Gaston v. State

• Decision Date: 29 April 2004
• Docket Number: No. 01-01-01168-CR.,01-01-01168-CR.
• Citation: 136 S.W.3d 315
• Parties: Lorie Brooks GASTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

136 S.W.3d 315

Lorie Brooks GASTON, Appellant, v. The STATE of Texas, Appellee.

No. 01-01-01168-CR.

Court of Appeals of Texas, Houston (1st Dist.).

April 29, 2004.

Kyle B. Johnson, Houston, TX, for Appellant.

Charles A. Rosenthal, Jr., District Attorney-Harris County, Donald W. Rogers, Jr., Assistant District Attorney, Calvin Hartmann, Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Houston, TX, for Appellee.

The original panel consisted of Justices TAFT, KEYES, and HIGLEY.

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 hydrocodone 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, during 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...