Gonzales v. State

• Decision Date: 17 September 1980
• Docket Number: No. 53890,No. 1,53890,1
• Citation: 605 S.W.2d 278
• Parties: Sigifredo GONZALES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 278

605 S.W.2d 278

Sigifredo GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 53890.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 17, 1980.

Dan W. Heard, Port Lavaca, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appeal follows conviction for the felony offense of possession of marihuana wherein the trial court assessed punishment at confinement in the Texas Department of Corrections for ten years and a fine of five thousand dollars.

Though appellant advances some seven grounds of error for our consideration, we need not reach each of these contentions. In ground of error number three, complaint is made that the appellant was denied the effective assistance of counsel at trial for the reason that trial counsel's multiple representation of appellant and two other codefendants created an actual conflict of interest thereby impairing trial counsel's effectiveness. We agree and reverse the judgment below.

This cause has had a somewhat checkered procedural history. Confronted with the jurisdictional issue of whether appellant waived the time in which to file a motion for new trial or a motion in arrest of judgment prior to being sentenced, the Court dismissed the instant appeal in an unpublished opinion on December 15, 1976. Resubmitted for consideration on February 7 1978 on briefs ¹ and oral argument, this cause was again remanded albeit for different reasons which, as it turns out, form the basis for reversal of this judgment. After reviewing the facts adduced at trial, the majority of the panel pointed out that the record before the panel was silent as to whether appellant had ever been warned by his trial counsel of the risks inherent in multiple representation by sole attorney in a criminal proceeding. Accordingly, over the dissent of one judge, the panel ordered the instant appeal held in abeyance until the trial court could hold a prompt evidentiary hearing limited to the issue of "what disclosure or warnings, if any, were given to appellant concerning the dangers of his attorney also representing his codefendants," and similarly ordered the trial court to prepare findings of fact and conclusions of law in this regard.

Less than a month after the panel opinion of April 25, 1979, commendably the trial court held the evidentiary hearing, made and filed findings and conclusions, and caused the record to come to the Court.

Appellant testified that at no time during the course of the proceedings did his attorney apprise him of the dangers of joint representation or the possible conflict of interest ² that would attend such representation. There were other witnesses and their testimony will be mentioned as appropriate. The nub of the problem before us is that, in presenting a defense to the charge of joint possession of a large quantity of marihuana by each accused, trial counsel put one of them on the witness stand and, as will be detailed post, elicited testimony that inculpated appellant as well as the third codefendant.

It is undisputed that during the course of arraigning the three accused, the trial court did inquire of appellant as to his satisfaction with their retained counsel. However, appellant insists that he was not admonished as to the dangers of multiple representation or of possible conflict of interest and, also, that he was never counselled by his attorney on either point. There was other testimony to the same effect. After the ordered evidentiary hearing the court below made a single factual finding as follows:

"Insufficient and inadequate warnings and disclosure were given to Sigifredo Gonzales concerning the dangers of his attorney, Regis Toomey, also representing Floyd Phillips and Cenovio Trevino, two of his co-defendants in the trial of this case on its merits."

The finding is supported amply by the record and will be accepted by this Court as a foundation for our structuring the balance of this opinion.

After the State had rested and the defense had further examined the State's principal witness to the offense, he being one of the four principals, according to his testimony, counsel for the accused moved for an instructed verdict on grounds that the State had not sustained in its burden of proof. During the course of his argument in support of the motion, counsel asserted, "The State's witnesses indicated certainly, against Mr. Gonzales and Mr. Phillips, there was absolutely no possession." Upon the motion being overruled, counsel immediately called to the witness stand Cenovio Trevino, one of the accused.

At the evidentiary hearing appellant testified as to his stated attitude toward Trevino testifying:

Q: Did you object to Mr. Toomey's decision to put Mr. Trevino on the witness stand?

A: Yes, sir, I did. I was the only one to oppose, to don't let (sic) Trevino take the stand. In fact, Mr. Toomey and I myself, we almost got into a fight. ³

Q: Did Mr. Toomey tell you at that time that this is a conflict of interest?

A: No. Mr. Toomey says that there was no problem, there was no problem.

Q: So you feel like then you were having to rely on Mr. Toomey to tell you when a conflict of interest might come up that might require you to get some other lawyer?

A: He never did mention any conflicting interest or any danger about anything. Never did mention it.

And on cross examination, appellant continued in the same vein:

Q: Okay. When in fact did you believe that there had been a conflict of interest and you should not have been tried along with the other two defendants? ⁴

A: I do believe when I first began to see that something was wrong with the trial was the time that Toomey put Trevino on the stand.

Q: Okay. Did you mention this to Mr. Toomey?

A: Yes, sir. We raised a big argument and we almost got into a fight.

Q: Okay. The trial went on anyway?

A: Yes, sir. The trial went on.

Q: Did you ever mention to anybody else that you thought you should have not been tried with the other two defendants while the trial was going on?

A: No, sir. Nobody mentioned to me anything at all.

The conclusions of law reached by the court reads:

"CONCLUSIONS OF LAW"

After accepting employment from Sigifredo Gonzales, Regis Toomey violated his duty to adequately warn Sigifredo Gonzales of the dangers involved in his accepting employment to represent Floyd Phillips and Cenovio Trevino. I am not of the opinion, however, that anything was done by Mr. Toomey in furtherance of his representation of Cenovio Trevino or Floyd Phillips which was anymore damaging to Sigifredo Gonzales than it was to Cenovio Trevino and Floyd Phillips. Although a professional responsibility of Regis Toomey was violated, I do not find that this resulted in a denial to Sigifredo Gonzales of effective assistance of counsel.

We are in total agreement with the finding of the court that insufficient warnings about the dangers inherent in multiple representation were given to appellant. Moreover, we similarly concur in that portion of the conclusion of law holding that Toomey violated a professional responsibility by failing to apprise appellant of the dangers of multiple representation and the conflict of interest of which Toomey either knew or should have known. We are, however, constrained to disagree with the conclusion that this breach of a legal and professional duty by the trial attorney did not result in a denial of the effective assistance of counsel to appellant merely because the latter was not harmed anymore than his codefendants. Without the benefit of the recent Supreme Court holding in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), a case not decided until well over a year after the evidentiary hearing, we appreciate that the court below could hardly anticipate its holding that where an accused demonstrates that an actual conflict of interest adversely impairs his trial lawyer's performance, the accused need not demonstrate "actual prejudice" because harm is presumed.

To fully understand this rationale, it is necessary to review Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) and its progeny, which, in turn, bear out our conclusion in this case.

Glasser involved multiple representation by one attorney of a pair of former assistant United States attorneys who were charged with entering into a conspiracy to defraud the United States by accepting bribes to corrupt and influence enforcement of the federal liquor laws. Defendant Glasser contended that because of this dual representation his counsel not only declined to cross examine a witness adverse to him in order to protect counsel's other client, but also failed to object to hearsay testimony for fear it would leave the jury with the impression that the testimony was true as to the other codefendant. The Supreme Court found that this joint representation deprived Glasser of the effective assistance of counsel even without the demonstration of any specific prejudice flowing from the dual representation:

". . . (T)he assistance of counsel guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired . . .

"There is yet another consideration. Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected. Irrespective of any conflict of interest the additional burden of representing another party may conceivably impair counsel's effectiveness.

"To determine the precise degree of prejudice sustained by Glasser as a result of the court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to...