*1 granted judge should have trials, right to hold that post- appellants’ on and comment silence have arrest should been excluded.
Accordingly, judgment of the court
appeals and its decision to reverse the
victions of both and to remand causes the trial court is affirmed.
DAVIS, MILLER, CAMPBELL and
WHITE, JJ., concur in the result. JAMES, Appellant, Dion Texas, Appellee.
The STATE of JAMES, Appellant, Texas, Appellee.
The STATE of 964-84,
Nos. 965-84. Texas, Criminal
En Banc. 25, 1989.
Jan. Houston, Ross, for Dion
Philip S. James. Boyd, Court-appointed appeal
Walter Houston, only, James. Holmes, Jr., Atty., Dist. James B. John Hansen, Brough Dist. and R.K. Asst. C. Huttash, Houston, Attys., Robert State’s Austin, Atty., for the State. FOR PETITION OPINION ON STATE’S DISCRETIONARY REVIEW McCORMICK, Presiding Judge. jury Appellants convicted punishment was aggravated robbery and *2 years’ Stanley’s Stephen pointed at ten The and assessed confinement. brother him gun for the First out as the man with the the Judicial District abated robbery. ordered that the trial court an eviden- hold parked A bar customer testified that he hearing tiary appel- to determine whether walking his car the street and was down trial lants’ counsel had them “of warned when he toward the bar observed two men joint representation.” risks inherent in the struggling a vehicle that inside was backed State, See Gonzales v. 605 S.W.2d parked into another car across the street. (Tex.Cr.App.1980). judge The trial filed screaming help. He a He heard woman law, findings of fact and conclusions get own car returned to his a club but determining there conflict of was no actual upon gone the men his return were and the supporting appellants’ interest claim of in- complainant entering pos- was the bar. He effective assistance of in this mat- Stephen itively identified several months appellate The disagreed ter. re- later in early setting the courtroom the ground both convictions versed Stanley’s in and he trial testified that he potential arguments by ap- asserted “[t]he Stanley believed was the other man he saw
pellants’ counsel appeal represent on attacking complainant. the actual conflict of arose in interest which representation of the James brothers appellants presented The mutually exclu- representation and their was ineffective be- sive alibi defenses and did not incriminate cause this conflict.” James v. through one another their own or their (1st) (Tex.App.Houston 1984). S.W.2d testimony. other witnesses’ six alibi Their will We reverse the decision of the mother, college professor, a testified that court below. she had visited at his home in days complainant Philadelphia robbery
The three before the testified she again attacked him August early two men on 4th as she and had not seen until the sat a car in the parking setting Stanley’s lot of the Red trial case. She related Saloon, Dog a bar located a short distance robbery that at the time of the she was campus from the University of the talking Stanley apartment with According complainant, Houston. to the blocks from the scene of the crime. Stan- opened door, man pointed one the driver’s ley just had arrived home from work but her, gun at hit her over the head go left a short time later to to the fast food gun, and bit her arm several times while dinner. restaurant for attempting to subdue her. other The man Stanley’s testified fiancee that she was got passenger into the held her seat and apartment Stanley also at the when arrived During robbery, head down. the car that she after work but left almost immedi- parked rolled backward and hit a car across telephone ately to call in a make booth the street from the bar. The man in the Dog the street located across from the Red passenger got seat out of the and the car call, making Saloon. After she met complainant dropping was able escape, Stanley parking lot of the fast food purse process. her man The second way her apart- restaurant on back to the picked up purse complainant as the ran separated ment. She had be- police inside bar. The called and police fore the arrived and detained him. upon gave complainant arrival the employer, Stanley’s president description them a of the two men. Stan- Vending Company, American ley testified that away James was arrested two blocks parking he saw leave work that afternoon lot of a fast food restaurant brought robbery. around the time to the of the vend- back door bar complainant company located across the street where him as the identified Dog purse. man who took her from the Red Saloon. months Several later, complainant previously employed by also been the com- the courtroom early setting pany moving for an Stanley’s Philadelphia trial. before several Looking recognized about the gallery, months earlier. she he was arrested and Vending told food restaurant where
A
at American
coworker
Dog
and identified
to the Red
driving down the
taken
Saloon
jury
that she was
when,
,.
complainant.
leaving
she had to
street after
work
hitting
apply her brakes to avoid
granted
petition for dis-
the State’s’
We
crossing the
toward the
two men
street
whether the
cretionary review to determine
Dog
Upon reaching
stop
Red
Saloon.
holding
appeals court erred
*3
her and
sign, she heard a crash behind
assistance
lants were denied effective
through her
mirror
rear view
observed
arising
due to a conflict of interest
car
complainant’s vehicle backed into a
representation
appellants.
from the
the bar. Ac-
parked across the street from
criminal
It
is well settled that a
cording
testimony,
the coworker
to her
reasonably effec
defendant
is entitled to
American Vend-
made a U-turn to return to
at
trial. See
tive assistance of counsel
forgot-
pick up
letters she had
some
668,
Washington,
v.
466
Strickland
U.S.
complainant’s
ten. As she drove
2052,
(1984); see
104
worthy Stephen’s than be- criminal record.” identification [em- phasis original opinion] it soon after the crime. cause occurred separate Stanley’s counsel could have The court then that under held argue that he used these same facts and Gonzales v. Parham being explanation an innocent potential repre- supra, the conflicts neighborhood day in question, on the sented conflicts of interest which Stephen’s unexplained presence but right to denied brothers their the James neighborhood day ques- effective assistance counsel. James suspicious. highly tion was State, supra. “Stanley’s given his moth- alibi was problem with the Stephen’s was er and fiancee. alibi analysis potential, specula- precisely potential em- given by neighbor are, hoc, ele- post tive conflicts of interest Philadelphia. ployer who Ste- lived actual, significant position vated could phen’s have used hindsight posi- Judging from conflicts. argue Stanley’s facts to alibi these tion, perhaps it have been better would Stephen’s alibi weaker than if we try separately, the James brothers Stanley’s given by family close mem- willing assume that each would have been bers. other of nefarious conduct. accuse the “Stephen as was identified the attack- stated, however, it As earlier opened complainant’s car er who first through hindsight that will review we door, hit the head who her on conduct, through review of attorney’s *5 arm, her her to gun, and ordered bit actual, interest at significant conflicts of get in over so he could the car. move counsel should have been time trial that the Stanley was identified as other rob- his should have advised aware of and harmed com- spoke ber who never or the particular clients of in the case. passenger plainant, but in the seat of sat State, supra; Perkins, supra; Almanzar v. purse. and her Stan- the car later took State, supra; Calloway Moore v. separate could used ley’s counsel have supra. Stephen’s argue iden- these facts that trustworthy than tification was more strategy trial was The defense Stanley’s, the attacker with the because could have neither defendant show that gun occupied complainant’s attention the men were the crime since both committed Also, robbery. punish- the at the period. during the time elsewhere crucial trial, Stanley’s phase sepa- ment of the notes, dis the both alibis were As State argued counsel could have that rate depend tinctly directly did and not different facts that was these showed any witness. upon same the Stephen, that merely accompanying testified, subject to Both leniently treated more should be cross-examination, and fast to their held Stephen carry he did than because not attempt appellant Neither alibis. complainant. gun injure or any form ed to incriminate other fashion, joint defense. consistent with their record “There is some indication the phase, reit punishment At been convict- previously had that showed both that facts Stanley’s erated the belief an extraneous offense. ed for Moreover, no there is argued men innocent. have be separate counsel could trial or covering the in the record it less evidence previously his clean record made by appeals court hearing at the ordered he in the likely that had been involved will appellant would have been brother, either because, his he robbery unlike incrimi defense or forego his alibi past. nothing done criminal manner, any or that Also, phase nate the other punishment at the strategy if adopt such trial, Stanley’s brother would separate counsel could separate trials granted and retrial argued should be have that he treated were held. leniently more than damaging we do in the to the cause of a co-defendant'
What evidence have comes (citation omitted). speculative argument appel- began form of What as a fore- appeal, adopted by lants’ counsel on later seeable conflict interest became appeals analyzing court issue. actual conflict of interest as far as Again response petition in his to the State’s impelled lant is concerned as he was review, discretionary appellant for under- painted an sit mute while [co-defendant] point appeals opin- scores the that the damaging portrait extremdy of his in- upon ion was based “likelihood that filling in this volvement offense have, the defense could would gaps left the State on the canvas.” ” have should have advanced evidence State, supra, Gonzales v. at 283. arguments advantageous to each de- more recent case of Ex do fendant but did not so because of the McCormick, provides supra, also an exam- multiple representation problem. (Empha- ple “strategy” gone po- sour: where added). appellants' attorney sis Later ad- tential conflict became an actual conflict in us, because the vises court studied attorneys repre- interest. Two trial there thoroughly, the record defi- “whatever sented the same two defendants accused of ciency, any, if particular reasoning strategy murder. Defense was to show of appeals the court should be taken only gave that defendant McCormick seriously.... recognize too It’s difficult to being promised confession after the State interest, obscenity, conflicts of like but ... penalty, would not seek the death then recognize one can it when he sees it.” only show that defendant McMahan analogy may engaging While the be and fessed after McCormick’s statement was perhaps correct, obligation our precisely leverage against used as him. To this end to review the decision of the court below to successfully fought defendant any determine “deficiency” whether such State’s motion severance of trials. Analysis authority exists. cited However, only the State chose to introduce Appeals, along and the Court of Appellant McMahan’s confession. McCor- Court, with other cases from this enforces mick harmed in ways: he effec- our conclusion that the court erred tively right of lost his confrontation after *6 analyzing the conflict issue. defeated, during severance was final Parham,
In parte supra, argument the trial defense counsel from refrained attorney charged for case, two brothers with plausibly arguing the weaker sans murder confession, McCormick, later testified an against that actual con- of fear during flict arose their weakening trial because he co-defendant McMahan’s could have called parte the brother who did the jury. chances with the See Ex shooting exculpate McCormick, to supra; to stand the other see also Ex by proving only Acosta, supra; Alaniz, that one was involved and Ex su- attorney’s pra. murder. We held loyalties” “divided resulted in ineffective In of potential each these cases the for assistance counsel. multiple representation conflict inherent in State, supra, In Gonzales became an actual conflict due to the incul- attorney called one of three defendant’s to patory exculpatory testimony nature attempt the stand in an to rebut the State’s strategy adopted by or the defense counsel “strategy” version of events. The back- particular case. That not is reflected fired, testimony with the inculpating the today. appel- in the before us case Each other two reversing defendants. In supported, lant had a distinct alibi albeit conviction, this Court said: by separate weakly, sometimes witnesses. testified, “We have no perceiving appellant trouble how Each in effect bolster- gain ing ‘couldhave to both alibi defenses. no There is [co-defendant] [stood] significantly’ by taking testimony appel- the stand and flict between the of these advancing ‘plausible lants, arguments testimony bolstering and ad- in effect ducing probative defense, poten- appellant’s evidence that were individual own a appellants’ tial conflict does not rise to the level of an court for consideration of other points of error. interest. Almanzar actual conflict
State, supra. this, In line hold we that the between alibi witnesses J., TEAGUE, in the result. concurs way no conflicted with for CLINTON, concurring. Judge, defense, and an actual conflict of has not interest been shown. We deal here with a claim of ineffective alleged assistance of counsel on account of predicated opinion interests, conflicting implicating a thereby upon presumption the unfounded that ei- representing duty inherent in certain basic appellant ther “could have” or “would client, viz: criminally accused a conducted or a differ- have” countenanced to “Counsel’s function is assist defense from Af- ent undertaken. defendant, and owes the hence counsel record, careful examination of the we ter duty duty loyalty, a client a avoid agree are unable to with this conclusion. conflicts of interests.” may “Potential” conflicts indeed become Washington, Strickland “actual” conflicts of interest 2052, 2065, 104 S.Ct. proceeding, of a criminal course (1984). upon firmly transformation must be based changes particular without re- case For Unit- years the hindsight analysis gard speculative, ed States has insisted that inherent “the ‘Assistance of defense’ attorney’s strategy. While Counsel guaranteed the Sixth Amendment” to argument may in his two be correct criminally right is “his to ‘conflict- accused single jury, to “sell” alibis are hard we States, counsel.” Glasser United free’ defendants, say as- cannot 60, 70, L.Ed. innocence, serting total make no effort who Furthermore, (1942). suggested it has other, may not to incriminate the be tried “suspect” situations de- some conducive together. Under the circumstances of this right, viz: nying that case, potential of interest never conflicts conflicting “... representation of Joint “actual, significant” conflicts of a became it suspect of what interests type denying appellants right to effec- prevent do- tends v. Sulli- tive assistance counsel. ing. example, may For preclude ex- [it van, supra. bargain agreement]. ploring plea Gen- Moreover, though even we find that no may speaking, pre- also erally a conflict actual, conflicts of interest challenging attorney from vent and joint representation arose *7 prejudicial to one admission of evidence lants, of entire record reflects review the another, perhaps to client but favorable of placed on notice sentencing arguing at hear- or from potential conflicts of interest as between culpabil- ing the relative involvement them, family after but decided discussions ity minimize the of his clients order to proceed joint to in a trial. counsel with by emphasizing of that of culpability so, accept Although to do we not bound Examples readily mul- can be another. findings conclusions of the trial tiplied. presence of physical The mere Reed, 610 S.W.2d parte Ex in this matter. Sixth an does fulfill Ramirez, parte (Tex.Cr.App.1981); see Ex 495 guarantee advo- Amendment when the 7 (Tex.Cr.App.1979); 261 S.W.2d 57 conflicting obligations effec- cate’s have Williams, (Tex.Cr. 1 Ex 561 S.W.2d lips tively sealed his on crucial matters." App.1978). Arkansas, 475, at Holloway v. 435 U.S. 489-490, 1173, 1181, L.Ed.2d Appeals of of 98 S.Ct. at 55 The decision the Court 426, (1978).1 438 to that at and the cause remanded reversed emphasis throughout opinion otherwise noted. is mine unless 1. All
783 S.Ct., Holloway Arkansas, supra, U.S., 348-349, v. In at 100 at 1718- Su- 446 1719. preme divergent Court declined to resolve approaches by to taken lower courts Sullivan, Cuyler v. Three su- times challenges commonly issues raised to pra, Supreme Court stated in similar
joint representation,
first, how
towit:
cer-
nonobjecting
terms
a
accused must
strong
demonstrate that “an actual conflict
tain and
a
conflict must be to consti-
adversely
performance
affected
deprivation
interest”
tute
assistance
effective
id.,
348,
350,
attorney:
of his
at
349 and
counsel; second,
scope
and nature of
1719;
S.Ct.,
100
at 1718 and
accord:
duty
judge
affirmative
Washington, supra,
Strickland
466
Id,.,
deprivation.
assure there
nois
such
at
U.S.,
692,
S.Ct.,
Contrary
104
at
at
2067.
483-484,
S.Ct.,
98
1178. Our
at
immediate
majority opinion
to what the
indicates at
concern here with the first issue.
Cuyler
782,
page
Court never men-
’
“
standpoint
From a constitutional
the Su-
2
‘actual, significant
tioned
conflicts.”
preme Court now differentiates two situa- Clearly
requires
proper legal
test
find-
one,
(or
objecting
tions:
where an
accused
ing no more than an
conflict of inter-
actual
counsel)
“potential
demonstrates that
est.3
multiple representation
“imper-
flicts”
discussed ante the Su-
opinions
In the
missibly
right
trial,”
imperil his
ato
fair
preme
provides examples aplenty
creating
presumption
thus
that “the
interests,
conflicts of
there is a
dearth
possibility of
has
conflict
resulted
inef-
of instances found to
constitute
“actual
counsel;”
other,
fective assistance of
regard
conflict.”4 Some decisions
Glasser
nonobjecting
where
accused demon- v. United States as a reliable benchmark.
strates that “an
conflict
of interest
Sullivan,
Cuyler
See, e.g.,
viz:
supra,
adversely affected his lawyer’s perform-
“... The record showed that defense
ance.” Cuyler
Sullivan,
335,
prose-
counsel
failed
cross-examine a
348,
1708, 1718,
100 S.Ct.
counsel’s desire guilt.” perception a codefendant’s alleged us which would indicate that Id., 348-349, S.Ct., in U.S., conflict resulted ineffective assistance at 100 at 446 plea 1718.5 in of counsel and did fact render Warden, involuntary question and unintelli- Dukes In contrast is 1551, (1972), 250, 92 gent.” S.Ct. Cuyler briefly
facts of which the Court Therefore, an actu identify “Dukes did not summarized, viz: Id., 349, 100 al lapse representation.” at "... Dukes pleaded guilty advice S.Ct., 1719.6 at [separately lawyers but from the recurring throughout theme Thus firm], represent- same one of whom also germane Supreme decisions is that a Court codefendants on an unrelated ed Dukes’ possible conflict of interest becomes an charge. Dukes later learned that leniency lawyer sought for the code- representa- “actual conflict of interest” arguing coopera- by fendants by tion when manifested identifiable active police induced Dukes to tion with the passive part behavior on the of counsel or they “came pled guilty also that [and of his is to interests unfavorable got under the influence of Dukes and client. We should so hold. involved”].” understood, agree As I the Houston thus Id., 349, S.Ct., U.S., at 100 at 1718- 446 (1st) Appeals did not find an “ac- Court of Rejecting a that “his law- 1719. contention interest,” resolving tual conflict plea,” yer’s of interest infected his conflict majority opinion of this Court the issue agreed Supreme Court essen- presumptuous gratuitously often and ter- is Supreme finding by the Connecticut tial ambiguous.7 Court, ribly viz: 5. 6. In the first pointed More fendant Kretske in ter. Stewart know Kretske] this decision was influenced protect half of one from the ined Stewart time Stewart told ure to "... tion from the court induced linked Kretske, that he feared that Brantman examination was indicated est lies. timony money ence failure to undertake luminates the “Brantman U.S., explication plan laboring.” [It to, specifically, But, out, fully develop Glasser, failing as together of Abosketes because Glasser before sentence was Kretske can be does at cross-examine counsel] [Dukes] or the reason for his forbearance to obtain more declined cross-examination. especially colloquy between the court and inter alia: Abosketes, knowledge [witness [counsel cross-purposes but was not then crossexam- follows: appear that was re-called Connecticut S.Ct., the Glasser Court the court plead Brantman’s accepting a bribe on be- such a cross-examination [to *9 for other clients.” after deal], and testified who of, for both Glasser and Brantman reflect at 466. and Brantman were guilty reasonably favorable considera- Glasser. effect that he in Glasser’s inter- imposed. At that that, implicated would tell worse under thorough intervening by a desire to Supreme Court in furtherance three lack of refer- lest he did not which he attorney] Stewart’s analyzed inferred days his cross- code- That paid fail- tes- la- 7.Apart justify flicts his defense or each Dukes v. other of nefarious conduct” S.Ct., cused impair Sullivan, attention indicates preexisting sel existence of “Since affect[ing] may unduly at ery 1718. Wainwright, supra, ‘actual’ conflicts particular tion must be hindsight analysis of an "... No Sullivan, supra 1718,” is an majority view at instance of a criminal defenses, may at 1554. acquiesced ‘Potential’ “an from curious notions that executing irrelevant consideration possible supra Warden, be avoided condition case without its influence lawyer’s and the risk proceeding, firmly very multiple conflicts conflict inheres conflict of interest the latter. See Foxworth [446 actual conflict of interest that "trial supra, 406 joint representation being at 1079-1080. That an nature U.S., by to selection based on performance." Cuyler decision U.S.] choosing page representation," one accused regard "willing may attorney’s strategy.” (At 780), but the transforma- potential at strategy” of U.S., that the indeed coming my changes potential in almost ev- to accuse the viz: determining of interest. speculative, [100] the core of at manifestly conflict is foregoing strategies adversely S.Ct., become will not 257, former course coun- S.Ct., ac- at Accordingly, join opin- I while do not Court, judgment.
ion I concur in its LANE,
Ray Eugene Appellant, v. Texas, Appellee.
The STATE of No. 1025-86. Ware, Worth, Logan Michael Fort Texas, Court of Criminal appellant. En Banc. Curry, Tim Atty., Dist. and C. Mar- Chris shall, Watson, George Gallagher Delonia A.
Jan. 1989. Wisch, Dist. Attys., Scott Asst. Fort Worth, Huttash, Atty., Robert State’s Aus- tin, for the State.
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW CLINTON, Judge.
Appellant robbery pur was convicted V.T.C.A., 29.02(a)(1), suant to Penal Code § convictions, prior enhanced and was thirty years sentenced confinement Department the Texas of Corrections. On appeal, his conviction was reversed published opinion. court of Lane (Tex.App.—713 S.W.2d 223 1986). Fort Worth The court of support found the evidence insufficient to State verdict because the failed to prove appellant intentionally knowing ly bodily injury complainant. to the caused granted We the State’s Petition for Discre tionary ap because the court of Review peals’ opinion appears to conflict with be previous decisions this Court. Tex.R. 200(c)(3). App.Pro., R.
I. 6, 1985, April record reflects that p.m., 10:30 Man- Kathryn about Officer ning police Department Worth of the Fort working police decoy undercover as