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Date: 08-17-2019
Case Style:
Lonnie Lynberg Johnson Jr. v. The State of Texas
Case Number: 02-18-00443-CR
Judge: Per Curiam
Court: Court of Appeals Second Appellate District of Texas at Fort Worth
Plaintiff's Attorney: Victoria Ford
Joseph W. Spence
Defendant's Attorney: Elizabeth Cortright
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In his first point, Appellant contends that the record does not establish enough
links to place him in possession of the narcotics that were found inside bags in a
vehicle in which he was riding. The court of criminal appeals lists numerous
nonexclusive factors that guide the determination of whether there is sufficient evidence of possession. But this assortment of factors collapses into a single question: does the record contain evidence from which the jury could have drawn a
reasonable inference that Appellant was in possession of the controlled substances
that were found in the vehicle? Here, the jury watched the videos from the arresting
officers’ body cameras and saw Appellant use the presence of his children in the
vehicle in an attempt to remove from the vehicle one of the bags containing the
narcotics and then later deny that he had done so. Appellant also used the presence
of other bags belonging to his children as an attempt to dissuade the officers from
searching what turned out to be narcotics-containing bags located in the vehicle.
Appellant’s efforts to conceal the contents of the bags containing the narcotics and
other evidence outlined below support the reasonable inference that Appellant indeed
possessed the drugs concealed in those bags. A. The factual background of the discovery of a cache of drugs following a traffic stop of a stolen vehicle without its headlights illuminated
After nine o’clock on a September night, a sport utility vehicle (SUV) without its headlights on passed a police officer. The officer stopped the vehicle. Appellant’s
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wife was driving, Appellant was in the passenger seat, and his three children—ranging
in age from four to nine—were in the backseat.
The vehicle had paper tags. As the investigating officer routinely did, he
compared the Vehicle Identification Number (VIN) on the vehicle with that
contained on the tag. The numbers did not match, which usually indicates that the
paper tag is a fake. A computer check of the VIN that was listed on the vehicle
confirmed that it was stolen.
At that point, the matter became a felony stop. Because of the presence of the
children in the vehicle, neither the investigating officer nor a backup officer who had
also arrived followed the standard procedure of removing all of the occupants from
the vehicle at gunpoint. Instead, the investigating officer who originally stopped the
vehicle asked the driver to step from the car, cuffed her out of the children’s sight,
and placed her in his patrol car.
But because all occupants must be removed from the vehicle during a felony
stop, the officers asked Appellant to get out of the vehicle, which he did. Initially,
Appellant was cooperative with officers, though he and his wife protested that they
did not know that the vehicle was stolen.
On the video generated by the investigating officer’s body camera, he told
Appellant’s wife that when he ran the VIN, the computer showed that the vehicle had
been stolen out of Fort Worth. She responded, “Stolen?” In response to a question
asking Appellant’s wife from whom the vehicle was bought, she said that it was
5
bought from a friend, that she had not had it long, and that she could let the officer
talk to “them.” Appellant said that this was his friend’s car and that he did not know
that it was stolen. The backup officer’s body camera captured Appellant’s statement
when he was told that the vehicle was stolen: “That’s ludicrous; I had no clue about
nothing like that.” The backup officer requested that Appellant provide the name of
the friend who allegedly owned the SUV, and Appellant did so.
As the stop progressed, the backup officer’s body camera showed that the
officer approached Appellant while he appeared to be removing items from the
vehicle and told him that before he started “gathering stuff up,” the vehicle must be
searched. Appellant responded, “We ain’t got nothing illegal . . . . What would you
think that we have illegal?” Appellant then relented in his efforts to remove items
from the vehicle.
The older children also got out of the vehicle. The youngest child, who was in
the middle of the backseat, was asleep. Though it was another failure to follow the
procedures required for a felony stop, the officers asked Appellant to unbuckle the
child’s seatbelt and to remove him from the vehicle so that they would not traumatize
the child.
While in the process of removing the youngest child from the car, Appellant
reached for a camouflage backpack that was sitting immediately next to the child.
That backpack became the central player in the underlying case. The investigating
6
officer who made the stop told Appellant to leave the backpack alone and said that no
items were to be removed from the vehicle until police had searched them.1
The officers’ refusal to let Appellant have access to the camouflage backpack
caused a change in Appellant’s attitude, and in the investigating officer’s words,
Appellant became upset and argumentative. According to the officers, Appellant
indicated that the backpack belonged to his children and that he did not give his
permission to look in it. The officers assured Appellant that after police had searched
the backpack and the other bags in the vehicle, the officers would give the bags to
Appellant if there was nothing illegal in them.
The backup officer also described how Appellant’s attitude changed when he
learned that the vehicle’s contents would be searched. This officer reiterated
Appellant’s statement that he did not want the children’s bags searched.
A search of the camouflage backpack revealed that it contained a green leafy
substance that appeared to be marijuana; a substance that appeared to be cocaine; and
pill bottles, which contained pills but had no prescription labels. The backpack also
contained a small scale, rubber gloves, and plastic baggies. One of the officers
testified that these items indicate that the person possessing them is a drug dealer.
1Also on body camera video, the investigating officer told Appellant to leave an item “here” and that the officer would bring it to him. Appellant said, “I can’t let you go through my kids’ bags.” Later, Appellant asked, “Why you gotta go through my kids’ stuff?”
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Other nondrug-related items were also found in the camouflage backpack. The
backpack contained black beads that matched the type of beads that Appellant was
wearing in his hair. The backpack also contained a bottle of clipper oil and a clipper
attachment for a Wahl clipper, which the officer identified as being used by a barber
or someone who cuts hair. Items from a clipper set that matched what was found in
the backpack were found in another bag that Appellant had in his seat. Appellant told
the officer that he made his living as a barber.
After the search of the backpack revealed its illegal contents, the investigating
officer asked Appellant to whom the backpack belonged, and he said that he did not
know—though a few moments before he had indicated that it belonged to one of his
kids. This officer also testified that this was the same bag that Appellant had tried to
grab and had not let the officer look into. One of the body camera videos depicts this
officer bringing the camouflage backpack out of the vehicle; showing it to Appellant;
and stating, “You said that this was your kids’ bag, man.” Appellant responded, “No,
I didn’t say that was my kids’ bag.” Later, the video captured Appellant again saying
that the officers should not search his kids’ bags.
The backup officer also noted that before Appellant learned that the vehicle
would be searched, Appellant did not say that the vehicle contained items that did not
belong to him. In the officer’s experience, the shift in attitude from cooperative to
uncooperative signaled the possibility that there might be something in the vehicle
that the defendant did not want the police to know about.
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The officers did not immediately place Appellant under arrest when they
discovered the drugs in the camouflage backpack because they did not want the
children further traumatized. The officers continued the search of the vehicle by
examining bags in the hatch area of the SUV. Appellant had stated that the hatch area
contained his children’s backpacks. After a search of bags in the hatch area, the
officers gave two bags to Appellant’s children. The children then left with a friend
whom Appellant had called to pick them up.
The hatch area also contained “a black in color Puma Lab bag that had been
sitting next to and partially on top of the two [children’s] backpacks that were in [that]
area.” A search of that bag revealed more baggies with green leafy substances that
appeared to be marijuana and other baggies and pill bottles that contained pills, which
also appeared to be illegal substances. This bag also contained empty baggies, gloves,
and a food sealer. The investigating officer testified that, as with the items in the
camouflage backpack, the items in the black bag are associated with someone who
deals drugs.
In response to an inquiry made early in the stop by the backup officer,
Appellant stated that there was not a gun in the vehicle. The officers subsequently
found a fully loaded handgun in the vehicle. The gun was found in a purse that had
been placed on the floorboard in front of the passenger seat where Appellant had
been sitting.
9
The investigating officer admitted on cross-examination that no drugs were
found on Appellant’s person, that no identification was found in the bags, that the
bags were not fingerprinted, and that he did not know who the actual owner of the
vehicle was or whether some or all of the vehicle’s contents belonged to someone
else. The officer later confirmed that criminals seldom acknowledge their criminal
conduct or leave identification in bags containing narcotics.
Appellant also had $996 in cash on his person. In the officer’s experience, this
was an unusually large amount of cash for a person to carry around.2 B. The general standard of review Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
2The remaining portion of the record involves expert testimony about the nature of the substances found and their quantity, as well as expert testimony regarding how the evidence indicates that Appellant had an intent to distribute the drugs. Because of the limited nature of Appellant’s sufficiency challenge, we will not catalog this evidence.
10
C. The standards for resolving a sufficiency challenge on the issue of whether a defendant was in possession of a controlled substance
Here, Appellant was charged with and convicted of possession with intent to
deliver two controlled substances—cocaine and methamphetamine.3 Section 481.112
of the Texas Health and Safety Code states that “a person commits an offense if the
person knowingly . . . possesses with intent to deliver a controlled substance listed in
Penalty Group 1” and that “[a]n offense . . . is a felony of the first degree if the
amount of the controlled substance to which the offense applies is, by aggregate
weight, including adulterants or dilutants, four grams or more but less than 200
grams.” Tex. Health & Safety Code Ann. § 481.112(a), (d); see also Kibble v. State, 340
S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“To demonstrate
possession of cocaine with intent to deliver, the State is required to show that
3The indictment charged two counts: DEFENDANT, ON OR ABOUT THE 15TH DAY OF SEPTEMBER 2017, IN THE COUNTY OF TARRANT, STATE OF TEXAS, DID INTENTIONALLY OR KNOWINGLY POSSESS WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE, NAMELY COCAINE, OF FOUR GRAMS OR MORE BUT LESS THAN TWO HUNDRED GRAMS, INCLUDING ANY ADULTERANTS OR DILUTANTS, COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 15TH DAY OF SEPTEMBER[] 2017, DID INTENTIONALLY OR KNOWINGLY POSSESS WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE, NAMELY METHAMPHETAMINE, OF FOUR GRAMS OR MORE BUT LESS THAN TWO HUNDRED GRAMS, INCLUDING ANY ADULTERANTS OR DILUTANTS[.]
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(1) appellant knowingly or intentionally, (2) possessed, (3) cocaine [or
methamphetamine], (4) in an amount of greater than four but less than two hundred
grams, (5) with the intent to deliver the cocaine [or methamphetamine].”).4
The focus of Appellant’s sufficiency challenge is whether he possessed the
substances. Both the Texas Health and Safety Code and the Texas Penal Code
provide the same definition for “possession”: “actual care, custody, control, or
management.” See Tex. Health & Safety Code Ann. § 481.002(38); Tex. Penal Code
Ann. § 1.07(a)(39). Thus, “[t]o prove unlawful possession of a controlled substance,
the State must prove that[] (1) the accused exercised control, management, or care
over the substance; and (2) the accused knew the matter possessed was contraband.”
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other
grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015).
Appellant does not contend that the evidence is insufficient to prove that he knew the
substances were contraband; he limits his attack to the sufficiency of the evidence
establishing his control and management of the substances because, in his view, the
evidence does not establish the link between him and the drugs that is necessary to
prove possession.
4Appellant does not challenge the intent-to-deliver element of the offenses. Nor does he challenge the expert testimony that the substances were controlled substances or the amount of the substances recovered. Thus, because we are not required to review what Appellant did not brief, we will focus on the element of the offenses for which Appellant claims that there is insufficient evidence. See, e.g., Burks v. State, No. PD-0992-15, 2017 WL 3443982, at *1 (Tex. Crim. App. June 28, 2017) (op. on reh’g) (not designated for publication).
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A person’s “fortuitous proximity” to drugs is not sufficient to establish
possession; there must be an affirmative link between the defendant and the
substances to establish possession:
The “affirmative links rule” is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. This rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house. Thus, we have formulated the rule that “[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances [that] affirmatively link the accused to the contraband.”
Id. at 406 (citations omitted). As with any other element of an offense, the affirmative link may be established by direct or circumstantial evidence. See Evans v. State, 202 S.W.3d 158,
162 (Tex. Crim. App. 2006) (“However, presence or proximity, when combined with
other evidence, either direct or circumstantial (e.g., “links”), may well be sufficient to
establish that element beyond a reasonable doubt.”).
The courts have formulated a nonexclusive list of factors to examine in
determining whether the necessary links exist:
(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive
13
gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.
Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (quoting Evans, 202 S.W.3d
at 162, n.12).
But as the court of criminal appeals notes, “[a]lthough these factors can help
guide a court’s analysis, ultimately the inquiry remains that set forth in Jackson: Based
on the combined and cumulative force of the evidence and any reasonable inferences
therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?”
Id. (citing Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789). When analyzing the
sufficiency of the evidence supporting the element of possession, we cannot focus our
analysis on “each circumstance of guilt in isolation without considering the cumulative
force of all of the evidence.” Id. at 417. Our review based on this cumulative view of
the evidence requires that “the logical force of all of the admitted evidence must be
considered in the light most favorable to the conviction, meaning that all reasonable
inferences from the evidence must be resolved in favor of the jury’s guilty verdict.”
Id.
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D. The evidence from which the jury could draw a reasonable inference that Appellant was in possession of the controlled substances found in the vehicle
We perform our review not by going through the list of factors to be examined and mechanically checking off those present and those not present. Instead, we
examine the cumulative force of the evidence in the light most favorable to the
conviction to determine whether it supports a reasonable inference of possession. It
does.
We catalog the evidence supporting the inference as follows:
• Appellant claimed that the vehicle belonged to a friend but did not claim that
the items in the vehicle belonged to his friend.
• Appellant initially attempted to remove items from the vehicle until he was
stopped by the officers.
• Appellant repeatedly used the fact that the vehicle contained bags belonging to
his children in an attempt to persuade the officers not to search the vehicle.
• Appellant attempted to take possession of the camouflage backpack while
removing one of the children from the vehicle and apparently would have done
so if an officer had not instructed him to leave it in place.
• After receiving the instruction to leave that backpack in place, Appellant told
the officers that he could not let them search his kids’ bags.
• Later, when shown the camouflage backpack, Appellant claimed that he had
never asserted that the backpack belonged to his kids.
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• The camouflage backpack contained not only narcotics and the means of
weighing and packaging them but also personal items that appeared to be
connected with Appellant, such as beads similar to those worn in his hair and
oil and clippers used by someone in Appellant’s line of work.
• The clipper attachment found in the camouflage backpack appeared to be from
the same set as the Wahl clipper found in a bag on the same seat of the vehicle
where Appellant had been sitting.
• Appellant was in possession of an amount of cash that one of the arresting
officers found to be unusually large.5
• The black bag found in the back of the vehicle was on top of bags that
Appellant had identified as belonging to his children.
• The black bag contained narcotics and other items that were similar to those
found in the camouflage backpack.
5Though the amount of cash here—$996—is not shockingly large, the State cites us to cases in which smaller amounts of cash were found that supported an inference of criminal activity. See Lester v. State, No. 02-16-00288-CR, 2018 WL 3763897, at *1, *5 (Tex. App.—Fort Worth Aug. 9, 2018, pet. ref’d) (mem. op., not designated for publication) (holding that $434 in cash was a large amount of cash that, along with other factors, allowed the jury to rationally determine that appellant possessed the methamphetamine found in a motorcycle); Boone v. State, No. 02-1300302-CR, 2014 WL 982354, at *1, *3, *5 & n.10 (Tex. App.—Fort Worth Mar. 13, 2014, no pet.) (mem. op., not designated for publication) (holding same regarding “roughly $666”); Mohmed v. State, 977 S.W.2d 624, 626–27 (Tex. App.—Fort Worth 1998, pet. ref’d) (holding same regarding $910).
16
In summary, Appellant was riding in a vehicle in which controlled substances
were found. Appellant initially attempted to persuade the officers not to search the
bags in the vehicle by claiming that the bags belonged to his kids and told the officers
that he would not permit the bags to be searched. He attempted to casually take
possession of one of the bags containing controlled substances and would have done
so unless instructed not to do so by one of the officers. He later disavowed that he
had previously claimed that this bag belonged to his kids. Not just one, but two types
of items were found in the camouflage backpack that appeared to be associated with
characteristics specific to Appellant.
With regard to the links that were present, Appellant was in an enclosed space
with the controlled substances, thus establishing a link between himself and the illegal
items found in the vehicle. He attempted to frustrate an examination of the vehicle’s
contents both by his words and by his attempt to take physical possession of the
backpack that contained narcotics, and a jury could reasonably conclude that he had
hoped to place the backpack in the car in which his children would be transported
away from the scene without its being searched, thus establishing another link. The
contents of the backpack contained items that were tied to Appellant’s unique
personal characteristics, thus establishing a third link. The black bag was found in the
vehicle’s storage area in a position that made it appear like it had been placed there at
the same time that the children’s bags—about which Appellant had such concern—
had also been placed in the vehicle, thus establishing a fourth link. The black bag
17
contained items that were similar to those found in the backpack that Appellant had
attempted to take control over, thus establishing a fifth link. Appellant had an
amount of cash on his person that case law concludes—and the evidence supports—
is consistent with the dealing of drugs, thus establishing a link between Appellant’s
activities and the items associated with the dealing of the drugs that were found in the
vehicle. Viewed in the light most favorable to the conviction, the cumulative force of
this evidence supports a reasonable inference that Appellant was linked to the
controlled substances found in the bags and also supports the jury’s determination
that he had exercised actual control, custody, or management over those substances.
Appellant wants to sidestep the standard of review and what the full record
reveals and instead directs our attention to the various factors that are not supported
by the record. First, as noted above, our review is not a mechanical process of
determining whether the State or Appellant has checked the most boxes in the list of
factors. Second, Appellant cannot succeed by pretermitting the full range of the
evidence from review. His narrow portrayal of the record mentions only that (1) he
was in a vehicle that coincidentally held hidden drugs, (2) what was found in the bags
creates only a speculative link to him because the only items that he chooses to
acknowledge—the hair beads—could have belonged to his ex-wife6 or the actual
owner of the vehicle, and (3) the possession of $996 in cash as a large amount is
6At the time of the trial, Appellant was no longer married to the woman who had been the driver of the SUV on the date of the offenses.
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“relative and indeterminate.” A full and candid portrayal of the record in the light
most favorable to the verdict establishes a host of links that Appellant ignores.
We overrule Appellant’s first point. III. We hold that Appellant’s trial counsel did not render ineffective assistance because the alleged conflict of interest was waived and did not impair his ability to cross-examine a witness.
In his second point, Appellant claims that his trial counsel7 was gripped by the
jaws of an ethical vise. One jaw was his duty to represent Appellant without concern
for the interests of himself or anyone else. The other was the obligation that he held
to a former client—Appellant’s ex-wife—not to divulge privileged attorney–client
communications. The record shows that counsel never felt the actual squeeze of the
vise.
Appellant claims that the alleged conflict came to a head when his ex-wife
testified during the punishment phase of the trial and that his counsel could not
adequately cross-examine her about her criminal history because to do so would
breach the attorney–client privilege. But the basis for the conflict disappeared when
the ex-wife waived the attorney–client privilege for communications that she had with
her former lawyer, Appellant’s trial counsel. Even if we assume that a conflict existed,
Appellant’s counsel did not act in a way that adversely impacted Appellant. The trial
record shows that counsel did question the ex-wife’s credibility based on her criminal
history. Nothing in the record before us suggests that the ex-wife had committed any
7All references to counsel refer to Appellant’s trial counsel.
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other criminal act that counsel did not delve into because of his prior professional
relationship with her. A. The factual background of the conflict claim and how the witness who allegedly created the claim of conflict waived it
The conflict issue initially arose when counsel reurged a motion for
continuance and a motion to withdraw in connection with an attempt to change
Appellant’s election that the jury, rather than the court, assess his punishment. The
motion for continuance had previously been denied, but the judge who originally
heard the motion allowed counsel to reurge the motion before the judge who
conducted the trial.8 Counsel told the trial court that he had once represented
Appellant’s ex-wife on the “same set of cases” as those involving Appellant. Though
the representation had lasted about thirty days and had ended eight months before the
trial that was about to commence, counsel claimed that he had engaged in attorney–
8The motion for continuance was filed and initially heard at a pretrial hearing on the Friday preceding the Monday that Appellant’s trial commenced. The motion states that Appellant’s trial counsel (Jayson Nag) “recently” discovered “a potential [conflict] that prevents him from representing [Appellant] in that a co-defendant that will likely testify against [Appellant] is a former client of Jayson Nag.” The motion continues, “The attorney–client privilege still exists between Jayson Nag and this codefendant. Thus, it would be unethical and severely improper of Jayson Nag to crossexamine this codefendant in open court.” The motion also suggests that Appellant’s trial strategy might implicate the co-defendant. At the pretrial hearing, counsel stated, “I don’t think it would be ethical or proper of me to represent him on these four charges due to that conflict that I have with this potential codefendant that is likely to testify against him due to attorney/client privilege and previous conversations that I’ve had with that particular codefendant.” The motion was denied by the judge who heard the pretrial matters though he noted that it could be reurged before the judge who presided over Appellant’s trial.
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client communications with the former client. Counsel described his quandary as
follows: “[I]f the State intends to call her as a witness in guilt/innocence or
punishment, then I have to essentially cross-examine my own former client, which I
believe would violate Rule 1.06 and 1.09 of our Texas Rules of Ethics because I do
have confidential attorney–client privileged information.” [Emphasis added.]
Counsel indicated that Appellant had not waived the conflict and that he had
told Appellant that he would ask for a continuance so that he could obtain new
counsel. Counsel claimed that his client would not talk to him because of the alleged
conflict. Yet, counsel also described a conversation with Appellant in which
Appellant had recently expressed that he did not want counsel to move forward but
instead wanted to hire a new attorney and to pick a new jury and elect to go to them
for punishment. Appellant’s motion for continuance also stated that Appellant’s
refusal to communicate with counsel was “unrelated” to an alleged conflict of interest.
The trial court responded that it would not reward Appellant’s attempts at delay. The
trial court also noted that the issue had been raised at a status conference more than
thirty days before trial. The court stated at that conference that it had told Appellant
that the case was set for trial and that he could hire a new lawyer but that the trial
would not be rescheduled.
The State noted that it planned to call the ex-wife only during the punishment
phase. In rejoinder to the State’s point that the ex-wife had been on the State’s
witness list for months, counsel reiterated his problem as follows: “The attorney–
21
client privilege does not die just because you withdraw from representing somebody.
As far as I know, it extends until it’s waived by that client.” [Emphasis added.]
The trial court again pointed out that the conflict had existed for months, but
counsel and Appellant had lived with it until the eve of trial. But the trial court
indicated that it would revisit the issue if the ex-wife were actually called to testify.9
The State called the ex-wife to testify during punishment. Counsel again
emphasized that the ex-wife had not yet waived the privilege for her communications
with counsel. Counsel described the ethical problem that this created for him as
follows:
And so my argument is basically twofold, that it would destroy the attorney/client privilege between myself and [the ex-wife], and I don’t think it would be effective of me with Mr. Johnson because I think there is a clear conflict of interest if I am put in the awkward position of crossexamining and questioning one of my own former clients, and so that’s my objection. [Emphasis added.]
After counsel articulated his view of the ethical issue, the State notified the trial
court that it had reached a plea deal with the ex-wife, and in the following exchange,
9The trial court did not appear to resolve the conflict issue raised in the motion for continuance based on the tardiness of the motion’s filing. But it would have been within the court’s discretion to do so. See, e.g., Suniga v. State, No. AP-77,041, 2019 WL 1051548, at *3, *5 (Tex. Crim. App. Mar. 6, 2019) (not designated for publication) (op. on reh’g) (“[A] defendant cannot manipulate his constitutional right to counsel in a manner that throws the trial process into disarray. . . . The trial court may also consider the timing of a motion to withdraw based on an alleged conflict in determining whether to grant it.”), petition for cert. filed, (U.S. June 3, 2019) (No. 189564).
22
the ex-wife stated that she agreed to waive any claim of privilege between herself and
Appellant’s counsel:
Q. Okay. Also as part of that, I -- I have spoken with [your present lawyer], and you are willing to waive your privilege as far as it goes to your communications with [Appellant’s trial counsel] but not with your communication as to [your present lawyer]; is that correct?
A. Correct.
At this point, counsel made no further argument that he operated under a conflict and
instead simply asked for a ruling. The trial court overruled the objection.
The ex-wife testified about Appellant’s physical abuse of her, his reputation as a
drug dealer, his acquisition of firearms as a felon, his involvement in “shooting up” a
bar, and his involvement in gambling.
On cross-examination, counsel obtained various concessions from the ex-wife.
He obtained the concession that she had never filled out a police report on her claims
of domestic violence. After noting that she was arrested with Appellant, counsel had
the ex-wife acknowledge that she had failed to appear in court and had been on the
run for three or four months. Counsel also had the ex-wife acknowledge that she
knew that there was “dope” in the SUV when she and Appellant were arrested. She
further acknowledged that Appellant had experienced a rough childhood and was a
good father.
23
B. Appellant does not challenge the thoroughness of the trial court’s investigation of the conflict but whether a conflict existed that adversely impacted the representation Appellant received. For this reason, we will also limit our analysis to the existence of a conflict and whether it had an adverse impact.
Appellant argues that the trial court erred because it did not recognize the
existence of a conflict and that he suffered an adverse effect from that conflict. This
approach skips a step that might have an impact on how we analyze the conflict issue.
The court of criminal appeals points us to different paths of analysis depending on
whether the conflict issue was brought directly to the trial court’s attention or was a
matter that should have been apparent to the trial court even if not formally raised.
This dichotomy is described as follows:
When the appellant or his attorney has brought a potential conflict of interest to the attention of the trial court, the Supreme Court has said that the trial court has an obligation to investigate and determine “whether the risk of the conflict of interest is too remote to warrant separate counsel.”
If the appellant and his attorney fail to bring the potential conflict to the attention of the trial court and the appealing defendant relies on the argument that the trial court should have been aware of the conflict, the defendant cannot obtain a reversal on appeal unless he shows that his attorney was operating under an actual conflict of interest that adversely affected counsel’s performance.
Routier v. State, 112 S.W.3d 554, 581–82 (Tex. Crim. App. 2003) (comparing Holloway v.
Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178–79 (1978), with Cuyler v. Sullivan, 446
U.S. 335, 349–50, 100 S. Ct. 1708, 1719 (1980)); see also Dunn v. State, 819 S.W.2d 510,
519 (Tex. Crim. App. 1991) (“[O]nce a possible conflict of interest is brought to the
24
trial court’s attention by either a pretrial motion or trial objection[, the trial court] has
the constitutional obligation to at least take adequate steps to ascertain whether the
risk of the conflict of interest is too remote to warrant remedial action.” (citing
Holloway, 435 U.S. at 484, 98 S. Ct. at 1178)).
Here, the motion to withdraw brought the potential conflict to the trial court’s
attention, but Appellant raises no challenge to the thoroughness with which the trial
court investigated the conflict. Instead, he moves directly to the issue of whether an
actual conflict existed and whether that conflict had an adverse impact on the
representation he received. We assume that Appellant cuts to the chase in recognition
that there are only narrow grounds to obtain a reversal based on the nature of the
inquiry that the trial court made once the conflict issues were brought to its attention
and because most attacks still require proof of a conflict that adversely impacted
representation:
Petitioner’s proposed rule of automatic reversal [derived from Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097 (1981),] when there existed a conflict that did not affect counsel’s performance, but the trial judge failed to make the Sullivan-mandated inquiry, makes little policy sense.
As discussed, the rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel’s performance—thereby rendering the verdict unreliable, even though Strickland prejudice cannot be shown. See Sullivan, [446 U.S. at 348–49, 100 S. Ct. at 1718–19]. The trial court’s awareness of a potential conflict neither renders it more likely that counsel’s performance was significantly affected nor in any other way renders the verdict unreliable. Cf. United States v. Cronic, 466 U.S. [648,] 662, n.31, 104 S. Ct. [2039, 2049 (1984)]. Nor does the trial judge’s failure to make the Sullivan-mandated inquiry often make it harder for reviewing courts to determine conflict
25
and effect, particularly since those courts may rely on evidence and testimony whose importance only becomes established at the trial.
Mickens v. Taylor, 535 U.S. 162, 172–73, 122 S. Ct. 1237, 1244 (2002); see also Routier,
112 S.W.3d at 581–82 (explaining that Mickens made clear that the Supreme Court’s
opinion in Wood v. Georgia applying Cuyler did not create a rule that the failure to
adequately inquire into conflict created a right to automatic reversal in the absence of
proof of an actual conflict that adversely affected representation.).
The trial court in this case did not fail to inquire into the alleged conflict once it
was brought to its attention; instead, the trial court investigated and then allowed what
Appellant alleges is a conflict to persist that resulted in Appellant’s allegedly receiving
ineffective assistance of counsel. In other words, the issue moved beyond the
adequacy of the trial court’s investigation to whether that inquiry should have
prompted a different decision by the trial court—to allow counsel to withdraw.
Appellant understandably chooses his appellate battle based on a challenge to the trial
court’s resolution of the issue rather than on how thoroughly it investigated. This is
understandable as Appellant will apparently still bear the burden of establishing an
actual conflict that adversely affected his representation even if he could raise some
challenge that the trial court had conducted an inquiry but had not done so
thoroughly enough. As we explain, Appellant has failed to establish an actual conflict
or how a conflict adversely affected his counsel’s performance.
26
C. The law on conflicts of interest as the basis for an ineffective-assistance-ofcounsel claim
An appellant may rely on a conflict of interest held by his counsel as the basis
for an ineffective-assistance claim, but proof of that claim requires a showing of an
“actual” conflict of interest and “that the conflict actually colored counsel’s actions
during trial.” Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014) (quoting
Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007), which cited Cuyler, 446
U.S. at 348, 100 S. Ct. at 1718). To sustain an ineffective-assistance claim predicated
on a conflict of interest, an appellant must show that counsel was placed in the vise of
differing loyalties and was compelled to favor one of the interests pressing in on
counsel over another. Id. (“[A]n ‘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 other interests (perhaps counsel’s own) to the detriment of his client.”). A
party making an ineffective-assistance claim predicated on a conflict of interest must
establish the existence of the conflict by a preponderance of the evidence. Id. at 136–
37.
Theorizing about the possibility of conflict will not sustain an appellant’s
burden; instead, “[a]n appellant must identify specific instances in the record that
reflect a choice that counsel made between possible alternative courses of action, such
as ‘eliciting (or failing to elicit) evidence helpful to one [interest] but harmful to the
other.’” Malek v. State, Nos. 03-10-00534-CR, 03-10-00535-CR, 2012 WL 370551, at
27
*7 (Tex. App.—Austin Feb. 1, 2012, pet. ref’d) (mem. op. on reh’g, not designated for
publication) (quoting Lopez v. State, 358 S.W.3d 691, 694–95 (Tex. App.—San Antonio
2011, pet. ref’d), which cited Gaston v. State, 136 S.W.3d 315, 318 (Tex. App.—
Houston [1st Dist.] 2004, pet. struck) (op. on reh’g en banc)); see also Pina v. State, 127
S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“Neither the mere
assertion of a conflict of interest nor a showing of a possible conflict of interest will
support a claim of ineffective assistance of counsel.” (citing Cuyler, 446 U.S. at 350,
100 S. Ct. at 1719)). In other words, the appellant must pinpoint that “his trial
counsel ‘had to forego a strategy in the appellant’s trial that counsel would have
otherwise pursued if he had not represented [a conflicting interest].’” Malek, 2012 WL
370551, at *7 (citing Routier, 112 S.W.3d at 586). D. No actual conflict of interest arose in this case, and even if one had, Appellant’s trial counsel did not advance the interest of one client over another.
Appellant acknowledges that to carry his burden on his ineffective-assistanceof-counsel claim on an alleged conflict of interest of his counsel, he “must point to
specific instances in the record reflecting a choice made by [his counsel] that was
harmful to Appellant and beneficial to another party.” After noting that his counsel
had represented his ex-wife for an offense arising from the same criminal transaction
as that for which Appellant was charged, Appellant contends that counsel made a
choice favoring the ex-wife because it is “likewise undeniable that notwithstanding the
incredibly damaging testimony that [the ex-wife] provided for the State against
28
Appellant, [Appellant’s trial counsel] never delved into [the ex-wife’s] criminal history
in an attempt to impeach her credibility.”
Thus, Appellant relies on a conflict allegedly created by his counsel’s short
lived and long-since-terminated representation of his ex-wife on the same set of
charges for which he was on trial. Though joint representation of clients creates a
potential conflict, in and of itself that representation is not sufficient to establish the
actual conflict necessary to sustain an ineffective-assistance claim. See State v. Hart,
342 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“Though the
evidence supported the conclusion that the joint representation of the Harts[] created
a potential conflict of interest, the evidence was legally insufficient to support a
finding that an actual conflict of interest arose.”). Nor does the fact that a lawyer had
to cross-examine his former client translate into an actual conflict of interest. See
United States v. Olivares, 786 F.2d 659, 663 (5th Cir. 1986) (“In sum, we hold that ‘active
representation of conflicting interests’ connotes more than merely cross-examining a
former client who, at an earlier stage of the case, had also paid a portion of his
codefendants’ legal fees.”).
Appellant’s counsel attempted to satisfy the burden of establishing an actual
conflict by asserting that he could not effectively cross-examine the ex-wife because
he knew things that she had told him while the two were in an attorney–client
relationship. The concern expressed by counsel was a valid potential concern.
29
An effective cross-examination carried the risk of breaching the lawyer’s duty
to maintain the confidences of his former client. See Tex. Disciplinary Rules Prof’l
Conduct R. 1.05, 1.09, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex.
State Bar R. art. X, § 9). And “[i]t is well-established that a defendant is denied the
effective assistance of counsel in those instances where an attorney is unable to cross
examine, or is chilled in the cross-examination of, a government witness because of
the attorney/client privilege arising from counsel’s prior representation of the witness
or from his duty to advance the interests of the witness as a current client.” Ramirez v.
State, 13 S.W.3d 482, 487 (Tex. App.—Corpus Christi 2000), pet. dism’d, improvidently
granted, 67 S.W.3d 177 (Tex. Crim. App. 2001); see also Charleston v. State, 33 S.W.3d 96,
101 (Tex. App.—Texarkana 2000, pet. ref’d) (“Additionally, a defendant is denied
effective representation when the attorney is unable to properly cross-examine a
witness due to a prior representation of that witness.”).
But this valid concern about a potential conflict did not rise to the level of an
actual conflict in this case. As was her right to do, the ex-wife waived in open court
any claim of privilege that existed between her and Appellant’s trial counsel. See Bailey
v. State, 507 S.W.3d 740, 747 (Tex. Crim. App. 2016) (“[Texas Rule of Evidence]
511(1) specifies that a person on whom the rules confer a privilege against disclosure
waives the privilege if the person voluntarily discloses or consents to disclosure of any
significant part of the privileged matter, unless such disclosure itself is privileged.”).
30
Thus, we are not persuaded that the potential for a conflict in this case
blossomed into an actual conflict when the very basis for the actual conflict was
removed by the waiver. The waiver removed counsel from the vise of having to
decide whether to favor the interests of one client over the other. See Grimaldo v. State,
No. 13-12-00513-CR, 2013 WL 3517600, at *6 (Tex. App.—Corpus Christi–Edinburg
July 11, 2013, no pet.) (mem. op., not designated for publication) (stating that when
attorney was not aware of conflict and former-client witness Sanchez waived privilege,
“[t]he mere fact that Grimaldo[’]s defense counsel had represented Sanchez does not
prove any actual conflict. Grimaldo has not shown that his trial counsel was required
to make a choice between advancing Grimaldo’s interest or advancing other interests,
including Sanchez[’]s or his own, to Grimaldo[’]s detriment”).10
10As expressed in a case out of the Western District of New York, However, where as here, the former client waives the attorney–client privilege on cross-examination, the risk of a conflict is “significantly diminished,” and at worst, results only in a potential conflict of interest. [United States v.] Lussier, 71 F.3d [456,] 461–62 [(2d Cir. 1995)] (stating that conflict was at worst potential where former client, who was a witness against the defendant, waived his attorney–client privilege as to his prior communications with former counsel); see also United States v. Thomas, Nos. 98-1051, 98-1052, 98-1116, 2000 U.S. App. LEXIS 2224, 2000 WL 236481, at *3 (2d Cir. Feb. 14, 2000) (slip [op.]) (finding no actual or potential conflict where defense counsel previously represented at least three government witnesses in unrelated cases and the witnesses had waived their attorney–client privileges with defense counsel for cross-examination purposes); [United States v.] Leslie, 103 F.3d [1093,] 1098–99 [(2d Cir. 1997)] (finding no actual or potential conflict where defense counsel previously represented client’s co-defendant in an unrelated investigation but co-defendant waived attorney–client privilege
31
Beyond the lack of an actual conflict in this case, the record reflects that no
conflict—actual or potential—colored counsel’s actions. Contrary to Appellant’s
assertions, his counsel did cross-examine the ex-wife about her criminal history.
Appellant predicates his ineffective-assistance claim on the contention that the
conflict impeded his counsel’s cross-examination. Because the record shows the
contrary, the record rebuts the second prong of an ineffective-assistance claim based
on a conflict of interest, i.e., the conflict adversely affected counsel’s performance. See
Lopez, 358 S.W.3d at 694 (“The appellant must show (1) there was an actual conflict
of interest[, and] (2) that conflict adversely affected counsel’s performance.” (citing
Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719; Acosta, 233 S.W.3d at 355)).
In addition to the concern that he expressed about violating the attorney–client
privilege, Appellant’s trial counsel did say that cross-examining his ex-client put him in
the “awkward position of cross-examining and questioning one of my own former
on cross-examination, and stating that if a conflict was assumed, it “could only be regarded as potential”); cf. United States v. Pizzonia, 415 F. Supp. 2d 168, 178–79 (E.D.N.Y. 2006) (“Limited representation of a government witness unrelated to representation of the defendant is not likely to present a disabling conflict.”) (citing United States v. Paone, 782 F.2d 386, 393 (2d Cir. 1986)). By consenting to cross-examination, Moore waived any attorney–client privilege that could have hampered defense counsel’s cross-examination. Upon receiving Moore’s consent, defense counsel was free to conduct an uninhibited inquiry of Moore[] and indeed did so. Defense counsel appears to have faced no conflict at all upon receiving Moore’s consent and, if anything, faced only a potential conflict. See Lussier, 71 F.3d at 461–62. See Davis v. Smith, No. 12-CV-0096MAT, 2012 WL 6569372, at *7 (W.D.N.Y. Dec. 17, 2012) (decision & order).
32
clients.” He had previously articulated his additional concern as follows: “If she gets
up there, right, and I tear her up on cross and she says something the State doesn’t
want her to say and they renege on their plea deal, then who is she gonna come after?
Me.” But once the waiver removed the concrete basis for the conflict, the mere
awkwardness of the situation did not create an actual conflict. See Ramirez, 13 S.W.3d
at 491 (Seerden, C.J., dissenting) (“Therefore, although I acknowledge that counsel is
an officer of the court and entitled to respect as such, I do not believe that her
conclusory assertions of a conflict and confidential information that might impact in
some unspecified manner upon the present cross-examination must be accepted by
the court at face value.”).
Further, the ex-wife waived the privilege after speaking with her new counsel.
Appellant never tells us how a conflict exists from Appellant’s counsel’s potentially
asking the ex-wife hard questions derived from what she had told him during the
attorney–client relationship when—after consultation with new counsel—she waived
any impediment Appellant’s counsel had to use that information. Next, the State
placed its plea deal with the ex-wife on the record. Nothing in the offer’s terms
suggests that Appellant’s counsel had a conflict because the offer was contingent on
how the ex-wife testified. And as we have noted, Appellant’s counsel actually asked
the ex-wife hard questions. Thus, if he had felt restrained by a conflict, the cross
examination shows that the waiver removed his reluctance to vigorously cross
examine the ex-wife.
33
Finally, if there were additional offenses that counsel did not mention during
cross-examination, the record does not tell us what those were. Appellant’s motion
for new trial did not raise a ground that there were additional aspects of his ex-wife’s
criminal history that his trial counsel was impeded from exploring because of a
conflict. As so often happens in the context of an ineffective-assistance claim on
direct appeal, even if there were some matter that Appellant’s counsel did not raise
during cross-examination, we do not have a record telling us what that was, and thus
we lack the ability to determine whether the failure to use information during cross
examination adversely affected Appellant. See Grimaldo, 2013 WL 3517600, at *5
(stating that appellate court was unable to assess in direct appeal an ineffective
assistance claim based on conflict when “there [was] no evidence regarding any
specific privileged information that counsel obtained because of the prior
representation that could have given rise to a conflict of interest”).
We overrule Appellant’s second point.
Outcome: Having overruled Appellant’s two points, we affirm the trial court’s judgments.
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