Sixth Amendment violation in Texas

2024See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding defendant must show deficient performance by counsel and prejudice to defense to establish Sixth Amendment claim for ineffective assistance of counsel).

2022“To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that his counsel’s deficient performance prejudiced him.” Andrus v. Tex., 140 S.Ct. 1875, 1881 (2020) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

2009See Strickland v. Washington , 466 U.S. 668 (1984); see also Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim.

2009See Strickland v. Washington , 466 U.S. 668 (1984); see also Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim.

2024In the context of a Sixth Amendment violation, a trial court may properly dismiss a charging instrument if “a defendant suffers demonstrable prejudice, or a substantial threat thereof, and where the trial court is unable to identify and neutralize the taint by other means.” Frye, 897 S.W.2d at 330 (citing United States v. Morrison, 449 U.S. 361, 365 , 101 S. Ct. 665 [ ] (1981); Terrazas, 962 S.W.2d at 41 ).

2024In the context of a Sixth Amendment violation, a trial court may properly dismiss a charging instrument if “a defendant suffers demonstrable prejudice, or a substantial threat thereof, and where the trial court is unable to identify and neutralize the taint by other means.” Frye, 897 S.W.2d at 330 (citing United States v. Morrison, 449 U.S. 361, 365 , 101 S. Ct. 665 [ ] (1981); Terrazas, 962 S.W.2d at 41 ).

2018To overcome a Sixth Amendment objection to testimonial hearsay, the State is required to show that the declarant of the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine the declarant. 2 See Crawford v. Washington , 541 U.S. 36 , 51-52, 68-69, 124 S.Ct. 1354 , 1364, 1374, 158 L.Ed.2d 177 (2004) (at a minimum, the term "testimonial" applies to prior testimony at a preliminary hearing, before a grand jury, or at a former trial); Sanchez , 354 S.W.3d at 485 .

2018To overcome a Sixth Amendment objection to testimonial hearsay, the State is required to show that the declarant of the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine the declarant. 2 See Crawford v. Washington , 541 U.S. 36 , 51-52, 68-69, 124 S.Ct. 1354 , 1364, 1374, 158 L.Ed.2d 177 (2004) (at a minimum, the term "testimonial" applies to prior testimony at a preliminary hearing, before a grand jury, or at a former trial); Sanchez , 354 S.W.3d at 485 .

2022We afford almost total deference to the trial court’s rulings on questions of fact and questions 3 556 U.S. 778 (2009). 4 Neither of this Court’s previous two opinions reached the Sixth Amendment violation issue.

2022We afford almost total deference to the trial court’s rulings on questions of fact and questions 3 556 U.S. 778 (2009). 4 Neither of this Court’s previous two opinions reached the Sixth Amendment violation issue.

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

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

2021See Murray v. State, 857 S.W.2d 806, 812 (Tex.App.—Fort Worth 1993, pet. ref’d)(holding the trial “court's late supplementation had an effect tantamount to denying jury argument; thereby violating [defendant’s] Sixth Amendment right to effective assistance of counsel”).

2021See Murray v. State, 857 S.W.2d 806, 812 (Tex.App.—Fort Worth 1993, pet. ref’d)(holding the trial “court's late supplementation had an effect tantamount to denying jury argument; thereby violating [defendant’s] Sixth Amendment right to effective assistance of counsel”).

2015While the adequacy of trial counsel’s performance must be gauged by the totality of the representation afforded the accused, “[S]omtimes a single error is so substantial that it alone causes the attorney’s assistance to fall below the Sixth Amendment standard.” Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979).

2015While the adequacy of trial counsel’s performance must be gauged by the totality of the representation afforded the accused, “[S]omtimes a single error is so substantial that it alone causes the attorney’s assistance to fall below the Sixth Amendment standard.” Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979).

2004At the time of appellant’s trial, a Sixth Amendment challenge to the admissibility of an out-of-court statement against the *850 accused was governed by Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980); see Brooks v. State, 132 S.W.3d 702, 705 (Tex.App.-Dallas 2004, no pet. h.).

2004At the time of appellant’s trial, a Sixth Amendment challenge to the admissibility of an out-of-court statement against the *850 accused was governed by Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980); see Brooks v. State, 132 S.W.3d 702, 705 (Tex.App.-Dallas 2004, no pet. h.).

2012See id. at 182 (noting that several federal circuit courts recognize that the “agency inquiry” constitutes a separate and distinct analysis “from whether the informant ‘deliberately elicited’ [the] information” sought to be suppressed as being obtained in violation of the accused’s Sixth Amendment right to counsel (emphasis added)); see also Hernandez, 842 S.W.2d at 313 (“It appears clear that in examining the Massiah[ 20 ] line of cases that to find a Sixth Amendment violation,. the statements in question must have been (1) ‘deliberately elicited’ (2) by a ‘government agent.’ ”).

2012See id. at 182 (noting that several federal circuit courts recognize that the “agency inquiry” constitutes a separate and distinct analysis “from whether the informant ‘deliberately elicited’ [the] information” sought to be suppressed as being obtained in violation of the accused’s Sixth Amendment right to counsel (emphasis added)); see also Hernandez, 842 S.W.2d at 313 (“It appears clear that in examining the Massiah[ 20 ] line of cases that to find a Sixth Amendment violation,. the statements in question must have been (1) ‘deliberately elicited’ (2) by a ‘government agent.’ ”).

2008See also Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). [46] Id. at 444-45. [47] It is not completely beside the point to remember in this context that, regardless of whether a prosecutor is or ought to be subject to the Sixth Amendment doctrine of implied bias, in Texas it is, after all, "the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done." TEX.CODE.

2008See also Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). [46] Id. at 444-45. [47] It is not completely beside the point to remember in this context that, regardless of whether a prosecutor is or ought to be subject to the Sixth Amendment doctrine of implied bias, in Texas it is, after all, "the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done." TEX.CODE.

2022In Craig, the Supreme Court rejected a defendant’s Sixth Amendment challenge, upholding a Maryland rule that allowed child victims of abuse to testify by one-way closed-circuit television from outside the courtroom. 3 This may have been because the defendant moved out of the videoframe he shared with defense counsel. –8– Id. at 858 .

2022In Craig, the Supreme Court rejected a defendant’s Sixth Amendment challenge, upholding a Maryland rule that allowed child victims of abuse to testify by one-way closed-circuit television from outside the courtroom. 3 This may have been because the defendant moved out of the videoframe he shared with defense counsel. –8– Id. at 858 .

2025But the high court recognized in the very next sentence of the opinion that “such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria . . . .” Id. at 656.

2025But the high court recognized in the very next sentence of the opinion that “such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria . . . .” Id. at 656.

2026The State argued that Appellee did not possess a Sixth Amendment right to counsel when she was questioned in 2018 because that right terminated after her charges were no- billed in 2008 and remained dormant for ten years. 1 In Frye, we observed that the United States Supreme Court has held that when a Sixth Amendment violation has occurred, the trial court must “identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant effective assistance of counsel and a fair trial.” State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim.

2026The State argued that Appellee did not possess a Sixth Amendment right to counsel when she was questioned in 2018 because that right terminated after her charges were no- billed in 2008 and remained dormant for ten years. 1 In Frye, we observed that the United States Supreme Court has held that when a Sixth Amendment violation has occurred, the trial court must “identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant effective assistance of counsel and a fair trial.” State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim.

2002While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, ... it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-56 , 112 S.Ct. 2686 . . 21 S.W.3d at 667 . . 386 U.S. at 221-22 , 87 S.Ct. 988 (footnote omitted). . 407 U.S. at 532 , 92 S.Ct. 2182 . .

2002While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, ... it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-56 , 112 S.Ct. 2686 . . 21 S.W.3d at 667 . . 386 U.S. at 221-22 , 87 S.Ct. 988 (footnote omitted). . 407 U.S. at 532 , 92 S.Ct. 2182 . .

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

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

2022“To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that his counsel’s deficient performance prejudiced him.” Andrus v. Tex., 140 S.Ct. 1875, 1881 (2020) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

2022“To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that his counsel’s deficient performance prejudiced him.” Andrus v. Tex., 140 S.Ct. 1875, 1881 (2020) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

2018Thus, when addressing a potential exception to face-to-face confrontation, we examine “whether the method of electronic testimony used by the State preserves the ‘salutary effects of face-to-face confrontation’ relevant to a Sixth Amendment analysis.” Montague v. State, No. 03-14-00266-CR, 2016 WL 112378 , at *5 (Tex. App.—Austin, Jan. 6, 2016, pet. ref’d) (mem. op., not designated for publication) (quoting Stevens v. State, 234 S.W.3d 748, 782 (Tex. App.—Fort Worth 2007, no pet.)).

2018Thus, when addressing a potential exception to face-to-face confrontation, we examine “whether the method of electronic testimony used by the State preserves the ‘salutary effects of face-to-face confrontation’ relevant to a Sixth Amendment analysis.” Montague v. State, No. 03-14-00266-CR, 2016 WL 112378 , at *5 (Tex. App.—Austin, Jan. 6, 2016, pet. ref’d) (mem. op., not designated for publication) (quoting Stevens v. State, 234 S.W.3d 748, 782 (Tex. App.—Fort Worth 2007, no pet.)).

2018To overcome a Sixth Amendment objection to testimonial hearsay, the State is required to show that the declarant of the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine the declarant. 2 See Crawford v. Washington , 541 U.S. 36 , 51-52, 68-69, 124 S.Ct. 1354 , 1364, 1374, 158 L.Ed.2d 177 (2004) (at a minimum, the term "testimonial" applies to prior testimony at a preliminary hearing, before a grand jury, or at a former trial); Sanchez , 354 S.W.3d at 485 .

2018App. 2011) ; see Crawford , 541 U.S. at 68 , 124 S.Ct. at 1374 (in order to introduce testimonial hearsay over a Sixth Amendment objection, State must show that the declarant who made the out-of-court statement is unavailable, and that defendant had prior opportunity to cross-examine that declarant); Sanchez , 354 S.W.3d at 485 .

2006See Strickland v. Washington, 466 U.S. 668, 687 (1984) (Sixth Amendment standard for effectiveness of counsel); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

2006See Strickland v. Washington , 466 U.S. 668, 687 (1984) (Sixth Amendment standard for effectiveness of counsel); Hernandez v. State , 726 S.W.2d 53, 57 (Tex. Crim.

2009In his brief, Hughen argues that “the Court of Appeals erred in failing to recognize that this case is controlled by the Sixth Amendment.” He argues further, as he did below, that once his Sixth Amendment right to counsel attached and was asserted, as it was three hours before the Bonham police interrogated him, his right to counsel could not be validly waived unless (1) he initiated contact with police, which did not happen here, or (b) his counsel agreed to the waiver, which also did not happen here. 4 In support of his Sixth Amendment claim, Hughen relies primarily on Rothgery v. Gillespie

2009In his brief, Hughen argues that “the Court of Appeals erred in failing to recognize that this case is controlled by the Sixth Amendment.” He argues further, as he did below, that once his Sixth Amendment right to counsel attached and was asserted, as it was three hours before the Bonham police interrogated him, his right to counsel could not be validly waived unless (1) he initiated contact with police, which did not happen here, or (b) his counsel agreed to the waiver, which also did not happen here. 4 In support of his Sixth Amendment claim, Hughen relies primarily on Rothgery v. Gillespie

1999See id. at 256 , 108 S.Ct. 1792 (citing Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)); see also Morrison, 449 U.S. at 367 , 101 S.Ct. 665 (dismissal inappropriate where Sixth Amendment violation has no adverse impact on criminal proceedings).

1999See id. at 256 , 108 S.Ct. 1792 (citing Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)); see also Morrison, 449 U.S. at 367 , 101 S.Ct. 665 (dismissal inappropriate where Sixth Amendment violation has no adverse impact on criminal proceedings).

2023App. 2003) 16 (noting that “the record is silent as to why appellant’s trial counsel took or failed to take the actions,” that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective,” and concluding that appellant failed to establish ineffective assistance); Robinson, 16 S.W.3d at 813 n.7 (“[I]n many cases where an appellant does not litigate the ineffective assistance claim before the trial court, the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant

2023App. 2003) 16 (noting that “the record is silent as to why appellant’s trial counsel took or failed to take the actions,” that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective,” and concluding that appellant failed to establish ineffective assistance); Robinson, 16 S.W.3d at 813 n.7 (“[I]n many cases where an appellant does not litigate the ineffective assistance claim before the trial court, the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant