James v. State

677 S.W.2d 188, 1984 Tex. App. LEXIS 6112
CourtCourt of Appeals of Texas
DecidedAugust 30, 1984
DocketNos. 01-82-00149-CR, 01-82-00150-CR
StatusPublished
Cited by2 cases

This text of 677 S.W.2d 188 (James v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James v. State, 677 S.W.2d 188, 1984 Tex. App. LEXIS 6112 (Tex. Ct. App. 1984).

Opinions

OPINION

DOYLE, Justice.

A jury convicted appellants of aggravated robbery, and the trial court assessed punishment for each appellant at 10 years confinement. Stephen James brings six grounds of error on appeal, and his brother Stanley James brings eight grounds. Both appellants claim as their first ground of error ineffective assistance of counsel. The appellants were tried together, and both were represented by the same two attorneys. Each appellant will hereafter be referred to by his first name, for the sake of brevity.

We abated these appeals for an eviden-tiary hearing limited to the issue of whether appellants’ trial attorneys warned them of the risks inherent in joint representation, noting that the potential for a conflict of interest was apparent. Following a hearing, the trial court entered the following findings of fact and conclusions of law:

FACT 1: Both defendants had court-appointed as well as retained counsel, eventually Mr. William F. Miller and Mr. Jim Kelly being their retained counsel.
FACT 2: The Court inquired through Mr. Jim Kelly as to whether there was a conflict of interest between representing both defendants. He informed me there was no conflict that existed at the time of trial.
FACT 3: Mr. Kelly informed his clients concerning the conflict of interest and their right to be tried together or separately and the defendants made the decision of being tried jointly. The defendants were tried jointly. Their defenses were not inconsistent. Each defendant maintained that he did not commit the offense. Each defendant had and presented alibi witnesses.
FACT 4: As part of the trial strategy the defense attorney concluded their best interest would be to be tried together and that it would be advantageous to have each other as testimony presented and cut down the possibility of conflicts in their testimony.
The Court reached the conclusion that the defendants were ably represented by competent counsel who explained to them their rights of being tried together or separately and reached an intelligent decision as to this matter and it is [190]*190the conclusion of this Court that there was no conflict of interest involved in this matter.

This court is not bound by the findings, conclusions or recommendations of the convicting court, and we are free to accept or reject a conclusion regarding the effectiveness of a defendant’s counsel. Ex parte McCormick, 645 S.W.2d 801 (Tex.Crim.App.1983). In order to support a claim of ineffective assistance, a defendant who raised no objection to his counsel at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Ex parte Parham, 611 S.W.2d 103 (Tex.Crim.App.1981). Once he has carried this burden, he need not show any specific harm to obtain relief. Id. Appellants allege that actual conflicts of interest arose in the representation of both brothers.

The complainant testified that she was attacked by two men as she sat in her car in the parking lot of the Red Dog Saloon. One man opened the driver’s door, held a gun on the complainant, threatened her, hit her on the head with the gun, and bit her arm several times. The other man got into the passenger seat and held her head down. During the robbery, the complainant’s car rolled backwards and hit a parked car across the street from the bar. The man in the passenger seat got out of the car, and when he did, the complainant escaped. She dropped her purse as she got out of the car, and the man in the passenger seat picked it up. The complainant ran into the bar, and when the police came, she gave them a description of the two men. Stanley was arrested two blocks away at a fast food restaurant and was brought to the back door of the bar shortly thereafter, where the complainant identified him as the man without the gun who took her purse. Several months later, the complainant was in the courtroom for an early setting on Stanley’s trial, and she pointed out Stephen as the man with the gun who bit her.

A customer of the Red Dog Saloon testified that he parked his car down the street and was walking toward the bar on the day in question when he noticed the complainant’s car, which had backed into a parked car across the street from the bar. He saw two men struggling inside the complainant’s car, and heard the complainant screaming for help. He ran to his car to get a club, and when he returned, the men were gone, and the complainant was going into the bar. He positively identified Stephen several months later in the courtroom at the early setting in Stanley’s trial, and he testified at trial that he believed Stanley was the other man he saw attacking the complainant.

The defendants presented several alibi witnesses. Their mother testified that she visited Stephen at his home in Philadelphia three days before the robbery and had not seen him in Houston until the early trial setting in Stanley’s case. At the time of the robbery, she was with Stanley at his apartment two blocks from the Red Dog Saloon and said he had just come from work and was going across the street to the fast food restaurant for dinner.

Stanley’s fiancee testified that she, too, was at Stanley’s apartment when he came home from work that day, and she left almost immediately to make a phone call at a booth across Cullen Avenue from the Red Dog Saloon. She saw Stanley as she returned a few minutes later in front of the fast food restaurant on her way back to the apartment.

Stanley’s employer testified that he saw Stanley leave work that afternoon around the time of the robbery. Stanley worked for American Vending Company, which is located across Dennis Street from the Red Dog Saloon. Stephen had previously worked for American Vending before moving to Philadelphia several months earlier.

A co-worker testified that she left work that afternoon, got into her car, and drove down Dennis Street toward Cullen. Two men were crossing Dennis Street going toward the bar, and she had to apply her brakes to avoid hitting one of them. At the end of Dennis Street, she stopped at a stop sign and heard a crash behind her. When she looked in her rear-view mirror, [191]*191she saw that the complainant’s car had backed into a parked car across Dennis Street from the bar. She made a U-turn to return to American Vendors for some letters she had forgotten, and as she drove around by the complainant’s car, she saw the two men she had seen before struggling inside the complainant’s car. She parked in front of American Vending and, as she walked to the office, she looked back at the complainant’s car. She saw the two men get out of the complainant’s car and run toward her, then turn into an alley between American Vending and the building next door. She testified that she knew Stanley and Stephen from working with both of them, and that the men she saw were not the James brothers.

A friend of Stephen’s uncle who lives in Philadelphia testified that she had called Stephen at his sister-in-law’s house on the day in question. Stephen was not at his sister-in-law’s house, so she left a message. Stephen called her back late that afternoon and they talked for about 15 minutes. On cross-examination, she said she could not tell if the call came from within Philadelphia or was long-distance.

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Related

James v. State
763 S.W.2d 776 (Court of Criminal Appeals of Texas, 1989)

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Bluebook (online)
677 S.W.2d 188, 1984 Tex. App. LEXIS 6112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-state-texapp-1984.