Flores v. State

90 S.W.3d 875, 2002 Tex. App. LEXIS 6852, 2002 WL 31113433
Court of Appeals of Texas·Decided September 25, 2002·No. No. 04-01-00819-CR·Published·Cited by 8 cases

Opinion

Opinion by:

CATHERINE STONE, Justice.

In this appeal we are asked to establish a bright line test declaring an actual conflict of interest and presumed harm any time a defendant’s counsel is called as a witness by the State during the defendant’s trial. Although we do not condone the practice of a prosecutor calling defense counsel as a witness during trial, we decline the invitation to fashion a per se rule.

Background

A jury convicted Ramiro Flores, Jr. of aggravated assault and sentenced him to 15 years imprisonment. Flores was accused of stabbing Miguel Montalvo Neri (“the victim”) during an altercation in the bathroom of a nightclub. Flores was indicted for aggravated assault, and the case was tried to a jury. During the course of the trial, the State called defense counsel as a witness, contending defense counsel “left a false impression with the jury” following his cross-examination of the victim. The alleged “false impression” concerned the victim’s ability to identify Flores and the meaning of a Spanish phrase on the victim’s shirt the night of the attack. The trial court allowed the prosecutor to call defense counsel over counsel’s objection. Flores was convicted of the crime and sentenced to fifteen years imprisonment. We affirm the trial court’s judgment.

Discussion

On appeal Flores contends that because the State called defense counsel to the stand as a witness, he was denied a fair trial and denied effective assistance of counsel. In addition, Flores claims the trial court erred by omitting an instruction on the burden of proof for extraneous offense evidence admitted during the punishment phase of the trial.

[878]*878A. Defense Counsel as a Witness

During the cross-examination of the victim, defense counsel asked:

Q: I want to direct your memory, please, back to when you testified before. Do you remember that the [prosecutor] asked you to identify Ramiro Flores?
A: Yes.
Q: And isn’t it true that you asked the interpreter which one is Ramiro?
Prosecutor: Your Honor, may I request that counsel tell me from where he’s reading?
THE COURT: Yes, that will be fine.
Defense: That would not have been in the transcript, your honor. It would have been in Spanish.
THE COURT: All right.
Witness: I don’t remember if that’s what I answered, but maybe, because of the names. I don’t know the names, and I didn’t know who he was, but I could recognize who he was.

During redirect examination, the State attempted to clarify the victim’s earlier testimony by establishing that at the pretrial hearing the victim did identify Flores as the person who stabbed him.

Defense counsel then conducted recross-examination:

Q: As I understand what you have told us a little while ago, Mr. Montalvo Neri, you don’t remember if you had to ask the man who was interpreting which one is Ramiro?
A: Well, yes, I didn’t know them by name. I had seen them, but I didn’t know them by name, but I could recognize his face.
Q: So you are now saying that you did ask the man who was translating which one is Ramiro?
A: No, I never said that I asked him. I say that in case that I had asked, if I had asked, I don’t remember.

The trial court then called a recess, and after the recess, the State sought to call defense counsel to the stand.

Prosecutor: Judge Abies, before we bring the jury in?
THE COURT: Yes.
Prosecutor: I had told [defense counsel] that I intend to call him as a witness to testify that he does not recall the witness, Miguel Montalvo, asking the interpreter which one is Ramiro, and I think he’s left a false impression with the jury and he’s the only one I can call to testify to that effect, because I can’t argue that that’s not, in fact— you know, there’s no evidence that that actually happened.

Defense counsel objected, arguing it was improper to call a defense counsel to testify. Over defense counsel’s objection, the trial court permitted the State to call him to the stand. The following interchange then occurred:

Q: (Prosecutor) Mr. Pickell, you were present at the hearing in front of the Court that took place on November 16th of 2000, is that correct?
A: (Defense Counsel) Yes, I was.
Q: And that was a hearing involving this case; is that right?
A: That’s correct.
Q: Okay, and isn’t it true that you do not recall Miguel Montalvo asking the interpreter ‘Which one is Ramiro?”
A: I cannot say that I remember hearing that being asked.
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Q: And isn’t it true that the confusion over the interpretation was actually over the interpretation of what Miguel Montalvo’s shirt said?
[879]*879A: There was confusion over what the meaning of what was written on Mr. Montalvo’s shirt, yes.
Q: Okay, and you did not necessarily agree with what the interpreter at the hearing — that interpreter’s interpretation; is that right?
A: At the hearing I did not agree with that interpretation.
Q: Okay, and you would agree with me that in different parts of Mexico there are different interpretations for the same words? Would you agree with that?
A: I would agree with that.
Q: Okay, and you have read a copy of the transcript from the November 16th hearing; is that correct?
A: Yes. I have.
Q: And nowhere in that transcript did you see where you objected and brought to the Court’s attention that you were disagreeing with anything the interpreter was saying, that it was being interpreted incorrectly; is that right?
A: I don’t believe so.
Prosecutor: Okay. Nothing further, Your Honor.
THE COURT: Did you want to add anything to your testimony, Mr. Pic-kell?
Defense Counsel: I would. I would have to say that during the prior hearing, I wasn’t concentrating completely on the Spanish statements of Mr. Mon-talvo Neri. I was also concentrating on other matters related to the hearing, and the fact that I don’t recall Mr. Mon-talvo Neri asking the interpreter that question does not mean he didn’t ask it.
Q: (Prosecutor) Okay, but, of course, since you don’t recall does not mean that it did. Would you agree with that.
A: I have to agree with that.

On appeal, Flores argues he was denied a fair trial because the trial court permitted the State to call defense counsel as a witness during the proceeding.

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Flores v. State, 90 S.W.3d 875, 2002 Tex. App. LEXIS 6852, 2002 WL 31113433 (Tex. Ct. App. 2002).

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