Wilford Turk v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-99-130-CR

WILFORD TURK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 14895

O P I N I O N

The State indicted Wilford Turk for the felony offense of assault on a public servant. See Tex. Pen. Code Ann. 22.01(b)(1) (Vernon Supp. 2000). A jury convicted Turk of the lesser-included offense of assault. Pursuant to an agreement between the State and defense counsel, the court sentenced Turk to one year in the county jail. Turk claims in three points that: (1) he received ineffective assistance of counsel; (2) the court abused its discretion by failing to make findings of fact and conclusions of law regarding his appointed counsel s alleged conflict of interest and regarding alleged witness tampering; and (3) his indictment is fatally defective because it does not allege that the complainant suffered serious bodily injury.

The indictment alleges in pertinent part that Turk did:

intentionally, knowingly, and recklessly cause bodily injury to Jack Digby by striking Jack Digby in the face with his fist, and the said Jack Digby was then and there a public servant in the lawful discharge of an official duty, to-wit: a correctional officer employed by the Texas Department of Criminal Justice, and the said defendant knew Jack Digby was a public servant.

The grand jury presented the indictment on February 4, 1998. The court appointed counsel from the Office of State Counsel for Offenders to represent Turk on April 22. See Tex. Code Crim. Proc. Ann. art. 26.051(e) (Vernon Supp. 2000).

Turk filed a motion for the court to dismiss his appointed counsel in January 1999, citing counsel s employ by the Department of Criminal Justice ( TDCJ ) as creating a conflict of interest. // The court denied this motion. Throughout the months leading up to Turk s trial, the court essentially allowed him to have hybrid representation by reviewing and ruling on many of his pro se motions, in addition to reviewing and ruling on those motions filed by his appointed counsel. See Flores v. State, 871 S.W.2d 714, 724 (Tex. Crim. App. 1993); Williams v. State, 946 S.W.2d 886, 892 (Tex. App. Waco 1997, no pet.).

According to the testimony, Officer Digby was performing a shake-down of Turk s prison cell on the date in question. Digby noticed a radio and fan which had been wired together so they could be powered by the single electrical outlet which was available to Turk in his cell. The parties agree that this is a violation of prison rules. After completing the inspection of the other cells in Turk s pod, Digby returned to the front desk to obtain a camera from his sergeant to photograph the violation so he would not have to remove the fan from Turk s cell because of the heat within the unair-conditioned unit. However, the desk officers advised Digby to return to Turk s cell and seize the contraband.

Pursuant to these instructions, Digby returned to the cell and seized the radio and fan. Turk testified that he was in the shower when Digby returned but a fellow inmate told him Digby had returned to his cell. Turk dried himself, dressed, and discovered Digby leaving his cell with the radio and fan. He approached Digby and asked him why he was taking the items without confiscation papers. According to Turk, Digby shoved him and told him that he did not have to explain. When Digby shoved Turk, Turk hit him, and he fell, striking his head against a concrete wall. According to Digby, he explained to Turk that he was taking the items because they were contraband. Digby testified that he did not shove Turk and Turk hit him without provocation.

Because of Turk s testimony that Digby shoved him, the court submitted a self-defense instruction. Because Digby seized the radio and fan without confiscation papers, the court submitted a lesser-included assault charge, premised on the theory that Digby was not lawfully discharging his duties when Turk assaulted him. Cf. Tex. Pen. Code Ann. 22.01(b)(1). The jury rejected Turk s self-defense argument, but convicted him of the lesser offense.

After conviction, Turk filed a pro se notice of appeal. The trial court conducted a hearing to advise him of the dangers and disadvantages of self-representation. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2000). After receiving these admonitions, Turk informed the court that he desired to represent himself and waived his right to court-appointed counsel.

Turk argues in his third point that the indictment is fundamentally defective because it does not allege that Digby suffered serious bodily injury. Turk filed two pre-trial motions challenging his indictment. In the first, he challenged the indictment on the basis of the racial makeup of the grand jury. In the second, he contended that one of the enhancement allegations was improper. Turk did not challenge the indictment on the basis he now asserts on appeal.

If a defendant fails to object to an alleged defect in the indictment before trial, he forfeits the right to assert that complaint on appeal. See Smith v. State, 959 S.W.2d 1, 9 (Tex. App. Waco 1997, pet. ref d); Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2000). Turk s appellate complaint does not comport with the objections he raised before trial. See Trevino v. State, 991 S.W.2d 849, 854-55 (Tex. Crim. App. 1999); Smith, 959 S.W.2d at 17. Accordingly, he has failed to preserve this issue for review. See id.; Tex. R. App. P. 33.1(a)(1)(A). Thus, we overrule his third point.

Turk contends in his second point that the court erred by failing to make findings of fact and conclusions of law regarding his appointed counsel s alleged conflict of interest and regarding alleged witness tampering. However, Turk never asked the court to make such findings and conclusions. Thus, he has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a)(1)(A). Accordingly, we overrule his second point.

Turk avers in his first point that his court-appointed counsel rendered ineffective assistance because counsel failed to subpoena prison records concerning Digby, to call certain inmates as witnesses on his behalf, or to file a motion to quash the indictment. Turk also argues that he received ineffective assistance because counsel had a conflict of interest due to his employ by TDCJ.

In assessing the effectiveness of counsel, we apply the test set forth by the Supreme Court in Strickland v. Washington. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland requires us to determine whether:

(1) appellate counsel's performance was deficient; and if so,

(2) whether there is a reasonable probability the results would have been different but for counsel's deficient performance.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. We strongly presume that counsel's conduct lies within the "wide range of reasonably professional assistance." Thompson, 9 S.W.3d at 813. The accused must overcome this presumption by affirmatively showing that his representation fails the two-part test set forth in Strickland. Id. at 812 (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

When a defendant alleges that his counsel has a conflict of interest, he must establish an actual conflict of interest. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). To prevail on such a claim, the defendant must show:

(1) that counsel was actively representing conflicting interests; and

(2) that the conflict had an adverse effect on specific instances of counsel s performance.

Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333 (1980)).

Turk contends that his court-appointed counsel had a conflict of interest because he is an employee of TDCJ. It is true that the Office of State Counsel for Offenders is operated by TDCJ pursuant to article 26.051(e) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.051(e). However, attorneys in this office provide representation to inmates, not TDCJ. The Office of the Attorney General represents TDCJ and its employees. See Tex. Const. art. IV, 22; Tex. Gov. Code Ann. 402.021 (Vernon 1998); see also, e.g., Bohannan v. Texas Bd. of Crim. Justice, 942 S.W.2d 113, 114 (Tex. App. Austin 1997, writ denied) (per curiam). Thus, we conclude that Turk s counsel was not actively representing conflicting interests. Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719; Morrow, 952 S.W.2d at 538. Accordingly, no conflict of interest is shown.

The record does not affirmatively reflect the reasons Turk s trial counsel failed to take the actions of which Turk now complains. Thus, Turk has not affirmatively demonstrated that counsel s conduct was unreasonable. See Thompson, 9 S.W.3d at 814. Accordingly, we conclude that Turk has failed to rebut the strong presumption that counsel provided reasonably professional assistance. Id. at 813.

For these reasons, we overrule Turk s first point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed August 23, 2000

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