in the Matter of J.L.L.

• Court: Court of Appeals of Texas
• Decided: April 28, 2011
• Docket: 01-09-00808-CV
• Status: Published

Opinion

Opinion issued April 28, 2011

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00808-CV

J.L.L., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law Number Three

Fort Bend County, Texas

Trial Court Cause No. 12557A

MEMORANDUM OPINION

          Appellant, J.L.L., appeals an order of disposition finding that he engaged in delinquent conduct by committing criminal mischief when he was a juvenile.  See Tex. Fam. Code Ann. § 51.03(a) (West Supp. 2010); Tex. Penal Code Ann. § 28.03(a)(1) (West Supp. 2010).  In two issues, appellant contends that he is entitled to a new trial because he received ineffective assistance of counsel based on his trial counsel’s dual representation of the codefendant and based on his trial counsel’s numerous alleged performance deficiencies.  In his remaining issue, appellant alternatively contends that he is entitled to a hearing on his motion for new trial because the trial court abused its discretion by not conducting a hearing.  We conclude that the trial court did not abuse its discretion by allowing appellant’s motion for new trial to be overruled by operation of law nor by failing to conduct a hearing on the motion for new trial.  We affirm.

Background

          During the pre-dawn hours on September 7, 2008, in the Pheasant Creek neighborhood subdivision in Fort Bend County, Texas, a car, a truck, and a garage door were spray-painted in gold paint with explicit pictures, various profanities, and a racial slur.  In the same neighborhood around the same time, there was also a fourth occurrence, the spray-painting of a house, but the occupant did not wish to prosecute.  At the time, appellant lived in the same neighborhood as a number of other juveniles with whom he was either friends or acquaintances:  P.B. (herein “the codefendant”), M.A., C.B., W.F., E.M., J.H., and K.S.

          Around 11:30 p.m. the previous night, after attending a car show held on Westheimer Street in Houston, two juveniles, M.A. and C.B., were returning to the Pheasant Creek neighborhood, where they each lived.  M.A and C.B. saw appellant walking on the street in their neighborhood.  They briefly spoke with appellant before proceeding to M.A.’s home.  Around 1:00 a.m., M.A. and C.B. went for a quick trip by C.B.’s home.  According to C.B.’s testimony, on their way back, they again saw appellant walking around.  Appellant told them to look at the graffiti that he had done to the truck, the car, the garage, and the house.  M.A., however, described the event differently, stating that appellant called him on the phone to tell him that he had done the graffiti.  M.A. and C.B. went to see the graffiti themselves, which they found as appellant had described.  They then returned to M.A.’s house.

          M.A. telephoned W.F., who lived adjacent to the truck owner, to tell him that his neighbor’s truck had been spray-painted.  W.F., who had been asleep, walked outside to see it for himself, but he could not see anything because it was too dark outside.  W.F. testified that he saw M.A. and C.B. drive by his house at around 3:15 a.m.  M.A. and C.B. both acknowledged driving by W.F’s house but at an earlier time.  W.F. testified that the next morning, he received a text message from appellant, stating that he would be coming over to W.F.’s house for a family barbecue.  However, as revealed by the State in its discovery responses, “phone records for [W.F.’s cell phone number] do not show [any] text message to [W.F.].”  Nevertheless, at trial, defense counsel did not impeach W.F. with this evidence.  When appellant arrived at the barbecue, he told W.F. that he had spray-painted the neighbor’s truck, the car, and the garage.

          The officer assigned to the case, Detective White, contacted the truck owner, who stated that he had spoken with W.F. and that W.F. had knowledge regarding the spray-painting incident.  The truck owner also suggested that appellant and another boy might be culpable for the damage.  White went to speak with appellant at his high school.  Appellant denied having participated in the spray-paintings.  During his investigation, White briefly spoke with E.M. and J.H., the latter a self-admitted member of the MS 13 gang.  J.H.’s mother was the fourth victim of spray-painting, which was not prosecuted.  E.M. and J.H. told White that around 2:00 a.m. on September 7, they saw the codefendant walking around the neighborhood.  E.M. and J.H. reported that they saw the codefendant speak to a Fort Bend County deputy, but the Fort Bend County Sheriff’s Dispatch had no record of that encounter.

          The State’s petition alleged that appellant engaged in delinquent conduct, specifically, that he committed criminal mischief by intentionally and knowingly making markings, drawings, paintings, slogans, and inscriptions on a car, a truck, and a garage.  In a separate petition, the State alleged that the codefendant had engaged in the same delinquent conduct.  Both defendants retained the same trial counsel (herein “Trial Counsel”).  The codefendant was tried first in a different court under a different cause number.  At the end of the codefendant’s trial, the jury returned a verdict of “not true.”  A week later at the beginning of appellant’s trial, the State made a motion in limine, which the trial court granted, requesting that Trial Counsel approach the bench prior to mentioning the codefendant.

          At appellant’s trial, Trial Counsel cross-examined Detective White, inquiring as to the inconsistency between E.M. and J.H.’s report that they had seen the codefendant in the neighborhood talking to a deputy and the lack of a police record documenting the encounter.  At two points during this inquiry, the State requested that the parties approach the bench.  Two off-the-record bench conferences were held in close succession.  Immediately after the second off-the-record bench conference, the trial court conducted a conference on the record outside the presence of the jury.  Objecting to questioning regarding the codefendant, the State asserted:

It is obvious that defense counsel’s testimony with Detective White about [the codefendant] being a—quote—“co-defendant and/or suspect”— . . . [is] an attempt to paint the picture that [the codefendant] is really the culprit in this case.  I want it on the record that Mr. Villalon represents both of these young men; and if he’s going to point fingers, that is a clear conflict of interest and he may not represent this juvenile . . . because that’s a clear conflict, accusing another client, when you represent two clients.

In response, Trial Counsel explained,

[Blaming the codefendant] is not my intention at all.  All I’m trying to point out . . . is the fact that this police officer undertook an investigation; spoke with different people; and then, when he ultimately investigated the case, he realized that what they were telling him was . . . not true.

The trial court was satisfied with the limited purpose Trial Counsel sought to show, but instructed him, “[Y]ou can’t shift it off on [the codefendant].”  Trial Counsel then said, “I will cease and desist from referring to [codefendant].”

          During his cross-examination of W.F., Trial Counsel attempted to impeach W.F. with a statement made by K.S. in the prior trial.  K.S.’s mother was the owner of the garage on which the racial slur had been spray-painted.  Without any objection having been made, the trial court called Trial Counsel and the State to approach for a third off-the-record conference.  As before, this conference was immediately followed by an on-the-record conference.  The trial court instructed Trial Counsel that he could impeach using K.S.’s prior statement but that he could not refer to the fact that it was made during a court proceeding.

          During the defense’s case-in-chief, Trial Counsel called appellant’s mother, stepfather, and grandmother to testify regarding appellant’s alibi on the night of September 6 through the next morning.  Appellant’s witnesses all testified that appellant was home, watching a wrestling match with his family, and that he did not leave the house that night. 

          The jury in appellant’s trial returned a verdict finding that appellant engaged in delinquent conduct as alleged in the petition.  The trial court entered an order of disposition placing appellant on probation until his 18th birthday.  After trial, the court granted appellant’s motion to substitute his attorney.  Appellant timely filed a motion for new trial asserting that he was ineffectively assisted by Trial Counsel.  The written motion requested a hearing to introduce evidence not apparent from the record to support his motion.  Appellant based his ineffective-assistance-of-counsel argument on a claimed actual conflict of interest posed by Trial Counsel’s dual representation of him and the codefendant and on numerous alleged performance deficiencies.  Appellant attached two affidavits to his motion for new trial:  one from appellant’s mother and another from the codefendant’s mother.

          In the first affidavit, appellant’s mother stated that she and her husband hired Trial Counsel to represent appellant in this matter without having signed a formal contract and that she was present during all discussions between appellant and Trial Counsel.  Concerning the issue of conflict of interest, she stated that Trial Counsel briefly informed her there was no conflict posed by the dual representation; that Trial Counsel never discussed the issue or concerns regarding the dual representation; that Trial Counsel never discussed the hypothetical defensive strategy of blaming the codefendant; that Trial Counsel never discussed or offered a waiver of conflict; and that a waiver of conflict was never signed.

          In the other attached affidavit, the codefendant’s mother stated that she and her husband hired Trial Counsel to represent the codefendant and that she was present during all discussion between them.  Concerning the issue of conflict of interest, she stated that Trial Counsel mentioned the issues concerning conflict but told them he would be able to represent both defendants, that Trial Counsel never discussed or offered a waiver of conflict, and that a waiver of conflict was never signed.  Additionally, she stated that the codefendant was prepared to testify that he was not with appellant on the night of the vandalism in order to contradict the claims of witnesses who, at the first trial, testified that they saw the two defendants together but that Trial Counsel instructed the codefendant not to appear.

          In its response to appellant’s motion for a new trial, the State attached the affidavit of Trial Counsel.  He explained that he was first approached by the codefendant’s stepfather, who indicated that appellant was also interested in hiring him.  Trial Counsel stated that when he first met with appellant and his parents on the day they hired him, he explained to them that the representation of multiple defendants could possibly, but not necessarily, entail a conflict of interest and that he would need to review the State’s file and other evidence in order to make a precise determination whether any conflict of interest existed.  After reviewing the State’s file and discussing the case with both defendants and their parents, Trial Counsel determined that there was no admissible, direct evidence that implicated either defendant in the acts of vandalism and that each defendant and their families consistently maintained that each defendant was at home when the vandalism occurred.  Thus, trial counsel determined the defendants had two consistent defense theories:  first, there was no direct or physical evidence implicating either defendant and, second, each had an alibi.  Trial Counsel concluded that the codefendants had similar interests, which did not conflict.  Trial Counsel stated that during the middle of the codefendant’s trial, he first found out that the State’s witnesses were claiming they had seen appellant and the codefendant together on the night of the vandalism.  According to Trial Counsel, both appellant and the codefendant maintained their alibi defense despite the eyewitness testimony placing them together that night.

          The trial court, without granting a hearing or making a ruling, allowed appellant’s motion for a new trial to be overruled by operation of law. 

Ineffective Assistance of Counsel

          In his first and third issues, appellant contends that he is entitled to a new trial because he received ineffective assistance of counsel based on Trial Counsel’s dual representation, which posed an actual conflict of interest adversely affecting Trial Counsel’s performance, and based on Trial Counsel’s numerous alleged performance deficiencies.

          A.      Applicable Law for Motions for New Trial

“The requirements governing an appeal [from an order of juvenile court] are as in civil cases generally.”  Tex. Fam. Code Ann. § 56.01(b) (West Supp. 2010).  If an appellant asserts on appeal an ineffective-assistance-of-counsel claim that he previously asserted in a motion for new trial that the trial court denied or allowed to be overruled by operation of law, an appellate court analyzes the claim as a challenge to the denial or overruling of the motion for new trial.  See Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)).  An appellate court will reverse a trial court’s ruling on a motion for new trial only if the trial court abused its discretion in its ruling.  Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).  This standard of review applies regardless of whether the motion for new trial has been denied by an express ruling or overruled by operation of law.  Awoniyi v. McWilliams, 261 S.W.3d 162, 165 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  Thus, an appellate court will reverse only if the trial court’s decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

          B.      Applicable Law for Assistance of Counsel

          A juvenile has a right to the effective assistance of counsel at every stage of juvenile proceedings.  Tex. Fam. Code Ann. § 51.10(a) (West 2008); In re J.M.S., 43 S.W.3d 60, 63 n.1 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  Because juvenile proceedings are quasi-criminal in nature, In re D.I.B., 988 S.W.2d 753 S.W.2d 753, 756 (Tex. 1999), an appellate court applies the criminal standard for evaluating claims of ineffective assistance of counsel.  In re J.M.S., 43 S.W.3d at 63.

          To prevail on a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence that (1) defense counsel’s performance was deficient such that his assistance fell below an objective standard of reasonableness and (2) the deficiency caused the defendant prejudice such that there is a reasonable probability that but for the deficient performance, the outcome would have been different.  Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  In proving that his counsel’s performance was deficient, a defendant must overcome a strong presumption that counsel’s action was a sound trial strategy.  Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Thompson, 9 S.W.3d at 813.  The effectiveness of assistance of counsel is reviewed in context with the totality of the representation and the particular circumstances of each case.  Strickland, 466 U.S. at 695, 104 S. Ct. at 2069; Thompson, 9 S.W.3d at 813.  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 813.

          C.      Analysis of Conflict of Interest as Ground for Ineffective Assistance

In his first issue, appellant contends that he was ineffectively assisted by Trial Counsel because Trial Counsel operated under an actual conflict of interest by representing both appellant and the codefendant and that this dual representation adversely affected Trial Counsel’s performance because it resulted in the foreclosure of the defense strategy of blame shifting or raising the issue of a second suspect.

          1.       Actual Conflict of Interest

Ineffective assistance of counsel may result from an attorney’s conflict of interest.  Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Ex parte Murrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997).  Prejudice to the defendant is presumed if the defendant shows that (1) his trial counsel labored under an actual conflict of interest and (2) the conflict had an adverse effect on specific instances of counsel’s performance at trial.  Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Cuyler v. Sullivan, 446 U.S. 335, 348–350, 100 S. Ct. 1708, 1718–19 (1980); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997).[1]  Under the first prong, a trial counsel labors under an actual conflict of interest if he actively represents interests requiring him to make a choice between advancing his client’s interest in a fair trial and advancing other interests, including his own, to the detriment of his client’s interest.  Acosta v. State, 233 S.W.3d 349, 353, 355 (Tex. Crim. App. 2007) (quoting Monreal, 947 S.W.2d at 564); see Sullivan, 446 U.S. at 349–50, 100 S. Ct. at 1719.  For example, an actual conflict of interest exists if a plausible defense strategy or tactic would be foreclosed due to the representation of another interest.  See Gaston v. State, 136 S.W.3d 315, 318 (Tex. App.—Houston [1st Dist.] 2004, pet. struck); Ramirez v. State, 13 S.W.3d 482, 487 (Tex. App.—Corpus Christi 2000, pet. dism’d) (citing Perillo v. Johnson, 79 F.3d 411, 449 (5th Cir. 1996)).  Under the second prong, a conflict adversely affects a trial counsel’s performance if during trial, counsel in fact acts to the detriment of his client on behalf of those other interests.  Acosta, 233 S.W.3d at 355–56; Wiggins v. State, No. 01-07-00672-CR, 2009 WL 2231806, at *10 (Tex. App.—Houston [1st Dist.] July 23, 2009, pet. ref’d) (mem. op. on reh’g).

Following the State’s objection, the trial court instructed Trial Counsel not to raise the issue of a codefendant.  This consequently foreclosed the strategy of blaming the codefendant.  See Thompson v. State, 94 S.W.3d 11, 19 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (“If a lawyer represents two or more co-defendants in the same matter, she is legally and ethically deprived of utilizing the time-honored defense of blaming the other defendant.”).  However, the foreclosure of a theoretically possible strategy results in a presumption of prejudice only if that strategy is plausible.  See Gaston, 136 S.W.3d at 318; Ramirez, 13 S.W.3d at 487.  Here, there is no evidence that blaming the codefendant or raising the issue of a second suspect would have been a plausible trial strategy in light of the evidence that appellant and the codefendant were seen together around the time of the offense.  The only evidence in the record or attested to in the affidavits relating to the motion for new trial that implicates the codefendant is testimony from the prior trial from witnesses claiming to have seen both defendants together on the night of the vandalism.  This evidence undermines, rather than supports, the strategy of blaming the codefendant because it implicates each equally.  As Trial Counsel explained to the court after the State’s objection, raising the issue of the codefendant was “not [his] intention at all.”  See Holloway v. Arkansas, 435 U.S. 475, 485, 98 S. Ct. 1173, 1179 (1978) (deferring to trial counsel’s representations regarding conflict of interest because “attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.”).  As described in his affidavit, Trial Counsel concluded, based on his review of the State’s files and the consistent, unequivocal statements made to him by each defendant and their families, that there was no actual conflict of interest as their defenses were the essentially the same:  pointing out the lack of physical or direct evidence and presenting an alibi.  See James v. State, 763 S.W.2d 776, 780 (Tex. Crim. App. 1989) (no actual conflict of interest where counsel consistently maintains each codefendant’s alibi defense); see also Gaston, 136 S.W.3d at 320–22 (finding no actual conflict of interest where trial counsel consistently pursued joint defense, which, if successful, would result in acquittal of both codefendants).  No evidence shows that appellant would have been interested in pursuing a blame-the-other-defendant strategy.  See James, 763 S.W.2d at 780 (no actual conflict of interest posed by dual-representation of codefendants where there is no evidence that appellant would have been willing to forego alibi defense or to incriminate codefendant).

  Because he has failed to show that the strategy of blaming the codefendant is plausible, we hold that appellant has failed to show an actual conflict of interest.  See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Sullivan, 446 U.S. at 348–350, 100 S. Ct. at 1718–19; Acosta, 233 S.W.3d at 353, 355; Monreal, 947 S.W.2d at 564; Gaston, 136 S.W.3d at 318; Ramirez, 13 S.W.3d at 487. 

          2.       Trial Court’s Duty to Inquire

During Trial Counsel’s cross-examination of Detective White, the State objected on the ground that blaming the codefendant would be a “clear conflict of interest.”[2]  We must, therefore, address the consequences of the trial court’s failure to inquire concerning the multiple representation.  Appellant contends that following the State’s objection, the trial court erred by failing to conduct an inquiry into the propriety of Trial Counsel’s dual representation of appellant and the co-defendant.  In Sullivan, the Supreme Court determined that a trial court has a duty to conduct an inquiry into the propriety of a multiple representation only if it knows or reasonably should know that a particular conflict exists.  Sullivan, 446 U.S. at 347, 100 S. Ct. at 1717; see Mickens v. Taylor, 535 U.S. 162, 168–69, 122 S. Ct. 1237, 1242 (2002) (distinguishing “particular conflict” from “vague, unspecified possibility of conflict, such as that which ‘inheres in almost every instance of multiple representation’”).  Here, the trial court reasonably knew about the particular conflict based on the State’s objection on the ground of a “clear conflict of interest” and the court’s admonishment to trial counsel to refrain from blaming the codefendant.

We must, therefore, address the consequences of the trial court’s failure to inquire concerning the multiple representation.  In Mickens, the Supreme Court expressly rejected a rule that would have required reversal, regardless of any adverse effect, if the trial court knew or should have known of a potential conflict of interest but failed to conduct an inquiry.  Mickens, 535 U.S. at 170–73, 122 S. Ct. at 1243–44.  The Court explained that a “trial court’s awareness of a potential conflict neither renders it more likely that counsel’s performance was significantly affected nor in any other way renders the verdict unreliable.”  Id. at 173, 122 S. Ct. at 1244.  “Nor does the trial judge’s failure to make the Sullivan-mandated inquiry often make it harder for reviewing courts to determine conflict and effect, particularly since those courts may rely on evidence and testimony whose importance only becomes established at the trial.”  Id.  “Nor, finally, is automatic reversal simply an appropriate means of enforcing Sullivan’s mandate of inquiry.”  Id.

The trial court’s failure to inquire concerning the multiple representation, therefore, is subject to a harmless error analysis.  Appellant, however, cannot show harm because on appeal, he has failed to show an actual conflict of interest adversely affecting Trial Counsel’s performance.  See id. at 173–74, 122 S. Ct. at 1245 (“since the trial court’s failure to make the Sullivan-mandated inquiry does not reduce the [defendant’s] burden of proof; it was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsel’s performance”).  We have no basis to conclude that the trial court would have discovered anything different if it had fulfilled its Sullivan-mandated duty to inquire.  We conclude that the trial court’s failure to inquire into the propriety of the multiple representation was harmless error.  See id.

          3.       Trial Court’s Duty to Admonish

Appellant also contends that following the State’s objection, the trial court erred by failing to conduct a Garcia hearing.  Unlike the Sullivan-mandated duty of inquiry into potential conflicts of interest, a Garcia hearing concerns waiver of actual conflicts of interest.  United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992); Ramirez, 13 S.W.3d at 487.  The right to conflict-free counsel may be waived, but in order to be effective, the record must show the waiver was done knowingly, intelligently, and voluntarily.  Greig, 967 F.2d at 1021; Ramirez, 13 S.W.3d at 487 n.2.  In a Garcia hearing, a trial court addresses the defendant personally to ensure that (1) he is aware that a conflict of interest exists, (2) he realizes the potential hazards to his defense by continuing with current counsel under the onus of the conflict, and (3) he is aware of his right to obtain other, conflict-free counsel.  Greig, 967 F.2d at 1022; United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir. 1991); Ramirez, 13 S.W.3d at 487.  By conducting a Garcia hearing, the trial court ensures the record shows the defendant knowingly, intelligently, and voluntarily waived his right to conflict-free counsel.  See Greig, 967 F.2d at 1022; Ramirez, 13 S.W.3d at 487.

A trial court has a duty to conduct a Garcia hearing if (1) there exists an actual conflict of interest and (2) the trial court is alerted to or knows of the existence of that actual conflict of interest.  Greig, 967 F.2d at 1022; Ramirez, 13 S.W.3d at 487.  Even assuming the trial court agreed with the State that blaming the codefendant would pose a “clear conflict of interest,” it does not follow that an actual conflict of interest in fact existed.  In the Sixth Amendment, ineffective-assistance-of-counsel context, “actual conflict of interest” has a specialized meaning.  See Mickens, 535 U.S. at 172 n.5, 122 S. Ct. at 1244 n.5.  We conclude that because appellant has failed to show an actual conflict of interest adversely affecting Trial Counsel’s performance, there was no need for a waiver and the trial court had no duty to conduct a Garcia hearing.  See United States v. Carpenter, 769 F.2d 258, 263 (5th Cir.1985) (no error for failure to hold Garcia hearing absent actual conflict of interest); cf. Greig, 967 F.2d at 1022; Ramirez, 13 S.W.3d at 487.

We overrule appellant’s first issue.

          D.      Analysis of Numerous Alleged Performance Deficiencies

In his third issue, appellant contends that he was ineffectively assisted by Trial Counsel, who was deficient for numerous reasons.  Specifically, appellant complains that Trial Counsel:

(1)       failed repeatedly to object to improper testimony or arguments;

(2)       failed to object to the State’s closing argument on the ground that it referred to facts not on the record to improperly bolster the credibility of State witnesses;

(3)       failed to object to the trial court’s ruling that limited testimony regarding the codefendant and thus failed to zealously advocate for appellate;

(4)       failed to ensure that any bench conferences relating to the introduction of evidence, testimony, or trial procedures were recorded or preserved for appellate review;

(5)       failed to fully cross-examine witnesses regarding any prior inconsistent statements and evidence from the trial of the codefendant;

(6)       failed to elicit testimony and evidence, disclosed by the State in its discovery responses, that W.F.’s cell phone records do not show a text message from appellant as W.F. claimed he received;

(7)       failed to ensure that any conflict of interests between codefendants was properly explained to each party or to obtain a voluntary waiver from each party; and

(8)       failed to ensure the Court held a hearing regarding the conflict once the Court was aware of the conflict of interest so as to ensure appellant fully understood and had knowingly waived the conflict of interest.

Appellant also complains that there exist additional unspecified deficiencies, such as a failure to impeach, that are not available for full appellate review without a hearing on his motion for new trial.    Appellant asserts that but for the totality of these deficiencies, especially the deficiency regarding impeaching and eliciting contradictory information, there is a reasonable probability that the result of the trial would have been different.  Appellant explains that this is so because the State’s case was based primarily upon witness testimony reporting that appellant had admitted committing the offense and that but for Trial Counsel’s deficiencies, the jury would have had additional information to assess the credibility of the State’s witnesses.

1.       Repeated Failure to Object to Improper Testimony or Arguments

In his first allegation of deficient performance, appellant asserts that Trial Counsel was deficient by repeatedly failing to object improper testimony or arguments.  However, appellant fails to indentify which testimony or arguments he regards as improper.  Therefore, appellant’s first allegation of deficient performance fails because it is inadequately briefed.  See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).

                   2.       Failure to Object to the State’s Closing Argument

In his second allegation of deficient performance, appellant asserts that Trial Counsel was deficient for failing to object the following statements in the State’s closing argument:

[The State’s juvenile witnesses were] not here voluntarily.  They were here under Court-order subpoena. . . .  It’s not easy for kids to have to be Court-ordered to tell the truth about their friends.

Appellant contends that Trial Counsel should have objected on the ground that the State referred to facts not on the record to improperly bolster the credibility of State witnesses.

A proper jury argument generally falls within one or more of the following categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to arguments by opposing counsel; and (4) pleas for law enforcement.  Palermo v. State, 992 S.W.2d 691, 696 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (citing Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996)).  In drawing inferences from the evidence, attorneys have wide latitude as long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.  Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).  The jury is free to accept or reject the conclusions and inferences suggested by the attorney in closing argument.  See id. at 400.  The attorney may state an opinion based on the evidence in the record if the opinion does not constitute unsworn testimony.  Bui v. State, 964 S.W.2d 335, 345 (Tex. App.—Texarkana 1998, pet. ref’d).

There is no indication that the reference to a subpoena improperly bolstered any witness’s credibility.  Every witness, whether testifying under threat of court-ordered subpoena or not, must take an oath to tell only the whole truth, under penalty of perjury.  Additionally, appellant fails to indicate how an objection to these arguments, even if sustained, could have produced a better outcome than refraining to object in order, for example, to avoid drawing more attention to the arguments.  See Pittman v. State, 9 S.W.3d 432, 436 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (stating that trial counsel’s decision not to properly preserve error may have been to prevent drawing attention to the matter).  Here, failing to object cannot be said to be an unsound trial strategy.  See Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App. 1991) (stating that counsel’s decision not to object to evidence of second drug buy might be sound trial strategy when evidence conclusively proved defendant not present for second drug buy).

3.       Failure to Object to Trial Court’s Ruling Limiting Testimony Regarding Codefendant

          In his third allegation of deficient performance, appellant asserts that Trial Counsel failed to object to the trial court’s ruling that limited testimony regarding the codefendant and thus failed to zealously advocate for appellant.  As trial counsel explained to the trial court prior to its ruling, it was never the defense’s strategy to raise the issue of a codefendant or to blame the codefendant.  Thus, even assuming Trial Counsel had a valid objection to the trial court’s ruling, there is no evidence that the ruling foreclosed a trial strategy that otherwise would have been pursued.  The trial court’s ruling did not affect appellant’s alibi defense.  Trial Counsel zealously advocated this defense by cross-examining the State’s witnesses to establish that no witness actually saw appellant commit the graffiti and that there was no physical evidence linking appellant to the graffiti.  Additionally, during the defense’s case-in-chief, Trial Counsel presented the testimony of appellant’s mother, father, and grandmother who each testified that appellant was at home throughout the night in question.  Because not objecting to the trial court’s ruling was consistent with the Trial Counsel’s defense strategy, we cannot say that Trial Counsel’s assistance fell below an objective standard of reasonableness.  See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813.

4.       Failure to Ensure Bench Conferences Relating to Introduction of Evidence, Testimony, or Trial Procedures Were Recorded or Preserved for Appellate Review

          In his fourth allegation of deficient performance, appellant asserts that Trial Counsel failed to ensure that any bench conferences relating to the introduction of evidence, testimony, or trial procedures were recorded or preserved for appellate review.  Appellant complains about three off-the-record bench conferences that took place during the trial.  Two off-the-record conferences occurred during Trial Counsel’s cross-examination of White after Trial Counsel referenced the codefendant and the State objected.  While the conferences were not recorded, they were immediately followed by an on-the-record conference where the State’s objection and Trial Counsel’s response were fully discussed.  Likewise, the third off-the-record conference was immediately followed by an on-the-record conference concerning Trial Counsel’s reference that a prior statement, with which he was trying to impeach W.F., had been made during a court proceeding.  Given the context that gave rise to these three off-the-record conferences, it appears they concerned the same issues discussed in the on-the-record conferences that immediately followed; however, nothing in the record or in the affidavits relating to the motion for new trial indicates this precisely.  Because Trial Counsel had recorded and preserved the substance of these discussions, we cannot say that Trial Counsel’s assistance fell below an objective standard of reasonableness.  See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813.

5.       Failure to Fully Cross-Examine Witnesses Regarding Any Prior Inconsistent Statements and Evidence From Trial of  Codefendant

          In his fifth allegation of deficient performance, appellant asserts that Trial Counsel failed to fully cross-examine witnesses regarding any prior inconsistent statements and evidence from the trial of the codefendant.  Appellant does not specify which prior inconsistent statements and evidence that Trial Counsel should have used to impeach the State’s witnesses.  The only evidence suggested in the affidavits relating to the motion for new trial is witness testimony in the prior trial that they saw both the codefendant and appellant together on the night in question.  Appellant was not deficient for not cross-examining using this evidence because it undermines both appellant’s actual alibi defense and his hypothetical defense of blaming the codefendant.

6.       Failure to Elicit Testimony and Evidence, Disclosed by State in Discovery Responses, That W.F.’s Cell Phone Records Do Not Show Text Message From Appellant as W.F. Claimed He Received

          In his sixth allegation of deficient performance, appellant asserts that Trial Counsel failed to elicit testimony and evidence, disclosed by the State in its discovery responses, that W.F.’s cell phone records do not show a text message from appellant as W.F. claimed he received.  While Trial Counsel could have impeached W.F.’s testimony that he had received a text message with the cell phone company’s records that indicated he had not, the existence of the text message was a collateral matter.  Additionally, trial counsel effectively impeached W.F.’s testimony that he saw M.A. and C.B. at around 3:15 a.m. as they drove by his house by eliciting testimony from M.A. and C.B., who both disagreed that they drove by W.F.’s house around that time.  In light of the totality of the representation, we cannot say that Trial Counsel’s failure to impeach W.F. on a collateral matter fell below an objectively reasonable standard.  See Strickland, 466 U.S. at 695–696, 104 S. Ct. at 2069; Thompson, 9 S.W.3d at 813.

7.       Failure to Ensure that Any Conflict of Interests Between Codefendants was Properly Explained to Each Party or to Obtain Voluntarily Waiver from Each Party

          In his seventh allegation of deficient performance, appellant asserts that Trial Counsel failed to ensure that any conflict of interests between codefendants was properly explained to each party or to obtain a voluntary waiver from each party in violation of Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct.  A lawyer may represent codefendants if (1) the dual representation does not involve a substantially related matter in which the codefendants’ interests are materially and directly adverse and (2) it does not reasonably appear that the lawyer’s responsibility to one codefendant is or will become adversely limited by the lawyer’s responsibility to the other codefendant.  Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b) , reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. X, § 9).  If either of the preceding conditions is not met, a lawyer may represent the codefendants only if (1) he reasonably believes the representation of each will not be materially affected and (2) each codefendant consents to dual representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.  Tex. Disciplinary Rules Prof’l Conduct R. 1.06(c). 

At the outset of his representation of the two codefendants, Trial Counsel disclosed the possibility that a conflict of interest could exist.  Appellant’s mother stated in her affidavit that although Trial Counsel informed appellant that there was no conflict of interest, he neither explained what “conflict of interest” meant nor discussed issues concerning the conflict of interest.  Similarly, a waiver of conflict of interest was never discussed, offered, or signed.  However, under the disciplinary rule cited by appellant, Trial Counsel had a responsibility to obtain each codefendant’s consent only if (1) their interests were directly and materially adverse or (2) it reasonably appeared that Trial Counsel’s responsibility to one codefendant would be adversely limited by his responsibility to the other codefendant.  See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b), (c); State Bar of Tex. v. Dolenz, 3 S.W.3d 260, 270 (Tex. App.—Dallas 1999, no pet.) (“[T]he exception [Rule 1.06(c)] to the rule [Rule 1.06(b)] is in the nature of an avoidance or affirmative defense to professional misconduct.”).

          As Trial Counsel explained in his affidavit, after conducting an investigation of the State’s files and after interviewing each codefendant and their families, he determined that no conflict of interest in fact existed or would arise.  See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b).  Appellant’s and the codefendant’s interests were not directly and materially adverse because the only defense strategies supported by the evidence, if successful, would have resulted in the acquittal of both codefendants.  See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b)(1).  Furthermore, appellant has not shown that Trial Counsel’s responsibilities to him were adversely limited by the trial court’s instruction to not raise the issue of the codefendant, which arose because of the common representation.  See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b)(2).  Because there was no conflict of interest and it did not reasonably appear that one would arise, Trial Counsel had no responsibility to obtain their consent.  See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b), (c); Dolenz, 3 S.W.3d at 270.  We cannot conclude that Trial Counsel’s performance was deficient because he complied with the applicable disciplinary rule.

8.       Failure to Ensure the Court Held a Hearing Regarding Conflict

In his eighth allegation of deficient performance, appellant asserts that Trial Counsel failed to ensure that the trial court held a hearing regarding the conflict once the Court was aware of the conflict of interest so as to ensure appellant fully understood and had knowingly waived the conflict of interest.  As explained above, appellant has failed to establish based on either the record or the motion-for-new-trial affidavits that an actual conflict of interest exists.  Accordingly, we cannot say Trial Counsel was deficient for failing to ensure the court held a hearing as Trial Counsel was not required to obtain a waiver of the hypothetical conflict.  Moreover, there is no indication that appellant would have changed counsel or defensive strategies had the trial court advised him of the hypothetical conflict.  Accordingly, even assuming trial counsel was deficient for failing to ensure the Court held a hearing regarding the potential conflict, appellant has failed to show a reasonable probability that but for the deficiency, the outcome would have been different.  See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812. 

9.       Additional Deficiencies, Such as Trial Counsel’s Failure to Impeach, Are Not Available for Review Without Hearing on Motion for New Trial

Finally, appellant asserts the existence of additional deficiencies, such as Trial Counsel’s failure to impeach, are not available for review without a proper hearing on appellant’s motion for new trial as discussed below.  However, appellant fails to identify what these additional deficiencies are or explain how a hearing would enable him to adduce evidence establishing any such additional deficiencies.  Appellant’s catchall allegation of deficient performance fails because it is inadequately briefed.  See Tex. R. App. P. 38.1(i).

We conclude that appellant failed to establish that Trial Counsel’s performance fell below an objectively reasonable standard.  See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813.

We overrule appellant’ third issue.

Failure to Conduct Hearing of Motion for New Trial

          In his second issue, appellant contends that the trial court abused its discretion by failing to hold an evidentiary hearing on his motion for a new trial, which is premised on the same claim of ineffective-assistance of counsel asserted on appeal.

          In general, juvenile proceedings are governed by the Texas Rules of Civil Procedure.  Tex. Fam. Code Ann. § 51.17(a) (West Supp. 2010).[3]  In a civil case, a trial court is obligated to conduct a hearing on a motion for new trial if (1) the motion properly requests a hearing, (2) the “motion presents a question of fact upon which evidence must be heard,” and (3) the motion alleges facts that if true would entitle the movant to a new trial.  Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979); Neyland v. Raymond, 324 S.W.3d 646, 652–53 (Tex. App.—Fort Worth 2010, no pet.) (where supporting affidavits fail to raise a question of fact regarding entitlement to new trial, trial court is within its discretion to not holding hearing).

          As detailed in the preceding ineffective-assistance-of-counsel analysis, which takes into account the facts alleged in appellant’s motion for new trial and in the attached affidavits, the motion fails to present a question of fact upon which evidence must be heard because the facts were included in the affidavits that were presented to the trial court.  Accordingly, the trial court did not abuse its discretion by not conducting a hearing on appellant’s motion for new trial.  See Neyland, 324 S.W.3d at 652–53.

          We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court. 

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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[1]           Additionally, both an actual conflict of interest and prejudice are presumed if (1) the defendant objects at trial to a multiple representation arrangement and (2) the trial court fails to appoint separate counsel or take adequate steps to ascertain whether the risk is too remote to warrant separate counsel.  Holloway v. Arkansas, 435 U.S. 475, 484, 489, 98 S. Ct. 1173, 1178–79, 1181 (1978); Lerma v. State, 679 S.W.2d 488, 498 (Tex. Crim. App. 1982).  Appellant, however, did not object to the dual representation at trial, and thus, an actual conflict of interest is not presumed.  See Holloway, 435 U.S. at 484, 489, 98 S. Ct. at 1178–79, 1181; Lerma, 679 S.W.2d at 498. 

[2]           It appears the State may have been referring to the Texas Disciplinary Rules of Professional Conduct.  See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. X, § 9).  However, professional ethics are different from an “actual conflict of interest,” which has a specialized meaning in the Sixth Amendment, ineffective-assistance-of-counsel context.  As noted above, an “actual conflict of interest,” as opposed to other conflicts of interest, is one that would have an actual, adverse effect on a trial counsel’s performance if acted upon.  See Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 1244 n.5 (2002); Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007); Routier v. State, 112 S.W.3d 554, 582 (Tex. Crim. App. 2003).

[3]           However, a motion for new trial seeking to vacate an adjudication is governed by Texas Rule of Appellate Procedure 21, entitled “New Trials in Criminal Case,” if the motion for new trial is filed after a disposition order that is signed on or after September 1, 2009.  TEX. FAM. CODE ANN. § 56.01(b-1)(2) (West Supp. 2010) (effective September 1, 2009); Act of May 26, 2009, 81st Leg., ch. 642, § 3, 2009 Tex. Gen. Laws 2361.  Here, appellant’s motion for new trial is accordingly governed by the requirements as in civil cases generally because the order for disposition was signed on August 8, 2009.

            Nevertheless, under the Texas criminal law, to challenge on appeal a trial court’s failure to grant a hearing on a motion for new trial, a defendant must present the motion to the trial court within ten days of filing.  Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009) (citing Tex. R. App. P. 21.6).  To present a motion for new trial, (1) a defendant must put the judge on actual notice that he desires the judge to take some action on his motion for new trial and (2) there must be some documentary evidence or notation that the trial judge personally received a copy of the motion.  See id.  Here, although appellant’s appellate counsels each attested to presentment in affidavits attached to a request for preparation of reporter’s record, this does not constitute documentary evidence or a notation as required to prove presentment.  See id.  Appellant, therefore, did not comply with the procedural requirements for a motion for new trial in a criminal case.