Drunken cowboys and cowgirls on a trail ride is a recipe for trouble—and that is precisely what a jury found happen in December 2012 when a Texas trail ride visited Dayton in Liberty County.


Allegedly, a drunken 54-year-old cowboy named A.W. Prine, Jr. sexually assaulted an unconscious 19-year-old cowgirl passed out in a pickup truck. The assault occurred after an alcohol-fueled celebration following a trail ride. The girl’s boyfriend, who was also a friend of Prine, caught Prine in the act of the assault. Prine made a hasty retreat in his pickup truck with his horse trailer attached. He didn’t get far. The police quickly chased him down.


Cowboy, Criminal Code Violated


Both the Cowboy Code and the Texas Criminal Code had been violated. Prine was indicted for the sexual assault. A jury in March 2015 convicted him of that assault and sentenced him to 20 years in prison and assessed a fine of $8,000. During the punishment phase of the trial, Prine’s defense attorney called three witnesses: Prine’s sister, his aunt, and a probation officer who knew Prine.


In a September 20, 2017 decision, the Texas Court of Criminal Appeals pointed out the downside of the defense decision to call these three witnesses:


“ … The testimony of each witness was a mixed bag for Appellant. The probation officer testified to Appellant’s eligibility for probation and the strict supervision afforded sex offender probations, but he opined on cross-examination that Appellant did not deserve probation. Appellant’s aunt testified that he had been helpful to her and had always worked and supported his family until suffering multiple strokes and heart attack. On cross she testified he had fathered a child some 27 years earlier with his family’s under-aged babysitter. Appellant’s sister testified about his health problems and resulting physical limitations, his abstention from alcohol since his arrest and his life-saving support for her after her own rape and impregnation by their father. On cross she acknowledged Appellant’s sexual relationship with the babysitter.”


Defense Lawyers Face Difficult Dilemma


In an August 2016 decision, the Fourteenth District Court of Appeals said the decision by defense counsel to call these three witnesses constituted ineffective assistance of counsel. The State appealed that the decision.


Defense counsel in this case found himself straggled on the horns of a dilemma. His client apparently wanted three witnesses called at the punishment phase. Both the attorney and Prine knew that each witness would be subject to cross examination, during which negative testimony could be brought out about Prine.


And that’s exactly what happened. While the probation officer testified as to Prine’s probation eligibility, the prosecution elicited the officer’s opinion that Prine did not deserve probation. The prosecution also elicited extraneous offense information from the aunt and sister about sex with the under-age babysitter. Clearly, all three witnesses did more to hurt than help Prine.


Strategic Decisions Difficult to Gauge


Prine argued on appeal that defense counsel should not have called the probation officer, and should have advised the aunt and sister “to stay away from the courthouse.” The court of appeals agreed, finding that the strategic decision on whether to call witnesses rested with defense counsel.


The Court of Criminal Appeals disagreed, pointing out that had defense counsel not called the probation officer to testify about Prine’s probation eligibility, Prine could have argued ineffective assistance on the premise that the failure to establish probation eligibility guaranteed a prison sentence for Prine. The court concluded:


“The defense attorney faced a dilemma in the punishment phase of this case. The facets of that dilemma are not fully revealed by the record before us. Thus it is impossible to say that his decision to call these witnesses and suffer their cross examination was so unreasonable that no other attorney would have made the same decision. Without a more fully developed record, the courts of appeals erred to hold that the trial attorney was ineffective as a matter of law.”


University of Missouri School of Law professor Rodney J. Uphoff has observed: “For the most part … neither the Constitution nor the courts mandate that lawyers follow the strategic commands of their clients or dictate that lawyers disregard these commands. Rather, criminal defense lawyers generally are given broad discretion to determine whether—and to what extent—they will share or cede control over a strategic decision to a defendant.”


Record Unclear to Prove Ineffectiveness


While defense counsel could have refused to call the three witnesses, the record is unclear as to the decision-making process that led to the taking the stand.  The defense attorney apparently believed that the probation officer’s testimony was useful to let the jury know that the defendant was probation eligible and about programs available for sex offenders. As for the aunt and sister, there is no evidence in the record that defense counsel knew these two relatives had information about defendant’s prior criminal behavior. Prine certainly knew about his own past wrongdoing and that his relatives were aware of that wrongdoing. Still, he provided their names to defense counsel as good character witnesses.


Pre-Trial Preparation and Interviews are Vital


The record is also silent as to whether these witnesses had been interviewed by the defense lawyer pre-trial, which would be helpful in judging effectiveness.  If the defense lawyer failed to interview these witnesses before putting them on the stand, then a good argument can be had for ineffective assistance.  If the attorney interviewed these witnesses and they intentionally withheld this damning information, then the harm rest with the witnesses.  What is telling is that after the state rested, the prosecutor notified defense counsel of its intent to prove up the prior criminal sexual conduct.  Defense counsel should have pressed its potential witnesses about knowledge of this allegation and sought testimony from witnesses who had no knowledge of the bad facts.  Again, the record is silent as to whether any such witnesses existed.


The decision to call or not to call a particular witness is a difficult one for a defense attorney to make, especially when called as “character” witnesses.  Nobody knows what cross examination will reveal. The attorney can only hope that their client and the witnesses have been sufficiently honest so they can prepare for the worst.


A bell cannot be un-rung.