Ramirez v. State

• Decision Date: 24 February 2000
• Docket Number: No. 13-97-736-CR,13-97-736-CR
• Citation: 13 S.W.3d 482
• Parties: (Tex.App.-Corpus Christi 2000) MARIO REY RAMIREZ, Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 482

13 S.W.3d 482 (Tex.App.-Corpus Christi 2000)

MARIO REY RAMIREZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-97-736-CR

COURT OF APPEALS, THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

February 24, 2000

Rehearing Overruled March 31, 2000

On appeal from the 24th District Court of Jackson County, Texas. [Copyrighted Material Omitted] Before Chief Justice Seerden and Justices Hinojosa and Yanez

OPINION

Opinion by Justice Yanez

A jury found appellant, Mario Rey Ramirez, guilty of unlawful possession of a firearm by a felon, enhanced to a second-degree felony, and assessed punishment at twenty years confinement and a ten thousand dollar fine. In a single issue, appellant contends he was deprived of his state and federal constitutional rights to effective assistance of counsel and due process of law because of his trial counsel's actual conflict of interest. We reverse appellant's conviction and remand for a new trial.

On the evening of May 19, 1997, Ron Garrett, a City of Granado police officer, was working patrol duty and had stopped at a convenience store when he noticed appellant drive up erratically in a pickup. Garrett approached the vehicle, smelled alcohol, and when appellant was unable to produce his driver's license, asked him to step out of the vehicle. As appellant stepped out of the truck, he reached under the seat. Garrett pulled him up and instructed him not to move. Appellant ran Garrett followed, and following a brief struggle, subdued appellant with pepper spray. A license plate check and call to the vehicle's owner revealed the truck was stolen. A check run on appellant's license number, found in his back pocket, showed he was wanted for parole violations. A search of the truck produced a loaded pistol, found underneath the driver's seat. The truck's owner confirmed he had left an unloaded pistol on the floor of the back seat when the truck was stolen. At trial, Garrett and the truck's owner testified for the State.

The State then called Michael Crabb to testify. Appellant's counsel approached the bench and objected to the witness on the basis of surprise and because it presented a conflict. She advised the court that she represented Crabb in a separate pending criminal matter. She stated she had obtained confidential information from him and had discussed with him the possibility of using information to obtain favorable treatment. She told the court she had no warning that the State planned to call Crabb, and no opportunity to prepare or make arrangements to obtain another attorney. She informed the court the situation was "extremely prejudicial to [her] client," and if Crabb testified, she would be forced "to choose between acting to the detriment of one client and then to the other." She also told the court her position "may seriously jeopardize Mr. Ramirez' [sic] case and Mr. Crabb's." Appellant's counsel requested a recess and moved for a mistrial. The trial court denied these requests.

Crabb testified he had been appellant's cellmate for approximately two months. He testified appellant had told him he loaded the pistol found under the seat and that a police officer had seen appellant reach under the seat. Appellant's counsel briefly cross-examined Crabb to establish that she represented him and had obtained confidential information from him as a result of that representation. The following exchange occurred:

Q [Appellant's counsel]: There are things that you've told me that I can't reveal without your permission. Is that correct?

A [Crabb]: Yes.

Q: And you're not--- are you giving me permission to reveal those things?

[State]: I object, your Honor. If it's about his case, those matters are irrelevant whether he has given permission or not. Those are not proper subjects of impeachment for his testimony in this case.

Court: Sustained.

[Counsel]: May I be heard on that, your Honor?

Court: Yes.

[Counsel]: The issue of confidentiality between a client and a lawyer does not relate solely to that client's case, but any discussions between that client and the other attorney, and I'm asking---

[State]: I can't hear, your Honor. I'm sorry. Can we approach the Bench? I can't hear what Ms. Hale [counsel] was saying. I'm sorry. I can't hear you.

A discussion was held off the record, and then the following proceedings were reported at the bench, presumably out of the hearing of the jury:

Court: Go ahead, Ms. Hale.

[Counsel]: Your Honor, as I stated previously, I am questioning Mr. Crabb in regard to this matter to see if he would be willing to waive his right of confidentiality, as I am his attorney, that the issues I would like to question him about relate to information that I received as his attorney. I cannot do that without his waiving his rights. I am bound to follow the state bar rules. If he does not waive it, I have no further questions for him. I am prejudiced in my ability to ask Mr. Crabb questions that any normal attorney could ask, based on the fact that he is my client. This prejudices Mr. Ramirez' [sic] case.

[State]: My objection, your Honor, is that whatever information she may have received from Mr. Crabb about his previous case is irrelevant and not the subject of proper impeachment. Wouldn't matter whether he waived it or not.

Court: I agree and I'm going to sustain the objection.

[Counsel]: If I can say one more thing, your Honor?

Court: Yes.

[Counsel]: It is not simply what information I may have received from him, but the ability to question him at all without getting into areas of confidentiality to ask him certain questions that any other attorney could ask. I cannot do that without prejudicing Mr. Crabb's rights, of which I must be mindful.

[State]: My objection would be that it would not be proper impeachment to ask him about what he is charged with, unless it relates to any deals, and he already indicated he has no deals.

Court: Okay. You have my ruling.

[Counsel]: Yes.

Thereafter, appellant's counsel concluded her cross-examination of Crabb and moved for a mistrial on the basis that appellant's rights had been prejudiced. The trial court denied the motion.

During deliberations, the jury requested an opportunity to re-hear that portion of Crabb's testimony concerning appellant's admission regarding loading the pistol and reaching for it in the officer's presence.

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). The Sixth Amendment guarantees not just the right to counsel, but the right to the reasonably effective assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). Ineffective assistance of counsel may result when an attorney labors under a conflict of interest. Id. In such a situation, counsel may breach the duty of loyalty, perhaps the most basic of counsel's duties. Id. In order for a defendant to demonstrate a violation of his right to the reasonably effective assistance of counsel based on a conflict of interest, he must show: (1) that defense counsel was actively representing conflicting interests, and (2) that the conflict had an adverse effect on specific instances of counsel's performance. Ex parte Morrrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997) (citing Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)).¹

Great deference should be accorded the representations of an attorney who feels a division of loyalty. Simons v. State, 805 S.W.2d 519, 521 (Tex. App.-Waco 1991, no pet.) (citing White v. Reiter, 640 S.W.2d 586, 597 (Tex. Crim. App. 1982)). Where there is evidence of counsel's "struggle to serve two masters" that cannot be seriously doubted, Glasser v. United States, 62 S.Ct. 457, 464 (1942), it follows that an accused's defense is "impaired." Simons, 805 S.W.2d 519 at 521 (citing Cuyler, 446 U.S. at 349).

Actual Conflict

An "actual conflict" exists when an attorney represents two clients whose interests in the outcome of a matter are different. Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir. 1996); Monreal, 947 S.W.2d at 564. When counsel is placed upon the "horns of a dilemma" as to services for one client over another, an actual and significant conflict exists and each client must be made aware of such conflict before the attorney may ethically proceed with the case. Wenzy v. State, 855 S.W.2d 52, 57 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd).

Adverse Effect

To prove adverse effect, an appellant need not show that the conflict changed the outcome of the trial. Perillo, 79 F.3d at 448. "Once it has been established that an actual conflict exists, prejudice to the defendant must be presumed." Id. (quoting Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir.), cert. denied, 449 U.S. 912 (1982)); see also Cuyler, 446 U.S. at 345-350; Maya v. State, 932 S.W.2d 633, 635 (Tex. App.-Houston [14th Dist.] 1996, no pet.). To show adverse effect, an appellant must demonstrate that some plausible defense strategy or tactic might have been pursued but was not, because of the conflict of interest. Perillo, 79 F.3d at 449.

Duty to Conduct Hearing

The right to conflict-free counsel may be waived, but in order to be effective, the record must show the waiver was done knowingly, intelligently, and voluntarily. United States v. Grieg, 967 F.2d 1018, 1021 (5th Cir. 1992).² While a trial court does not always have an affirmative duty to inquire into the possibility of a conflict of interest, it does have a duty to conduct a hearing once it has been alerted---and certainly when it knows---of the existence of an actual conflict of interest. Id. at 1022 (emphasis added).

In the present case, appellant's counsel objected to the State calling Crabb as a witness, advised the court that a conflict existed, and identified the conflict as arising out of representation of Crabb and knowledge of...