Opinion
14-19-00679-CR
08-31-2023
JESSE STEVEN CASTRO, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1555464
Panel consists of Justices Wise, Bourliot, and Senior Justice Jamison (by assignment).
MEMORANDUM OPINION
Frances Bourliot Justice
While appellant Jesse Steven Castro's case was pending, his attorney was charged with two felony offenses. The attorney's cases were initially assigned to the same court as appellant's case but were then transferred to another court. Appellant's case proceeded to trial, and a jury convicted him of continuous sexual abuse of a child. Appellant filed a motion for new trial in which he asserted, in relevant part, that he received ineffective assistance of counsel because his attorney failed to disclose and was distracted by her pending charges and in so doing, prioritized her financial interest in representing him above a fiduciary duty to disclose her pending charges.
Concluding initially that appellant was entitled to a hearing on his motion for new trial, we abated this case and remanded for the trial court to hold a hearing. After the hearing, the trial court again denied the motion. We reinstated the case after supplemental reporter's and clerk's records were filed and permitted the parties to file supplemental briefing.
Now, we conclude the trial court did not abuse its discretion in denying the motion for new trial because appellant failed to show that his attorney was burdened by an actual conflict of interest that adversely affected her performance during trial and the record does not support appellant's ineffective assistance claim. We overrule appellant's only remaining issue and affirm the trial court's judgment.
Background
Appellant hired Jana Lewis-Perez to represent him in this case. Lewis-Perez was then indicted for two felony insurance fraud offenses. Her cases were assigned to the same trial court in which appellant's case was pending but were transferred to another trial court on the basis that Lewis-Perez "represent[ed] a defendant in the same court." Appellant's case proceeded to trial. After the jury returned its guilty verdict, it assessed punishment at 38 years' confinement.
Appellant filed a timely motion for new trial and requested a hearing, asserting that he received ineffective assistance of counsel based, in relevant part, on a purported conflict of interest because of Lewis-Perez's pending charges. The trial court overruled the motion for new trial without a hearing. After we abated the case for a hearing on the motion for new trial, the trial court conducted the hearing without live testimony and admitted evidence, including affidavits from appellant and Lewis-Perez, and heard closing arguments of counsel. The trial court again denied the motion, and we reinstated this appeal.
Discussion
In his supplemental brief, appellant reasserts his ineffective assistance claim but also raises two new issues that are unrelated to the ineffective assistance claim and were not raised in his original appellate brief. We address as an initial matter whether appellant was authorized to raise these issues for the first time after the appeal was reinstated. We then address the ineffective assistance claim.
I. New Issues Raised in Supplemental Brief Untimely
As mentioned, we abated this case for a hearing on appellant's motion for new trial asserting ineffective assistance of counsel. See Castro v. State, 651 S.W.3d 96, 98 (Tex. App.-Houston [14th Dist.] Aug. 26, 2021, no pet.) (abatement order). After the trial court held the hearing, we issued a letter stating, "[t]he parties will be permitted to file supplemental briefing" and setting forth the schedule for each side to file their briefs. Appellant raised two new issues that were not addressed in his original brief and were not related to his ineffective assistance claim. The State contends that new issues raised in the supplemental brief should not be considered by this court.
Appellant now challenges the legal sufficiency of the evidence that he was at least 17 years old at the time of the offense, and the trial court's admission of testimony from an outcry witness. We are required to address whether appellant's sufficiency challenge is timely because a successful sufficiency challenge would afford the greatest relief. See Finley v. State, 529 S.W.3d 198, 202 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd) (reviewing court will first address issues that, if sustained, require reversal and acquittal, before turning to issues seeking remand).
We may permit a party to file a supplemental brief "whenever justice requires." Tex.R.App.P. 38.7. However, new issues raised post-submission are untimely and require express permission from the appellate court allowing the new issues. See Garrett v. State, 220 S.W.3d 926, 928-29 (Tex. Crim. App. 2007). In the Garrett case, the appellate court ordered supplemental briefing regarding sufficiency of the evidence to convict the appellant. Id. at 927. In its opinion, the appellate court then did not address a sufficiency issue raised in the supplemental briefing. Id. at 928. The Court of Criminal Appeals held that "[b]ecause the court of appeals' orders ordering briefing on the sufficiency of the evidence did not grant or even impliedly grant a supplemental issue for review," Rule of Appellate Procedure 38.1 controlled the resolution of the issue. Id.
Rule 38.1 requires an appellant to designate all issues for review in the original brief. Tex.R.App.P. 38.1(f); see also Garrett, 220 S.W.3d at 928. The high court noted,
Indeed, Rule 38.1 allows an appellant to present whatever issues for review he or she desires, with very few limitations. . . . Thus, an appellant is the master of his or her own destiny with respect to what issues the court of appeals is required to address within its written opinion.Garrett, 220 S.W.3d at 928-29. If the sufficiency issue had been raised in the original brief or the appellate court had explicitly granted the supplemental issue for review, then the court of appeals would have been required to address the supplemental issue. Id. at 929. But because the appellate court did not do so, it was not required to address the supplemental issue, despite having requested supplemental briefing. Id.
In our order, we abated the case for the express purpose of requiring the trial court to hold a hearing on appellant's motion for new trial based on ineffective assistance of counsel claims. We did not grant or impliedly grant new issues for review. See id. at 928. Our order permitting post-hearing supplemental briefing similarly did not explicitly or impliedly grant leave to address entirely new issues. See id. We conclude the new issues raised in appellant's supplemental brief were untimely and unauthorized. See id. at 928-29; see also Arroyo v. State, No. 04-19-00216-CR, 2020 WL 4046207, at *5 (Tex. App.-San Antonio July 15, 2020, pet. ref'd) (mem. op., not designated for publication) (holding appellant failed to preserve error on issue "raised for the first time in a supplemental response brief"); Mercer v. State, No. 13-13-00150-CR, 2015 WL 4116674, at *3 (Tex. App.- Corpus Christi-Edinburg July 2, 2015, no pet.) (mem. op., not designated for publication) ("While we granted leave for appellant to file supplemental briefing to address the Court's decision, we did not explicitly or impliedly grant leave to address an entirely new issue."). We decline to address those issues and turn to the ineffective assistance challenge.
II. Effectiveness of Counsel
On appeal, appellant argues that Lewis-Perez was unconstitutionally ineffective because she had a conflict of interest between a fiduciary duty to her client to disclose her pending charges and her financial self-interest. According to appellant, Lewis-Perez's conduct amounted to fraud by nondisclosure, resulting in denial of appellant's "right to counsel of his choice." Appellant further contends his attorney "put her own interest in getting paid ahead of her client's interest in a fair, reliable trial" and was distracted and unprepared for trial.
We review a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if no reasonable view of the record could support the trial court's ruling. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). This is a deferential standard of review requiring us to view the evidence in the light most favorable to the trial court's ruling. Id. In applying this standard of review, we presume that the trial court disbelieved evidence supporting appellant's ineffective-assistance claims. See id. at 821. We afford "almost total deference" to a trial court's determination of historical facts and its application of the law to fact questions, the resolution of which turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same deferential review to the trial court's determination of historical facts based solely on affidavits, regardless of whether the affidavits are controverted. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). In determining whether the trial court abused its discretion, we must not substitute our own judgment for that of the trial court, and we must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Burch, 541 S.W.3d at 820. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
The Sixth Amendment to the United States Constitution guarantees "[in] all criminal prosecutions that the accused shall have the right to reasonably effective assistance of counsel. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). 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); see also Orgo v. State, 557 S.W.3d 858, 861 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (citing Monreal, 947 S.W.2d at 564, and Goody v. State, 433 S.W.3d 74, 79 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd)).
Most claims of ineffective assistance of counsel are reviewed under the analytical framework set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). Although Strickland governs claims of ineffective assistance of counsel based on attorney error, claims involving an actual conflict of interest are reviewed under Cuyler v. Sullivan. 446 U.S. 335, 350 (1980); see also Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014) ("[T]he proper standard by which to analyze claims of ineffective assistance of counsel due to conflict of interest is the rule set out in Cuyler v. Sullivan.").
A. Conflict of Interest Under Cuyler
The first step in our analysis is to decide which standard-Cuyler or Strickland- applies to the alleged conflict of interest at issue in this case. This case turns on whether Lewis-Perez's failure to disclose her pending charges to appellant constituted an actual conflict of interest. If so, then the Cuyler test is the appropriate standard. If not, then Strickland is the appropriate standard to analyze appellant's ineffective assistance of counsel claim.
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. Cuyler, 446 U.S. at 348-50; Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007); see also Monreal, 947 S.W.2d at 565. 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 350. An actual conflict of interest exists if counsel is required to make a choice between advancing her client's interest in a fair trial or advancing other interests (perhaps counsel's own) to the detriment of her client's interest. See Monreal, 947 S.W.2d at 564; Odelugo, 443 S.W.3d at 136. The conflict, however, must be more than merely speculative. James v. State, 763 S.W.2d 776, 778-79 (Tex. Crim. App. 1989). A potential conflict of interest is insufficient to reverse a conviction. Cuyler, 446 U.S. at 350; Goody, 433 S.W.3d at 79. But, if an appellant shows an actual conflict, prejudice is presumed. Cuyler, 446 U.S. at 350. The critical difference between the Cuyler test and the Strickland test is that there is a lesser burden when the claim of ineffective assistance of counsel involves a conflict of interest than when a claim is based on attorney error. Thompson v. State, 94 S.W.3d 11, 16 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd).
On appeal, appellant contends that Lewis-Perez provided ineffective assistance of counsel because she had a conflict of interest, i.e., a fiduciary duty to disclose her criminal fraud indictments to appellant. Specifically, appellant argues that while appellant's case was pending, Lewis-Perez was indicted for two felony offenses of insurance fraud involving false statements to her insurance company about a car wreck. The charges were filed in the same trial court as appellant's case, but Lewis-Perez's cases were later transferred to another trial court on the express basis that Lewis-Perez "represent[ed] a defendant in the same court." Lewis-Perez and the State filed joint motions for reset and orders of supervision in Lewis-Perez's cases one week before appellant's trial. Those motions were granted.
In Texas, a fiduciary relationship exists between attorneys and clients as a matter of law. Goffney v. Rabson, 56 S.W.3d 186, 193-94 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). The Texas Supreme Court has noted that the term fiduciary "refers to integrity and fidelity" and "contemplates fair dealing and good faith . . . as the basis of the transaction." Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 512 (Tex. 1942). To this end, the attorney-client relationship is one of "most abundant good faith," requiring absolute perfect candor, openness and honesty, and the absence of any concealment or deception. Goffney, 56 S.W.3d at 193 (quoting Perez v. Kirk & Carrigan, 822 S.W.2d 261, 263-66 (Tex. App.- Corpus Christi 1991, writ denied)). As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts material to the client's representation. Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988). However, this duty to inform does not extend to matters beyond the scope of representation. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004).
In this case, appellant attested,
I did not know that my attorney had a felony case pending against her while my case was pending. I would not have hired her if I [had] known that she was indicted for fraud. I think that she was distracted and not prepared for my trial because she had her own case pending. She never called me except for money. She never told me what was happening with my case.
In response to appellant's claims regarding a conflict of interest, Lewis-Perez attested, "Prior to trial being scheduled, [appellant] was made aware of [my] personal situation, and I attempted to withdraw from the matter because trial had not been set and [appellant] was in breach of his contractual legal agreement with the office. [Appellant] begged me to remain on his case." According to Lewis-Perez, the judge denied her request to withdraw and set the case for trial. Lewis-Perez also stated, "In regards . . . to any personal legal matter I may have had pending at the time, just as any matter is deemed as innocent until proven guilty[, t]here are no current pending criminal matters and allegations have been dismissed."
We have already held that appellant's statements that his counsel "was distracted and not prepared for my trial because she had her own case pending" and never called him "except for money," standing alone, are conclusory and unsupported by facts. Castro, 651 S.W.3d at 100 (citing Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009), and Harris v. State, 475 S.W.3d 395, 405 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd)). Although appellant attested that Lewis-Perez seemed distracted and unprepared, he points to no specific examples of this behavior in the record and merely speculates that the cause of any alleged distraction was his attorney's pending cases. His statements about his attorney never calling him "except for money" and never telling him what was happening in his case were subject to the trial court's credibility determinations. The trial court, as sole judge of appellant's credibility, was free to disbelieve these statements. See Odelugo, 443 S.W.3d at 138 ("[T]he trial court, as the finder of fact on a motion for new trial, retains the prerogative to believe or disbelieve any evidence the probativeness of which depends on the credibility of its source-regardless of whether that evidence was 'controverted' by the opposing party."); see also Quintero v. State, 467 S.W.3d 671, 678 (Tex. App.-Houston [14th Dist.] 2015, pet ref'd).
Lewis-Perez's affidavit, however, is similarly conclusory on the issue of what appellant knew about her pending offenses. Lewis-Perez did not give any specific information regarding what she told appellant other than to say he "was made aware of [her] personal situation." She attested that she attempted to withdraw from the case but said it was because appellant "was in breach of his contractual legal agreement with the office," not because of her pending offenses, and her statement that appellant "begged [her] to remain on his case" does not show what appellant knew about her "personal situation." Although Lewis-Perez stated that the trial court denied her motion to withdraw, there is no evidence in the record that a motion to withdraw or an order disposing of such a motion was filed. Moreover, Lewis-Perez's statement that "[t]here are no current pending criminal matters and allegations have been dismissed" is not probative as to her state of mind at the time of appellant's trial.
Appellant also presented evidence that two years after his case went to trial, two of Lewis-Perez's former clients filed grievances against her, which resulted in a public reprimand and a partially probated suspension by the State Bar of Texas grievance committee. In each of the judgments, the grievance committee found, among other things, that in representing her two former clients, Lewis-Perez "neglected the legal matter entrusted to her" and "failed to keep [her clients] reasonably informed about the status of [their] matter[s] and failed to comply with reasonable requests for information." Lewis-Perez's representation of her two former clients, however, is unrelated to her representation of appellant. Moreover, appellant does not allege that Lewis-Perez's license to practice law was suspended at the time of his trial. Without more, we do not consider this evidence in our analysis because we cannot assume that the circumstances of Lewis-Perez's representation of appellant in this case was in conformity with her subsequent conduct, which resulted in a public reprimand and a partially probated suspension. See, e.g., Starz v. State, 309 S.W.3d 110, 123 (Tex. App.-Houston [1st Dist.] 2009, pet ref'd) (providing that trial counsel's past bar experience with other clients was inadmissible under Rules 404(b) and 608(b) of the Texas Rules of Evidence).
Under the facts of this case, appellant does not cite, nor have we found, any authority to support his proposition that Lewis-Perez's failure to inform him of her pending felony indictments was an "actual conflict of interest." See, e.g., Tex. Code Crim. Pro. art. 38.03 ("All persons are presumed to be innocent . . . [and] [t]he fact that [s]he has been . . . indicted for . . . the offense gives rise to no inference of guilt at h[er] trial."). Thus, we are not persuaded that appellant established that Lewis-Perez was burdened with an "actual conflict of interest" that required her to make a choice between advancing appellant's interest in a fair trial or advancing her own interest. Quintero, 467 S.W.3d at 677; see also Odelugo, 443 S.W.3d at 136-37 (holding that appellant's conflict of interest claim fails if the evidence relevant to the issue is in perfect equipoise). Absent a showing that a potential conflict of interest became an actual conflict, we will not "speculate about a strategy an attorney might have pursued, but for the existence of a potential conflict of interest." Routier v. State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003); Goody, 433 S.W.3d at 79.
Even if we were to assume the existence of an actual conflict of interest, appellant was still required to show he was adversely impacted by Lewis-Perez's conflict of interest. Odelugo, 443 S.W.3d at 136. The record does not demonstrate that Lewis-Perez's alleged conflict of interest colored her actions during trial. She filed pretrial motions, lodged objections, cross-examined witnesses, objected to the jury charge, and successfully argued that appellant be punished at the lower end of the punishment range.
Accordingly, and given the absence of an actual conflict of interest, we conclude that the Strickland standard should apply to this case.
B. Ineffectiveness Under Strickland
Appellant argues that Lewis-Perez provided ineffective assistance of counsel because she had a conflict of interest; failed to make objections at trial; did not investigate the case, contact potential witnesses, or otherwise prepare witness testimony; and failed to inform him of his right to testify at trial. Appellant also maintains that he "had a lot at stake," "faced a punishment range of 25 years in prison to 99 years," and "would also be required to register as a sexual offender."
To prevail under Strickland, an appellant must show both that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). In order to satisfy the first prong, appellant must prove, by a preponderance of the evidence, that Lewis-Perez's performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687. To prove prejudice, appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Id. Failure to make a required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Even if we presume without deciding that Lewis-Perez's performance in this case was deficient, appellant's ineffective assistance claim nevertheless fails because he has not shown, nor has he made any argument, that there is a reasonable probability that, but for Lewis-Perez's presumably deficient performance, the result of the trial would have been different. See Strickland, 466 U.S. at 694; see also Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (holding that if appellant fails to make the required showing of either deficient performance or prejudice, his ineffective assistance claim fails).
The record does not demonstrate that Lewis-Perez's alleged failure to inform appellant of her pending insurance fraud charges, unrelated to appellant's continual sexual abuse of a child charges, was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Similarly, the record does not support appellant's contention that Lewis-Perez made no objections at trial. To the contrary, Lewis-Perez made numerous objections, cross-examined witnesses, called three witnesses for the defense, and was successful in asking the jury to sentence appellant toward the lower end of the punishment range.
Further, appellant failed to show that the outcome of his trial would have been different had Lewis-Perez called different witnesses or otherwise prepared the witnesses she did call differently. Each of the witnesses that testified on appellant's behalf asserted they never witnessed him do anything inappropriate with a child. Even though appellant asserts that three other individuals Lewis-Perez failed to call as witnesses could have testified to his "good character," that he "work[ed] hard," and that he "[went] to church," this proposed testimony is insufficient to show that, but for Lewis-Perez's alleged failures, there is a reasonable likelihood that the outcome of his trial would have been different. See Smith, 286 S.W.3d at 339-44; Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). Finally, to the extent appellant claims that Lewis-Perez did not inform him of his right to testify at trial, appellant neither indicated that he would have testified nor demonstrated that the outcome of his trial would have been different had he testified during the guilt/innocence phase. See Strickland, 466 U.S. at 694.
We conclude that appellant failed to show a reasonable probability that, but for trial counsel's presumptively deficient performance, the result of the trial would have been different. See id.; see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong."). Accordingly, we overrule appellant's ineffective of assistance claim.
Conclusion
Having concluded that the trial court did not abuse its discretion in denying appellant's motion for new trial based on ineffective assistance of counsel, we overrule appellant's only remaining issue on appeal. We affirm the trial court's judgment.