Opinion
No. 14-10-00292-CR
Opinion filed September 29, 2011.
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 1187678.
Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER. (FROST, J., concurring).
MAJORITY OPINION
A jury convicted appellant Leon Charles Johnson on one count of murder. Punishment was assessed at sixty years' imprisonment. In a single issue, appellant contends the trial court abused its discretion by denying defense counsel's motion to withdraw. We find that the following factors are relevant in our review of the trial court's decision: (1) whether counsel offered good cause to withdraw; (2) the necessity for the withdrawal; (3) the client's Sixth Amendment right to counsel of choice; (4) the client's Sixth Amendment right to call witnesses in his own defense; (5) the disruption that may result to the trial proceedings as a result of counsel's withdrawal; and (6) counsel's role, if any, in creating the need to withdraw. After analyzing each of these factors we conclude that the trial court did not abuse his discretion in denying the motion. Accordingly, we affirm.
BACKGROUND
Appellant was charged by indictment with the homicide of Blake Lunde. On the afternoon of April 5, 2008, Lunde died from a penetrating gunshot wound to the torso. In the moments before being shot, Lunde was driving away from a gas station, where a fight had just erupted between his friend, Fred Soufflee, and approximately five other men. Soufflee testified that as he and Lunde escaped, appellant started shooting at their vehicle from a distance of about four or five feet. Lunde was pronounced dead at the scene.
Following the shooting, a nearby apartment complex was canvassed for possible witnesses. Based on the ensuing investigation, two witnesses from the complex were called to testify on behalf of the State: Gabbriel Johnson, who observed the shooting from the parking lot, and Jessica Walker, who witnessed the incident from her balcony. Both witnesses positively identified appellant as the shooter. Gabbriel, who is unrelated to appellant, specifically testified that she saw appellant obtain a gun from someone in the complex just before the shooting occurred. When she later heard shots being fired, Gabbriel claimed that she turned around from where she was sitting and witnessed appellant shooting at a truck.
To avoid any confusion with appellant, we refer to Gabbriel Johnson by her first name only.
On cross-examination, Thomas Lewis, one of appellant's two trial attorneys, questioned whether Gabbriel had actually witnessed the shooting as she claimed:
Q. Ms. Johnson, you and I have had a discussion in the Harris County jail on the second day of March about this case, haven't we?
A. Yes.
Q. And I asked you questions about this case, didn't I?
A. Yes.
Q. And you answered my questions, didn't you?
A. Yes.
Q. Isn't it true that you told me you didn't see the shooting at that time?
A. No.
In a bench conference, Lewis moved immediately for a mistrial and to withdraw as counsel of record. With the jury retired, the following exchange occurred:
Mr. Lewis: Your Honor, I have a Motion for a Mistrial and a Motion to Withdraw as attorney of record. And the basis for these motions is that I am now a witness in the case. I am a witness as to a prior inconsistent statement by a witness, Gabbriel Johnson. And in support of that motion, may I make a bill?
The Court: Well, I'm going to ask you this question: Did you know that this witness was going to testify?
Mr. Lewis: Yes, I did.
The Court: Did you know that when you went over to talk to her?
Mr. Lewis: Yes, I did.
The Court: And you went by yourself?
Mr. Lewis: Yes, I did.
The Court: Why? Why wouldn't you take an investigator or somebody else to be there so you could call them as a witness in case she testified in a different way?
Mr. Lewis: I thought that if there was anything about the conversation that led me to believe that she would change her story that I would return and make a record of it.
The Court: And you — let's start it this way: I'm assuming that she gave a statement to the police?
[Prosecutor]: That's correct, Judge.
The Court: At some point in time during this investigation or before this case went to trial, she said to law enforcement that she saw the shooting.
Mr. Lewis: No. We have her statement —
The Court: I'm not asking you.
[Prosecutor]: Yes, Judge.
The Court: So, there was at least some statement by this witness at some point in time prior to today that she saw this defendant with a gun doing some shooting?
[Prosecutor]: Yes, Judge.
The Court: Okay. So, Mr. Lewis, knowing that, you went into the jail to talk to her but didn't take anybody with you in case she changed her story?
Mr. Lewis: Judge, the offense report that was made available to me indicates that this witness told the police that she saw Mr. Johnson around the time of the shooting and that she saw him immediately afterwards, but the offense report does not indicate that she saw the actual shooting take place and be done by Mr. Johnson.
The Court: Which offense report?
Mr. Lewis: Judge, if I may have a moment, I' ll find it.
The Court: Is there only one offense report that has that information?
[Prosecutor]: I can read 2.053. This is a statement from Gabbriel Johnson. I'll just cut to the pertinent part. "Leon got a gun, ran across the field, and started shooting at the truck. Leon had fought the guy at the gas station. Gabbriel does not know —"
The Court: So, there's something in the report showing that.
Mr. Lewis: But she does not say in the statement that she actually saw the shooting take place. She says she saw him run back and forth with the gun and heard the shots.
The Court: Okay. Well, the point being is that you still went in there without somebody else to come in and testify. So, I'm going to have to deny your Motion for a Mistrial and your Motion to Withdraw.
The proceedings resumed without Lewis ever making his bill of exceptions. Ultimately, the defense rested without presenting any evidence. Lewis never called himself to testify, nor was he called by co-counsel. On appeal, appellant argues that the trial court erred by denying Lewis's motion to withdraw.
STANDARD OF REVIEW
We review a trial court's decision on an attorney's motion to withdraw for an abuse of discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Brewer v. State, 649 S.W.2d 628, 631 (Tex. Crim. App. 1983). The trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). As long as the trial court's ruling falls within the "zone of reasonable disagreement," there is no abuse of discretion and the trial court's ruling will be upheld. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Under this standard, we may only consider the information presented to the trial court at the time of its decision. Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990); Williams v. State, 154 S.W.3d 800, 802 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd).
Existing case law has not articulated a clear, governing standard for determining whether a trial court acts arbitrarily when ruling on a motion to withdraw. While a number of opinions have examined a trial court's decision on an attorney's motion to withdraw, such motions have generally been based on disagreements between counsel and client. Often, clients will seek substitute representation after complaining of personality conflicts with their appointed counsel. See, e.g., King, 29 S.W.3d at 565-66; Viges v. State, 508 S.W.2d 76, 76-77 (Tex. Crim. App. 1974). Occasionally, retained counsel may also seek to withdraw because the client is uncooperative or unwilling to pay legal fees. See, e.g., Wallace v. State, 618 S.W.2d 67, 70 (Tex. Crim. App. 1981); Ahmadi v. State, 864 S.W.2d 776, 781 (Tex. App.-Fort Worth 1993, pet. ref'd). In such cases, reviewing courts do not appear to follow any specific guidelines when evaluating the trial court's decision. Rather, courts tend to examine the individual circumstances of each case. See, e.g., King, 29 S.W.3d at 565-66; see also Solis v. State, 792 S.W.2d 95, 100 (observing that "[c]onflicts of personality and disagreements between counsel and client are not automatic grounds for withdrawal.").
Appellant's case differs from prior precedent because the attorney here moved to withdraw, not out of disagreement with the client, but in order to testify as a material witness on behalf of the client. To our knowledge, only two cases have been decided with similar issues and fact patterns, and both are unreported memorandum opinions lacking precedential value. See Ramirez v. State, No. 01-04-00196-CR, 2005 WL 2123791, at *5-6 (Tex. App.-Houston [1st Dist.] Aug. 31, 2005, pet. ref'd) (mem. op., not designated for publication); Joiner v. State, No. 05-91-01093-CR, 1993 WL 524693, at *3-4 (Tex. App.-Dallas Dec. 17, 1993, no pet.) (mem. op., not designated for publication). As with the majority of cases dealing with an attorney's motion to withdraw, these nonbinding opinions fail to articulate any specific guidelines that might be useful in evaluating the trial court's decision.
In the absence of a governing test, we must examine the circumstances of each case before deciding whether a trial court abuses its discretion. Cf. Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (balancing a number of case-specific factors when evaluating whether a motion for continuance should have been granted to afford a defendant his counsel of choice). Though not an exhaustive list, we find that the following factors are relevant in evaluating a trial court's decision on counsel's motion to withdraw: (1) whether counsel offered good cause to withdraw; (2) the necessity for the withdrawal; (3) a client's Sixth Amendment right to counsel of choice; (4) a client's Sixth Amendment right to call witnesses in his own defense; (5) the disruption that may result to the trial proceedings as a result of the attorney's withdrawal; and (6) the attorney's role, if any, in creating the need to withdraw. After balancing all of these factors, we conclude that the trial court did not abuse his discretion in denying the motion to withdraw.
ANALYSIS
We will examine each of the factors outlined above.
I. Good Cause for Withdrawal
Under the Code of Criminal Procedure, an appointed attorney must represent the defendant until the attorney "is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record." Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (West 2010). We therefore consider whether counsel offered good cause for withdrawing from this case.
Lewis requested withdrawal in order to testify as a witness. Though he never made a complete offer of proof, we can reasonably infer from the record that Lewis would have testified that Gabbriel denied seeing the shooting during their jailhouse interview. See Tex. R. Evid. 103(a)(2) (stating that an offer of proof may be made "apparent from the context within which questions were asked"). Lewis's testimony would have impeached Gabbriel's version of the events, which may have been material to appellant's defense. This factor would support granting the motion.
II. The Necessity for the Withdrawal
Because Lewis sought to testify as a witness, appellant believes the trial court was required to grant his motion to withdraw. In support of this proposition, appellant relies on the disciplinary rule that lawyers should not serve in the dual role of advocate and witness in the same proceeding.
Under Rule 3.08 of the Texas Disciplinary Rules, a lawyer should not represent a client if the lawyer knows or believes he may be a witness "necessary to establish an essential fact" on behalf of the client. Tex. Disciplinary Rules Prof'l Conduct R. 3.08(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. X, § 9). Rule 3.08 was promulgated as a disciplinary standard, and not a procedural rule for attorney disqualification. Tex. Disciplinary Rules Prof'l Conduct R. 3.08 cmt. 9. Nevertheless, Texas courts often reference the Rule as a guideline when determining whether a lawyer should discontinue his representation of a client. See, e.g., Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex. Crim. App. 2003); see also Keeter v. State, 175 S.W.3d 746, 761 n. 17 (Tex. Crim. App. 2005) (noting parenthetically that "State and defense lawyers should not testify before the jury").
Our court has previously recognized two policy concerns implicit within Rule 3.08 considerations. See Gonzalez v. State, 63 S.W.3d 865, 876 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 117 S.W.3d 831 (Tex. Crim. App. 2003). The first concern addresses any harm the client may suffer from counsel assuming the dual role of advocate and witness. Id. The second concern addresses any confusion that may result for the trier of fact. Id. We examine each in turn.
A. Harm to the Client
The first and "primary concern" under Rule 3.08 is that the client's case may be compromised by counsel assuming the dual role of advocate-witness. Id.; see also House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997) ("The main focus of the rule is a recognition of potential harm to the offending lawyer's client when the lawyer assumes dual roles of advocate-witness."). Harm can result to the client because these roles are not always compatible. An advocate serves in a representative capacity, and therefore, counsel is expected to be partial to the interests of the client. Witnesses, by contrast, are expected to assume an objective role. To be effective as witnesses, they must normally be nonpartisan and detached from the trial proceedings. See Dreyer v. State, 309 S.W.3d 751, 756-57 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (Sullivan, J., concurring).
Because an advocate-witness wears two hats, being at once both partisan and nonpartisan, the credibility of an advocate becomes subject to question whenever he takes the stand to testify. Rule 3.08 discourages this practice because the client is typically served better when the credibility of his witnesses cannot be doubted. See Tex. Disciplinary Rules Prof'l Conduct R. 3.08 cmt. 9.
In this case, appellant contends that harm is shown by the fact that Lewis could not testify. We do not believe that appellant can complain of this specific type of harm for the first time on appeal. Lewis orally moved to withdraw; he did not explicitly request to testify. In fact, at no point during the proceeding did Lewis ever attempt to call himself to the stand. Lewis's co-counsel similarly failed to call Lewis as a witness. Insofar as appellant complains that the trial court's ruling denied him the right to call Lewis as a witness, we conclude that error has not been preserved. See Tex. R. App. P. 33.1; cf. Jacobs v. State, 787 S.W.2d 397, 407 (Tex. Crim. App. 1990) (finding no harm where defendant's motion to disqualify the district attorney was denied and where the district attorney was never called to testify during the guilt-innocence phase of trial).
Assuming appellant preserved this point, the harm to the client was slight. Based on his implied offer of proof, Lewis's testimony would have been limited to impeachment. The record does not show that counsel would have introduced substantive evidence that appellant was not guilty of the offense. Moreover, Lewis had already cross-examined Gabbriel on the alleged inconsistencies in her prior statements. The effect of his questioning would have been obvious to the reasonable juror.
B. Confusion for the Trier of Fact
The second policy concern under Rule 3.08 addresses the possible confusion that can result for the trier of fact. See Gonzalez, 63 S.W.3d at 876. When the two roles are combined, "[i]t may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof." Tex. Disciplinary Rules Prof'l Conduct R. 3.08 cmt. 4. Especially when counsel refers to matters of personal knowledge, whether through argument or through questioning, the resulting confusion may prejudice the opposing party, who is unable to clarify or impeach counsel's statements. See Gonzalez, 117 S.W.3d at 840.
Although this is an important factor, it does not always require granting a motion to withdraw (or to disqualify). Courts have recognized that a lawyer can still testify at trial. See Ramon v. State, 159 S.W.3d 927, 931 (Tex. Crim. App. 2004) (establishing a standard for when a prosecutor may testify to an essential fact) (citing Brown v. State, 921 S.W.2d 227, 231 (Tex. Crim. App. 1996) (Keller, J., concurring)); Flores v. State, 155 S.W.3d 144 (Tex. Crim. App. 2004) (holding that defense counsel may be forced to testify if the State can demonstrate a compelling need); Shannon v. State, 284 S.W. 586 (Tex. Crim. App. 1926) (holding that the trial court should not have excluded defense counsel's impeachment testimony); Mealer v. State, 22 S.W. 142 (Tex. Crim. App. 1893) (holding that defense counsel should not have been prevented from taking the stand on the sole basis that he was an attorney).
C. Application of Rule 3.08
Only a limited number of criminal cases have discussed Rule 3.08, and each of them has touched upon issues primarily relating to attorney disqualifications. In Gonzalez, for instance, the State filed a pretrial motion to disqualify defense counsel because he was expected to testify on a contested matter bearing directly on his client's guilt. See Gonzalez, 117 S.W.3d at 835-36. The Texas Court of Criminal Appeals held that the State would have been prejudiced by counsel's representation regardless of whether counsel actually testified:
If counsel were to have testified, the State would have been prejudiced not only by the undue weight jurors might have attach [sic] to counsel's testimony, but also by the confusion that would most likely have resulted during argument regarding whether counsel was summarizing evidence or further testifying as to personal knowledge. However, even if [counsel] did not testify, but referred to his own recollection of the events through cross-examination, the State would have been prejudiced by the implication to the jury that his questions represented the truth based on his personal knowledge of what occurred. The State would have been prejudiced by the inability to clarify counsel's testimony and impeach counsel's credibility.
Id. at 840.
In Harrison v. State, another disqualification case, the Court of Criminal Appeals considered whether a mistrial was supported by "manifest necessity" after counsel injected his credibility into the proceeding. Harrison v. State, 788 S.W.2d 18 (Tex. Crim. App. 1990). During cross-examination, counsel attempted to impeach the State's witness by referring to matters of personal knowledge. Id. at 20. The trial court subsequently disqualified counsel on the State's motion, then granted a mistrial so that the State might have the option of calling counsel as a witness in the defendant's retrial. Id. at 21. The Court of Criminal Appeals held that counsel's disqualification was not justified because he did not "irreversibly inject" his credibility as an issue in the trial. Id. at 23. Rather, the court found that the questions and personal references raised by counsel were of "merely tangential importance" to the proceeding. Id.
By characterizing counsel's questioning as "tangential," the Harrison Court distinguished the case from the Second Circuit's analysis in United States v. Kwang Fu Peng, 766 F.2d 82 (2d Cir. 1985). As with Harrison, the Kwang Fu Peng case arose following the trial court's declaration of a mistrial. Id. at 83. Unlike Harrison, however, the Second Circuit determined that the mistrial was supported by manifest necessity because defense counsel had irreversibly injected his credibility into the proceedings. Id. at 86. The circumstances were most unusual in that counsel was found to have participated in an event directly bearing on his client's charged offense. Id. Citing a number of disciplinary standards and a rule against unsworn witnesses, the court found that counsel's disqualification was required, otherwise the jury would be at risk of misinterpreting his questions and advocacy as substantive proof. Id. at 86-87.
In their briefing, the parties have argued at great length as to whether appellant's case is more analogous to Harrison or Kwang Fu Peng. Without deciding whether Lewis's impeachment evidence was of "merely tangential importance," we find these cases are inapplicable to the issue under our review. Harrison and Kwang Fu Peng involved issues concerning attorney disqualifications, not motions to withdraw. Both cases were decided after examining whether the opposing party would suffer prejudice as a result of the attorney's dual role. The concern in this case is qualitatively different. Appellant focuses not on the prejudice that may befall the opposing party, but on the harm that he would suffer because of counsel being restricted to the role of advocate. In this respect, appellant focuses on the first policy concern recognized under Rule 3.08, not the second. See Tex. Disciplinary Rules Prof'l Conduct R. 3.08 cmt. 9; Gonzalez, 63 S.W.3d at 876.
Because this is not a case involving attorney disqualifications, we do not believe that appellant is required to demonstrate actual prejudice before counsel is permitted to withdraw. Actual prejudice is a difficult standard and more properly reserved in adversarial motions. See Gonzalez, 117 S.W.3d at 839 ("It is well settled that a party seeking to disqualify the opponent's attorney for violation of an ethical rule must demonstrate that such violation will result in actual prejudice to the moving party."). Moreover, an actual prejudice standard would not always account for the variety of factors we find relevant in determining whether a trial court abuses its discretion. Indeed, if counsel can withdraw in advance of trial without any risk to the integrity of the proceedings, we do not see any reason why a defendant must show that counsel's continued representation actually prejudiced him before a denial on the motion is held reversible. That burden is unnecessarily high, especially where counsel puts forth legitimate reasons for the withdrawal that also serve the client's best interest.
This factor — necessity for withdrawal — supports granting of the motion to withdraw. Although the argument that the client was harmed from the dual role was waived because Lewis did not testify, there was a potential for confusion of the trier of fact. Lewis presumably did not call himself as a witness because he did not want to put himself in the position of confusing the trier of fact.
III. The Client's Sixth Amendment Right To Counsel of Choice
A defendant in a criminal proceeding has certain constitutional and statutory guarantees, including the assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 1.05; Gideon v. Wainwright, 372 U.S. 335 (1963). This right to assistance of counsel contemplates that a defendant may obtain counsel of his own choosing. Powell v. Alabama, 287 U.S. 45, 53 (1932); Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981). Moreover, this right may not be impeded merely for a "myopic insistence upon expeditiousness." See Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Courts have analyzed this right in connection with motions to withdraw.
While this is a factor for the trial court to consider, this argument was not made to the trial court. As a separate point of error, it would have been waived. See Tex. R. App. P. 33.1; Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) ("[E]ven constitutional errors may be waived by failure to object at trial.").
In addition, this factor can be weighed against the disruption to the judicial system, as outlined in Section V below. A defendant's right to counsel does not encompass an absolute right to counsel of choice. A defendant has no right to an advocate who is not a member of the bar, an attorney he cannot afford or who declines representation, or an attorney who has a previous or ongoing relationship with an opposing party. Wheat v. United States, 486 U.S. 153, 159 (1988); see also Roberson v. State, 741 S.W.2d 563, 564 (Tex. App.-Texarkana 1987, no pet.) (observing in the context of a motion to withdraw that the " Sixth Amendment guarantee of right to counsel does not include the right to appointed counsel of choice"). Thus, the defendant's interest in counsel can be outweighed by overriding concerns for the integrity of the judicial process and "the trial court's need for prompt, orderly, effective and efficient administration of justice." Emerson v. State, 756 S.W.2d 364, 369 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd) (citing Windham, 634 S.W.2d at 720); see also Green v. State, 840 S.W.2d 394, 408 (Tex. Crim. App. 1992) ("[T]he right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice."), abrogated on other grounds by Trevino v. State, 991 S.W.2d 849 (Tex. Crim. App. 1999).
IV. The Client's Sixth Amendment Right to Call Witnesses in His Defense
A criminal defendant has a Sixth Amendment right to call witnesses in his own defense. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The right is not absolute, and is subject to "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id.; Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984); see also United States v. Scheffer, 523 U.S. 303, 308 (1998) (observing that the right to present evidence is subject to reasonable restrictions designed to accommodate other legitimate interests in the criminal trial process).
Appellant complains that the trial court's ruling denied him the constitutional right to call Lewis as a witness. But Lewis did not attempt to call himself as a witness. The trial court made no ruling on this issue. As a separate point of error, it would have been waived. See Tex. R. App. P. 33.1.
V. The Disruption to the Trial Proceedings
As with mistrials and the disqualifications of counsel, attorney withdrawals can cause serious disruptions to the administration of a trial. See In re Sanders, 153 S.W.3d 54, 57 (Tex. 2005) (observing that disqualification causes immediate harm "by depriving a party of its chosen counsel and disrupting court proceedings"); Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (considering a motion for mistrial "the most serious action of ending the trial"). An attorney's withdrawal inevitably results in delay of some sort, thereby "increasing the chances of witness unavailability or memory failure, the disappearance of evidence, and a delay of justice for both appellant and the community." Coleman v. State, 246 S.W.3d 76, 85 (Tex. Crim. App. 2008).
The disruption from Lewis's withdrawal would have been obvious. Lewis moved to withdraw during the middle of trial, after several witnesses had already testified. By this stage of the trial, Lewis was the only one of appellant's two attorneys of record to actively participate in the proceedings. He presented the opening statement and conducted all cross-examinations, while appellant's second attorney asked no questions on the record nor made any arguments to the trial court. The record does not reveal whether appellant's second attorney of record was capable of leading the representation in Lewis's place. In fact, Lewis did not even pursue that as an option, moving instead for a mistrial, the most serious of trial remedies. Lewis's withdrawal would have immediately halted the proceedings during a critical moment in the trial, causing a disruption that certainly factored into the trial court's decision. This factor supports the trial judge's decision.
VI. Counsel's Role in Creating the Need for Withdrawal
The trial court questioned Lewis about his role in creating the need for the withdrawal, which references principles raised in the Ramon decision. In Ramon v. State, the court held that a prosecutor should not testify as a witness unless the prosecutor can demonstrate (1) that her testimony is necessary; (2) that the need for her testimony could not have been reasonably anticipated; and (3) that she took reasonable precautions to prevent herself from being entangled in the case as a witness. Ramon, 159 S.W.3d at 931.
Although this rule was tailored specifically in the context of prosecutors, its underlying principles are relevant whenever an advocate seeks to testify. See id. (addressing the concern that the jury may be confused about whether the prosecutor is speaking as an advocate or a witness). Therefore, in deciding whether a trial court abuses its discretion when ruling on a motion to withdraw, we factor into our analysis any precautions the attorney may have taken in advance of trial to prevent from becoming a witness. See Stearnes v. Clinton, 780 S.W.2d 216, 224 (Tex. Crim. App. 1989) (recognizing that counsel has a responsibility to interview witnesses without risk of creating an ethical conflict).
In this case, Lewis interviewed Gabbriel knowing that she would testify on behalf of the State. He conducted the interview alone, outside the presence of a third party. Although he claimed that he "would return and make a record" of the interview should Gabbriel change her story, no such record appears to have been made. Counsel failed to take reasonable measures that would prevent himself from becoming a witness. This factor supports the trial court's ruling.
CONCLUSION
In evaluating whether the trial court's decision comports with guiding legal principles, we have identified six factors, drawn largely from our prior case law and standards of ethics. Although counsel offered a legitimate reason to withdraw, the necessity for the withdrawal was slight, and several additional factors weighed against his motion. Counsel's withdrawal would have caused a serious disruption to the trial and to the administration of justice. Moreover, counsel failed to take precautions from becoming a witness in the case. Balancing all of these factors together, we conclude that the trial court did not abuse its discretion.
We overrule appellant's sole issue and affirm the judgment of the trial court.
CONCURRING OPINION
The court today creates a test for evaluating whether a trial court has abused its discretion in refusing to allow trial counsel to withdraw from representation. The only basis for appellant's trial counsel's motion to withdraw was that this attorney allegedly was a witness to a prior inconsistent statement allegedly made by a witness who testified at trial. Appellant did not offer into evidence any testimony by the attorney to support this claim. Nor did appellant inform the trial court as to the nature of the alleged prior inconsistent statement that his attorney allegedly witnessed. The nature of any such statement was not apparent from the context of the proceedings before the trial court. And, the record does not show that counsel's testimony would have been the only source of the information. For these reasons, the trial court did not abuse its discretion by denying appellant's counsel's motion to withdraw, and this court should so hold without creating and applying a new six-factor balancing test.
Waiver Based Upon Failure to Make a Proper Record
One of appellant's two trial attorneys, Thomas Lewis, asserted in the trial court that he was a witness to a prior inconsistent statement allegedly made by Gabbriel Johnson, a trial witness. Based upon this assertion Lewis moved to withdraw as appellant's counsel. The majority's analysis is based on the premise that Lewis was a material witness on behalf of appellant. Because appellant never made a record of what testimony Lewis would have given, appellant has waived any argument that the trial court should have granted Lewis's motion to withdraw based upon this testimony. See Gonzalez v. State, 63 S.W.3d 865, 878 (Tex. App.-Houston [14th Dist.] 2001) (concluding that, because an accused failed to make tapes or a transcript of their contents part of the record, he waived any argument based on the tapes in response to the State's motion to disqualify), aff'd, 117 S.W.3d 831 (Tex. Crim. App. 2003). This testimony was the only basis for appellant's counsel's motion to withdraw. The failure to identify the statement is fatal for purposes of appellate review.
Failure to Identify Alleged Statement
Our record does not contain key information necessary to make a threshold determination as to whether Lewis was a material witness for his client. Because Lewis's cross-examination of Gabbriel Johnson was not limited to a single subject, the alleged inconsistent statement, which was never identified, may have concerned a subject that was not material to the case.
During cross-examination, Gabbriel Johnson testified to a number of matters, including her relationship to appellant, her various conversations with law enforcement officers, what she knew about aspects of the investigations and her brother being a suspect, where she lived and how long she had lived there, and what she did, where she was, and whose company she kept on the day of the shooting. Specifically, Gabbriel Johnson testified as follows:
Q: (By Mr. Lewis) Ms. Johnson, you and I have talked before, haven't we?
A: Yes, sir.
. . .
Q: (By Mr. Lewis) Anthony Johnson is your brother, isn't he?
A: Yes, sir.
Q: And he's also known as Sarge?
A: Yes.
Q: And you talked to the police on several occasions about the investigation of this case, didn't you?
A: Yes.
Q: And you knew, based on those conversations, that Sarge was a suspect in this case, didn't you?
[Prosecutor]: Judge, I'll object to speculation.
Mr. Lewis: If she knows.
The Court: As to the form of the question, I'll sustain the objection.
Q: (By Mr. Lewis) Did you have — from your personal knowledge, did you know that he was a suspect?
A: Yes.
Q: You love your brother, don't you?
A: Yes.
Q: Ms. Johnson, you said — it was your testimony that you lived in the Copper Tree Apartments?
A: Yes.
Q: And you told counsel that you were just hanging out with your mom in the car?
A: Yes. I had lived there for, like, a month prior with a friend.
Q: Okay. But on the day of the shooting, you were hanging out in your car?
A: Yes.
Q: With the radio on?
A: Yes.
Q: Loud?
A: Yeah.
Q: Why were you hanging out in the car and not in your apartment?
A: Because it was a hot day. We were outside eating. Just hanging out.
Q: You weren't doing anything else in the car?
A: Eating barbecue.
Q: Ms. Johnson, you and I have had a discussion in Harris County jail on the second day of March about this case, haven't we?
A: Yes.
Q: And I asked you questions about this case, didn't I?
A: Yes.
Q: And you answered my questions about this case, didn't you?
A: Yes.
Q: Isn't it true that you told me you didn't see the shooting at the time?
A: No.
After this response, at a bench conference, appellant's trial counsel moved to withdraw as attorney of record, claiming to have been a witness to a prior inconsistent statement Gabbriel Johnson allegedly made on a previous occasion. Appellant's trial counsel did not state or even characterize the purported prior inconsistent statement that counsel allegedly witnessed. The trial court denied the motion to withdraw. In the jury's presence, Lewis posed the following questions before passing the witness:
Q: Ms. Johnson, on that occasion of March the 2nd, 2010, when I spoke to you in the jail, did you tell me that the only thing you saw was Leon running by your car?
A: No. We talked about more than that.
Q: Was your initial statement to the police that you did not see a gun?
A: No.
Lewis did not make a bill showing any evidence that would impeach any of Gabbriel Johnson's testimony. Texas Disciplinary Rule of Professional Conduct 3.08, entitled "Lawyer as Witness," provides:
(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a), reprinted in Tex. Gov't Code, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9) (West 2005). To trigger Rule 3.08 and potentially justify a withdrawal of representation during trial, the lawyer must be a "witness necessary to establish an essential fact on behalf of the lawyer's client." Id. Lewis stated only that "I am a witness as to a prior inconsistent statement by a witness, Gabbriel Johnson." Notably, counsel never said what the alleged prior inconsistent statement was or what counsel's testimony would be. Lewis did not even characterize the prospective testimony as material. If appellant had offered testimony by his attorney and made a record as to this testimony, then the trial court (and this court) would have a basis for assessing whether this attorney was a witness necessary to establish an essential fact on appellant's behalf.
On the record in the case under review, appellant's counsel did not describe the nature of the alleged prior inconsistent statement that he witnessed. It is possible that the alleged prior statement conflicted with some other aspect of Gabbriel's statement. For example, the inconsistency could have related to her relationship with her brother, where she lived or how long she had lived there, whether she and her mother were in Gabbriel's car at the time of the shooting or whether they were doing something other than what she described before the shooting. The nature of any such prior inconsistent statement was not apparent from the context of the proceedings before the trial court. Absent any description of what the alleged prior inconsistent statement was or the testimony appellant allegedly wanted to elicit from one of his trial attorneys, the trial court did not err in denying the motion of this attorney to withdraw.
Failure to Establish Attorney's Testimony Was Only Source of Evidence
To the extent that trial counsel suggested to the trial court, and appellant now claims on appeal, that appellant would have needed to rebut or impeach Gabbriel Johnson's testimony about their prior discussion, any other evidence of that conversation would have sufficed, and Lewis would not have needed to testify. See Gonzalez v. State, 63 S.W.3d 865, 878 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 117 S.W.3d 831 (Tex. Crim. App. 2003). To fully consider the argument, the trial court and this court would need to actually consider the evidence supporting trial counsel's claim. See Gonzalez, 63 S.W.3d at 878. As noted, there is no way to tell from the record what Lewis would have said under oath. Though given the opportunity to make a bill, Lewis did not make a record of what his testimony would have been.
Moreover, the record does not show whether Lewis was the only source of any such evidence or whether others might have been able to testify concerning the facts that Lewis knew. Though Lewis stated that he did not bring anyone with him to his interview with Gabbriel Johnson, he did not say others did not witness the alleged statements or that the witness was not known to have made the same or similar statements to others. Nor did Lewis state that his testimony was the only means of impeaching the witness on this point.
Conclusion
A trial court's determination as to whether to grant a motion to withdraw is typically a fact-intensive inquiry, and there are different bases upon which an attorney may move to withdraw from representation. In the case under review it is clear that the trial court did not abuse its discretion by denying the motion to withdraw, and there is no need to adopt a six-factor test to apply in reviewing trial court rulings on all motions to withdraw.