Tommy Earl Harrell, Jr. v. State of Texas--Appeal from 124th District Court of Gregg County

NO. 12-00-00356-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

TOMMY EARL HARRELL, JR.,


APPEAL FROM THE 124TH

APPELLANT


V.


JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE


GREGG COUNTY, TEXAS

A jury convicted Tommy Earl Harrell ("Appellant") of capital murder. In accordance with the jury's answers to the charge submitted at the punishment phase, the trial court sentenced Appellant to life imprisonment. Appellant raises three issues on appeal contending that he was denied effective assistance of counsel and that the trial court erred in not charging the jury on Appellant's right to carry a weapon while traveling. We affirm.


Background

On the evening of the offense, Appellant played cards at the house of one of the victims, Robert Bush ("Bush"), and lost several hundred dollars. Later that evening, Appellant called Bush and asked that Bush pick him up, which he did. Don Hollins ("Hollins") was with Bush when he picked up Appellant. Bush drove the car, Hollins sat in the passenger seat, and Appellant sat in the back seat. Appellant asked Bush to return the money that he had lost in the card game, but Bush refused. After this conversation, Appellant shot both Bush and Hollins in the back of the head. Appellant then jumped from the back seat of the car onto the pavement. The car was moving slowly, so he ran and caught up with it. He stopped the car, moved Bush from the driver's seat to the back seat, and took $900.00 from Bush's pocket. Appellant then drove to a grass lot where he left the car and the bodies. After leaving the car, Appellant ran from the scene and went to a friend's apartment which was nearby.

Appellant voluntarily took a polygraph test which indicated he was not truthful about his involvement in the shootings. In addition, he gave several voluntary statements which were contradictory. The trial court refused to suppress the statements. Prior to trial, Appellant requested that the trial court remove his trial counsel ("counsel") because counsel had previously represented Bush. The trial court found no conflict of interest and declined to remove counsel. The jury rejected Appellant's self-defense explanation and found him guilty of capital murder. In accordance with the jury's answers to the charge submitted at the punishment phase, the trial court sentenced Appellant to life imprisonment. This appeal followed.

In his first two issues, Appellant claims he was denied effective assistance of counsel under the Sixth Amendment to the United States Constitution and due process of law under the Fifth Amendment. In his third issue, Appellant contends the trial court erred in not charging the jury on his right to carry a weapon while traveling.


Ineffective Assistance of Counsel

In his first issue, Appellant contends that he was denied effective assistance of counsel because his trial counsel labored under an actual conflict of interest that adversely affected his performance. In his second issue, Appellant asserts that he was denied his Fifth Amendment right to due process and his Sixth Amendment right to effective assistance of counsel when the trial judge failed to conduct a full hearing into counsel's conflict of interest. Because of the similarity of these two issues, we address them together.

The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions the accused shall have the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997); Nethery v. State, 29 S.W.3d 178, 188 (Tex. App.-Dallas 2000, pet. ref'd). The Sixth Amendment also guarantees a defendant the right to "conflict-free" representation. Ex parte McCormick, 645 S.W.2d 801, 802 (Tex. Crim. App. 1983).


Standards for Ineffective Assistance of Counsel

The vast majority of claims alleging ineffective assistance of counsel fall within the familiar Strickland standard. See Strickland, 466 U.S. at 668, 104 S. Ct. at 2052. To prove ineffective assistance of counsel under this standard, an appellant must show that (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. Id., 466 U.S. at 688-92, 104 S. Ct. at 2052. Moreover, the appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

Although Strickland governs claims of ineffective assistance of counsel based on attorney error, certain claims of ineffective assistance of counsel involving conflicts of interest are controlled by Cuyler v. Sullivan, a case the United States Supreme Court decided four years before Strickland. See Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). 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. Id., 446 U.S. at 348-50, 100 S. Ct. at 1718-19. An actual conflict of interest exists if counsel is required to make a choice between advancing a client's interest in a fair trial or advancing other interests to the detriment of the client's interest. See Monreal, 947 S.W.2d at 564; Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). Until a defendant shows his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Cuyler, 446 U.S. at 349-50, 100 S. Ct. at 1719. But if an appellant shows that a conflict of interest actually affected the adequacy of his counsel's representation, prejudice is presumed. Id.

Appellant assumes in his arguments that the Cuyler standard governs our disposition of his first two issues. Although the State does not dispute Appellant's assumption that Cuyler applies, it contends that Appellant has failed to satisfy either prong of Cuyler. Because both Appellant and the State have based their arguments on the assumption that Cuyler is the proper standard for resolving Appellant's ineffectiveness of counsel issues where a conflict of interest is alleged, we assume, without deciding, that Cuyler applies.


Application of the Cuyler Standard

The record in the instant case reveals that Appellant's court-appointed trial counsel represented Bush, one of Appellant's two victims, on charges unrelated to Appellant's case. After Bush's death, counsel was appointed to represent Appellant, who was accused of murdering Bush and charged with capital murder. Prior to trial, Appellant informed the trial court that counsel had previously represented "one of the guys that was killed in this situation" and that Appellant "thought that was a conflict of interest." Appellant also told the court that as a result, he "couldn't find confidence" in counsel. The trial court declined to remove counsel, stating that "I don't know of any conflict with the fact that you may have represented someone in the past. I don't see where that creates a conflict. Unless there's some showing that there is, I'm denying that request." Counsel then confirmed that he was representing one of Appellant's victims on a pending felony and a probation violation at the time the victim was killed. However, counsel assured the court that he could represent Appellant. It is undisputed that the trial court made no further inquiry into the matter.

The State admits that counsel was representing Bush at the time of his death. Appellant contends that when counsel admitted that he had previously represented one of Appellant's victims, he also, by implication, admitted that he had a conflict of interest. Therefore, Appellant argues, the trial court should have conducted a full hearing to determine whether counsel's prior representation of Bush would impair his representation of Appellant. Because the trial court did not do so, Appellant contends his conviction must be reversed and this cause remanded for a new trial.

In his address to the trial court, Appellant stated that counsel had previously represented one of the victims, but gave no particulars or further explanation of the alleged conflict. Moreover, counsel informed the trial court that he could represent Appellant. Therefore, the trial court found that Appellant did not show an actual conflict. A mere assertion that an actual conflict exists, without a more particularized indication of the nature of the conflict, does not relieve a defendant of the necessity of demonstrating that an actual conflict exists. See Calloway v. State, 699 S.W.2d 824, 829-31 (Tex. Crim. App. 1985). Although Appellant established a potential conflict of interest, his statements to the trial court do not establish an actual conflict. Therefore, the trial court was not obligated to conduct any further inquiry to ascertain whether Appellant's counsel should have been removed. Thus, we hold that Appellant has not shown the existence of an actual conflict of interest as required by the first prong of Cuyler. Consequently, we also hold that the trial court did not err in denying Appellant's request for counsel's removal without a full hearing. However, even if the trial court had a duty to conduct a hearing on the alleged conflict, Appellant would not be entitled to the relief he seeks.

In Mickens v. Taylor, __ U.S. __, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the United States Supreme Court recently addressed an issue similar to the one Appellant presents in the case at bar. In that case, the petitioner, Mickens, sought a writ of habeas corpus alleging that he was denied effective assistance of counsel at his murder trial. Specifically, Mickens contended that a Sixth Amendment violation had occurred because one of his court-appointed attorneys, Saunders, had a conflict of interest arising from his representation of Mickens's juvenile victim, Hall, on assault and concealed weapons charges. Id., __ U.S. at __, 122 S. Ct. at 1239-40. Saunders had been appointed to represent Hall about ten days before Hall was murdered and had met with Hall once for about twenty minutes. Id. Shortly after Hall's body was discovered, the juvenile court dismissed the charges against Hall, noting on the docket sheet that he was deceased. Id. The one-page docket sheet also listed Saunders as Hall's counsel. About a week later, the same trial court appointed Saunders to represent Mickens, the man accused of murdering Hall. Id.

The question presented in Mickens's habeas petition was what a defendant must show in order to demonstrate a Sixth Amendment violation when the trial court failed to inquire into a potential conflict of interest about which it knew or reasonably should have known. Id., __U.S. at __, 122 S. Ct. at 1239. The Fourth Circuit Court of Appeals assumed that the trial court reasonably should have known that Saunders labored under a potential conflict of interest. Mickens v. Taylor, 240 F.3d 348, 357 (4th Cir. 2001) (op. on reh'g), aff'd, __ U.S. __, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). However, it rejected the argument that the trial court's failure to inquire into the potential conflict either mandated automatic reversal of Mickens's conviction or relieved him of the burden to show that a conflict of interest adversely affected his counsel's performance. Id. In affirming the denial of habeas relief, the Supreme Court held that the trial court's failure to inquire into the alleged conflict of interest did not reduce Mickens's burden of proof. Id., __U.S. at __, 122 S. Ct. at 1243-45. (1) Therefore, it was necessary for Mickens to establish the existence of a conflict of interest that adversely affected his counsel's performance. Id. Because Mickens failed to show adverse effect, he failed to meet his burden under Cuyler, even if an actual conflict existed. See id.

In the present case, Appellant argues that "trial counsel conceivably could have had sympathy for [Bush and his family] and held back on [his] duty to paint the victims with aggressive character in pursuit of self-defense." He also states that "a jury might have been persuaded that while it is not politically or legally correct to weight the character of dead men, it is done as a routine matter of criminal defense. A legitimate criminal defense strategy is that the victim(s) needed killing." However, Appellant has failed to cite any specific instances from the trial record that indicate counsel was actually hindered in his performance by sympathy for Bush's family or by any other matter relating to his prior representation of Bush. Further, it is not possible to identify from the face of the record that any such instances exist. To the contrary, as the State points out, the record reflects that counsel "painted the victims as gun-toting drug dealers who had many contacts with criminal activity." During the course of the trial, counsel presented evidence from which the jury could have concluded that Appellant's victims sold drugs, carried guns, and were violent and threatening. In short, Appellant has failed to show that counsel's performance was adversely affected by his prior representation of Bush. Therefore, Appellant failed to satisfy the second prong of Cuyler. Appellant's first and second issues are overruled.


Jury Charge

In his third issue, Appellant contends the trial court erred in refusing to charge the jury that Appellant had a right to carry a weapon as a traveler. We disagree. The "traveling exception" or traveling defense to an unlawful carrying of a hand gun charge is a question for the trier of fact. Birch v. State, 948 S.W.2d 880, 884 (Tex. App.-San Antonio 1997, no pet.). If the issue is raised by the evidence, no matter how strong or weak, the trial court should give the defensive charge if requested. Soderman v. Sate, 915 S.W.2d 605, 609 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd).

After a careful review of case law and this record, we hold there is no evidence that Appellant was traveling. Therefore, the trial court did not err in refusing the charge. Appellant's third issue is overruled.


CONCLUSION

As to Appellant's first and second issues, Appellant failed to show that his trial counsel's prior representation of one of Appellant's victims created a conflict of interest. Therefore, the trial court did not err in denying Appellant's request to remove trial counsel without conducting a full hearing on the alleged conflict of interest. However, even assuming that the trial court's failure to conduct a hearing was error, Appellant has not shown that his trial counsel's performance was impaired by the alleged conflict of interest. Consequently, Appellant has failed to show that he received ineffective assistance of counsel or that his right to due process was violated. As to Appellant's third issue, the record contains no evidence that Appellant was traveling at the time of the offense. Therefore, the trial court did not err in refusing to charge the jury on Appellant's right to carry a weapon while traveling.

The judgment of the trial court is affirmed.


LOUIS B. GOHMERT, JR.

Chief Justice


Opinion delivered November 26, in the Year of our Lord, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.


(DO NOT PUBLISH)

1. Mickens was presented and argued on the assumption that Cuyler was applicable, thus requiring a showing of deficient performance, but not requiring, as Strickland does in other ineffectiveness-of-counsel cases, a showing of probable effect upon the outcome of the trial. Id., __U.S. at __, 122 S. Ct. at 1245-46. In dicta, the Court noted that this assumption was not unreasonable in light of the holdings of various courts of appeals, which have applied Cuyler "unblinkingly" to "all kinds of alleged attorney ethical conflicts." Id. (citations omitted). However, the Court further stated that the language of Cuyler itself does not clearly establish, or indeed even support, such an expansive application. Id.