Case Summary - Gerald Wayne Smith v. State

Gerald Smith plead guilty to sexual assault pursuant to a plea agreement, and the trial court placed him on ten-years deferred adjudication community supervision. Eight years later, the State filed a motion to adjudicate based on four different violations, namely failure to report, failure to participate in sex-offender counseling, commission of deadly conduct, and commission of terroristic threat. Following a hearing on the motion to adjudicate, the trial court found the allegations about the failure to report and the two offenses to be true. The trial court sentenced him to twenty years in prison.

Smith filed a motion for a new trial accompanied by a request for a hearing. Smith claimed that he'd been denied effective assistance of counsel because his attorney failed to inform him of his right to testify at the hearing and failed to introduce his medical records into evidence. Specifically, Smith averred in his affidavit that his attorney told him "to just say not true and not say anything else." Smith claimed that he would have contradicted the testimony of the victim of the two offenses and the deputy sheriff, both of whom testified to establish that Smith had committed the offenses. Smith also claimed that the medical records showed he had a spinal injury and he had been in the hospital and this contradicted the probation officer's testimony that he had not given a reasonable excuse for his failure to report. The trial court denied the motion without a hearing.

The court of appeals reversed in an unpublished opinion. The State argued that the affidavit was to conclusory because it not only failed to establish that Smith had not been advised about his right to testify, but it also failed to explain why the outcome would have been different. The court of appeals rejected this argument because Smith was not required to establish a prima facie case of ineffective assistance in the affidavit. Presiding Justice Gray dissented without an opinion. Click here to jump to the court of appeals case information. [I must say I miss Presiding Justice Gray's opinions. Not the in-fighting parts, but his analysis. He's a smart cookie and a good writer. Come back, Shane.]

The CCA reversed and affirmed the trial court's denial of the motion without the hearing. Judge Price, writing for six-judge majority, explained that a defendant does not have to make a prima facie case in his affidavit, but he does need to allege facts that show reasonable grounds to believe that he could have prevailed under both of Strickland's prongs. The Court specifically did not consider whether the affidavit established the first prong of deficient performance because even assuming it did, the affidavit failed to satisfy the prejudice prong.

On the issue of prejudice, the affidavit merely averred that "the information about which he would have testified may well have resulted in a different outcome." While the Court allows for the possibility that a motion to adjudicate based upon a single ground might render such an assertion sufficient, Smith had to show prejudice on three different violations. Thus, the medical records might have rebutted the failure to report allegation, but his testimony would not have rebutted the evidence to establish the offenses.

Here, Smith admitted to shooting out the tires of the victim, but he claimed that he'd done so after everyone had already gotten out of the car. The fact that they were still, by his own admissions, in the immediate area of the car and that his threats with a gun had interrupted the use of the car established that he'd committed both offenses. Consequently, even if he had testified it would not have contradicted the testimony enough to suggest a different outcome.

More importantly, the Court also held that Smith had failed to show prejudice at punishment. Trial courts have wide discretion to sentence defendants and the sentence was within the permissible punishment range. Only the trial court could have known whether Smith's testimony would've made any difference at punishment, and presumably it wouldn't have because he looked at the affidavit and denied the motion without a hearing. Presiding Judge Keller concurred without an opinion along with Judge Hervey.

The always feisty Judge Meyers dissented to again express his belief that the second prong of Strickland should not apply to ineffective assistance claims at punishment. As long as the sentence is within the normative punishment range, the Court can say there's no harm. He calls out Price for dissenting in the opinion that applied both Strickland prongs to punishment and authority a majority opinion that perpetuates an unworkable standard. Click here for a link to the CCA case information.