Bostick, Benjamin A. v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed June 2, 2005

Affirmed and Memorandum Opinion filed June 2, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01292-CR

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 BENJAMIN A. BOSTICK, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 932,618

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M E M O R A N D U M O P I N I O N

Appellant, Benjamin A. Bostick, challenges his conviction for aggravated robbery on the ground that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution because of an alleged actual conflict of interest. We affirm.

I. Factual and Procedural Background

On November 14, 2002, Harlan Washington was charged with the aggravated robbery of Clarence Eriksen. On December 2, 2002, appellant, in the office of his trial counsel, Doug O=Brien, gave a written statement admitting to the aggravated robbery of Eriksen. The aggravated robbery charge against Washington was dismissed. Appellant, however, was not charged with the robbery of Eriksen. On January 21, 2003, appellant was indicted for the aggravated robbery of Henry Fillion, which occurred on September 8, 2002. The indictment alleged appellant stole Fillion=s Rolex watch and in the course of committing theft, used a deadly weapon, namely a firearm. O=Brien represented Washington and appellant, respectively, on the charges.

On March 6, 2003, appellant testified at Washington=s parole revocation hearing. The State alleged Washington violated the conditions of his parole by committing the aggravated robbery of Eriksen. Appellant testified that appellant committed the robbery of Eriksen. The parole hearing officer found no proof by a preponderance of the evidence that Washington had violated his parole.

Appellant subsequently entered a plea of guilty to the aggravated robbery of Fillion. Appellant declined the State=s offer of a plea bargain and sought a pre-sentence investigation report. The pre-sentence investigation report contained a summary of the police report, an evaluation of appellant=s employment and economic status, the complainant=s statement, several character reference letters, and appellant=s statement in which he confessed to the robbery of Eriksen. After receipt of the pre-sentence investigation report, the trial court held a hearing and sentenced appellant to eighteen years= confinement in the Texas Department of Criminal JusticeCInstitutional Division.

Appellant subsequently filed a motion for new trial in which he alleged he received ineffective assistance of counsel because O=Brien allegedly labored under an actual conflict of interest. Appellant argued that the conflict existed because O=Brien represented both Washington and appellant. The trial court denied appellant=s motion for new trial.

II. Right of Appeal

Under Texas Rule of Appellate Procedure 25.2(d), the trial court completed a certification of the defendant=s right to appeal, which was filed in this court as part of the clerk=s record. In that document, the trial court certified that appellant waived his right to appeal. A handwritten notation on the document reflects that the defendant Aobjects to any prior waiver on the advice of his trial counsel.@ The handwritten notation is initialed by appellant=s appellate counsel. We are obligated to review the record and determine whether appellant has the right to appeal. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

Texas Rule of Appellate Procedure 25.2(a)(2) limits our jurisdiction over appeals from plea bargained convictions. This rule does not apply to convictions from open pleas of guilty. Hanson v. State, 11 S.W.3d 285, 287 n.1 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). A defendant, however, may waive any rights secured him by law. Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 2004). A waiver of appeal is usually binding on the defendant and prevents him from appealing any issue without the trial court=s consent. Monreal v. State, 99 S.W.3d 615, 616 (Tex. Crim. App. 2003). Appellant entered into a plea of guilty without a sentencing recommendation. The plea papers contain boilerplate language indicating appellant Awaived any right of appeal.@ Because appellant could not have known what his sentence would be at the time he entered his plea, the waiver of the right to appeal could not have been made knowingly, voluntarily, and intelligently. See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977). If a defendant enters a waiver of his right to appeal before he is aware of the consequences of his plea, the waiver is invalid. Tufele v. State, 130 S.W.3d 267, 270 (Tex. App.CHouston [14th Dist.] 2004, no pet.). Because appellant=s waiver of appeal is invalid, he has the right to appeal.

III. Ineffective-Assistance-of-Counsel Claim

A. Standard of Review

In his sole issue, appellant contends he was denied effective assistance of counsel because of an actual conflict of interest. The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that the accused shall have the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland standard, to prove ineffective assistance of counsel, appellant must show (1) counsel=s representation or advice fell below objective standards of reasonableness; and (2) the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92.

However, certain claims of ineffective assistance involving conflicts of interest are controlled by Cuyler v. Sullivan, 446 U.S. 335 (1980). See Thompson v. State, 94 S.W.3d 15B19 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Under Cuyler, a defendant demonstrates a violation of his right to reasonably effective assistance of counsel based on a conflict of interest if he can show that (1) his counsel was burdened by an actual conflict of interest; and (2) the conflict had an adverse effect on specific instances of counsel's performance. See Cuyler, 446 U.S. at 348B50; Thompson, 94 S.W.3d at 15B16. There is some uncertainty as to the circumstances in which the Cuyler standard takes the place of the Strickland standard. See Thompson, 94 S.W.3d at 15B19 (discussing the cases regarding the circumstances in which Cuyler takes the place of Strickland). Although this case involves an alleged actual conflict of interest based on an attorney simultaneously representing more than one person charged with aggravated robbery, Cuyler arguably does not apply because the State alleged Washington and appellant committed different aggravated robberies (that Washington robbed Eriksen and that appellant robbed Fillion), not the same robbery. See Thompson, 94 S.W.3d at 15B19. Nonetheless, for the sake of argument, we will presume that the less onerous Cuyler standard applies. Under this standard, appellant had the burden of proving his counsel actively represented conflicting interests. Cuyler, 446 U.S. at 350.

B. Alleged Conflict of Interest

An actual conflict of interest exists only if counsel is required to make a choice between advancing his client=s interest, or advancing other interests to the detriment of his client=s interest. Monreal, 947 S.W.2d at 564. The burden of demonstrating an actual conflict of interest is on the defendant. Cuyler, 446 U.S. at 348.

Appellant contends his trial counsel had an actual conflict of interest because Washington stood to gain significantly by trial counsel=s actions in adducing a statement from appellant accepting responsibility for the robbery of Eriksen and exonerating Washington. In his affidavit, appellant states that several of Washington=s friends pressured him to admit to the robbery of Eriksen. Appellant states he was pressured to confess because Washington is a habitual offender, who was facing twenty-five to ninety-nine years in prison if convicted. Appellant said Washington=s friends told appellant he would receive probation if he confessed. Appellant stated he and his family were threatened and that over a period of eighteen months, appellant paid Washington over $17,000.[1] After Washington was arrested, appellant said he was contacted repeatedly by Washington and Washington=s friends and told to meet with O=Brien. Appellant stated O=Brien told him to talk with another lawyer, but Washington wanted appellant to talk only with O=Brien. Appellant averred that one of Washington=s friends Aforced@ him to go to O=Brien=s office and give a written statement confessing to the aggravated robbery for which Washington had been charged.

With regard to Washington=s parole hearing, O=Brien issued a subpoena for appellant, who testified that he was the lone actor in the robbery of Eriksen. Eriksen attended the parole revocation hearing and testified that he identified Washington at a line-up after the robbery, but was unable to give a positive identification at the hearing. In his affidavit, appellant states O=Brien told him he would Aget probation and not to worry about the confession.@ Appellant also stated O=Brien told appellant to make arrangements with Washington to pay O=Brien=s fee if appellant was unable to pay the fee.

O=Brien also filed an affidavit, which was reviewed by the trial court at the hearing on the motion for new trial. In that affidavit, O=Brien stated that appellant was fully aware of O=Brien=s representation of Washington when appellant told O=Brien of his desire to confess to the robbery for which Washington had been charged. O=Brien stated he referred appellant to another attorney and explained it would not be in either appellant=s or Washington=s best interest to be represented by the same attorney. Appellant spoke with the other attorney, but returned to O=Brien=s office to give a written statement of appellant=s guilt in the robbery of Eriksen. Appellant wrote a detailed account of the robbery, including observing Eriksen while he shopped, then following him to his home, where appellant stole Eriksen=s watch at gun-point.

After appellant confessed to the robbery of Eriksen, he was charged with the robbery of Fillion. Appellant was not charged with the robbery of Eriksen. Appellant again approached O=Brien about representation. O=Brien, in his affidavit, stated he discussed any potential conflict of interest, but appellant stated he had committed the robbery of Fillion and Eriksen and wanted to plead guilty. O=Brien stated he would not have consented to represent appellant if appellant had failed to fully understand the consequences of any potential conflict of interest.

An appellate court reviews a trial court=s denial of a motion for new trial under an abuse-of-discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We must view the evidence in the light most favorable to the trial court=s ruling. Loserth v. State, 963 S.W.2d 770, 774 (Tex. Crim. App. 1998). Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

The evidence adduced at the motion-for-new-trial hearing does not support a finding of actual conflict of interest that affected counsel=s performance. Appellant presented evidence that Washington and Washington=s friends pressured appellant to confess to the robbery of Eriksen. Appellant has not presented evidence that the pressure was initiated by O=Brien. The trial court did not abuse its discretion in impliedly determining that O=Brien was not burdened with an actual conflict of interest. The evidence does not show O=Brien was forced to choose between advancing appellant=s interest in a fair trial and advancing other interests to appellant=s detriment. Furthermore, appellant has not presented evidence that his guilty plea in this case was rendered involuntary by any alleged conflict of interest. Reviewing the evidence presented at the motion-for-new-trial hearing, we conclude the trial court did not abuse its discretion in denying the motion for new trial. Accordingly, we overrule appellant=s sole issue.

We affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 2, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] There is no evidence in the record as to why appellant paid Washington over $17,000.