Gonzalez v. State

• Decision Date: 08 October 2003
• Docket Number: No. 561-02.,561-02.
• Citation: 117 S.W.3d 831
• Parties: Alfonzo GONZALEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

117 S.W.3d 831

Alfonzo GONZALEZ, Appellant, v. The STATE of Texas.

No. 561-02.

Court of Criminal Appeals of Texas.

October 8, 2003.

Allen C. Isbell, Houston, for Appellant.

William J. Delmore, III, Asst. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.

OPINION

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, and COCHRAN, JJ., joined.

The Issue

Ralph Gonzalez, appellant's counsel of choice was disqualified as counsel on the State's pretrial motion. The State argued that he would be a witness necessary to establish an essential fact on behalf of appellant and that the dual roles of advocate and witness would taint the jury, resulting in actual prejudice to the State. After conviction, appellant appealed, claiming among other things, that the trial court's ruling dismissing his attorney violated his Sixth Amendment right to counsel of his choice.

We granted review to address under what circumstances the possibility of prejudice to the State's case trumps the defendant's Sixth Amendment right to retained counsel of his choice.

The Relevant Facts

Appellant and several co-defendants were indicted for engaging in organized criminal activity, to wit, theft. See Tex. Penal Code Ann. § 71.02 (Vernon 1994 & Supp.2001).

The group stole more than $200,000 in an insurance fraud scheme in which automobile accidents were staged and insurance companies were billed for medical treatment of persons purportedly injured in the staged accidents. Appellant was a licensed physician purporting to treat claimants involved in the staged car accidents. Percy Gonzalez, one of the participants in the conspiracy, was the State's key witness against appellant. He had first participated in a staged wreck after which he was attended by appellant. Percy later accepted a job at appellant's clinic, generating phony medical narratives and medical bills under appellant's supervision. Appellant had discussed with Percy the financial arrangements he had with the co-defendant who was in charge of recruiting and paying the numerous individuals who staged the auto accidents and posed as injured passengers.

After appellant and Percy were indicted, Percy had several telephone conversations and at least two meetings with Ralph Gonzalez, appellant's attorney. During these encounters, it was agreed that appellant would pay Percy $10,000. The reason for the payment was in dispute. The transfer of the first payment of $3,000 was completed. Appellant was present during at least one of the meetings, and Marco Vargas, Percy's friend, was present during at least one meeting and was involved in the transfer of the $3,000. Appellant refused to pay the remaining $7,000.

The State moved to disqualify attorney Gonzalez as appellant's counsel under disciplinary rule 3.08¹, because he had personal knowledge bearing directly on the guilt or innocence of his client and the credibility of the State's key witness and was therefore a potential witness whose credibility would be at issue regardless of whether he took the stand.

At the hearing on the motion to disqualify, Percy claimed the payment was an attempt to buy testimony favorable to appellant; attorney Gonzalez claimed the money was paid initially out of appellant's moral obligation to help Percy, appellant's employee, pay for an attorney, but that Percy then attempted to extort the money from appellant, threatening to testify unfavorably regarding appellant if appellant did not pay the $10,000. To back this up, attorney Gonzalez offered a transcript of one of the telephone conversations between himself and Percy that he had recorded. He had recorded some, but not all, of the telephone conversations he had with Percy and none of the in-person meetings. He did not introduce the transcript of the recording or any of the recordings into evidence and had refused to produce them to the prosecution.

Attorney Gonzalez argued, both in his response to the motion to disqualify and at the disqualification hearing, that he should not be disqualified from representing appellant. First, he did not believe that he would be a necessary witness in the case. Second, appellant would suffer a substantial hardship from his disqualification. He based his first argument on the existence of the taped conversations and his ability to impeach Percy's testimony regarding the untaped meetings through rigorous cross-examination. At the hearing, he also focused on his contentions that his testimony would not be adverse or prejudicial to his client, and that whether he would testify was purely speculative.

At the hearing on the motion to disqualify defense counsel, the trial court heard testimony from Percy Gonzalez, Marco Vargas, and attorney Gonzalez, among others, and argument from the State and attorney Gonzalez. The witnesses's testimony focused mainly on detailing what transpired at the meetings and in the conversations attorney Gonzalez had with Percy and what the witnesses believed the basis was for agreeing to pay Percy.

While cross-examining Percy Gonzalez, attorney Gonzalez at one point made the comment to the judge that Percy's answer was "absolutely correct." While cross-examining Vargas, after Vargas testified he had first met attorney Gonzalez at the Red Lobster, attorney Gonzalez asked "Would it surprise you that I have never met with you or anybody at Red Lobster?"

The trial court granted the State's motion to disqualify defense counsel.

Thereafter, a joint trial took place and appellant was convicted.² After appellant's motion for new trial was denied, he appealed, raising among his points of error the violation of his Sixth Amendment right based on the trial court's pre-trial ruling disqualifying his counsel of choice.

The court of appeals affirmed appellant's conviction, finding the trial court did not abuse its discretion in determining that dismissal was justified.³ The court of appeals concluded the record supported the finding that, there existed, at the time of disqualification, a very real probability that attorney Gonzalez would be called upon to testify on a hotly contested, very controversial issue that was of paramount importance to the defense, thus making his credibility an issue. Further, the court of appeals found the State had sufficiently demonstrated attorney Gonzalez's continued representation, in light of such testimony, would cause actual prejudice to the prosecution.

The Law

The Federal and Texas Constitutions, as well as Texas statute, guarantee a defendant in a criminal proceeding the right to have assistance of counsel.⁴ The right to assistance of counsel contemplates the defendant's right to obtain assistance from counsel of the defendant's choosing.⁵ However, the defendant's right to counsel of choice is not absolute.⁶ A defendant has no right to an advocate who is not a member of the bar, an attorney he cannot afford or who declines to represent him, or an attorney who has a previous or ongoing relationship with an opposing party.⁷ Additionally, while there is a strong presumption in favor of a defendant's right to retain counsel of choice, this presumption may be overridden by other important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice.⁸ However, when a trial court unreasonably or arbitrarily interferes with the defendant's right to choose counsel, its actions rise to the level of a constitutional violation.⁹ Therefore, courts must exercise caution in disqualifying defense attorneys, especially if less serious means would adequately protect the government's interests.¹⁰

In moving to disqualify appellant's counsel of choice, the government bears a heavy burden of establishing that disqualification is justified.¹¹

Counsel may be disqualified under the disciplinary rules when the opposing party can demonstrate actual prejudice resulting from opposing counsel's service in the dual role of advocate-witness.¹² Allegations of one or more violations of the disciplinary rules or evidence showing only a possible future violation are not sufficient.¹³ In determining whether counsel should be disqualified because counsel is a potential witness, Texas courts use rule 3.08 of the Texas disciplinary rules of professional conduct as a guideline.¹⁴ The rule does not present the disqualification standard, but does provide considerations relevant to the determination.¹⁵

The comments following the rule recognize that rule 3.08 sets out a disciplinary standard and is not well suited to use as a standard for procedural disqualification but can provide guidance in those procedural disqualification disputes where the party seeking disqualification can demonstrate actual prejudice to itself resulting from the opposing lawyer's service in the dual roles.¹⁶ The party seeking disqualification, however, cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness.¹⁷

Analysis

The arguments appellant urges in support of his three grounds for review can be broken down into five assertions of error on the part of the court of appeals. (1) The court of appeals applied the abuse of discretion standard incorrectly, because the record demonstrates the trial court did not correctly apply the law. (2) The court of appeals erred by not applying the same actual prejudice requirement to the State as was applied to the defendant in House. (3) The court of appeals erred in basing its decision on the unsworn-witness rule, which is not yet adopted in Texas. (4) The court of appeals erred by finding that speculation, regarding both whether counsel was a necessary witness and whether performing such a dual role in this instance would result in actual prejudice to the State, was sufficient to support the trial court's ruling. (5) Finally, the court of appeals erred in not considering whether the trial court had considered less drastic means to protect ...