Bowen v. Carnes
2011 Tex. Crim. App. LEXIS 827
| Tex. Crim. App. | 2011Background
- Bowens faced capital murder charges and mutually retained attorney Robert Phillips.
- William Ballenger, a jailhouse informant and former Phillips client, gave a statement to police about Kevin Bowen.
- Ballenger was a potential key witness; the State moved to disqualify Phillips due to conflicts of interest in cross-examining Ballenger.
- Both Bowens signed waivers allowing Phillips to represent them despite potential conflicts; Ballenger also waived objections to Phillips's representation.
- The trial court granted the disqualification order based on public-perception concerns about integrity of the process, despite waivers and Phillips's affidavit explaining no actual conflict.
- The Court of Criminal Appeals granted mandamus relief, directing rescission of the disqualification on grounds of no actual or serious potential conflict and protection of counsel-of-choice rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court abuse discretion in disqualifying counsel despite waivers? | Bowen (Bowens) argues no actual/serious conflict; appearance alone cannot override presumption in Wheat. | Carnes argues appearance of impropriety justifies disqualification to protect fairness and public perception. | Yes; abuse of discretion; appearance cannot override right to counsel of choice absent actual/serious conflict. |
| Is mandamus relief appropriate given available appellate remedies? | Relators show no adequate remedy at law; disqualification deprives Sixth Amendment right of counsel of choice. | State argues appellate review could address the decision after trial. | Yes; mandamus relief appropriate because adequate remedy at law is lacking and ministerial duty to rescind order exists. |
| Whether waivers and disciplinary rules permit continued representation despite potential conflicts? | Waivers and Rule 1.06(c) allow representation if no material adverse effect and full disclosure. | State contends rules prohibit representation due to former-client duties and potential conflicts. | Yes; waivers valid and potential conflict not serious; no disclosure of confidential information or substantial relation to prior matter; representation allowed. |
Key Cases Cited
- Wheat v. United States, 481 U.S. 153 (U.S. 1988) (presumption in favor of counsel of choice may be overcome by actual or serious potential conflict; trial court has latitude)
- United States v. Gonzalez-Lopez, 548 U.S. 140 (U.S. 2006) (right to counsel of choice is not absolute; fairness and defendant's defense value matter)
- Gonzalez v. State, 117 S.W.3d 831 (Tex.Crim.App.2003) (courts must exercise caution in disqualifying defense counsel; not all appearances justify disqualification)
- Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Crim.App.1989) (mandamus to rescind arbitrary removal of appointed counsel; ongoing rights protections)
- Buntion v. Harmon, 827 S.W.2d 945 (Tex.Crim.App.1992) (limits on discretionary replacement of counsel when based on personal preferences rather than substantial reasons)
- Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App.1995) (same principle; trial court abuse when using discretion to remove counsel without substantial justification)
- Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App.2003) (concurrent proceedings with mandamus against judge; original jurisdiction context)