Lerma v. State
| Decision Date | 24 November 1982 |
| Docket Number | No. 1,Nos. 62537,62981,s. 62537,1 |
| Citation | 679 S.W.2d 488 |
| Court | Texas Court of Criminal Appeals |
| Parties | Guadalupe LERMA & Salustrio Lerma, Appellants, v. The STATE of Texas, Appellee |
Robert Huttash, State's Atty. and Alfred Walker, Asst., State's Atty., Austin, for the State.
Before ROBERTS, TOM G. DAVIS and W.C. DAVIS, JJ.
These appellants, who are brothers, were charged in a single indictment with the offense of murder. They were represented by the same attorney at their joint trial. The jury found each guilty of the lesser included offense of involuntary manslaughter and assessed each a punishment of confinement for ten years.
In his first and second grounds of error, Guadalupe Lerma challenges the sufficiency of the evidence. Guadalupe had been working with his brother, Salustrio, and several other men in Katy on March 25, 1978. Late that afternoon they drove back to Richmond where they lived. On the way they dropped off Johnny Garcia and the other men in Rosenberg. Garcia was dropped off near a bar known as Pat's Place. He asked the appellant to return in about two hours to pick him up.
Guadalupe and Salustrio continued on to Richmond where they picked up Beatrice Davila, a friend of Guadalupe. The three bought some beer, drove around awhile, then stopped in the country to shoot a shotgun owned by Salustrio. They then drove back to Rosenberg and stopped in front of Pat's Place. The three got out of the van in which they were riding and walked toward the bar. As they approached the door, Pablo Vasquez and several other men were exiting. An argument began between Vasquez and the Lerma brothers. Vasquez brandished a knife and harsh words were exchanged, but the episode ended when the Lerma brothers returned to the van.
The Lerma brothers and Davila drove off, but very quickly turned around in a nearby alley. They stopped in front of a neighboring bar called La Hacienda. Davila got out of the van and walked to the door of La Hacienda. According to Guadalupe, they were trying to find Johnny Garcia. They sent Davila to look for him because Vasquez and his companions would not bother her. Just as Davila got to the door of the bar, Vasquez' brother, Johnny, came out. Davila turned around and ran back to the van. The State's version of what happened next and the appellants' version differed markedly.
According to the State's evidence, Pablo Vasquez had seen the appellant's van parked outside La Hacienda. When he saw his brother start toward the door of the bar he yelled and tried to stop Johnny, but Johnny continued outside. Pablo followed him and saw that the van was moving very slowly. He then saw the van's side door open and saw the barrel of a gun sticking through the opening. As he ran behind a car, he tripped and fell. As he fell he heard two shots. The door of the van then closed and the van drove off. Pablo then saw that his brother had been shot once. Johnny Vasquez died from the single shotgun wound.
According to the appellants' version of the facts, Davila was pursued back to the van by Johnny Vasquez and several other men. She fell just as she got to the van, but was able to get in. The men were trying to get inside the van, but Davila and Guadalupe had their doors locked. Salustrio, who was sitting in the back of the van, failed to lock his door. Guadalupe tried to drive off, but could not because the men had surrounded the van. Meanwhile, Salustrio had loaded the shotgun which he kept on a gun rack in the back of the van. Guadalupe told him to shoot into the air to scare the men away so that they could drive off. When one of the men outside the van opened the side door, Salustrio fired one shot into the air. One of the men outside then grabbed the barrel of the shotgun and attempted to take it out of Salustrio's hands. The gun discharged a second time. At that point the men outside scattered. The three in the van then drove away. They did not know until their arrest several hours later that someone had been shot.
The State's theory of the case was that Guadalupe was guilty as a party. V.T.C.A., Penal Code, Section 7.01, provides:
V.T.C.A., Penal Code, Section 7.02, provides:
The jury found Salustrio Lerma guilty of the offense of involuntary manslaughter. The charge required the jury to find that Salustrio recklessly caused the death of Johnny Vasquez by shooting him with a shotgun. Under the terms of V.T.C.A., Penal Code, Sections 7.01 and 7.02, Guadalupe could be found guilty of the offense of involuntary manslaughter as a party if the jury found that he solicited, encouraged, or directed Salustrio to commit the reckless act which caused the death of Johnny Vasquez and did so with the intent to promote or assist the commission of that reckless act.
Since Guadalupe's own testimony showed that he told Salustrio to shoot into the air to scare the men away, the jury could rationally find that the appellant was guilty as a party. The evidence is sufficient to support the conviction.
In his third ground of error, Guadalupe contends that the trial court erred in failing to continue the case so that separate counsel could be obtained for each of the Lerma brothers. He alleges that he pointed out to the court the potential conflict of interest present in this case, and that the court's duty at that point was either to determine whether the risk of conflict of interest was too remote to warrant separate counsel or to allow the co-defendants to obtain separate counsel.
In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the United States Supreme Court explored the risks inherent in the representation of co-defendants and set forth standards for review when those risks were made known to the trial court. The Court held that when the possibility of inconsistent interests between co-defendants is brought home to the trial court, the court has an affirmative duty to assure that the co-defendants are not deprived of their right to the effective assistance of counsel. Once this duty arises, the trial court has an obligation either to see that the co-defendants are represented by separate counsel or to "take adequate steps to ascertain whether the risk was too remote to warrant separate counsel." Id. at 484, 98 S.Ct. at 1178. Furthermore, the Court held that a defendant who has made an objection to joint representation need not show specific harm and prejudice. Reversal is automatic whenever a trial court improperly requires joint representation over timely objection.
Two years later the United States Supreme Court again took up the problem of conflict of interest. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Court resolved two issues specifically reserved in Holloway. First, the Court held that without a timely objection to joint representation, trial courts have no affirmative duty to inquire whether a conflict of interest exists. As the Court put it, "Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Id. at 347, 100 S.Ct. at 1717. Second, the Court held that without a trial objection, Holloway's presumption of harm will not be applied. "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348, 100 S.Ct. at 1718.
With these standards in mind, we turn to the record of this case. On July 31, 1978, the day the jury was to be selected, the attorney for both the appellant and his brother, co-defendants in this case, filed a "Motion for Continuance." The motion stated:
"
"NOW COMES, SAL LERMA, JR., AND LUPE LERMA, Defendants herein, by and through their attorney of record, ROBERT NINO, and files this their MOTION FOR CONTINUANCE, and would show unto this Honorable Court, the following, to-wit:
I.
That same day the following took place:
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...refuses to conduct the inquiry, the defendant is entitled to a presumption of ineffective assistance of counsel. Lerma v. State, 679 S.W.2d 488, 494 (Tex. Crim. App. 1982) (citing Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978), and Cuyler, 446 U.S. at 34......
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Right to Counsel and Effective Assistance of Counsel
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Right to Counsel and Effective Assistance of Counsel
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