Marvick, Jimmy Norbert v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmedand Opinion filed October 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01122-CR

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JIMMY NORBERT MARVICK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris  County, Texas

Trial Court Cause No. 855,938

O P I N I O N

Appellant, Jimmy Norbert Marvick, was convicted by a jury of capital murder and sentenced to life in prison. Appellant claims (1) he was deprived of his right to testify and (2) the trial court abused its discretion in denying his motion for new trial and in overruling his objection to privileged testimony. We affirm.

Factual and Procedural Background

On the morning of September 16, 2000, appellant arrived at Gizmo=s, a Pasadena, Texas bar, and began drinking. He remained at the establishment throughout the day, becoming so intoxicated that sometime between 10:00 and 10:15 p.m., the owner asked him to leave. Around this time, patrons reported seeing a man in a pick-up truck with something wooden in his hand who was apparently beating on something.

Approximately one hour later, patrons discovered the body of John Perieda in a pick-up truck outside of Gizmo=s. He died from multiple blunt trauma to the head. Perieda=s wallet and a hammer were also found within the vehicle. Appellant=s fingerprints were found on both items.

On September 17, appellant told a Kettle Restaurant waitress about the murder, claiming he may have done it. Shortly thereafter, appellant was arrested at his hotel. Upon arrest, police discovered a bloody $100 bill on him containing the DNA of both the appellant and Perieda. A search of appellant=s hotel room revealed clothing with appellant=s blood on it.

Appellant was convicted of capital murder and sentenced to life in prison. Appellant filed a motion for new trial claiming that he wished to testify and was denied this right by his trial counsel. In an affidavit submitted as part of the evidence on the motion for new trial, appellant stated that he wished to testify that he killed Perieda in self-defense after Perieda came at him with a wrench and a hammer. Further, appellant claims he told his lawyers, Gerald Guerinot and Winifred Akins, that he wished to testify. At a hearing on the motion for new trial, Guerinot testified that appellant never requested to testify and that he had informed appellant of the consequences of his doing so. Neither Akins nor appellant testified at the hearing. The trial court denied the motion for new trial and appellant filed this appeal.

Right to Testify

Appellant claims in his first and second issues that he was denied his constitutional right to testify. Specifically, he challenges trial counsel=s refusal to call him as a witness and the trial court=s denial of his motion for new trial.

In trying a case, a criminal-defense lawyer controls the progress of a case, except for three decisions that are reserved to the client: (1) how to plead to the charges against him; (2) whether to be tried by a jury or to the court; and (3) whether to testify in his own behalf. Novak v. State, 837 S.W.2d 681, 685 (Tex. App.CHouston [1st Dist.]1992, pet. denied). Appellant claims that he told both Guerinot and Akins that he wished to testify. Guerinot expressly denied this assertion in his testimony at the motion-for-new-trial hearing. Akins, however, did not testify. Appellant claims that because his affidavit is uncontested with respect to his conversation with Akins, the court erred in denying his motion for new trial.

A trial court=s ruling denying a defendant=s motion for new trial is reviewed under an abuse-of-discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court=s decision was arbitrary or unreasonable. Id. In considering a motion for new trial, the trial court possesses broad discretion in determining the credibility of the witnesses and in weighing the evidence to determine whether a different result would occur upon retrial. Valle v. State, 963 S.W.2d 904, 908 (Tex. App.CTexarkana 1998, pet. ref=d). The court may consider the interest and bias of any witness and is not required to accept as true the testimony of the accused or any defense witness simply because it was uncontradicted. Id.; Messer v. State, 757 S.W.2d 820, 828 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d). We conclude the trial court did not abuse its discretion in rejecting the statements in appellant=s self-serving affidavit.

The record shows that trial counsel advised appellant not to testify. Counsel gave appellant an assessment of the consequences of doing so, indicating that both his extensive prior criminal record and his statements to police after the arrest would become admissible. Counsel never prepared appellant to testify nor did he ever intend for him to testify. Nothing in the record suggests appellant ever informed the trial court of his desire to testify. Furthermore, aside from appellant=s self-serving affidavit, there is no evidence indicating he ever specifically told his trial counsel he wanted to testify. As discussed above, the trial court was well within its discretion in rejecting the statements in appellant=s affidavit. See Valle, 963 S.W.2d at 908; Messer, 757 S.W.2d at 828. We overrule appellant=s first and second issues.

Attorney-Client Privilege

In his third issue, appellant contends the trial court erred in admitting communications protected by the attorney-client privilege at the hearing on the motion for new trial. Appellant argues that counsel=s testimony regarding his affidavit revealed confidential communications. We hold the trial court did not err in allowing the testimony.

It is well settled that a client waives the attorney-client privilege when a defendant claims ineffective assistance of counsel against a former attorney. Laughnerv. United States, 373 F.2d 326 (5th Cir. 1967); Joseph v. State, 3 S.W.3d 627, 637 (Tex. App.CHouston [14th Dist.]1999, no pet.). See also United States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986); Farnsworth v. Sanford, 115 F.2d 375, 377 (5th Cir. 1940).

The privilege is not an inviolable seal upon the attorney=s lips. It may be waived by the client; and where, as here, the client alleges a breach of duty to him by the attorney, we have not the slightest scruple about deciding that he thereby waives the privilege as to all communication relevant to that issue.

Laughner, 373 F.2d at 327.

Appellant claimed ineffective assistance of counsel in his motion for new trial, although he has not re-urged this issue on appeal. Appellant argued, as he does here, that trial counsel improperly prevented appellant from taking the stand despite his express desire to testify. Therefore, any testimony by counsel regarding this issue does not violate the attorney-client privilege. The testimony in question related to whether or not the attorney had knowledge about the appellant=s desire to testify. This line of questioning goes to the heart of appellant=s claim and, thus, was admissible.

Even if the trial court had erred in admitting the testimony, it would constitute harmless error. The testimony did not in any way contribute to the conviction or punishment of appellant. The exchange occurred in its entirety at the motion-for-new-trial hearing and consisted of a one-sentence response by trial counsel regarding whether he was Asurprised@ by the contents of appellant=s affidavit. An alleged defect that does not affect the substantial rights of the appellant must be disregarded. See Tex. R. App. P. 44.2(b). We overrule appellant=s third issue.

We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed October 31, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish CTex. R. App. P. 47.3(b).