Benjamin Perry v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04- 05-00506-CR

No. 04-05-00507-CR

Benjamin PERRY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 187th Judicial District Court, Bexar County, Texas

Trial Court Nos. 2003-CR-9679, 2003-CR-9680B

Honorable Raymond Angelini , Judge Presiding

Opinion by: Sandee Bryan Marion , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 13, 2006

AFFIRMED

As a result of a plea bargain, defendant, Benjamin Perry, pled nolo contendere to the charges of aggravated robbery and aggravated assault with a deadly weapon. The judge assessed punishment at eight years' confinement for each offense, the sentences to run concurrently, which was the cap under the agreement. Defendant complains of his conviction in two issues on appeal. We affirm.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his attorney was ineffective because counsel failed to present mitigating facts in the punishment stage of trial and a conflict of interest existed because defendant's attorney was a former prosecutor. We review defendant's claim of ineffective assistance of counsel under the established standard of review. See Strickland v. Washington, 466 U.S. 668, 690 (1984);Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

In his first issue, defendant asserts his attorney was ineffective during the punishment stage of trial by failing to "attack the [eight year cap as stated in the plea agreement] with mitigating facts contained in the pre-sentence investigation report." Specifically, defendant asserts counsel failed to present evidence to the trial court that defendant had a mental disorder, that defendant was "apparently Native American with associated scholarship privileges 'was preparing to go to St. Philips to obtain an associates degree,'" and that defendant "was completely intoxicated at the time [of the offense]." However, defendant has not pointed to any place in the record showing that counsel's failure to present these facts to the trial court was due to ineffective assistance rather than trial strategy. When the appellate record contains no evidence of the reasoning behind trial counsel's action, the reviewing court cannot conclude that counsel's performance was deficient, because such determination would be based on speculation. Weeks v. State, 894 S.W.2d 390, 391-92 (Tex. App.--Dallas 1994, no pet.). Here, the record is silent as to counsel's reason for not presenting these facts to the trial court. To find that trial counsel was ineffective based on the record before us would call for speculation, which we cannot do. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

In his second issue, defendant contends that his attorney was ineffective because an "unwaivable conflict of interest" existed in his case due to his attorney being previously employed as assistant district attorney assigned to the court in which defendant's criminal prosecution was pending.

Ordinarily, the right to conflict-free counsel may be waived. Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981). We recognize the potential for conflict, and the potential violation of ethical considerations, when a former prosecutor later represents a defendant in a criminal prosecution with which the attorney may have been associated while in the District Attorney's Office. These conflicts may arise based on defense counsel's "subliminal reluctance" to "attack pleadings or other actions and decisions by the prosecution that he may have been personally involved with or responsible for." See People v. Lawson 644 N.E.2d 1172, 1185 (Ill. 1994). However, "a criminal defendant has the right to insist upon retaining an attorney with otherwise disqualifying conflicts." Ex parte Prejean, 625 S.W.2d at 733 n.6. Accordingly, we must determine whether defendant effectively waived any potential conflict of interest.

For the waiver to be effective, the record must affirmatively demonstrate that the waiver was made knowingly, intelligently, and voluntarily. Id.; Ramirez v. State, 13 S.W.3d 482, 487 (Tex. App.--Corpus Christi 2000, pet. dism'd). The record must show that defendant was aware of the conflict of interest, realized the conflict of continuing with such counsel, and was aware of his right to obtain other counsel. Gaston v. State, 136 S.W.3d 315, 324 (Tex. App.--Houston [1st Dist.] 2004, pet. struck); see also Lawson, 644 N.E.2d at 1187 (defendant not "informed of the significance of the possible conflict...so that he might understand how it could affect...his representation" and there was "no valid waiver by defendant of his right to representation free from any conflict of interest.").

When asked during his sentencing hearing whether he had any problems with his retained lawyer previously serving as a prosecutor in this case, defendant stated, "I don't have any problems with it." The trial court then asked defendant if he understood that he has the "right to have an attorney that wasn't the prosecutor" and that this could be a "potential conflict of interest." Defendant responded, "Yes, sir." On this record, we conclude defendant waived any conflict of interest that may have existed; therefore, defendant has not established that defense counsel was ineffective.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgments.

Sandee Bryan Marion, Justice

DO NOT PUBLISH