Zarychta v. State

• Decision Date: 15 March 2001
• Docket Number: No. 14-99-00145-CR,14-99-00145-CR
• Citation: 44 S.W.3d 155
• Parties: <!--44 S.W.3d 155 (Tex.App.-Houston 2001) JAMES JERALD ZARYCHTA, Appellant v. THE STATE OF TEXAS, Appellee Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 155

44 S.W.3d 155 (Tex.App.-Houston [14th Dist.] 2001)

JAMES JERALD ZARYCHTA, Appellant v. THE STATE OF TEXAS, Appellee

No. 14-99-00145-CR

Court of Appeals of Texas, Houston (14th Dist.).

March 15, 2001.

Rehearing Overruled May 3, 2001.

On Appeal from the 272nd District Court Brazos County, Texas Trial Court Cause No. 23,364-272

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Senior Chief Justice Murphy and Justices Amidei and Hudson.^*

OPINION

Hudson, Justice

Appellant, James Jerald Zarychta, was convicted by a jury of the offense of capital murder committed in the course of a burglary of a habitation. The trial court sentenced appellant to life imprisonment. Thereafter, the First Court of Appeals reversed and remanded the cause for a new trial. Zarychta v. State, 961 S.W.2d 455 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). On retrial, appellant was again convicted by a jury of capital murder and the trial court again sentenced appellant to life imprisonment. In five issues, appellant contends: (1) the trial court erred in overruling his motion to disqualify the Montgomery County District Attorney's Office; (2) the trial court erred in overruling his motion to suppress evidence; (3) the evidence was legally insufficient to prove the murder was committed during the commission of a burglary; (4) the trial court erred in overruling appellant's objection to a photo array; and (5) the trial court erred in failing to grant appellant credit for pre-trial confinement. We affirm.

On March 10, 1993, Mr. Jewel P. Madole arrived at his home in Montgomery County and, upon entering, inadvertently surprised two burglars--appellant and his fifteen-year-old brother, William Knoble. Knoble, armed with a 9mm handgun, confronted Madole. Madole fled from his home, but was pursued by Knoble. Knoble shot and killed the victim behind his residence. Madole was shot at least five times. One bullet perforated his right lung, another perforated both his large and small intestine, and three others entered his right buttocks and perforated his right columnary artery. Appellant and Knoble then fled the scene in appellant's red pick-up truck. A neighbor heard the gun shots and observed appellant's truck speed away from the scene.

The Montgomery County Sheriff's Department investigated the murder and quickly obtained a warrant for appellant's arrest. The day after the murder, a Houston patrol officer observed appellant driving a red pick-up truck in Harris County. Both the officer and appellant were pulling into the parking lot of a gas station. The officer exited his vehicle and approached appellant, who was also exiting his vehicle. The officer asked appellant to identify himself, appellant did, and the officer arrested him. According to the officer's testimony, a Montgomery County Sheriff's Deputy arrived on the scene within two minutes and took custody of appellant and his vehicle.

Appellant was then transported to the Montgomery County Jail. Appellant's vehicle was impounded by the Montgomery County Sheriff's Department. On March 11, 1993, appellant confessed his involvement in the crime. On March 12, 1993, appellant's brother also gave a complete confession. The Montgomery County Sheriff's Department obtained a warrant to search appellant's vehicle and discovered pawn tickets and a sales receipt for the purchase of 9mm ammunition. The receipt indicated the ammunition was purchased at 11:30 a.m. on the day of the murder. The Sheriff's Department lifted appellant's fingerprint from the receipt.

During his first trial, appellant was represented by Peter Speers. Sometime thereafter, however, Speers went to work for the Montgomery County District Attorney's Office. Because his former counsel was employed by the district attorney at the time of the second trial, appellant requested that the entire district attorney's office be disqualified from participating in the trial. The trial court overruled the motion. Thus, in his first issue, appellant contends his rights under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Texas Constitution were violated when the trial court refused to disqualify the Montgomery County District Attorney's Office.

In criminal cases, lawyers "are necessities, not luxuries." Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Their presence is essential because they are the means through which every other right of the accused is secured. United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct 2039, 80 L.Ed.2d 657 (1984). Thus, legal counsel is an intimate and essential part of the machinery of justice. In re Sawyer, 360 U.S. 622, 668, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Frankfurter, J., dissenting).

A lawyer cannot, however, be entirely effective without the trust of his client. To promote confidence between the accused and his attorney, our rules of professional conduct prohibit a lawyer from representing a person in a matter adverse to a former client if the matter is the same or substantially related to the subject of his former representation. Tex. Disciplinary R. Prof'l Conduct, 1.09(a)(3). Here, the parties agree that Speers, as appellant's former attorney, was precluded from participating in the prosecution; the parties disagree, however, as to whether the remainder of the Montgomery County District Attorney's Office should also be prohibited from participating in the case.

In the private arena, both a lawyer and his firm are precluded from representing a party against a former client in the same litigation. Henderson v. Floyd, 891 S.W.2d 252, 253-54 (Tex. 1995). Moreover, the former client need not show that his former attorney has actually violated his confidence. It is enough simply to show that his former lawyer is now associated with his opponent's lawyer. Id. at 254. Having established that Speers was his former attorney in the same litigation, appellant contends we should apply the rule articulated in Henderson and exclude the entire district attorney's office.

Our Rules of Professional Conduct, however, provide a more flexible standard where a former attorney is employed by a government agency. The public policy promoting a less rigorous rule is set forth in a comment:

[T]he rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards.

Tex. Disciplinary R. Prof'l Conduct, 1.10 cmt. 3. To protect the former client, however, the rule provides that a lawyer serving a government agency shall not "participate in a matter involving a private client when the lawyer [has previously] represented that client in the same matter while in private practice or nongovernmental employment." Tex. Disciplinary R. Prof'l Conduct, 1.10(e)(1). The rule does not explain how a lawyer should be "screened" from participation, but the comment contains practical suggestions:

Although "screening" is not defined, the screening provisions contemplate that the screened lawyer has not furnished and will not furnish other lawyers with information relating to the matter, will not have access to the files pertaining to the matter, and will not participate in any way as a lawyer or adviser in the matter.

Tex. Disciplinary R. Prof'l Conduct, 1.10 cmt. 3.

Here, the record shows that while Speers did not directly participate in the case, neither did the district attorney's office construct formal barriers or implement procedures to "screen" him from the case. In fact, upon learning of a venue issue in the case, Speers went to the chief of the appellate division and delivered his opinion on the matter, i.e., appellant was entitled to his request for a retrial in Brazos County.

While Speers' opinion was consistent with appellant's position, the conversation should not have occurred. The law prefers, where possible, bright-line rules. To permit a discussion between former counsel and his new colleagues at the district attorney's office on any issue in the case, whether helpful or harmful to appellant's cause, blurs the line of demarcation between what is and is not permissible. Nevertheless, as an intermediate appellate court, we are bound by controlling authority from the Court of Criminal Appeals. We find the Court of Criminal Appeals has considered the issue presented here in a factually similar scenario and resolved it against appellant's position. State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990).

In Eidson, the defendant in a capital murder case was initially represented by a defense team that included Ross Adair. Adair, however, was forced to resign from the team when he was appointed to serve as the judge of a county court at law. Three months later, Adair resigned his bench and sought employment from the district attorney. Although the district attorney gave Adair explicit instructions neither to discuss the case, nor allow anyone to discuss it in his presence, Adair prepared a brief for the district attorney in response to the defendant's motion to disqualify the district attorney's office. Although the holding of the Court of Criminal Appeals must be synthesized from a plurality and concurring opinion, five members of the court agreed that a district attorney should not be disqualified absent a showing that: (1) a member of his office participated in the prosecution of a former client; and (2) that such participation resulted in a violation of the former client's due process rights. Although adverse to his former client, the court held that Adair's response to the motion to disqualify did not amount to his "participation" in the case because: (1) it involved legal issues only and required no disclosure of confidential facts and...