , 271 S.W.3d 698, 727 (Tex. Crim.

2011We find this approach to be a logical trial strategy”); Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir.1987) (given that defendant was arrested on board a boat loaded with marijuana, counsel’s admission of guilt on importation charges was part of reasonable strategy to persuade jury of innocence on distribution charge). 65 See Williamson, 53 F.3d at 1511 (collecting cases in which closing statements admitting guilt on the only fact issues in dispute amounted to Cronic error). 66 Ex parte Miller, 330 S.W.3d 610, 623-24 (Tex. Crim.

2011Ex parte Miller , 330 S.W.3d 610, 623-24 (Tex. Crim.

2021We concluded that for Cronic’s presumption to apply, counsel’s failure to test the State’s case “must be complete” and “bad lawyering, regardless of –9– how bad, does not support the . . . presumption of prejudice under Cronic.” Id. (citing Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997)).

2016The Court noted that it required “[n]o specific showing of prejudice in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been ‘denied the right of effective cross-examination’ which ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’” Cronic, 466 U.S. at 659 (quoting Davis, 415 U.S. at 318 ); see also Nixon, 543 U.S. at 190-91 (further discussing Cronic standard); Bell, 535 U.S. at 4 696-97 (under Cronic, attorney's failure to test the prosecution's case must be “complete”).6 The Court of Criminal Appeals has appli

2021Applicant filed a subsequent writ in 2011, complaining that his ineffective Barbee–Page 8 assistance claim was analyzed under Strickland v. Washington, 466 U.S. 668 (1984), rather than the Cronic standard under which the claim was brought.

2021Applicant filed a subsequent writ in 2011, complaining that his ineffective Barbee–Page 8 assistance claim was analyzed under Strickland v. Washington, 466 U.S. 668 (1984), rather than the Cronic standard under which the claim was brought.

2024App. 2008) (quoting Cronic, 466 U.S. at 658–59). “[T]he attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 697 (2002); see State v. Frias, 511 S.W.3d 797, 810 (Tex. App.—El Paso 2016, pet. ref’d) (“While his defense can be described as minimal at best, we cannot say that his failure to test the State’s case was ‘complete.’”). “[O]nly when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.” Cronic, 466 U.S. at 662 ; see, e.g., Cannon, 252 S.W.3d at 350 (“Defense c

2023State v. Frias, 511 S.W.3d 797 , 809–11 (Tex. App.—El Paso 2016, pet. ref’d) (holding that although the appellant complained “about counsel’s conduct concern[ing] a litany of alleged errors, omissions, and strategic blunders,” the record did not support a finding that Cronic’s presumption of prejudice applied).

2024See Thibodeaux v. State, 521 S.W.3d 421, 424 (Tex. App.—Amarillo 2017, pet. ref’d) (“[W]e have rejected the application of Cronic to situations wherein counsel may have performed deficiently in numerous respects but nevertheless participated in the trial and defense of his client.”); see also Rubio v. State, No. 05-18-00861-CR, 2023 WL 3749804 , at *13 (Tex. App.—Dallas June 1, 2023, pet. ref’d) (mem. op., not designated for publication) (“[T]he [Strickland and Cronic] standards distinguish between shoddy representation and none at all.”).

2024See Thibodeaux v. State, 521 S.W.3d 421, 424 (Tex. App.—Amarillo 2017, pet. ref’d) (“[W]e have rejected the application of Cronic to situations wherein counsel may have performed deficiently in numerous respects but nevertheless participated in the trial and defense of his client.”); see also Rubio v. State, No. 05-18-00861-CR, 2023 WL 3749804 , at *13 (Tex. App.—Dallas June 1, 2023, pet. ref’d) (mem. op., not designated for publication) (“[T]he [Strickland and Cronic] standards distinguish between shoddy representation and none at all.”).

2019See, e.g., Rodriguez v. State, 425 S.W.3d 655, 669 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Head v. State, 299 S.W.3d 414, 443 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). 9 Setting aside Cronic’s presumption regarding prejudice, Appellant also argues the record is sufficient to satisfy Strickland’s two-prong test.

2019See, e.g., Rodriguez v. State, 425 S.W.3d 655, 669 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Head v. State, 299 S.W.3d 414, 443 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). 9 Setting aside Cronic’s presumption regarding prejudice, Appellant also argues the record is sufficient to satisfy Strickland’s two-prong test.

2016See U.S. v. Barton, 526 Fed.Appx. 360, 362 (5th Cir.2013), citing Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir.2000)(concluding Strickland rather than Cronic applies when defendant’s attorney lodged objections, examined witnesses, and argued case to jury at trial); see also In re V.V., 349 S.W.3d 548, 560 (Tex.App.—Houston [1st Dist.] 2010, pet. denied)(rejecting Cronic standard where attorney had not entirely failed to subject the Department of Family and Protective Services’ case to adversarial testing).

2013See In re J.O.A., 283 S.W.3d at 344 ; In re V.V., 349 S.W.3d at 559 (citing J.O.A.); see also In re L.D.G., 2012 WL 171888 , at *1-2 (quoting Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 ) (stating parent must show, in addition to deficient performance, that “counsel’s deficient performance prejudiced the defense” and affirming where only harm argument made on appeal was argument to apply Cronic presumption). *480 Conclusion We affirm the trial court’s judgment. 1 .

2012See Solis v. State, 718 S.W.2d 282, 285 (Tex. Crim.

2011App. 2008). 24 Id.; see also Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. Crim.

2011We find this approach to be a logical trial strategy”); Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir.1987) (given that defendant was arrested on board a boat loaded with marijuana, counsel’s admission of guilt on importation charges was part of reasonable strategy to persuade jury of innocence on distribution charge). 65 See Williamson, 53 F.3d at 1511 (collecting cases in which closing statements admitting guilt on the only fact issues in dispute amounted to Cronic error). 66 Ex parte Miller, 330 S.W.3d 610, 623-24 (Tex. Crim.

2002Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.2001) (en banc), cert. denied, — U.S. -, 122 S.Ct. 2347 , 153 L.Ed.2d 174 (2002).

2002Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.2001) (en banc), cert. denied, — U.S. -, 122 S.Ct. 2347 , 153 L.Ed.2d 174 (2002).