Cantu v. State

897 S.W.2d 389, 1994 WL 715781

Opinions

OPINION

YÁÑEZ, Justice.

Appellant, Oscar Cantu, appeals from convictions for murder and two counts of aggravated assault on a peace officer. After finding the appellant guilty on all charges, the jury assessed punishment at 75 years for murder and 25 years for each count of aggravated assault. Appellant argues on appeal that the trial court erred in not granting his motion for new trial because he was denied assistance of counsel as guaranteed by the Sixth Amendment. We agree.

Appellant’s trial took place from June 7, 1993, to June 11, 1993, in Hidalgo County. Unknown to appellant and the trial court, defense counsel had been suspended from the practice of law. On May 27, 1993, the District 12B State Bar Grievance Committee entered a judgment suspending appellant’s trial counsel, Dan Longoria, from the practice of law for three years. The first year was to be served on active suspension and the last two probated. The Grievance Committee entered the judgment only after a hearing; a hearing in which Longoria had notice, but failed to appear.

On May 28,1993, notice of suspension was sent to Longoria by certified mail at his home which was his last known address. Longoria’s wife signed for receipt of the letter on June 3,1993. Longoria claims that he did not open his mail because he was preparing for trial, and thus, did not receive actual notice of the suspension until June 15, 1993, when he was personally served. Likewise, the trial court did not receive notice until June 15, 1993. The Grievance Committee judgment, nonetheless, provided an effective date of June 1, 1993, six days before appellant’s trial. The Rules of Disciplinary Procedure require the Grievance Committee to mail its decisions by U.S. certified mail, return receipt requested. Tex.R.Disc.P. 2.19. Longoria was notified as required by the rules. Furthermore, the Disciplinary Rules provide a stay of the suspension while on appeal only if the District Committee finds that the respondent lawyer “does not pose a continuing threat to the welfare of Respondent’s clients or to the public.” Tex. R.Disc.P. 2.21. The District Committee made no such finding. Longoria’s suspension from the practice of law, therefore, began on June 1, 1993.²

The Sixth Amendment right to counsel applies to all state felony prosecutions. Narvaiz v. State, 840 S.W.2d 415, 433 (Tex.Crim.App.1992) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), cert. denied, — U.S.—, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The right to counsel automatically becomes effective at the inception of adversary judicial criminal proceedings and must be implemented by the State at every critical stage of those proceedings, even absent a specific request, unless the accused intelligently and voluntarily yields his prerogative to the assistance of an attorney. Fuller v. State, 829 S.W.2d 191, 205 (Tex.Crim.App.1992), cert. denied, — U.S. —, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993). The constitutional guarantee to assistance of counsel requires that an accused have both counsel and reasonably effective assistance of counsel. U.S. CONST. AMEND. VI; Strickland v. Washington, 466 U.S. 668, 686-692,104 S.Ct. 2052, 2063-67, 80 L.Ed.2d 674 (1984); Narvaiz, 840 S.W.2d at 433; Ex Parte Williams, 870 S.W.2d 343, 348 (Tex.App. — Fort Worth 1994, pet. ref d), but see Parrish v. State, 840 S.W.2d 63, 66 (Tex. App. — Amarillo 1992, no pet.) (Sixth Amendment requires reversal only if trial counsel committed actual errors or omissions that prejudiced defense). Representation of counsel under the Sixth Amendment means at the very least, “representation by a licensed practitioner.” U.S. v. Novack, 903 F.2d 883, 887 (2nd Cir.1990) (citing Solina v. United States, 709 F.2d 160, 167 (2nd Cir. 1983)). When defense counsel is “not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character,” the Sixth Amendment right to counsel will not be met. Id. at 887. Moreover, when there is an actual or per se denial of representation of counsel, a defendant “is entitled to relief without proving that he was prejudiced by the deprivation.” Strickland, 466 U.S. at 669, 104 S.Ct. at 2055-56; United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991) cert. denied, 502 U.S. 883, 112 S.Ct. 235, 116 L.Ed.2d 191 (1991); Novack, 903 F.2d at 886 (citing Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978)).

In this case, we must determine whether a trial counsel who has been suspended from the practice of law is indeed “counsel” as required by the Sixth Amendment. When dealing with the effect of disbarment or suspension of defense counsel, a substantive-technical dichotomy has been established. Cf. Novack, 903 F.2d at 888; Ex Parte Williams, 870 S.W.2d at 348. That is, where a defendant’s attorney has been suspended for mere technical violations such as nonpayment of bar dues, these grounds are insufficient to find a per se violation of the right to counsel. E.g., Beto v. Barfeild, 391 F.2d 275 (5th Cir.1968) (failure to pay bar dues); Hill v. State, 393 S.W.2d 901, 904 (Tex.Crim.App.1965) (failure to pay bar dues); Parrish, 840 S.W.2d at 66 (failure to pay bar dues); Wilson v. People, 652 P.2d 595 (Colo.1982) (failure to take oath), cert. denied, 459 U.S. 1218, 103 S.Ct. 1221, 75 L.Ed.2d 457 (1983). Yet, where an attorney is forbidden to practice law because of a serious and substantive ethical violation, the Sixth Amendment is per se violated and the conviction must be vacated. See Novack, 903 F.2d at 889-890 (counsel deceived bar and never took bar exam) (citing Huckelbury v. State, 337 So.2d 400, 403 (Fla.Dist.Ct.App. 1976) (counsel did not meet moral standards of bar); People v. Felder, 47 N.Y.2d 287, 293, 418 N.Y.S.2d 295, 297-98, 391 N.E.2d 1274, 1276 (1979) (counsel never passed bar exam)); Ex Parte Williams, 870 S.W.2d at 348 (counsel disbarred for unauthorized claim settlement and withholding proceeds); People v. Hinkley, 193 Cal.App.3d 383, 238, 238 Cal.Rptr. 272 (1987) (counsel placed on inactive list because “incompetent to represent clients”). We agree with the substantive-technical distinction. Like the dissent, we too believe that our inquiry should surround an attorney’s competency to represent a criminal defendant. While a license to practice law creates a presumption of competency, that presumption may be overcome. Just as a disbarred lawyer is deemed incompetent as a matter of law to represent a criminal defendant so must an attorney who has been suspended due to substantive violations. See Curry v. Estelle, 412 F.Supp. 198, 200 (S.D.Tex.1975), affd, 531 F.2d 1260 (1976). The dangers in such a case are grave. The Rules of Professional Conduct are intended to protect clients. When the State Bar finds that a lawyer has violated a substantive rule, refuses to find the lawyer does not pose a danger to his clients, and suspends the lawyer, that lawyer is no longer competent to represent clients. The Constitutional right to counsel requires not only that counsel be effective, but also legitimate and competent.

The Chair of the District Grievance Committee, Susan Williams, testified at the new trial hearing that Longoria was suspended for “professional misconduct.” She explained that the suspension was not based upon a technical violation of the Disciplinary Rules. Longoria was suspended neither for nonpayment of dues nor failure to complete MOLE hours. Rather, he was suspended for a knowing failure to respond to a demand for information from the State Bar Grievance Committee. Williams also testified that the Committee found that Longoria “had followed a pattern of failure to respond or react.”³ Furthermore, the committee chose not to find that Longoria did “not pose a continuing threat to the welfare of Respondent’s clients or to the public.” These facts convince us that Longoria was suspended for a serious and substantive violation of the Rules of Professional Conduct. Any presumption Longoria enjoyed for Sixth Amendment purposes has been replaced with overriding evidence of his inability to function as a competent lawyer for a criminal defendant.

The State urges that because no one at the trial knew of the suspension, “it defies logic to take the position that Mr. Longoria did anything less for appellant than he did for any other client.” That is exactly the point. The Grievance Committee found a pattern of failure to respond or react in Longoria; his violation was serious and substantive. These characteristics go directly to Longoria’s skill and ability as counsel. If the State Bar determined he should not continue to represent clients, he should not. Furthermore, if Longoria had known he was suspended before or during the trial, but chose not to inform his client or the court, there would be a serious conflict of interest. In this case, all we are presented with is trial counsel’s testimony that he did not open his mail, and therefore, could not have known of his suspension. The court reasoned in Solina that an illegally licensed attorney,

cannot be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his background and discover his lack of credentials. Yet a criminal defendant is entitled to be represented by someone free from such constraints.

Solina, 709 F.2d at 164.

Accordingly, appellant’s point of error is sustained. The judgments of the trial court are REVERSED, and we REMAND these cases for a new trial.

DORSEY, J., dissents.

Footnotes

2

. The state argues that there is a serious due process question as to whether Longoria was suspended as of June 1, 1993, because he did not actually know of his suspension until June 15, 1993. The State cites no authority for this proposition nor does it explain its relevance.

In this case we are concerned with appellant's constitutional guarantees. It is manifestly unjust to find that Longoria was not suspended until he received personal service. It is undisputed that Longoria received notice of, but failed to appear at the Grievance Committee hearing. It is also undisputed that Longoria received notice of his suspension at his home on June 3, 1993, but failed to open or read it. Appellant should not now suffer because of Longoria’s inattention. In fact, this pattern of failure to respond or react is the very reason Longoria was suspended. These circumstances demonstrate why suspended lawyers should not represent criminal defendants.

3

. It is impermissible to determine the specific nature of Longoria’s violation. The Disciplinary Rules require strict confidentiality in the proceedings before the District Grievance Committee. Tex.R.Disc.P. 2.15. This provision presumably protects the respondent attorney; however, it is sufficient in this case that Williams testified that the violation was not technical, but concerned substantive conduct by Longoria.

It seems that the dissent would find defendants in these cases unharmed if their trial counsel could successfully keep their violation confidential. The Sixth Amendment demands deeper inquiry. The Grievance Committee specifically failed to find that Longoria did not pose a continuing threat to the welfare of his clients. This fact alone informs the court that Longoria's knowledge, training or skills were inadequate.