Bowen v. Carnes

• Decision Date: 15 June 2011
• Docket Number: Nos. AP–76,519,76,520.,s. AP–76,519
• Parties: Charles Kevin BOWEN and Jennifer Bowen, Relators,v.Honorable Burt CARNES, 368th Judicial District Court of Williamson County, Respondent.
• Court: Texas Court of Criminal Appeals

343 S.W.3d 805

Charles Kevin BOWEN and Jennifer Bowen, Relators,
v.
Honorable Burt CARNES, 368th Judicial District Court of Williamson County, Respondent.

Nos. AP–76,519

76,520.

Court of Criminal Appeals of Texas.

June 15, 2011.

[343 S.W.3d 807]

Keith Hampton & Cynthia L. Hampton, Austin, for Appellant.Kristen Jernigan, Asst. Dist. Atty., Georgetown, for State.

OPINION PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined.

We are called upon in this original mandamus proceeding to determine whether the respondent, the trial court judge in the relators' pending capital murder prosecution, must rescind an order granting the State's motion to disqualify the relators' mutually retained counsel of choice, Robert Phillips. A principal witness in the State's case, a jailhouse informant by the name of William Ballenger, was a former client of Phillips in an unrelated criminal matter. The State moved to disqualify Phillips from representing the relators in their capital trial on the grounds that Phillips might be hampered in his ability to effectively cross-examine his former client. Even though both the relators and Ballenger had executed waivers of their rights to conflict-free counsel, the respondent nevertheless granted the State's motion out of concern for “the integrity of the judicial process and the public's perception[.]” We filed and set the relators' application in order to determine whether, under the particular circumstances presented by this case, the respondent abused his discretion to deprive the relators of their Sixth Amendment right to counsel of choice on the sole basis of his concern with the public's perception of fairness. We will grant relief.

FACTS AND PROCEDURAL POSTURE

The agreed facts are as follows. The relators, Kevin and Jennifer Bowen, were charged by separate indictments with the capital murder of John Blattner, Jennifer's ex-husband, alleged to have occurred in March of 2009. They both retained Phillips to represent them in these charges.¹

[343 S.W.3d 808]

In February of 2010, Ballenger gave a statement to police in which he detailed what he asserts Kevin told him with respect to this offense while both were incarcerated in the Williamson County Jail. Ballenger had also retained Phillips to defend him against unrelated charges of capital murder, murder, and aggravated assault. As of February 18, 2010, when the State first revealed Ballenger's statement to Phillips, Ballenger had already entered a negotiated guilty plea to murder, but his sentencing had not yet taken place. In April of 2010, the State filed its motion to disqualify Phillips from representing the relators. The State claimed, inter alia, that in the very likely event that the State should call Ballenger to testify against the relators, Phillips would be put in the compromising position of either having to vigorously attack Ballenger's credibility on cross-examination, in the interest of the relators, or to refrain from doing so, which would be in Ballenger's best interest but detrimental to the best interest of the relators.

The respondent took up the State's motion to disqualify Phillips at a hearing on May 5, 2010. In the course of the hearing, Phillips introduced into the record signed written waivers from both of the relators documenting their informed consent to their continued representation by Phillips despite any conflict, as well as their waiver of any objection to his continued representation of Ballenger. Phillips also requested permission to confer with the respondent ex parte so that he might explain to the trial court, in a setting that would not unduly reveal his trial strategy to the State, how he believed he could continue to represent both the Bowens and Ballenger without an actual conflict of interest. The trial court declined to permit such an ex parte conference, but allowed Phillips to submit a sealed affidavit, for the respondent's perusal only, to thus explain himself. Phillips was briefly excused from the hearing to execute such an affidavit, which the trial court then read to himself on the bench, sealed, and admitted for record purposes.

As the May 5th hearing unfolded, the respondent made several remarks that seem to indicate the bent of his thinking. Early on, the respondent announced:

THE COURT: In the interest of time, my mind has not changed about the potential or the real conflict between the Bowens and their ability to waive [any conflict that might stem from Phillips's mutual representation of the two of them] as long as it's done knowingly, intelligently, and voluntarily. I've heard that and ruled on it.

The reason we're here today having this hearing is because of the disclosure from Mr. Ballenger. To me that is the issue. And it's not just whether they all agree. It's how it would appear to the public at large. I mean it's just kind of an incredible situation.

MR. PHILLIPS: I understand, Judge.

THE COURT: You, I think, said it. It's really about the integrity of the judicial process and the public's perception of the judicial process and what it would look like to go to a trial on a capital murder case where the same attorney representing both defendants is also representing one of the prosecution witnesses. That is what should be the focus of today's hearing.

Later, the respondent similarly observed:

THE COURT: ... What you said earlier-it's not even about these three

[343 S.W.3d 809]

people and what they feel and what they think and even what they want at this point. It's the integrity of the system as it appears to everybody else. And what is it going to look like in a capital murder trial with codefendants having you represent not just the two defendants but a witness that comes in who is also a murder case who's testifying against your clients, and you're going to have to cross-examine?

Assured by Phillips that his concerns about public perception would be obviated if he would only hear Phillips out in an ex parte conference, the respondent answered:

THE COURT: ... [P]art of the problem is I'm looking down the road beyond the trial to an appeal, assuming there is a guilty verdict, and then ultimately a writ of habeas corpus. And I can imagine what some good appeal lawyer will do given this situation. I can just see it in my mind. It would be 50 pages about how we ignored the law and truth and justice in Williamson County once again. I'm frankly getting tired of hearing that.

Phillips insisted that “I can answer your question. I just can't do it in open court.” He continued:

MR. PHILLIPS: ... I can tell you why it will, I believe, if not satisfy you at least respond to your question about why the Ballenger factor should not disqualify me from either Bowen case or even Ballenger. But I can't do it here without serving up my defense to the State in open court.

THE COURT: It still doesn't answer my question—

MR. PHILLIPS: It will.

THE COURT:—about the appearance.

MR. PHILLIPS: It will.

THE COURT: It will not. It will not.

I know how these things play out. I'm telling you I can see some reporter that doesn't understand diddly about what's going on in the trial but, you know, can pick up an issue like this and make a story out of it. But even more important than that, because that doesn't really matter that much, it's what happens in the appeals and in the writs down the road.

After reluctantly accepting Phillips's explanatory affidavit, the respondent reviewed it and admitted it into evidence for record purposes. Nevertheless, the respondent persisted in his view that “the appearance of impropriety” inherent in Phillips's continued representation of both the relators and Ballenger was intolerable. He ruled:

THE COURT: ... [A]fter more than 20 years on the bench I've had this issue brought before me in criminal cases, more often, frankly, in civil cases. And I've never granted one. I've always thought ... that most times it was a simple ethical issue and not a disqualification issue. And, as I've already stated, I had already made this ruling once on the Bowens and any potential conflict between them, and I had already determined that I thought they were waiving any conflicts knowingly, intelligently, and voluntarily.

The difference now is having a third party as a witness in the case represented by the same counsel. And, you know, we talk a lot about the appearance of impropriety. If there ever is one, this is it. I'm going to grant the motion to disqualify as to both of the Bowens and deny it as to Mr. Ballenger because ... his deal is already cut, and I just don't see that as a real issue in the Ballenger case.

Upon the suggestion that the respondent should disqualify Phillips in representing

[343 S.W.3d 810]

Ballenger but permit him to continue representing the relators, the respondent replied:

THE COURT: And to be frank, surely you ... realize that I did think of that as an alternative. I don't think it takes care of the issue as I see it. If I'm wrong, I'm wrong, but I have thought of that and considered it.

Asked at this juncture whether he would consider allowing Phillips to continue to represent at least one of the relators, the respondent answered:

THE COURT: That doesn't address my issue at all. My issue isn't between the Bowens. I've already addressed that issue. I was perfectly comfortable and satisfied with my decision when it was just the Bowens and the possible conflict. It's this other issue that is my concern.

With this final remark, the hearing came to a close.

The relators filed an original application for writ of mandamus in the Third Court of Appeals.² In a one sentence order, that court denied relief without elaboration (perhaps out of deference to the confidential nature of Phillips's sealed affidavit).³ We filed and set the relators' subsequent original application for writ of mandamus to this Court and held oral argument. At oral argument, we were informed that...