He should have made me a silk purse …

Ex parte McAndrew (Unpublished Memo): McAndrew was convicted of assaulting his ex-wife’s new hubby during a visitation exchange (McAndrew and his ex have a daughter).  McAndrew complains of ineffective assistance of counsel on several grounds.  All of which are denied.

This case has a good overview of the caselaw and standards of review for ineffective assistance of counsel in the habeas setting.  In large part, that’s because the Tyler court had seen this case before. Initially, the trial court denied relief without a hearing.  McAndrew successfully appealed the lack of hearing.  But in a case of “watch what you ask for …” he got the hearing.

And after the hearing, the trial court entered detailed findings of fact adverse to McAndrew that were relied on by the Tyler court.

First, McAndrew feels that his attorney should have objected when his ex testified that he was an abusive hothead prone to violence.  But, by the time his wife got to the stand, McAndrew had already shown himself to be a hothead.  In spite of his attorney’s advice about appearance and proper courtroom demeanor, McAndrew showed up for trial with a rumpled shirt and wild hair.  He rolled up his sleeves.  Every time he heard something he didn’t like, he’d get red-faced and lean over the table like he was “ready to pounce.”  His attorney figured it would only hack the jury off to pretend that McAndrew wasn’t a hothead.  The trial court agreed.

Likewise, McAndrew felt that his attorney should have cross-examined his ex on a prior written statement that could be read to contradict her testimony about the assault .  But the trial attorney figured that the statement, while ambiguous on the details of the assault, was very clear on some other, damaging matters.  The statement was better off left alone.  The trial court agreed with that, too.

McAndrews felt that his daughter should have been called to the stand to refute her mother’s testimony.  McAndrew’s trial attorney recalled that, at the time of trial, McAndrews didn’t want his daughter testifying.  But the attorney didn’t recall the exact reasons for that decision.  In any event, under the standard of review, if there’s no evidence of the attorney’s reasons, it’s presumed he had good ones.  The trial court offered a couple.  One: maybe McAndrews at least had the decency not to put his daughter in the middle of this.  Two: this was a “damage control” case.  They jury was going to say he committed the assault, the only question was how mad they were going to get and how long the sentence would be.   Calling a child to the stand tends to get juries mad.

Finally, there’s the jury argument issue.  McAndrews said the assualt was self-defense.  The State said the situation had to be viewed from the standpoint of a reasonable person in McAndrew’s shoes — not the way McAndrews himself subjectively viewed things.  McAndrews thought that was an objectionable misstatement of the law.  It wasn’t..  It’s a correct statement of the law.

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