Opinion
14-24-00481-CR
12-19-2024
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 155th District Court Austin County, Texas Trial Court Cause No. 2019R-0162
Panel consists of Justices Bourliot, Zimmerer, and Spain
MEMORANDUM OPINION
PER CURIAM
On Monday, July 1, 2024, relator Dakota Semmler filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App.P. 52. In the petition, relator asks this court to compel the Honorable Jeff R. Steinhauser, presiding judge of the 155th District Court of Austin County, to vacate its: (1) September 5, 2023 "Order for Withdrawal of Defense Counsel"; (2) October 25, 2023 "Order on Defense Motion to Reconsider"; and (3) May 21, 2024 "Order Disqualifying Counsel with Findings of Fact and Conclusions of Law."
Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus. We lift this court's July 18, 2024 stay order.
J. Zimmerer dissenting.
DISSENTING MEMORANDUM OPINION
This case involves the wrongful removal of a criminal defense counsel based solely upon a purported conflict of interest between the defense counsel and a newly identified punishment phase witness. A criminal defendant has a constitutional right to the attorney of his choice unless there is an actual conflict requiring removal. Because the majority fails to recognize that an actual conflict does not yet exist in this case, I respectfully dissent.
A distinction can be made between the guilt and innocence phase and the punishment phase. See Raspberry v. State, 741 S.W.2d 191, 197-198 (Tex. App.-
Fort Worth 1987, pet. ref'd) (finding that despite a conflict of interest during the punishment phase, there was noprejudice to defendants because new, separate counsel was appointed, and the conflict did not adversely affect the performance of the new attorneys). Presuming, an actual conflict exists between a defense counsel and a prosecution's punishment phase witness, it does not present an actual conflict until after the guilt and innocence phase. And certainly not, as is the case here, where the criminal defendant knowingly and intelligently waived the conflict, if any, to permit counsel to continue representing him in the guilt and innocence phase.
Defendant Semmler retained an attorney for his defense in a sexual assault of a child case filed in Austin County, Texas. Shortly before the trial, the State announced the addition of a new punishment phase witness; a former family law client of defense counsel. Defense counsel had previously represented the new witness in a concluded divorce matter which did not involve the child victim alleged in the criminal case. The trial court held a hearing but did not inquire, even in-camera, into the specifics of the conflict. Nor did the trial court inquire into the State's need for this witness' testimony or possible alternative evidence or witnesses available to the State.
From the record, it appears the nature of the new witness' testimony is that he had formerly gone to the attorney's office and told the attorney (after entering an agreed divorce settlement, while pending finality and thus still represented by the attorney) that he "did not want his children around [defendant]".
The unrealized potential conflict of interest is that in the punishment phase, the divorced client might say he heard about the criminal case against defendant, was suspicious of defendant, and wanted to protect his children. But this testimony may be more prejudicial against the Defense counsel than probative in the criminal case and could rightly be excluded, particularly in light that it did not cause any criminal activity against any child nor did it impact the agreed divorce proceedings. Moreover, the testimony, if later admitted could be limited to exclude the attorney's identity or even cured by instruction to the jury that "the attorney is not the one on trial".
Seeking to keep his retained attorney, the criminal defendant executed and presented the trial court with a signed waiver of conflict of interest authorizing the attorney's continued representation.
An "actual conflict" exists when an attorney represents two clients whose interests in the outcome of a matter are different. Ramirez v. State, 13 S.W.3d 482, 486 (Tex. App.-Corpus Christi 2000, pet. dism'd) (citing Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997) (en banc)). When counsel is placed upon the "horns of a dilemma" as to services for one client over another, an actual and significant conflict exists, and each client must be made aware of such conflict before the attorney may ethically proceed with the case. Wenzy v. State, 855 S.W.2d 52, 57 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). In this case the outcome of the criminal case and the outcome of the previously resolved family law case do not impact on the other. Thus, there is no "actual conflict".
Finding the criminal defendant's constitutional right to attorney of his choice, far outweighs the questionable, and as of yet unrealized conflict of interest which the former client may present in the punishment phase I conclude disqualifying the attorney to represent criminal defendant violated criminal defendant's Constitutional right to attorney of his choice; and therefore a breach of discretion and would GRANT the MANDAMUS. Because the Majority fails to do so I DISSENT.