Court of Appeals of Texas Distinguishes Between Failure to Call & Failure to Contact Alibi Witnesses

In its recent opinion in Russi v. State, 2016 WL 1444040 (Tex.App. 2016), the Court of Appeals of Texas, Houston did a nice job of distinguishing between when behavior connected with a potential alibi witnesses is and is not unreasonable for purposes of establishing a claim of ineffective assistance of counsel.

In Russi, Ceasar Lakendrick Russi was convicted of aggravated robbery and aggravated assault. After he was convicted, Russi appealed, claiming that he received the ineffective assistance of counsel because his trial attorney did not call his girlfriend, LeSadia Harden, as an alibi witness. The trial court denied this claim, and the Court of Appeals agreed, concluding that

The affidavits submitted by appellant reflect that Harden was a potential alibi witness and would have testified that appellant was at his sister’s apartment at the time of the charged offenses. However, we defer to the trial court’s decision to believe that trial counsel made a strategic determination that Harden’s testimony would not benefit appellant. Further, trial counsel’s failure to call Harden as a witness did not preclude appellant from advancing a viable defense; trial counsel was still able to advance appellant’s defense that he did not commit the offense and was elsewhere at the time through Rossi’s testimony.…We conclude the trial court did not abuse its discretion in finding that trial counsel was not ineffective and denying appellant’s motion for new trial. 

The court was able to reach this conclusion because defense counsel contacted Harden but ultimately decided not to call her as an alibi witness because he found her to be inconsistent. According to the court, this made the present case different from its prior opinion in State v. Thomas, 768 S.W.2d 335 (Tex.App. 1989), which it cited for the proposition that “an attorney is ineffective if the failure to seek out and interview potential witnesses precludes the accused from advancing a viable defense.”

Specifically, the court in Thomas held that “[t]he decision to call a witness is generally a matter of trial strategy, but the failure to interview a witness will be considered ineffective assistance of counsel when inaction precludes the accused from advancing a viable defense.”

-CM