Calloway v. State

• Decision Date: 25 September 1985
• Docket Number: No. 668-84,668-84
• Citation: 699 S.W.2d 824
• Parties: Carl Lee CALLOWAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 824

699 S.W.2d 824

Carl Lee CALLOWAY, Appellant, v. The STATE of Texas, Appellee.

No. 668-84.

Court of Criminal Appeals of Texas En Banc.

Sept. 25, 1985.

W.E. Harper, Beaumont, for appellant.

James S. McGrath, Dist. Atty., and R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty. and Alfred Walker, First Asst., State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was indicted for the offense of aggravated possession of a controlled substance, namely, cocaine. ¹ One prior felony conviction was alleged for enhancement of punishment. A jury found him guilty of the lesser included offense of possession of a controlled substance. ² Upon proof of the alleged prior conviction, the judge assessed punishment at 30 years' imprisonment.

On appeal the appellant raised a number of grounds of error. His seventh ground of error read:

The trial court committed reversible error by denying the motion to withdraw as counsel for appellant made by appellant's attorney based upon a conflict of interest between appellant and a co-defendant also represented by appellant's attorney for the reason that appellant was denied his right to effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States.

He cited and relied upon Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The Beaumont Court of Appeals sustained appellant's seventh ground of error and reversed and remanded the cause to the trial court. Calloway v. State, S.W.2d (Tex.App.-Beaumont 1984) (No. 09-83-004 CR). In considering appellant's seventh ground of error, the Court of Appeals held that the trial court, having been placed on notice that a potential conflict of interest existed, erred in its affirmative duty to hold a hearing to determine "whether the risks inherent in co-representation ... were too remote to warrant separate counsel or to see that the appellant and his co-defendant were represented by separate counsel." The Court of Appeals then applied the presumption that the alleged conflict of interest existed and that appellant was harmed.

In its petition for discretionary review, the State argues that the Court of Appeals erred in holding that the trial court neglected its affirmative duty to hold a hearing when there was an adequate hearing held during which appellant was given the opportunity but failed to show that the multiple representation would result in a conflict of interest; and that appellant failed to lodge an appropriate objection so as to entitle him to a hearing. ³

We granted the State's petition for discretionary review to determine the correctness of the Court of Appeals' disposition of appellant's seventh ground of error.

The indictment against appellant individually was presented in the 252nd District Court on May 6, 1982. It was filed and became Case No. 41389. In a letter dated July 26, 1982, appellant's counsel requested to withdraw from the case and others. The letter addressed to the district judge was received the following day. It read:

"I visited with Carl Calloway today and he desires that I withdraw since he is back in jail and is not going to be able to afford an attorney on any of his cases. I believe that it would be better if one lawyer represented him on all three of these cases. I do not know whether or not Arthur Gilmore has even withdrawn from the murder case.

"I have never received any money at all for representing Calloway. It seems that he could not stay out of jail long enough to ever get up a payday.

"Would you please note that I have a vacation letter on file through the 15th of August, 1982, and quite a number of cases have been set. Consequently, we are totally snowed under for the balance of August. If you need to have a hearing on these Motions, it would be appreciated if you would set it toward the last of August or around the 1st of September. In any event, I feel like I should not represent this man on these cases. One reason, I represent one of the co-defendant's (sic) and I can see a clear conflict of interest at this time. I represented the co-defendant prior to representing Calloway on this 41389 and I anticipated at that time that there would not be a conflict but apparently there is going to be a serious conflict and for the above enumerated reasons I would like to be relieved of representing the defendant.

"Thank you." (Emphasis supplied.)

On July 27, 1982 the following motion was filed:

"MOTION TO WITHDRAW AS COUNSEL

"COMES NOW, W.E. Harper, attorney of record for Carl Lee Calloway, Defendant, and would file this his Motion to Withdraw as Counsel, and as grounds therefor he shows as follows:

"I.

"The Defendant, Carl Lee Calloway, desires that this attorney withdraw so that the same attorney can handl (sic) all cases pending against him at the present time.

"WHEREFORE, PREMISES CONSIDERED, your Movant asks that this Honorable Court release him, the said W.E. Harper, as attorney of record in this cause."

The motion was signed only by the attorney. On the same date the trial judge denied the motion in the order form on the prepared motion.

Appellant's case was tried on August 18, 1982. It was not a joint trial. On that date, following jury selection, the reading of the indictment, and appellant's plea of not guilty before the jury, the following exchange took place outside the presence of the jury:

"[DEFENSE COUNSEL]: Your Honor, ... can I make my bill regarding the motion to withdraw?

"THE COURT: Sure. Just do it from right there.

"[DEFENSE COUNSEL]: Your Honor, I would like to get that motion that is filed, I would like to get a file mark and put on it and get it entered into evidence.

"THE COURT: I will just take judicial notice. The Court has before it in the cause number a motion to withdraw as counsel signed by Mr. Harper and filed by the Court on July 27th of '82 requesting he be allowed to withdraw as the attorney.

"[DEFENSE COUNSEL]: I would like the evidence to show that I represent one of the co-defendants, that I firmly believe that there is a conflict of interest that developed on or about the time that I filed this motion. And I did not recognize the conflict of interest to be as serious or would have any bearing on the case until such time as I notified the Court. Also Mr. Calloway had requested that I withdraw from his case even though I did not get his signature on the motion to withdraw. For that reason I believe that due to the conflict of interest that I should be allowed to withdraw and not be required to try this case due to the fact that there is a conflict of interest.

"THE COURT: Who is the co-defendant?

"[DEFENSE COUNSEL]: Willie Bennett.

"THE COURT: His case has been disposed of?

"[DEFENSE COUNSEL]: No, sir, it was set to be disposed of, I thought today, but the Court advised me he had to postpone that to a later date. Mr. Bennett lives out of state. He has already incurred the expense of an attorney and investigation. He hired me prior to Mr. Calloway and I believe it would work a hardship on Mr. Bennett to force him for me to withdraw from his case and him not be allowed to use the attorney of his choice since he employed me first.

"THE COURT: The court, on the motion to withdraw as counsel, finds that the Defense Counsel represents two defendants, the co-defendant in the cause, and that being privately retained in each case number, since the co-defendant Willie Bennett's case has not been disposed of, Defense Counsel can withdraw as attorney in Mr. Bennett's case and continue to represent Mr. Calloway. Therefore the motion to withdraw is denied.

"[PROSECUTOR]: Your Honor, for the Court's information Mr. Willie Bennett's case has been set for a plea on September 13th."

The main thrust of the attorney's letter sent to the trial judge was that appellant was in jail and had no money to pay his attorney, although it concluded with a request to withdraw because of an undisclosed "conflict of interest."

The motion to withdraw stated that the appellant wanted counsel to withdraw. No mention of conflict of interest was made. The motion was not signed by the appellant.

At trial, after the indictment had been read to the jury and the appellant had entered his plea of not guilty, appellant's counsel asked to make "my bill" on the motion to withdraw. The court permitted the same. Counsel again stated there was a conflict, a serious conflict, between appellant and codefendant Bennett, who was not on trial at the time. The nature of the possible conflict was not disclosed to the court. Upon further inquiry, counsel advised the court Bennett lived out-of-state and had hired him first, and it was a hardship on Bennett to force him to withdraw as Bennett's attorney. The court noted counsel was retained in both cases and could withdraw as attorney in Bennett's case and continue to represent the appellant.

Counsel took no exception to the court's suggestion, did not call the appellant as a witness or ask to offer other evidence in connection with his "bill."

At trial the appellant did not testify or call Bennett as a witness. In fact the defense offered no evidence at all. Appellant makes no claim on appeal that the trial independently shows a conflict of interest which would have entitled him to relief even if he had made "no objection" prior to appeal.

The mere fact of joint representation will not show an actual conflict of interest. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978), where codefendants' interests are in conflict, the joint representation of codefendants by a single attorney may deprive a codefendant of his Sixth Amendment right to effective assistance of counsel, see, e.g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (19...