James v. State

• Decision Date: 25 January 1989
• Docket Number: Nos. 964-84,965-84,s. 964-84
• Citation: 763 S.W.2d 776
• Parties: Stanley Dion JAMES, Appellant, v. The STATE of Texas, Appellee. Stephen JAMES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 776

763 S.W.2d 776

Stanley Dion JAMES, Appellant, v. The STATE of Texas, Appellee.

Stephen JAMES, Appellant, v. The STATE of Texas, Appellee.

Nos. 964-84, 965-84.

Court of Criminal Appeals of Texas En Banc.

Jan. 25, 1989.

Philip S. Ross, Houston, for Stanley Dion James.

Walter Boyd, Court-appointed on appeal only, Houston, for Stephen James.

John B. Holmes, Jr., Dist. Atty., James C. Brough and R.K. Hansen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellants were convicted by a jury of aggravated robbery and punishment was assessed at ten years' confinement. The Court of Appeals for the First Supreme Judicial District abated both appeals and ordered that the trial court hold an evidentiary hearing to determine whether appellants' trial counsel had warned them "of the risks inherent in joint representation." See Gonzales v. State, 605 S.W.2d 278 (Tex.Cr.App.1980). The trial judge filed findings of fact and conclusions of law, determining there was no actual conflict of interest supporting appellants' claim of ineffective assistance of counsel in this matter. The appellate court disagreed and reversed both convictions on the ground that "[t]he potential arguments asserted by appellants' counsel on appeal represent an actual conflict of interest which arose in the representation of the James brothers and their representation was ineffective because of this conflict." James v. State, 677 S.W.2d 188 (Tex.App.Houston (1st) 1984). We will reverse the decision of the appeals court below.

The complainant testified that she was attacked by two men on August 4th as she sat in a car in the parking lot of the Red Dog Saloon, a bar located a short distance from the campus of the University of Houston. According to the complainant, one man opened the driver's door, pointed a gun at her, hit her over the head with the gun, and bit her arm several times while attempting to subdue her. The other man got into the passenger seat and held her head down. During the robbery, the car rolled backward and hit a parked car across the street from the bar. The man in the passenger seat got out of the car and the complainant was able to escape, dropping her purse in the process. The second man picked up the purse as the complainant ran inside the bar. The police were called and upon their arrival the complainant gave them a description of the two men. Stanley James was arrested two blocks away in the parking lot of a fast food restaurant and brought to the back door of the bar where the complainant identified him as the man who took her purse. Several months later, the complainant was in the courtroom for an early setting on Stanley's trial. Looking about the gallery, she recognized Stanley's brother Stephen and pointed him out as the man with the gun during the robbery.

A bar customer testified that he parked his car down the street and was walking toward the bar when he observed two men struggling inside a vehicle that was backed into another car parked across the street. He heard a woman screaming for help. He returned to his own car to get a club but upon his return the men were gone and the complainant was entering the bar. He positively identified Stephen several months later in the courtroom at the early setting in Stanley's trial and he testified that he believed Stanley was the other man he saw attacking the complainant.

The appellants presented mutually exclusive alibi defenses and did not incriminate one another through their own or their other six alibi witnesses' testimony. Their mother, a college professor, testified that she had visited Stephen at his home in Philadelphia three days before the robbery and had not seen him again until the early trial setting in Stanley's case. She related that at the time of the robbery she was talking with Stanley in his apartment two blocks from the scene of the crime. Stanley had just arrived home from work but left a short time later to go to the fast food restaurant for dinner.

Stanley's fiancee testified that she was also at the apartment when Stanley arrived after work but that she left almost immediately to make a telephone call in a booth located across the street from the Red Dog Saloon. After making the call, she met Stanley in the parking lot of the fast food restaurant on her way back to the apartment. She had separated from Stanley before the police arrived and detained him.

Stanley's employer, the president of American Vending Company, testified that he saw Stanley leave work that afternoon around the time of the robbery. The vending company is located across the street from the Red Dog Saloon. Stephen had also been previously employed by the company before moving to Philadelphia several months earlier.

A coworker at American Vending told the jury that she was driving down the street after leaving work when she had to apply her brakes to avoid hitting one of two men crossing the street toward the Red Dog Saloon. Upon reaching a stop sign, she heard a crash behind her and through her rear view mirror observed the complainant's vehicle backed into a car parked across the street from the bar. According to her testimony, the coworker made a U-turn to return to American Vending to pick up some letters she had forgotten. As she drove by the complainant's vehicle she observed the two men she had seen before struggling inside the car. As she walked up to the office door, she looked back in time to see the two men get out of the car, run toward her, then turn and run into an alley between American Vending and the building next door. She testified that she knew Stanley and Stephen because of their employment and that the two men she saw running were not the James brothers.

An employment agent and friend of Stephen's uncle in Philadelphia testified that she called Stephen at his sister-in-law's home in that city on the day of the incident and left a message for him regarding possible employment. Stephen called her back late in the afternoon and they talked for about fifteen minutes. She could not positively say whether the incoming call came from a local or a long distance exchange.

Another witness had subleased her apartment to Stephen in Philadelphia. She testified that she spoke with Stephen in front of the apartment either on the fourth, fifth or sixth day of August concerning overdue rent.

Stephen testified that he was at home in Philadelphia on the morning of the fourth of August and was at his sister-in-law's home at the time of the robbery.

Stanley testified that he got off work that afternoon and walked home. He changed his shoes and was sitting at the kitchen table talking with his mother when his financee left to make a telephone call. He left the apartment a few minutes later and walked across the street to the fast food restaurant where he was arrested and taken to the Red Dog Saloon and identified by the complainant.

We granted the State's petition for discretionary review to determine whether the appeals court erred in holding that appellants were denied effective assistance of counsel due to a conflict of interest arising from the representation of both appellants.

It is well settled that a criminal defendant is entitled to reasonably effective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also, Moore v. State, 700 S.W.2d 193 (Tex.Cr.App.1985); Ingham v. State, 679 S.W.2d 503 (Tex.Cr.App.1984); Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981); Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980); Van Sickle v. State, 604 S.W.2d 93 (Tex.Cr.App.1980). A defendant is not entitled to errorless counsel, and defense strategy or technique will not be judged by hindsight criteria. Ex parte Perkins, 706 S.W.2d 320 (Tex.Cr.App.1986); Moore v. State, supra; Martin v. State, 623 S.W.2d 391 (Tex.Cr.App.1981); Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981); Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977). The standard of reasonably effective assistance applies to both retained and appointed counsel. Johnson v. State, 614 S.W.2d 148 (Tex.Cr.App.1981).

Representation by the same attorney of multiple defendants in the same criminal trial has often been held by this Court to amount to ineffective assistance of counsel. Ex parte Acosta, 672 S.W.2d 470 (Tex.Cr.App.1984); Ex parte McCormick, 645 S.W.2d 801 (Tex.Cr.App.1983); Ex parte Parham, 611 S.W.2d 103 (Tex.Cr.App.1981); Gonzales v. State, supra; Ex parte Alaniz, 583 S.W.2d 380 (Tex.Cr.App.1979). However, multiple representation is not per se violative of constitutional guarantees of effective assistance of counsel. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Ex parte Alaniz, supra; Hargett v. State, 534 S.W.2d 909 (Tex.Cr.App.1976); Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975). Where a defendant does not object at trial to multiple representation, he or she is required to show some actual and not merely speculative conflict of interest before being entitled to a reversal of the conviction on appeal. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Almanzar v. State, 702 S.W.2d 653 (Tex.Cr.App.1986); Calloway v. State, 699 S.W.2d 824 (Tex.Cr.App.1985); Foster v. State, 693 S.W.2d 412 (Tex.Cr.App.1985); Ex parte Acosta, supra; Polan v. State, supra; Ex parte Parham, supra; Ex parte Alaniz, supra. Here neither appellant raised any objection at trial. Thus, the issue before us is whether there was an actual conflict between the interests of appellant Stephen James and those of his brother Stanley.

In Foster, supra, we said that an actual and significant conflict of interest of the degree requiring reversal exists when "one defendant stands to gain significantly by counsel adducing probative evidence or...