TANNER, BRADRICK GERLMAINE v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0302-24

BRADRICK GERLMAINE TANNER, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
JACKSON COUNTY

NEWELL, J., filed a dissenting opinion in which RICHARDSON,
WALKER and SLAUGHTER, JJ., joined.

The real question in this case is not whether the court of appeals

got the standard of review wrong. After all, if the trial court had

granted a new trial after Appellant had testified that he never had any

intention of letting the trial court assess punishment, then it would be
Tanner Dissenting— 2

difficult to fault the legal conclusions drawn by the court of appeals. 1

The real question in this case is whether the court of appeals could

rely upon trial counsel’s unsworn and uncontested statements as

evidence when applying the standard of review.

The court of appeals was certainly not in a position to determine

the truth of trial counsel’s unsworn assertion. And the trial court was

not placed in a position to make any factual determination regarding

trial counsel’s statements. Trial counsel did not file a motion for new

trial raising a claim of ineffective assistance. Instead, trial counsel

filed Appellant’s punishment election after voir dire and that was what

the trial court ruled upon. 2 And though the trial court took exception

to trial counsel’s effort to explain his view of the procedural history of

the case (both during and after voir dire), trial counsel’s statement

that “[Appellant] had no intention of having the Court assess

punishment” was uncontested. 3 There is no affirmative evidence in

this case that actually contradicts trial counsel’s assertions regarding

Appellant’s intent. Sure, the trial court pointed out that Appellant had

1
Tanner v. State, No. 13-22-00099-CR, 2024 WL 193722 (Tex. App. – Corpus Christi-
Edinburg Jan. 18, 2024, pet. granted) (mem. op., not designated for publication).

2
Id. at *1.

3
Id. at *2.
Tanner Dissenting— 3

not testified to his intent, but that did not contradict or conflict with

trial counsel’s assertion. At best, it suggested the trial court was

skeptical (perhaps even understandably so) of trial counsel’s factual

assertions. If we were reviewing a motion for new trial, the court of

appeals would have been obligated to defer to the trial court’s implicit

credibility determination regarding trial counsel’s assertions. 4 But

that’s not what the trial court did. The trial court made a legal ruling

that Appellant’s punishment election was untimely which did not

require any factual inquiry into Appellant’s intent. It certainly did not

make any factual determination regarding whether trial counsel

rendered ineffective assistance of counsel.

However, the court of appeals appears to have simply found the

statement to be true without justifying how it could do so.5 This Court

does a little better by way of our explanation as to how the court of

appeals incorrectly viewed the record. But we still never tackle the

root question of whether the court of appeals was authorized to rely

upon trial counsel’s uncontested assertions of fact as evidence when

conducting its analysis. Instead, we assume the court of appeals was

not authorized to do so merely by characterizing the statement as
4
State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014).

5
Tanner, 2024 WL 193722, at *4-5.
Tanner Dissenting— 4

contradicted. 6 This will lead to a broader reliance upon unsworn

statements of counsel as evidence. Instead, I would hold that the

court of appeals could not rely upon trial counsel’s statements because

they were not offered under circumstances in which an attorney’s

unsworn statement of fact can be regarded as evidence.

Though practitioners may have a general notion that merely

asserting a fact to a trial court without an objection from opposing

counsel establishes a fact that a court of appeals can rely upon, that is

not always, or even often, the case. 7 Normally an attorney’s

statements must be under oath to be considered as evidence. 8 In civil

cases, courts have allowed unsworn statements by counsel to be

considered where the attorney is essentially speaking for him or

herself about his or her thought processes. 9 Likewise, we have

recognized (in the criminal context) that an attorney’s statements on

the record “may be considered as evidence only if the attorney ‘is

6
Maj. Op. at 12.

7
Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).

8
Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (noting the oath requirement may be
waived by the failure to object when the opponent of the testimony knows or should know
an objection is necessary).

9
Mathis, 166 S.W.3d at 745 (considering attorney’s statements as evidence in the context
of explaining why the attorney failed to appear); Goode v. Shoukfeh, 943 S.W.2d 441, 451
(Tex. 1997) (explaining why the attorney exercised preemptory strikes).
Tanner Dissenting— 5

speaking from first-hand knowledge.’” 10 To the extent that an

attorney’s unsworn statement of fact on a matter outside of the

attorney’s personal knowledge can be considered by a reviewing court,

that is acceptable when an opposing party fails to object in the trial

court to the lack of an oath before the assertion. 11

Further, the Court seems to base its conclusion on its belief that

the unsworn testimony should not be considered as affirmative

evidence because it is contested or contradicted. The Court does not

provide any legal reasoning or support for why unsworn statements

could be competent evidence so long as the statements are not

contradicted. 12 Sure, unsworn statements by an attorney cannot be

considered generally, but reviewing courts have allowed them to be

considered when opposing counsel fails to object to the lack of an oath

accompanying the attorney’s statement at the trial level. 13 Indeed, in

State v. Guerrero, we held that counsel’s unsworn statements were

10
Gonzales v. State, 435 S.W.3d 801, 811 (Tex. Crim. App. 2014) (citing State v. Guerrero,
400 S.W.3d 576, 585 (Tex. Crim. App. 2013)).

11
Estate of Brown, 697 S.W.3d 647, 654 (Tex. 2024) (quoting Rasco v. Ducars Inv., LLC,
No. 02-21-00375-CV, 2022 WL 4373499, at *8 n.3 (Tex. App.—Fort Worth Sept. 22, 2022,
no pet.) (mem. op.)).

12
Maj. Op. at 12.

13
Guerrero, 400 S.W.3d at 585.
Tanner Dissenting— 6

not competent evidence. 14 But we have never announced a rule that

unsworn statements from an attorney could not be considered if the

statements themselves were contested.

The unsworn statements of counsel in this case were not

competent evidence because they were not sworn, and they do not fit

within the scope of the exception to requiring an attorney’s testimony

be sworn to be considered. Appellant’s trial counsel was not reciting

his own thought process, he was making statements about Appellant’s

thought-process, and therefore was not making a statement based on

his personal knowledge. 15 Further, the statements were not offered

during an evidentiary hearing, they were offered during trial counsel’s

objection to the trial court’s refusal to accept Appellant’s untimely

punishment election. While it might have been better for the State to

object to trial counsel’s factual assertions as unsworn, the trial court

was not conducting an evidentiary hearing so there was no reason to

regard the assertion as a proffer of evidence.

But there is another reason to hold that trial counsel’s unsworn

and uncontested statements should not be considered as evidence;

14
Id.

15
Vaccaro v. Raymond James & Assocs., Inc., 655 S.W.3d 485, 492 (Tex. App.—Fort Worth
2022, no pet.) (noting that an attorney’s unsworn statement was not evidence because it
was not based on personal knowledge and provided no factual basis to support it).
Tanner Dissenting— 7

Appellant never argued trial counsel was ineffective or otherwise

waived his attorney-client privilege. In this context, there was no way

for opposing counsel to contest trial counsel’s factual assertions. We

have held, in the context of a motion for new trial, that a trial court

abuses its discretion by granting a new trial “in the interest of justice”

based upon alleged errors of trial counsel unless there is either a claim

of ineffective assistance or a waiver of the attorney client privilege. 16

Allowing a court of appeals to accept trial counsel’s unsworn and

uncontested statements regarding the desires or objectives of his

client under the circumstances presented in this case would allow

attorneys to make an end run around this holding.

Finally, the Court posits that the court of appeals lowered

Appellant’s burden on prejudice because it noted the record was

consistent Appellant’s desire to have the jury assess punishment. The

court of appeals’ statement that the record is consistent with

Appellant’s intent not to have the trial court assess punishment did not

lower Appellant’s burden. 17 Our language in Thompson that ineffective

assistance claims be “firmly founded” in the record simply emphasized

that there must be evidence in the record affirmatively establishing a

16
Thomas, 428 S.W.3d at 105-07.

17
Tanner, 2024 WL 193722 at *4.
Tanner Dissenting— 8

claim of ineffective assistance. 18 But as we stated in Miller, the legal

burden for prejudice is “whether there is a reasonable likelihood that

the defendant would have opted for the proceeding if his attorney had

performed adequately.” 19 I read the court of appeals’ statement

regarding consistency of the record as simply another way of saying

that Appellant’s claims were “firmly founded” in light of its acceptance

of trial counsel’s assertions as fact. And I worry that by tying this

evidentiary proof requirement to the burden for establishing prejudice

we raise the standard for prejudice beyond the “reasonable likelihood”

standard we announced in Miller. 20 At the very least, I believe this

portion of the opinion could be taken out of context to suggest there is

a higher standard for establishing prejudice in the future.

This is why I would remand the case to the court of appeals to

apply the proper standard for prejudice in light of the record as it

exists without trial counsel’s unsworn statements. If trial counsel’s

statements are not competent evidence and cannot be considered,

there is no reason to even engage in a prejudice analysis based upon

consideration of those statements. And without trial counsel’s

18
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State,
928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

19
Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App. 2018).

20
Id.
Tanner Dissenting— 9

unsworn assertions, the only record the court of appeals could have

relied upon to support Appellant’s ineffective assistance claim was

Appellant’s untimely punishment election. I would remand the case

for the court of appeals to address whether that established a

reasonable likelihood that Appellant would have opted for punishment

from a jury. Because the Court does not, I respectfully dissent.

Filed: November 27, 2024

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