Gaston v. State

136 S.W.3d 315, 2004 Tex. App. LEXIS 3985, 2004 WL 909176

• Court: Court of Appeals of Texas
• Decided: April 29, 2004
• Docket: 01-01-01168-CR
• Status: Published

Opinions

OPINION ON EN BANC CONSIDERATION

TIM TAFT, Justice.

A jury found appellant, Lorie Brooks Gaston, guilty of possession of cocaine weighing more than one gram and less than four grams.¹ The jury found true the enhancement paragraph alleging a prior conviction for possession of cocaine and assessed appellant’s punishment at 15 years in prison. We address whether appellant’s trial counsel was ineffective because there was an actual conflict of interest stemming from his dual representation of appellant and her co-defendant and whether trial counsel rendered ineffective assistance of counsel by failing to sufficiently investigate in preparation for, and by offering no mitigating evidence during, the punishment phase. We affirm.

Facts

In April 2001, three Pasadena Police Officers, including Christopher S. Sadler and Stephen S. Skripka, responded to a “loud noise” complaint at an apartment complex in a high-crime area. The officers found marijuana on a suspicious person in the parking lot and learned from a woman with the suspicious person that the marijuana might have been obtained from one of the apartments in the complex. The woman pointed in the general direction of apartments 113 and 115. Officer Sadler had approached apartment 115 and was knocking on the door when appellant’s son opened the door to appellant’s apartment, number 113. Officer Sadler turned around and saw appellant sitting in an easy chair. The officer said, “Hello, Lorie,” and appellant stood up. Appellant’s co-defendant, Adrian Ashley Wheatfall, lunged for a black plate that appeared to Officer Sadler to have crack cocaine on it. Officer Sadler entered the apartment and told both of the occupants to sit down. Officer Sadler secured the plate of cocaine and then obtained consent from appellant to search her apartment. During that search, he found numerous pills in appellant’s bedroom and purse; none was in a proper prescription container, although a variety of pills in her purse were in a prescription container whose label had been scratched off. Appellant was indicted for the felony offense of possession of one to four grams of cocaine with the intent to deliver, and Wheatfall was indicted for possession of the same cocaine. Appellant was also charged with the misdemeanor offense of possession of some of the pills. Some of the pills were over-the-counter drugs, but others required prescriptions. Although appellant had a prescription for some hy-drocodone pills, she had different types of hydrocodone pills than those for which she had prescriptions.

Ineffective Assistance Based on an Actual Conflict of Interest

In her first point of error, appellant contends that her trial counsel rendered ineffective assistance of counsel because of an actual conflict of interest stemming from his dual representation of Wheatfall and appellant, which representation adversely affected trial counsel’s performance. Relying on testimony presented at her motion-for-new-trial hearing, appellant argues that trial counsel presented a joint defense despite appellant’s having told trial counsel that the cocaine belonged only to Wheatfall and that appellant was trying to remove herself and her children from an environment in which Wheatfall was selling narcotics out of the apartment. Appellant also argues that trial counsel at punishment asked for the same sentence for both co-defendants, despite the availability of witnesses who would have testified that appellant’s role was minor compared to that of Wheatfall.

A criminal defendant has a constitutional right to effective assistance of counsel. Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997). Ineffective assistance of counsel may result when an attorney labors under a conflict of interest. Id. A defendant can demonstrate a violation of his right to reasonably effective assistance of counsel if he can show (1) that his counsel was burdened by an actual conflict of interest and (2) that the conflict had an adverse effect on specific instances of counsel’s performance. Id.

An actual conflict exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests to the detriment of his client’s interest. Id.; James v. State, 763 S.W.2d 776, 778-79 (Tex.Crim.App.1989). An appellant must identify specific instances in the record that reflect a choice that counsel made between possible alternative courses of action, such as “eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.” Ramirez v. State, 13 S.W.3d 482, 488 (Tex.App.-Corpus Christi 2000, pet. dism’d). To prove adverse effect, a defendant does not have to show that the conflict of interest changed the outcome of the trial. Id. at 487. He need demonstrate only that some plausible defense strategy or tactic might have been pursued, but was not, because of the conflict of interest. Id. Once the existence of an actual conflict has been established, prejudice to the appellant must be presumed. Id.

A. Facts Regarding Actual Conflict of Interest

Prior to trial, trial counsel had approached the trial court regarding the issue of potential conflict of interest between appellant and co-defendant Wheatfall. Thereafter, the trial court briefly broached the subject to confirm the impression that there was no conflict created as a result of the prior conference with trial counsel. The trial court inquired of both appellant and Wheatfall whether there was a conflict and whether they were comfortable with proceeding with one attorney representing them both. Both stated that they were comfortable. The trial court specifically asked if trial counsel was going to have to sacrifice the defense of one in order to defend the other, and both defendants answered, “No, ma’am.”

Trial counsel proceeded to present a joint defense, primarily attacking the recovery of the cocaine evidence crucial to the prosecution of both defendants by moving to suppress the evidence based on an unlawful seizure. Trial counsel moved immediately after the State had called its first witness to hold a hearing on appellant’s motion to suppress evidence. After the hearing, the trial court denied the motion. After the State had rested its case, trial counsel recalled one of the State’s witnesses and presented appellant’s son as a witness, in order to seize on some inconsistencies in the officers’ testimony. Trial counsel then reasserted appellant’s motion to suppress based on the further evidence developed, and the trial court again denied the motion to suppress.

Trial counsel’s actions throughout trial were consistent with reliance upon this joint theory of defense. For example, dim-ing voir dire, trial counsel questioned the venire panel concerning not giving police officers more credibility simply because they are police officers and explained that police officers can make mistakes that cause defendants to be let out of prison. Trial counsel’s argument emphasized all of the inconsistencies of the police testimony and inadequacies of the police investigation in arguing that the jury should find the seizure unlawful and not consider the evidence of cocaine in this case. At the end of the guilt/innocence phase, trial counsel moved for an instructed verdict as to appellant’s alleged offense of possession with intent to deliver the cocaine. The trial court granted the motion, so that appellant was subject to conviction only for the lesser offense of possession of cocaine, the same offense with which Wheatfall was charged.

At the punishment phase, trial counsel entered pleas of not true to the enhancement allegations on behalf of both defendants. The State had alleged that appellant had one prior conviction and that Wheatfall had two prior convictions. Thus, a finding of true would enhance appellant’s punishment range from two to 10 years up to two to 20 years; findings of true on both enhancement paragraphs would enhance Wheatfall’s punishment range from two to 10 years up to 25 years to 99 years or life, while a finding of true on only one of Wheatfall’s enhancement paragraphs would raise his range of punishment to two to 20 years.

The State introduced a fingerprint examiner to prove that the pen packets were those of appellant and Wheatfall. The State then introduced the pen packets, which showed (1) appellant’s initial deferred adjudication for possession of a controlled substance, which was adjudicated on the basis of a second offense of possession of controlled substance, resulting in concurrent sentences of three years in prison and (2) Wheatfall’s three prior felony convictions for possession of a controlled substance, for which he was sentenced to two years in prison, delivery of a simulated controlled sentence, for which he was sentenced to five years in prison, and delivery of a controlled substance, for which he was sentenced to 25 years in prison, as well as a prior misdemeanor conviction for failure to identify himself to a peace officer.

During punishment arguments, trial counsel argued for the jury not to give a large sentence to either defendant based on the small amount of cocaine and the absence of aggravating circumstances, such as violence, guns, cooking pots, or evidence that drugs were being sold, like the presence of scales. Trial counsel urged the jury to assess both defendants the same minimal sentence of two to five years in prison by placing their verdicts in a particular location on the two verdict forms. For appellant, trial counsel pointed the jury to the first page of the verdict form, which indicated that the jury found the enhancement paragraph true, but still allowed the jury to assess from two to five years. For Wheatfall, trial counsel pointed to the last page of the verdict form, where the jury could find at least one enhancement paragraph not true, which was necessary in order for the jury to assess from two to five years. If the jury had followed trial counsel’s suggestion, both defendants could have been sentenced as second offenders within the same penalty range of two to 20 years in prison.

Therefore, even at the punishment stage, trial counsel presented a joint defense. However, the State argued that the prior convictions had been proved without contradiction, and the jury found the enhancement paragraphs true for both defendants and assessed punishments of 15 years for appellant and 40 years for Wheatfall.

B. Whether an Actual Conflict Existed

An actual conflict of interest exists when one defendant stands to gain significantly by counsel’s adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing. See Routier v. State, 112 S.W.3d 554, 584 (Tex.Crim.App.2003). Appellant’s sole argument is that trial counsel was hamstrung by his joint representation of appellant and Wheatfall, thereby precluding trial counsel from demonstrating appellant’s lesser role or even mere presence. Appellant’s argument is based solely on evidence presented at her motion-for-new-trial hearing, which, as the State points out, the trial court was not obliged to believe, even though the evidence was uncontroverted. See Messer v. State, 757 S.W.2d 820, 828 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).

The evidence introduced at trial equally supported the guilt of both defendants. Wheatfall lunged for the cocaine, but it was in plain view in the apartment of appellant, who was also located close to the cocaine and who was charged with a separate misdemeanor offense for possessing pills. The record demonstrates trial counsel’s provision of a joint defense to both appellant and co-defendant Wheatfall. Trial counsel rested his strategy on attempting to suppress the evidence of the crack cocaine found in appellant’s apartment. This constituted a joint defense, which, if successful, would have resulted in the acquittal of both co-defendants. We do not know the extent to which this defense might ultimately have succeeded because appellate counsel has abandoned it on appeal, in favor of attacking trial counsel’s effectiveness. Nevertheless, trial counsel was consistent throughout the trial, from jury selection through the punishment stage, in pressing a joint defense and then seeking the samé, minimal punishment for both co-defendants.

Like appellant’s arguments, the dissenting opinion’s arguments are based on the truth of appellant’s testimony, at the motion-for-new-trial hearing, that it was Wheatfall’s cocaine and that appellant was merely present. The State accurately notes that appellant did not present trial counsel at her motion-for-new-trial hearing to afford him the opportunity to defend against allegations of ineffectiveness or actual conflict. Cf. Pina v. State, 127 S.W.3d 68, 73 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (showing that, in a case involving dual representation, Pina’s trial counsel testified at motion-for-new-trial hearing that the decision questioned by counsel on appeal was made for purely tactical reasons and pursuant to the co-defendants’ understanding and agreement). As the State opines, trial counsel may have ád-vised appellant and Wheatfall about the potential conflict of interest and they may have waived it, choosing instead to present a joint defense. Or, as the State avers, it is possible that appellant told trial counsel that the cocaine either belonged to her alone or to both her and Wheatfall.

Based on the record at trial, the strongest argument supporting the existence of an actual conflict was trial counsel’s request that the jury give equal sentences to appellant and Wheatfall, when Wheat-fall faced a far greater range of punishment than appellant. The dissenting opinion concludes that this equalization argument handicapped appellant. However, trial counsel was not advancing plausible arguments that helped Wheatfall at the expense of appellant. Rather, he was advancing arguments helpful to both co-defendants. To understand this requires an appreciation of the situation that trial counsel faced.

When the State had proved all enhancement allegations conclusively, trial counsel faced a situation in which the jury was bound to find the enhancement paragraphs true, unless it disregarded its oath to render a true verdict according to the law and the evidence. Under these conditions, it was reasonable trial strategy for trial counsel to ask the jury to overlook only one of Wheatfall’s prior convictions, the disregard of which was necessary for the jury to be able to assess him two to ñve years, while not asking the jury also to overlook appellant’s prior conviction, the disregard of which was not necessary for the jury to assess her two to ñve years. Although the strategy failed, the reason for its failure was not trial counsel’s refraining from asking the jury to disregard its duty a second time in order to find appellant’s enhancement allegation not true.

Trial counsel’s strategy was to seek equal, minimal sentences of two to five years, based on the small amount of cocaine and the lack of aggravating circumstances surrounding the possession. Trial counsel was making the argument with the best possible chance of success in asking the jury to assess minimal punishments based on the lack of aggravating circumstances surrounding the present offense. One may disagree with that strategy, but there is ho conflict of interest in the strategy at all.

The dissenting opinion would hold that the trial court knew or should have known of an actual conflict of interest and that the court should thus have conducted a formal hearing to determine whether appellant had waived her right to conflict-free counsel. At trial, however, the trial court had not yet been alerted to the claims made by appellant in the hearing on her motion for new trial. Appellant and the dissenting opinion view the trial through the lens of appellant’s purported lesser role based on the evidence that she presented at the motion-for-new-trial hearing, which evidence the trial court apparently did not believe because it denied the motion. The trial court’s decision whether to hold a formal hearing regarding an actual conflict of interest was based on what the trial court had observed during a trial in which trial counsel had presented a unified defense in the guilt/innocence phase and had asked for identical minimal punishments, not on the matters presented at the motion-for-new-trial hearing.

Under these circumstances, we hold that appellant has not established an actual conflict of interest and, thus, that the trial court had no duty to inquire further into any potential conflict. Accordingly, we overrule appellant’s first point of error.

Ineffective Assistance at the Punishment Stage

In her second point of error, appellant contends that trial counsel rendered ineffective assistance of counsel at the punishment stage of trial by failing to investigate or to put on any type of punishment evidence on appellant’s behalf. Based again on the testimony presented at her motion-for-new-trial hearing, appellant argues that there were witnesses available and willing to testify on appellant’s behalf at the punishment stage. Appellant contends that, had those persons testified, a lower sentence probably would have resulted.

To establish ineffective assistance of counsel, an appellant must show that (1) trial counsel’s representation was so deficient that it fell below the objective standard of professional norms and (2) but for counsel’s error, there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984). Appellant has the burden to prove ineffective assistance of counsel and to rebut the presumption that counsel was acting according to sound trial strategy. Id. at 466 U.S. at 689,104 S.Ct. at 2065.

Apart from the testimony that appellant presented at the motion-for-new-trial hearing, there is no record support for appellant’s arguments that trial counsel failed to investigate or to present available evidence on behalf of appellant. A trial court is under no obligation to accept as true even unrebutted testimony offered at a hearing on a motion for new trial. See Messer, 757 S.W.2d at. 828. Moreover, as the State points out, even in the testimony presented at the motion-for-new-trial hearing, there was evidence that, trial counsel had spoken to two of appellant’s potential witnesses. Trial counsel also called appellant’s son to testify at trial to cast doubt on the officers’ version of the events.

Nevertheless, the decision whether to present witnesses is largely a matter of trial strategy. See Rodd v. State, 886 S.W.2d 381, 384 (TexApp.-Houston [1st Dist.] 1994, pet. refd). Here, the record shows that trial counsel pursued a joint strategy of suppressing the evidence necessary to convict both co-defendants, and asked the jury to find at least one of Wheatfall’s enhancement allegations not true, so that the jury could give both co-defendants a minimal sentence of two to five years. Although others may disagree with trial counsel’s strategy, his actions at trial were consistent with that strategy. Furthermore, there is no showing that, had trial counsel pursued a different strategy at the punishment stage, it would likely have resulted in a more favorable punishment for appellant.

Accordingly, we overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.

The en banc Court consists of Chief Justice RADACk and Justices TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, and BLAND.

Chief Justice RADACK and Justices NUCHIA, JENNINGS, ALCALA, HANKS, and BLAND join Justice TAFT’s opinion for the en banc Court.

Justice HIGLEY, concurring. Justices ALCALA and BLAND join Part II of Justice HIGLEY’s concurring opinion.

1 . See Tex Health & Saf.Code Ann. §§ 481.115(a), 481.102(3)(D) (Vernon Supp. 2004).