Kerwin B. Bryant v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00297-CR

Kerwin BRYANT,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CR-9643

Honorable Fred Shannon, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: February 13, 2008

AFFIRMED

A jury found defendant, Kerwin Bryant, guilty of assault against a family member, and the trial court assessed punishment at ten years' confinement, plus a $5,000 fine. In four issues on appeal, defendant asserts he was harmed by his trial counsel's conflict of interest, by the trial court's failure to inquire into the circumstances of that conflict, and by trial counsel's ineffective assistance during trial. We affirm.

CONFLICT OF INTEREST

In his first two issues, defendant asserts the trial court erred when it failed to appoint him new trial counsel because his appointed attorney had a conflict of interest and, as a result of this conflict, trial counsel was ineffective during trial. In his third issue, defendant asserts the trial court erred in failing to inquire into the conflict when it knew or reasonably should have known there was a conflict.

Ineffective assistance of counsel may result from trial counsel's conflict of interest. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). An "actual conflict of interest" exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing his own interest to the detriment of his client's interest. Id. To demonstrate a violation of his right to the reasonably effective assistance of counsel based on a conflict of interest, a defendant must show (1) trial counsel was actively representing conflicting interests and (2) the conflict had an adverse effect on specific instances of counsel's performance. Id.

Here, prior to the jury being sworn in, the following conversation between the trial court and defendant occurred:

Court: Now, Mr. Bryant, you're again asking me to appoint a new lawyer to represent you?

Defendant: Yes, sir.

Court: As I told you before the trial started, you can make that motion after the verdict if you ask for a new trial, but I'm not going to entertain that motion at this time.

. . .

Defendant: So I don't have no rights at all?

Court: Not today, except to be present in your trial and to participate with Mr. Cavazos in your defense.

Defendant: If I find that my lawyer has misrepresented me, I don't have a right at all to fire my lawyer? I've been trying to do this for 90 days now.

Court: You don't have that right, that's correct. You don't have a right to fire him because he's court appointed, it's up to the Court whether he's going to be - -

Defendant: But the judge of the 290th, Ms. Sharon MacRae, said I could court appoint [sic] me another lawyer.

Court: I'm sorry, but you're not in that court at the present time, sir. You're going to have to live with the situation as it is.

. . .

Defendant: I would like to apologize to you for the confusion, but that's - - that's what I want as a right to me, as a human being. You know what I'm saying? In the United States, because I am a citizen. You know what I'm saying? I feel like - - I feel - - I've felt uncomfortable in the matter that I should have the right to mention it. You know what I'm saying?

Court: Mr. Bryant, I think you've got all the right in the world to mention it. That's the third time you've done it, and I'm telling you - -

Defendant: But I'm just saying nothing's happening. No matter what judge or what courtroom I went in, I tell these people, man, I don't want a misrepresentation on a case. I already signed that paper on this man; it's going down to Austin already saying this man misrepresented me. You know what I'm saying? [Emphasis added.]

Court: Let's get the jury in the box, and maybe I'll just let you make your argument to the jury.

Mr. Cavazos: Your Honor, despite the assertions that the defendant has made, I would ask that that not take place, Your Honor. I do believe that I can represent him effectively given an opportunity, and I state that on the record that I will give it my best efforts as I have in the past.

Court: Mr. Cavazos, I think you're going to represent him effectively, too, and under the law, I'm going to do my best to give Mr. Bryant a fair trial.

Mr. Cavazos: Thank you, sir.

Defendant: Thanks, judge.

On appeal, defendant contends trial counsel's conflict of interest is "manifest." Defendant also concedes, however, that it is unclear what was meant when he told the court that he "already signed that paper on this man; it's going down to Austin already saying this man misrepresented me." We agree that the record is unclear and, therefore, we conclude defendant did not establish an "actual conflict of interest." Also, even if the "paper" "going down to Austin" is a grievance filed by defendant against trial counsel, the Court of Criminal Appeals has held that "the filing of a civil action against a court appointed attorney is not a per se conflict of interest which would warrant the disqualification of such attorney at the whim of the criminal defendant." Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim. App. 1991).

As to defendant's complaint that the trial court erred by not inquiring further into the nature of the conflict, it is true that a trial court has an obligation to make the necessary inquiries into a conflict problem once it is brought to its attention. Id. However, here, it is apparent from the record that defendant had made prior requests for appointment of new counsel and the trial court was familiar with those requests. It is also apparent the trial court allowed defendant to fully voice his complaint, but defendant stated no more than that "nothing's happening," he did not "want a misrepresentation on a case" and he had sent a "paper" to Austin. Under the circumstances we conclude the trial court was not obligated to conduct any further inquiries to ascertain the nature of defendant's complaint against his attorney. Id. (holding it was not incumbent upon the trial court to take further steps to ascertain whether a "debilitating conflict of interest existed" requiring that the attorneys be disqualified and the trial court could have concluded appellant was attempting to manipulate the judicial process through a scheme to delay and obstruct the trial process).

INEFFECTIVE ASSISTANCE OF COUNSEL

In his final issue, defendant contends trial counsel provided ineffective assistance because (1) trial counsel failed to object to the State's direct examination of the complainant about defendant assaulting her the night before the assault for which he was charged, which testimony defendant contends was excluded under a pretrial motion in limine and (2) defense counsel cross-examined the complainant about the same incident, thus compounding the error. We review defendant's complaint under the well-established standard set forth in Strickland v. Washington, 466 U.S. 668, 690 (1984). We will not speculate as to the reasons why trial counsel acted as he did; instead, we must presume that the actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Generally, the record on direct appeal is not sufficient to establish that counsel's representation was so deficient and so lacking in strategic or tactical decision-making as to overcome the strong presumption that counsel's performance was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14.

At trial, the State asked the complainant, Lilia Gomez, about the events of the evening prior to the assault for which defendant was charged. Gomez testified that on the evening of July 28, 2006 she and defendant had gone to a nightclub, defendant became upset when another man approached her, and defendant grabbed her and pulled her hair. (1) Defense counsel did not object to this testimony. On cross-examination, defense counsel asked Gomez about these same events. On appeal, defendant asserts defense counsel should have objected to the State's line of questioning on the grounds that it placed defendant's character in issue and failure to object served no strategic purpose. Defendant also contends defense counsel's cross-examination regarding the same events served only to "indelibly fix" the events in the minds of the jurors. Defendant concludes that, as a result of the testimony, the jurors convicted him on his character rather than on the evidence presented on the charged offense.

The first prong of the Strickland test presumes trial counsel is better positioned than the appellate court "to judge the pragmatism of the particular case, and that [counsel] 'made all significant decisions in the exercise of reasonable professional judgment.'" Jackson v. State, 877 S.W.2d 768, 771 (1994) (quoting Delrio v. State, 840 S.W.2d 443, 447 (1992)). In applying this test, we should not try to second guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young, 991 S.W.2d at 837. Here, defendant's complaint requires us to speculate on defense counsel's strategy, which we may not do. Because the record is not sufficient to establish that counsel's representation was so deficient and so lacking in strategic or tactical decision-making as to overcome the strong presumption that counsel's performance was reasonable and professional, we conclude defendant has not met his burden of showing that trial counsel's representation fell below an objective standard of reasonableness or deviated from prevailing professional norms. See Strickland, 466 U.S. at 688.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. The next day, on July 29, 2006, while in the car with defendant and their child, defendant began to hit the complainant and yell at her. When the couple stopped at a gas station, the police intervened and arrested defendant. Defendant was charged with the July 29 assault.