Dick v. State

Full title: CHRISTOPHER DICK, Appellant v. STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Oct 9, 2008

No. 01-07-00942-CR (Tex. App. Oct. 9, 2008)

Opinion

No. 01-07-00942-CR

Opinion issued October 9, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).

On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 1077684.

Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.

MEMORANDUM OPPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Christopher Dick, pleaded guilty to injury to a child.¹ The trial court deferred adjudication of appellant's guilt, placed him on community supervision for three years, and imposed a $500 fine. Based on the State's later-filed motion to adjudicate, the trial court revoked appellant's community supervision, found appellant guilty, and sentenced him to nine years in prison. In two points of error, appellant contends that, with respect to the adjudication process, (1) he received ineffective assistance of counsel and (2) his due process rights were violated. We affirm.

1 See TEX. PENAL CODE ANN. § 22.04 (Vernon 2003).

Background

During the hearing on the State's motion to adjudicate, the following exchange occurred between appellant's attorney and the trial court:

THE COURT: . . . Is there something you wanted to put on the record, Ms. Unger [appellant's counsel]?

[Appellant's counsel]: Yes, a few things. The first thing, I just wanted to state for the record that prior to this hearing on a number of occasions I have explained to my client both the prosecutor's offer, which at the lowest was 2 years T.D.C., as well as what the Court — Your Honor said you thought the case was worth at one point, which was four. That was a few weeks ago. And I had —

THE COURT: We all by agreement, had an informal conference.

[Appellant's counsel]: Right. And at one point, I believe my client was before the Court and we spoke about that. And I just wanted for the record just to say that we did have these conversations and that my client has obviously stated that those offers weren't what he was looking for. That wasn't acceptable and he did not want to plead true.

Also, I have spoken with my client about testifying in this trial, in this hearing. And he understands that if he does take the stand, anything he says on the stand can be used against him both here and possibly at a federal investigation regarding the underlying allegations. . . .

THE COURT: Thank you. Are you in agreement with all of that, sir?

[APPELLANT]: Yes.

THE COURT: For the record, we had a conference — and I told your client if he wanted a hearing, I didn't have any problems with that, and I would keep an open mind at the hearing and consider continuing to work with him on probation and also consider the maximum 10 years. Presumably I will know a lot more about it at the hearing than I did at the conference. So, he decided he wanted a hearing. And that's fine.

At the end of the hearing, the trial court found the allegations in the State's motion to be "true" and adjudicated appellant's guilt. Appellant waived his right to a separate punishment hearing. In its closing argument, the State asked the trial court to sentence appellant to a minimum of four years in prison. The trial court imposed a nine-year prison sentence.

Ineffective Assistance of Counsel

In his first point of error, appellant bases his ineffective assistance of counsel claim on his attorney's statement on the record, as set out above, that she had conveyed to appellant the State's offer of two years in prison in exchange for a plea of "true" and that appellant had rejected the plea. Appellant contends that such conduct constitutes ineffective assistance of counsel because it shows that his attorney had a conflict of interest and because it cannot be explained as reasonable trial strategy. Appellant asserts that permitting the trial court to hear such "prejudicial information . . . clearly affected the court's punishment decision."

Conflict of Interest

To prevail on his ineffective assistance claim based on conflict of interest, appellant must show that his counsel had an actual conflict of interest and that the conflict actually colored counsel's actions during the adjudication hearing. See Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007) (citing Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719 (1980)). An actual conflict of interest exists when counsel is required to make a choice between advancing her client's interest in a fair trial or advancing other interests, including her own, to the detriment of her client's interest. Id.; Ex parte McFarland, 163 S.W.3d 743, 759 n. 52 (Tex.Crim.App. 2005). A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice to obtain relief. Cuyler, 446 U.S. at 349-50, 100 S. Ct. at 1719. Here, appellant asserts that his counsel made the statement on the record regarding the plea negotiations to protect herself from a future claim of ineffective assistance of counsel. That is, appellant contends that his counsel made the statement to memorialize that she had conveyed the plea offer to him and that he had rejected it. Appellant asserts that such conduct shows a conflict of interest because counsel was advancing her own interest of self-protection at the expense of his interest in receiving a fair adjudication hearing. We disagree. In Monreal v. State, a conflict-of-interest ineffective assistance of counsel case, the Court of Criminal Appeals considered a factually analogous situation. 947 S.W.2d 559 (Tex.Crim.App. 1997). There, defense counsel elicited detailed testimony from the defendant in front of the trial judge, who was the trier of fact, regarding earlier plea negotiations, for the apparent purpose of protecting herself from a future ineffective assistance claim. See id. at 560, 564. The Court of Criminal Appeals agreed with the court of appeal's holding that such conduct did not demonstrate an actual conflict of interest. Id. at 565. In its analysis, the court wrote,

[T]o protect herself from a future claim of ineffective assistance, all that appellant's trial counsel needed to do was to put into the record the fact that she had informed appellant of the plea bargain offer and that he had rejected it. We know of no reason why the presentation of such information, even before the trier of fact, would have harmed appellant in any way or would have conflicted with his interest in a fair trial.

Id. at 564. The court further explained,

[I]t appears that appellant's trial counsel could have protected herself without compromising appellant's interest in a fair trial. Appellant's trial counsel was not required to make a choice between advancing her client's interest in a fair trial or advancing her own interest in avoiding a future claim of ineffective assistance. Thus, her personal interest did not actually conflict with appellant's interest. The fact that she was less than artful in executing her personal interest — by eliciting unnecessary, and potentially damaging, information before the trier of fact — did not create an actual conflict of interest where none otherwise existed.

Id. at 565. Applying this rationale to the instant case, we conclude that the record does not reveal that appellant's counsel had an actual conflict of interest. See id. at 564-65. When counsel in this case proceeded to state on the record that she had conveyed the plea offer to appellant and that he had rejected it, counsel was not faced with making a choice between advancing appellant's interest in a fair hearing or advancing her own interest in avoiding a future claim of ineffective assistance. See id. As reasoned in Monreal, the fact that counsel conveyed superfluous details about the plea negotiations — specifically the sentence offered by the State — does not create a conflict of interest. See id. We hold that no showing has been made that appellant received ineffective assistance of counsel based on a conflict of interest.

Analysis Under Strickland Test

As mentioned, appellant also claims ineffective assistance of counsel on the basis that his attorney's disclosure of the details of the plea negotiations could not have been based on reasonable trial strategy. To this assertion, we apply the familiar standard found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prove ineffective assistance of counsel under Strickland, appellant must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced appellant. See id. 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). The first Strickland prong requires appellant to overcome the strong presumption that counsel's performance falls within a wide range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The second Strickland prong requires appellant to show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See id. at 102. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. See id. Appellant has the burden to establish both prongs by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). A failure to make a showing under either prong defeats a claim of ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Here, we need not consider whether counsel's disclosure regarding the details of the plea negotiations rendered her performance deficient. Appellant has not shown that there is a reasonable probability that, but for such errors, the outcome of the adjudication hearing would have been different. See Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App. 1991). Speaking to the second prong, appellant contends that he was harmed or prejudiced by his counsel's disclosure of the details of the rejected sentence offer. He asserts that such disclosure resulted in the trial court giving him a greater sentence than he would have otherwise received. Appellant points out that, in its closing argument, the State did not ask for the maximum punishment of 10 years, rather it requested the trial court to sentence appellant to a minimum of 4 years. Appellant claims, "The trial court more than doubled what the State asked for." We begin by noting that the State did not request a four-year sentence, rather it asked the trial court to sentence appellant to a minimum of fours years in prison. In addition, the record shows that the trial court found appellant had violated five terms of his community supervision. Among these violations was a new violation of the law. The evidence showed that appellant attempted to purchase a firearm from a pawn shop. The State showed that appellant had filled out a form to purchase a firearm and had made a false statement on the form relating to his instant felony offense. The record indicates that trial court told appellant at an informal conference a few weeks earlier that it would keep "an open mind at the [adjudication] hearing [regarding punishment] and consider continuing to work with him on probation and also consider the maximum 10 years." Appellant points to nothing in the record to indicate that the trial court did not consider the full punishment range or that the court was influenced by the disclosure of the rejected sentence offer. We conclude appellant has not shown that there is a reasonable probability that, but for his counsel's alleged deficient performance, the outcome of the adjudication hearing, including his sentence, would have been different. See Andrews, 159 S.W.3d at 102. The failure to make a showing under either of the required prongs of Strickland defeats a claim for ineffective assistance of counsel. Rylander, 101 S.W.3d at 110-11. We hold that appellant has not met his burden to show ineffective assistance of counsel by a preponderance of the evidence. See Jackson, 973 S.W.2d at 956. We overrule appellant's first point of error.

Due Process Violation

In his second point of error, appellant contends that "it was a violation of due process for the trial court to be apprised of any plea offerings or dealings with the appellant during his adjudication hearing." Due process requires that a neutral and detached judge preside over probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973); Wright v. State, 640 S.W.2d 265, 269 (Tex.Crim.App. 1982). Appellant claims that the judge in this case was not "neutral and detached." Appellant contends that the judge's knowledge of the details of the plea negotiations gained through an "informal" conference with the parties before the hearing and through defense counsel's statement at the hearing affected her impartiality. In the absence of a clear showing to the contrary, we will presume that the trial judge was a neutral and detached officer. Jaenicke v. State, 109 S.W.3d 793, 796 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Here, there is no such clear showing. Although the record reflects that the trial judge held an informal conference, by agreement of the parties, and that some aspects of the plea negotiations were discussed at the conference, the record does not show that the trial judge participated in the plea negotiations in any manner or improperly exerted any influence in the process. The record further reflects that the trial judge told appellant that if he decided that he wanted a hearing on the motion to adjudicate, she would "keep an open mind at the hearing" and would consider the full punishment range for the offense. Nothing in the record indicates that the trial judge did not keep an open mind or consider the full punishment range. Moreover, the sentence imposed by the judge is within the sentencing range for the offense. The record also shows that the trial judge offered appellant a separate sentencing hearing, which he declined. The judge heard evidence at the adjudication hearing that was not only relevant to the issue of revocation, but also to sentencing. In sum, the record does not reflect that the trial judge's knowledge of the rejected plea offer in any manner influenced her sentencing decision. More precisely, no showing has been made that the trial judge was anything other than a detached and neutral arbiter. We hold that appellant was not denied due process, as he claims. We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.