Phillip Sher Walker v. State of Texas--Appeal from 266th District Court of Erath County

Opinion filed December 6, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-06-00079-CR

__________

 PHILLIP SHER WALKER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR 12046

O P I N I O N

The jury convicted Phillip Sher Walker of the third-degree felony offense of theft by appropriation of stolen property of a value of $20,000 or more but less than $100,000. The jury found that an enhancement allegation was true and assessed punishment at twenty years confinement and a $10,000 fine. Appellant challenges his conviction in three issues. We affirm.

Background Facts

The indictment alleged that appellant unlawfully appropriated a Caterpillar D3C bulldozer and a Model 70XT Case skid loader of the combined value of $100,000 or more but less than $200,000. Appellant was arrested for the charged offense on or about July 28, 2004. Shortly after the arrest, appellant retained trial counsel to represent him in this cause. Appellant was released from jail on bond on or about July 30, 2004. Appellant=s trial counsel and another lawyer from his firm acted as sureties on appellant=s bond. On November 22, 2004, the trial court scheduled a trial setting in this cause for December 13, 2004. Later, the trial court continued the trial setting. The record is silent as to a reason for the continuance. Beginning in January 2005, the State filed a number of evidentiary matters as required by the trial court=s discovery order.

At some point, the trial court scheduled this cause for trial for January 9, 2006. On January 5, 2006, the State filed an application for a number of subpoenas to be made returnable for the January 9, 2006 trial setting. On January 6, 2006, appellant=s trial counsel and the other surety on appellant=s bond filed a motion requesting removal as sureties on the bond. In the motion, appellant=s trial counsel and the other surety stated that A[they] wish[ed] to be removed from the bond liability as [appellant] has failed to comply with his agreement and obligation for payment of attorney=s fees.@ They requested the trial court to issue a warrant for the arrest of appellant. Appellant=s trial counsel did not seek to withdraw from representation of appellant.

On January 9, 2006, the trial court considered the motion and issued a capias for appellant=s arrest. On the same date, this cause proceeded to trial. Appellant=s retained trial counsel represented appellant throughout the trial. After the first day of trial, appellant was arrested and placed in the Erath County Jail in connection with his alleged failure to comply with his bonding agreement. The guilt/innocence phase of trial concluded on January 10, 2006. The jury found appellant guilty of the lesser included offense of unlawfully appropriating property of a value of $20,000 or more but less than $100,000.

Appellant retained different counsel to represent him on appeal. Appellant=s new counsel filed a motion for new trial on appellant=s behalf. The trial court denied the motion for new trial without conducting a hearing.

Issues on Appeal

Appellant does not challenge the sufficiency of the evidence. Appellant presents three issues for review. In his first issue, appellant contends that his trial counsel rendered ineffective assistance of counsel by failing to assert his right to a speedy trial. In his second issue, appellant contends that his trial counsel rendered ineffective assistance of counsel due to a conflict of interest. In his third issue, appellant contends that the trial court erred in denying him a hearing on his motion for new trial. Appellant did not raise his ineffective-assistance-of-counsel claims in his motion for new trial.

Motion for New Trial

We first address appellant=s contention that the trial court erred in denying him a hearing on his motion for new trial. We review a trial court=s denial of a hearing on a motion for new trial under an abuse of discretion standard. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002). As a prerequisite to obtaining a hearing on a motion for new trial, a defendant must support his motion with an affidavit showing the truth of the grounds for attack. Martinez, 74 S.W.3d at 21. A defendant is entitled to a hearing if his motion and accompanying affidavit(s) raise matters that are not determinable from the record and could entitle the defendant to relief. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21; King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000); Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994); Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim. App. 1993). To be sufficient to entitle the defendant to a hearing, the motion for new trial and supporting affidavit need not establish a prima facie case for a new trial; however, the motion and affidavit must reflect that reasonable grounds exist for holding that such relief could be granted. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21-22; Jordan, 883 S.W.2d at 665; Reyes, 849 S.W.2d at 816. Affidavits that are conclusory in nature and unsupported by facts are insufficient to put the trial court on notice that reasonable grounds for relief exist. Jordan, 883 S.W.2d at 665. The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21.

Appellant raised the following grounds in his motion for new trial: (1) Athat the [trial] court misdirected the jury about the law or committed some other material error likely to injure [appellant=s] rights@; (2) Athat a material defense witness was kept from court by fraud or material evidence to establish the defendant=s innocence was intentionally withheld preventing its production at trial@; and (3) Athat the verdict is contrary to the law and the evidence.@ In the motion, appellant asserted that these grounds involved Afacts outside the record,@ but he did not allege any facts in the motion in support of these grounds. Appellant also requested a new trial Afor such other reasons that may arise on the hearing of this [motion for new trial].@ Appellant=s counsel signed an affidavit in support of the motion for new trial. However, his affidavit merely stated that the statements contained in the motion for new trial were true and correct. Thus, the affidavit was conclusory and unsupported by facts. Appellant did not file any other affidavits in support of the motion.

Appellant filed a conclusory motion for new trial and attempted to support it with the conclusory affidavit of his counsel. Appellant=s motion for new trial and the affidavit of appellant=s counsel failed to show that reasonable grounds existed for holding that relief could be granted. Because the motion and affidavit were insufficient to put the trial court on notice that reasonable grounds for relief existed, the trial court did not abuse its discretion in failing to hold a hearing on appellant=s motion for new trial. Jordan, 883 S.W.2d at 665. We overrule appellant=s third issue.

Trial Counsel=s Failure to Assert Speedy Trial Right

In his first issue, appellant contends that he was denied effective assistance of counsel because his trial counsel failed to assert his right to a speedy trial. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984). The analysis for ineffective assistance of counsel is undertaken in light of the Atotality of the representation@ rather than by examining isolated acts or omissions of trial counsel. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and an appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689. Under most circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the strong presumption that counsel=s conduct was reasonable and professional. Scheanette, 144 S.W.3d at 510. Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to evaluate the merits of such a serious allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). While a reviewing court can frequently speculate on both sides of an issue, ineffective assistance claims are not built on retrospective speculation; rather, they must Abe firmly founded in the record.@ Scheanette, 144 S.W.3d at 510 (quoting Bone, 77 S.W.3d at 833).

In this cause, the record is silent as to why appellant=s trial counsel did not assert appellant=s right to a speedy trial. Appellant did not raise his ineffective-assistance-of-counsel claim in his motion for new trial, and he did not present any evidence in support of his claim to the trial court. Appellant=s trial counsel may have elected not to assert appellant=s right to a speedy trial based on reasonable trial strategy. Based on the record before us, we cannot say that appellant=s trial counsel engaged in an inappropriate trial strategy by failing to assert appellant=s right to a speedy trial. Therefore, appellant has failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional. Bone, 77 S.W.3d at 833.

Additionally, the record does not demonstrate that the trial court would have erred in overruling a speedy trial motion. Appellant was arrested for the charged offense on or about July 28, 2004. He was released on bond on July 30, 2004. This cause proceeded to trial about seventeen and one-half months later, on January 9, 2006. In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, the courts must use a balancing test in which the State=s conduct and the defendant=s conduct are weighed. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003). Courts consider four nonexclusive factors when determining a speedy trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the defendant=s assertion of his speedy trial right; and (4) any prejudice caused by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw, 117 S.W.3d at 888-89. None of the four factors is either a necessary or sufficient condition to the finding of a deprivation of the right of a speedy trial. Barker, 407 U.S. at 533. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. Id.

Courts measure the length of the delay by measuring the time between the date of arrest or indictment until the time of trial. Shaw, 117 S.W.3d at 889. In this cause, the record does not demonstrate the reasons for the delay between appellant=s arrest and the time of trial. Nor does the record demonstrate that the delay caused any prejudice to appellant. Given the lack of evidence on these issues, appellant cannot show that the trial court would have erred in overruling a speedy trial motion. Therefore, appellant has failed to show a reasonable probability that the result of his trial would have been different but for his trial counsel=s failure to assert his speedy trial right.

Appellant has failed to show that his trial counsel=s failure to assert his speedy trial right fell below an objective standard of reasonableness or that there is a reasonable probability that the result of the trial would have been different but for his trial counsel=s failure to assert his speedy trial right.

We overrule appellant=s first issue.

Trial Counsel=s Alleged Conflict of Interest

In his second issue, appellant contends that he received ineffective assistance of counsel due to his trial counsel=s conflict of interest. To prevail on a conflict-of-interest claim of ineffective assistance, a defendant must show that his trial counsel had an actual conflict of interest and that the conflict actually colored counsel=s actions during trial. Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007). An actual conflict of interest exists if counsel is required to make a choice between advancing his client=s interest in a fair trial or advancing other interests (perhaps counsel=s own) to the detriment of his client=s interest. Acosta, 233 S.W.3d at 355; Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex. Crim. App. 2005). The showing of a potential conflict of interest does not establish that an actual conflict of interest existed. McFarland, 163 S.W.3d at 759 n.52.

Appellant asserts that his trial counsel attempted to coerce payment of attorney=s fees by filing the motion to be removed as a surety on appellant=s bond and having appellant placed in jail. Thus, appellant contends that his trial counsel represented conflicting interests by advancing counsel=s own financial interest in being paid and in being removed as a surety on the bond to the detriment of appellant=s interest in receiving a fair trial. Appellant also contends that, as a result of the conflict, his trial counsel did not properly prepare for trial. Appellant also asserts that A[he] could not actively participate in obtaining the presence of witnesses and/or evidence@ because he was in jail.

Appellant failed to raise his conflict-of-interest claim in his motion for new trial and failed to present any evidence on the issue to the trial court. Appellant=s trial counsel may have filed the motion to be removed as a surety on appellant=s bond in an attempt to advance appellant=s interests. For example, appellant=s trial counsel may have filed the motion as a result of believing that appellant was a flight risk. Appellant=s trial counsel may have been attempting to secure appellant=s presence throughout trial. The act of securing appellant=s presence at trial would have advanced appellant=s interests. If appellant=s trial counsel filed the motion in an attempt to advance appellant=s interests, then appellant=s trial counsel=s act of requesting the trial court to issue an arrest warrant for appellant did not necessarily establish that appellant=s trial counsel represented conflicting interests. At most, the record shows that appellant=s counsel had a potential conflict of interest. The record lacks evidence demonstrating that appellant=s trial counsel had an actual conflict of interest. In the absence of such evidence, appellant has failed to show that his trial counsel had an actual conflict of interest. McFarland, 163 S.W.3d at 759.

Even if we assume that appellant=s trial counsel had an actual conflict of interest, appellant has failed to show that the conflict clouded his trial counsel=s actions during trial. Appellant asserts that the conflict caused his trial counsel not to properly prepare for trial. Appellant contends that the following facts show a lack of trial preparation: (1) that his trial counsel failed to file any pretrial motions; (2) that his trial counsel failed to issue any subpoenas; (3) that his trial counsel failed to call any defense witnesses, other than appellant=s wife; (4) that his trial counsel failed to subpoena records from appellant=s bank that would have shown appellant did not know he had purchased stolen equipment; (5) that his trial counsel failed to adequately prepare appellant=s wife as a witness; (6) that his trial counsel failed to present any defense other than cross-examining the State=s witnesses and presenting appellant=s wife as a witness; and (7) that his trial counsel failed to warn him of the ramifications involved if he testified during the punishment phase of trial.

The trial court conducted a pretrial hearing on November 22, 2004. At the hearing, appellant=s trial counsel indicated that no pretrial motions were necessary because he was relying on the trial court=s standard discovery order. Given that appellant=s trial counsel intended to rely on the trial court=s standard discovery order, appellant=s trial counsel may have elected not to file pretrial motions as part of his trial strategy. See Mares v. State, 52 S.W.3d 886, 891 (Tex. App.CSan Antonio 2001, pet. ref=d). There is no evidence in the record supporting appellant=s contention that his trial counsel did not file pretrial motions because of a conflict of interest.

The record is silent as to why appellant did not call any witnesses other than appellant=s wife. After evidence was concluded on the first day of trial, appellant=s trial counsel stated that he had listed four witnesses and that he knew he was going to call two witnesses. He also indicated that his witnesses would be available the next morning. The record does not demonstrate that subpoenas were necessary to secure the presence of any of these witnesses at trial. Nor does the record demonstrate why appellant=s counsel elected not to call any witnesses other than appellant=s wife. After the State concluded its evidence, appellant=s trial counsel may have elected not to call additional witnesses as a part of a sound trial strategy. Nothing in the record supports appellant=s contention that appellant=s trial counsel failed to call additional witnesses because of a conflict of interest.

The record does not contain any evidence showing why appellant=s trial counsel did not subpoena the bank records. In the absence of such evidence, a conclusion that appellant=s trial counsel did not subpoena the bank records because of the alleged conflict would be based on mere speculation. Additionally, there is no evidence in the record showing that appellant=s trial counsel did not adequately prepare appellant=s wife as a witness. Instead, the record is silent as to what appellant=s trial counsel did to prepare appellant=s wife as a witness. Also, there is no evidence supporting appellant=s contention that his trial counsel did not explain to him the potential ramifications involved if he elected to testify during the punishment phase of the trial. Appellant elected not to testify after being admonished by the trial court. During the trial court=s questioning of appellant, the trial court included the following statement in one of the questions: AI=m sure your [trial counsel has] talked with you about this.@ After the trial court completed the entire question, appellant responded: AYes, sir.@ Thus, the record does not support appellant=s contention that his trial counsel did not explain to him the possible ramifications involved if he testified during the punishment phase.

Appellant has failed to show that the alleged conflict colored his trial counsel=s actions during trial. The record contains no evidence showing that appellant=s trial counsel failed to properly prepare for trial because of the alleged conflict. From the information in the record, we can only speculate why appellant=s trial counsel acted or failed to act as he did. Therefore, appellant=s conflict-of-interest allegations are not Afirmly founded in the record,@ and appellant=s ineffective-assistance-of-counsel claim based upon an alleged conflict of interest must fail. See Scheanette, 144 S.W.3d at 510. We overrule appellant=s second issue.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

December 6, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.