No. 01-09-01082-CR
Opinion issued April 21, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Case No. 1243463.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Rodney Craig Price, of the offense of felony murder. After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed punishment at life imprisonment. In one issue on appeal, appellant contends that his trial counsel, who had a previous business and attorney-client relationship with the complainant's brother approximately seven years before appellant's trial, had an actual conflict of interest that actually colored his actions and rendered his assistance ineffective. We affirm.
See TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon 2003). The underlying felony offense is driving while intoxicated, third offense. See id. § 49.09(b)(2) (Vernon Supp. 2010) (providing that offense of driving while intoxicated is third degree felony if defendant had been convicted on two previous occasions of offense relating to operation of motor vehicle while intoxicated).
Background
On February 11, 2009, appellant was driving on Genoa Red Bluff Road in southeast Houston when he was involved in a fatal traffic accident with the complainant, Troy Augst. According to witnesses, the two-lane road was dark and narrow, with deep ditches on either side of the road and no shoulders. Richard Youst and James Landry, who were driving separate vehicles behind appellant, both testified that appellant pulled into the opposite lane to pass two other vehicles and hit the complainant's vehicle "head on." Youst and Landry agreed that the complainant had "no place to go" on the road to avoid the collision. The complainant, whose blood alcohol level ranged from 0.08 to 0.17, died at the scene. Youst and Landry, who approached appellant's vehicle after the collision, and Houston Fire Department Captain M. Wallace, who provided medical assistance to appellant at the scene, all testified that they could smell the odor of alcohol on appellant's breath. Captain Wallace and Youst further testified that they observed beer cans in appellant's vehicle. Houston Police Department ("HPD") Officer D. Ciers testified that, while inspecting appellant's vehicle at the accident site, he discovered two cold sixteen-ounce beer cans — one empty and the other half-full — on the floorboard of the vehicle. Approximately three hours after the accident, Officer Ciers visited appellant at the hospital. Due to appellant's injuries, Officer Ciers was unable to perform any of the standard field sobriety tests. He testified, however, that, as he spoke with appellant, he smelled alcohol on appellant's breath and he observed that appellant's speech was slurred and his eyes were red, glassy, and bloodshot. Appellant consented to providing a blood sample, which reflected a blood alcohol level of 0.022. Dr. Erin Spargo, a forensic chemist at the Southwest Institute of Forensic Sciences in Dallas, testified that her lab tested appellant's blood for the presence of drugs other than alcohol. Dr. Spargo testified that appellant's blood contained 0.083 milligrams per liter of Hydrocodone, which is "considerably higher" than the usual prescribed dose of 0.025 milligrams per liter. Dr. Spargo agreed with the State that, due to the half life of Hydrocodone, appellant could have had twice the tested amount in his blood at the time of the accident. Dr. Spargo also testified that she detected 10.2 milligrams per liter of Carisoprodol ("Soma") and Meprobamate, a metabolite of Carisoprodol, in appellant's blood. She again stated that, because of the half life of these drugs, the blood concentration could have been twice as high at the time of the accident. Dr. Spargo noted that she had read a study that found that blood concentrations of Carisoprodol and Meprobamate alone, with no other drugs present, of over ten milligrams per liter resulted in "severe signs of intoxication and impairment." Amanda Culbertson, the criminal specialist at the HPD crime lab who tested appellant's blood alcohol levels, testified that if alcohol and Hydrocodone are added to Carisoprodol and Meprobamate, one would "expect an even greater impairment" than when Carisoprodol and Meprobamate alone are present in the blood. The State briefly called Eric Wilcox, the complainant's half-brother, to identify the complainant during the guilt-innocence phase of the trial. The State did not question Wilcox, who was highly emotional, about any other matters, and defense counsel did not cross-examine Wilcox. Appellant stipulated that he had two previous convictions for driving while intoxicated. The jury convicted appellant of felony murder as charged in the indictment. At the punishment hearing, the State again called Eric Wilcox to testify regarding how the complainant's death had affected his family, the circumstances under which Wilcox found out about the complainant's death, and the complainant's general character. Once again, defense counsel did not cross-examine Wilcox. After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed punishment at life imprisonment. Appellate counsel moved for a new trial on ineffective assistance grounds, asserting, among other things, that trial counsel rendered ineffective assistance due to an actual conflict of interest. Appellant alleged that his trial counsel "had an ongoing relationship with the complainant's brother, who testified for the State." The trial court did not hear live testimony at the hearing on the motion for new trial, although it admitted an affidavit from appellant's trial counsel. Counsel averred that, while reviewing the State's file, he discovered that he had had a previous business and attorney-client relationship with Eric Wilcox. Specifically, counsel hired Wilcox's company to set up the credit card processing capabilities on his business website in 2000, and Wilcox then hired counsel to represent him on a "JP matter" in 2002. Counsel stated that the relationship terminated after Wilcox paid the legal fees that he had incurred. According to counsel, he had not spoken to Wilcox since 2002, and he stated that he and Wilcox did not have "an ongoing personal or business relationship." Counsel averred that he informed appellant of his connection to Wilcox, that appellant indicated that he did not have any concerns about potential conflicts, and that appellant wanted counsel to continue the representation. Counsel further averred that he did not cross-examine Wilcox because he was not a fact witness to the offense. Counsel stated: I also believed that there was no relevant cross-examination to be gained from a very sympathetic State's witness and that to do so might actually be contrary to [appellant's] interest. My decision not to cross examine Mr. Wilcox was purely strategy as he repeatedly sobbed and had a difficult time composing himself. I did not feel hampered in any way by my prior meeting of Mr. Wilcox and would not have hesitated to cross examine him if I believed that it would have benefitted [appellant].
Counsel concluded his affidavit by stating that he had previously represented appellant on two felony offenses in 1997, and thus his relationship with appellant pre-dated his relationship with Wilcox. The trial court denied appellant's motion for new trial, and this appeal followed. Actual Conflict of Interest
In his sole issue on appeal, appellant contends that, because his trial counsel had a previous business and attorney-client relationship with Eric Wilcox, the complainant's brother, counsel had an actual conflict of interest that affected his representation and constituted ineffective assistance of counsel. The Sixth Amendment guarantees the right to reasonably effective assistance of counsel, which includes the right to "conflict-free" representation. See Strickland v. Washington, 466 U.S. 668, 687, 692, 104 S. Ct. 2052, 2064, 2067 (1984); Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S. Ct. 1708, 1718-19 (1980); see also TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.06(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9) (providing that attorney shall not represent person if representation "reasonably appears to be or become adversely limited by the lawyer's . . . responsibilities to another client or to a third person"). A defendant may establish that his trial counsel rendered ineffective assistance due to a conflict of interest if he can demonstrate (1) that his counsel was burdened by an actual conflict of interest and (2) that conflict actually affected the adequacy of counsel's representation. Cuyler, 446 U.S. at 349-50, 100 S. Ct. at 1719; Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007) (holding that Cuyler standard is proper standard to analyze claims of ineffective assistance due to conflict of interest). As a "constitutional predicate" for an ineffective assistance claim based on a conflict of interest, the defendant must establish that his counsel "actively represented conflicting interests." Cuyler, 446 U.S. at 349-50, 100 S. Ct. at 1719. If a defendant establishes both requirements of Cuyler, he need not demonstrate prejudice — the second prong of ineffective assistance claims under the usual Strickland standard — to obtain relief. Id.; see also Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) ("If appellant demonstrates [the Cuyler requirements], then the second prong of the Strickland test will be met because prejudice is presumed."). An "actual conflict of interest" exists if "counsel is required to make a choice between advancing his client's interests in a fair trial or advancing other interests . . . to the detriment of his client's interest." Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997)); McKinny v. State, 76 S.W.3d 463, 477 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997)). A potential conflict of interest does not constitute an actual conflict of interest and is insufficient to reverse a conviction. See Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719; Ex parte Meltzer, 180 S.W.3d 252, 256 (Tex. App.-Fort Worth 2005, no pet.) ("The showing of a potential conflict of interest does not constitute an actual conflict of interest."). In the absence of 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). At the hearing on appellant's motion for new trial, the trial court admitted an affidavit from appellant's trial counsel discussing the alleged conflict of interest. Trial counsel averred that he first met Wilcox, the complainant's brother, in 2000 when he hired Wilcox's company to set up the credit card processing on his business website. Counsel terminated this business relationship after Wilcox completed setting up the processing, and counsel had no further contact with Wilcox until 2002, when Wilcox hired him for legal representation on a "JP matter." After this matter was resolved, Wilcox paid the legal fees that he had incurred and ended the representation. Counsel averred that he had not spoken to Wilcox since 2002, and he asserted that they did not have "an ongoing personal or business relationship." Counsel stated that he informed appellant of the relationship after he reviewed the State's file and discovered the potential conflict, and appellant "indicated . . . that he did not have any concerns about potential conflicts and [that he] would like [counsel] to continue to represent him in his criminal matter." Counsel further averred that Wilcox's testimony was limited to identification of the complainant in the guilt-innocence phase and to victim impact and character testimony in the punishment phase. Counsel decided not to cross-examine Wilcox on either occasion because "there was no relevant cross-examination to be gained from a very sympathetic State's witness" and because cross-examining Wilcox "might actually be contrary to [appellant's] interest." Counsel opined that he "did not feel hampered in any way by [his] prior meeting of Mr. Wilcox and [he] would not have hesitated to cross examine him if [he] believed that it would have benefitted [appellant.]" Finally, counsel noted that his representation of appellant preceded his relationship with Wilcox, as counsel had previously represented appellant on two felony offenses in 1997. It is undisputed that counsel's last contact with Wilcox occurred in 2002, seven years before appellant's trial, and that neither his previous attorney-client relationship nor his business relationship with Wilcox — which concluded in 2000 — was related to the prosecution of appellant. See Barbaro v. State, 115 S.W.3d 799, 801 (Tex. App.-Amarillo 2003, pet. ref'd) (holding, "It is undisputed that the matters on which counsel represented the witness ten years before were completely unrelated to the criminal prosecution of appellant" and concluding no actual conflict of interest existed); Charleston v. State, 33 S.W.3d 96, 101 (Tex. App.-Texarkana 2000, pet. ref'd) ("[Counsel] did not represent [the robbery victim's husband] and Charleston simultaneously, nor did he represent the two on a substantially related matter."); Fulgium v. State, 4 S.W.3d 107, 115 (Tex. App.-Waco 1999, pet. ref'd) ("[G]iven the number of years elapsed since the prior representation and lack of any relevance between his representation of [the State's witness] and his representation of Fulgium, this concern is completely dispelled."). There is no indication that trial counsel obtained any confidential information during his previous relationship with Wilcox that was relevant to appellant's case or that could "be used in any way to advance or impugn the interests of appellant, the witness or anyone else." See Barbaro, 115 S.W.3d at 801 (citing Thompson v. State, 94 S.W.3d 11, 21-22 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd)). Furthermore, we note that, at the guilt-innocence phase of the trial, trial counsel's defensive strategy primarily consisted of blaming the complainant, Wilcox's brother, for the fatal accident and contending that the complainant's inability to avoid appellant's vehicle was due to his own intoxication. The record, therefore, does not support appellant's contention that counsel "perceived subtle influences" as a result of his prior representation of Wilcox and the presence of the complainant's family at trial that precluded him from effectively representing appellant. See Wolf v. State, 674 S.W.2d 831, 843 (Tex. App.-Corpus Christi 1984, pet. ref'd) ("The record neither supports appellate counsel's assertion that appellant's trial counsel had continuing loyalties or affection for Staton and his family nor does the record show that trial counsel was submissive at trial."). "Having represented a witness at a prior time does not alone mean that counsel is required to make a choice between advancing his current client's interests in a fair trial [and] advancing other interests to the detriment of his client. More is required before it can be said that a conflict actually exists." Barbaro, 115 S.W.3d at 802. Appellant contends that trial counsel's prior relationship with Wilcox presented a conflict because "Wilcox and his family would benefit from the appellant's conviction." Appellant does not demonstrate, however, that, by previously representing Wilcox, trial counsel was required to make a choice between advancing appellant's interests and advancing Wilcox's interests. Acosta, 233 S.W.3d at 355. Trial counsel's previous encounters with Wilcox occurred seven and nine years before appellant's trial, were completely unrelated to the prosecution of appellant, and did not result in counsel's obtaining any confidential information relevant to appellant's prosecution. We therefore conclude that any conflict of interest in this case is merely speculative and thus cannot support an ineffective assistance claim. See Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719; Meltzer, 180 S.W.3d at 256; Thompson, 94 S.W.3d at 20-21 ("[A]ppellant had to show some actual conflict, not merely a speculative conflict of interest."). We hold that because appellant cannot establish the "constitutional predicate" that his trial counsel "actively represented conflicting interests," he cannot demonstrate that his counsel rendered ineffective assistance. Cuyler, 446 U.S. at 349-50, 100 S. Ct. at 1719. We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.