eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Appeals of Texas
 2003-07

Charles, Maurice Jabarr v. State ( 2003 )


Menu:
  • Affirmed and Memorandum Opinion filed July 3, 2003

    Affirmed and Memorandum Opinion filed July 3, 2003.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NOS.  14-01-01247-CR

                    14-01-01248-CR &

               14-01-01249-CR

    ____________

     

    MAURICE JABARR CHARLES, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

    _______________________________________________

     

    On Appeal from the 262nd District Court

    Harris County, Texas

    Trial Court Cause Nos. 873406, 873405 & 873407

     

    _______________________________________________

     

    M E M O R A N D U M   O P I N I O N

                Appellant Maurice Jabarr Charles pleaded guilty to attempted burglary of a habitation, aggravated robbery, and aggravated kidnapping.  The jury assessed punishment respectively at three years confinement with community supervision, fifteen years confinement, and forty years confinement.  In two points of error, appellant contends he was denied effective assistance of counsel because: (1) his lawyer failed to adequately investigate the

    class=Section2>

    circumstances surrounding appellant’s confession; and (2) his lawyer  incorrectly advised appellant that there was no viable legal basis to suppress his confession.  We affirm.

    I.  Factual Background

                Appellant, fourteen-years old at the time of the offenses, was taken into custody for robbery, kidnapping and sexual assault. He signed a written statement confessing to his participation in the robbery and kidnapping, but denied involvement in the alleged sexual assault.  Following certification as an adult, guilty pleas, and sentencing, appellant filed a motion for new trial alleging ineffective assistance of counsel. Appellant’s motion was supported only by affidavits, however, the prosecutor testified briefly for the State.

                In his affidavit, appellant stated that he had been smoking marijuana and was under its influence at the time of his arrest and appearance before the magistrate.  He claims he did not understand the magistrate’s instructions and that he was confused by the legal terminology because he was under the influence of narcotics, tired, and trying not to fall asleep.  After appearing before the magistrate, he was then taken to the police station where he made a written confession.  After his confession, he was brought before the magistrate a second time.  Although at this second appearance he told the judge his confession was voluntary and that he understood the process, appellant now claims that his true reason for doing so was that he was tired and simply wanted to sleep.  Further, he states he pleaded guilty because his attorney, Grant Hardeway, expressed the belief that appellant’s written confession could not be excluded.  Appellant asserts that had he known there was at least a possibility that his confession would be excluded, he would not have pleaded guilty.

                In her affidavit, the magistrate stated that when she gave appellant his first statutory warnings, her personal observation of appellant did not prompt her to ask him if he was under the influence of drugs or fatigued.  When the officers brought appellant for the second admonishment, the magistrate examined appellant and determined he understood the nature

    class=Section3>

    and content of his written confession, and that he had signed the statement voluntarily.

                Hardeway stated in his affidavit that he assumed appellant’s statement was admissible if it was “proper on its face” and the magistrate had properly warned his client. He stated that he did not file a motion to suppress or conduct an independent investigation to determine whether a basis in fact existed to suppress the statement, because he assumed the statement was proper based on “his knowledge of the magistrate.”  He also stated that he “spoke to [appellant] briefly about the facts and circumstances that surrounded his arrest, statutory warnings given to him by the magistrate, and the written statement he ultimately gave.”  Hardeway further stated that he did not learn appellant was supposedly under the influence of marijuana when he received his warnings and made his statement until after the initial proceedings. 

                Appellant’s allegations of ineffective assistance of counsel arise from Hardeway’s alleged failure to adequately investigate the facts surrounding his confession, Hardeway’s failure to file a motion to suppress, and his purportedly incorrect legal advice that there was no viable legal basis to suppress the statement.  Appellant presented no live testimony at the motion for new trial, relying on the affidavits and records filed with his motion.[1]  Following argument of counsel, the trial court denied the motion.

    class=Section4>

    II.  Standard of Review

                To prevail on a claim of ineffective assistance of counsel, a defendant must show deficient performance and prejudice.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999).  To meet the deficient performance prong, a defendant must establish that his attorney’s performance was so deficient as to fall below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  Indeed, our review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable and professional assistance.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  To establish the prejudice prong, a defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Kober, 988 S.W.2d at 232.  In the context of a guilty plea, that standard requires that a defendant show a reasonable probability that but for the errors, he would not have pleaded guilty and would have insisted on going to trial.  Id.  Appellant must overcome the presumption that trial counsel rendered adequate assistance, and identify those acts or omissions which do not amount to reasonable professional judgment.  See Strickland, 466 U.S. at 690. 

                The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813.  Although the Strickland prongs are mixed questions of law and fact, they often contain subsidiary questions of historical fact.  Kober, 988 S.W.2d at 233; see Ex parte Owens, 860 S.W.2d 727, 729 (Tex. App.—Austin 1993, writ ref’d).  A deferential rather than de novo standard applies to our review of a trial court’s determination of historical facts when that determination is based, as here, solely upon affidavits.  Manzi v. State, 88 S.W.3d 240,

    class=Section5>

    242–43 (Tex. Crim. App. 2002).[2] 

    III.  Discussion

                Both of appellant’s points of error are premised upon the existence of facts and circumstances surrounding his written statement, which he contends was not voluntary.  In support of his assertions, appellant refers to certain extenuating circumstances, including the physical factors of fatigue, youth and intoxication due to marijuana, as well as various mental factors, including low intellectual capacity and the effect of promises of leniency made by the police.  He also argues that a reasonable investigation by his attorney would have revealed these purported circumstances surrounding his confession.  Furthermore, appellant contends his guilty pleas were premised on his trial lawyer’s incorrect legal advice that there was no viable legal basis to suppress his written statement. For the sake of clarity, we discuss his second point of error first.

    A.  Erroneous advice / Voluntariness of Confession

                In his second issue, appellant argues he could not have voluntarily and knowingly pleaded guilty when his election was based upon his counsel’s erroneous advice that there was no viable legal basis to suppress his written statement.  Appellant argues that there were a number of viable legal avenues that could have been, but were not raised to the admissibility of the statement, thereby making the advice that there was no viable legal basis to suppress the statement erroneous.  Appellant maintains that his decision to plead guilty was induced by counsel’s erroneous advice and he would not have pleaded guilty had he known that a viable legal basis for suppression of the written statement existed.  Thus, appellant argues that his guilty plea was involuntarily made because of counsel’s advice.

                Generally, when a defendant’s guilty plea is based upon erroneous advice of counsel, it is not done voluntarily and knowingly.  Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). The validity of a guilty plea made upon the advice of counsel depends on whether counsel’s performance was reasonably competent, rendering a defendant effective representation.  Id.  A guilty plea determined to be involuntary must be set aside.  Boykin v. Alabama, 395 U.S. 238, 244 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). 

                In challenging the voluntariness of a guilty plea on grounds of ineffective assistance of counsel, an appellant must prove: (1) trial counsel’s advice fell outside the range of competence demanded of attorneys in criminal cases; and (2) there is a reasonable probability that, but for counsel’s erroneous advice, appellant would not have pleaded guilty and would have insisted on going to trial.  Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52, 58–59 (1985)).  Thus, a defendant bears the burden of showing that counsel’s performance fell below a reasonable standard of competence and, with reasonable probability, he would not have pleaded guilty but instead would have insisted on going to trial were he properly advised.  Nicholas v. State, 56 S.W.3d 760, 769 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  In this context, the harm prong is satisfied only upon proof that the defendant would not have pleaded guilty but for his counsel’s ineffectiveness.  Id.  (citing Rodriguez v. State, 899 S.W.2d 658, 666 (Tex. Crim. App. 1995)).

                To determine the voluntariness of appellant’s guilty plea, we must examine the record as a whole. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).  Further, the determination of whether a confession is voluntary must be based upon an examination of the totality of the circumstances surrounding its acquisition. Barney v. State, 698 S.W.2d 114, 120 (Tex. Crim. App. 1985).  A defendant’s reliance on his attorney’s professional opinion does not render a guilty plea involuntary, nor do unsuccessful strategies.  Graves v. State, 803 S.W.2d 342, 345 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d); Medford v. State, 766 S.W.2d 398, 401 (Tex. App.—Austin 1989, pet. ref’d).

                According to appellant, the viable bases for suppression of his written statement were his intoxication, fatigue, youth and intellect, promises by the police, and various “other factors.  The presence of these factors, contends appellant, renders erroneous his counsel’s advice that there was no viable legal basis for suppression of the statement.  However, to apply a standard requiring us to show but for counsel’s erroneous advice appellant would not have pleaded guilty, this court must make a threshold determination that the advice was indeed erroneous.  Thus, we begin by analyzing the factors invoked by appellant to determine whether appellant’s counsel’s advice, that there was no viable legal basis for suppression of the written statement, was erroneous.

    1.  Intoxication

                Appellant argues that his counsel’s advice was erroneous because his confession was involuntary due to his alleged intoxication and fatigue, and that his trial counsel’s failure to investigate and develop these factors prompted the erroneous advice.  In his affidavit, appellant states that he had “smoked a lot of marihuana” and had been arrested after arriving home from “getting high.” He stated that he “didn’t really understand what the judge was talking about because [he] was still really high from the marihuana.”  In his own affidavit, appellant’s father also stated that he believed his son had been “high on something” that evening.  The trial court however was free to disbelieve the statements of appellant or his father.  See Kober, 988 S.W.2d at 234; see also Manzi, 88 S.W.3d at 243–44.  Because the only evidence produced by appellant in support of his motion for new trial were affidavits and written records, some of which contained conflicting testimony, the trial court was within its right to disbelieve the assertions upon which appellant’s claims of ineffective assistance of counsel are based.  Manzi, 88 S.W.3d at 242–43; Kober, 988 S.W.2d at 234.  This is particularly true if a witness chooses not to testify live at the motion for new trial hearing.  See Kober, 988 S.W.2d at 234.  Indeed, a witness’ unwillingness to support an affidavit with live testimony could itself be considered evidence that the affidavit is untrue.  Id.  In this case, not a single affiant testified on behalf of appellant.  Thus, throughout this inquiry, we must remain mindful of the deferential standard promulgated by the Texas Court of Criminal Appeals in Kober and Manzi and consider that the trial court was free to disbelieve the testimony by the affiants.  See Kober, 988 S.W.2d at 234; see also Manzi, 88 S.W.3d at 243–44.

                Even assuming the trial court believed appellant’s assertions, the fact that he may have been under the influence of narcotics at the time of the confession does not automatically vitiate voluntariness, as intoxication is not per se determinative of the issue.  Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).  The central question is to what extent appellant was deprived of his faculties due to the intoxication.  Higgins v. State, 924 S.W.2d 739, 744 (Tex. App.—Texarkana 1996, pet. ref’d).  If the intoxication rendered him incapable of making an independent, informed choice, then the confession was involuntarily given. See Jones, 944 S.W.2d at 651.  However, aside from general statements in the affidavits, appellant fails to produce any evidence supporting this assertion.

                Furthermore, the trial court also had evidence tending to prove that appellant was not under the influence of intoxicants during the relevant time period.  The trial court was presented with the magistrate’s affidavit stating that her personal observation of appellant had not prompted her to ask him if he was tired or under the influence of drugs.  The magistrate also stated that at appellant’s second statutory warning, she examined appellant and determined that he understood the nature and content of his confession and had signed it voluntarily.

                Thus, applying the deferential standard of review, we cannot say the trial court erred in overruling appellant’s motion for new trial based on ineffective assistance of counsel on the grounds of appellant’s alleged intoxication.

                                                                        2.  Fatigue

                Similar to appellant’s claims of intoxication, the trial court was free to disbelieve appellant’s general allegations of fatigue. In his affidavit, appellant stated that he was “really tired and was trying not to fall asleep” during his first appearance before the magistrate.  He also stated that during his confession he only “started mumbling something because [he] was tired” and upon doing so was given paper by the officers to draft a written statement.  While in the room with the officers, he claims that he was trying not to fall asleep and kept putting his head on the desk in order to rest.  Appellant also claims that the second time he appeared before the magistrate he told her he understood her warnings only because he wanted to go to sleep.

                The Court of Criminal Appeals has observed that lack of sleep for as long as 24 hours does not, in and of itself, render a confession involuntary.  See Barney, 698 S.W.2d at 120; see also Foster v. State, 101 S.W.3d 490, 497 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  Here, appellant states in his affidavit that at the time of the confession he had not slept in a “really long time,” however, he does not indicate how long it had been since he had slept, or make any effort to explain the extent to which his alleged fatigue affected his judgment.  Again, applying the deferential standard of review, we cannot say the trial court erred in overruling appellant’s motion for new trial based on ineffective assistance of counsel on the grounds of appellant’s alleged fatigue.

    3.  Youth and Intellect

                Appellant also challenges the voluntariness of his written statement on the basis of his youth and intellect, arguing that his trial counsel should have considered these factors before advising him to plead guilty.  We recognize that a court should consider the defendant’s juvenile status as one factor in the totality of circumstances when determining the

    class=Section6>

    voluntariness of a confession.  Griffin v. State, 765 S.W.2d 422, 427–28, 431 (Tex. Crim. App. 1989). Furthermore, an appellate court should take into account police knowledge of a suspect’s “special weaknesses,” including youth and low intelligence.  Lane v. State, 933 S.W.2d 504, 512 (Tex. Crim. App. 1996). The Texas Family Code sets forth the warnings necessary for a juvenile confession.  See Tex. Fam. Code § 51.095.  The statute requires that a magistrate certify the juvenile “knowingly, intelligently and voluntarily” waived his rights prior to accepting the juvenile’s confession.  See id.  When a magistrate determines that a juvenile knowingly, voluntarily, and intelligently waived his rights, the juvenile defendant’s statement is properly admitted.  See Carter v. State, 650 S.W.2d 793, 795–96 (Tex. Crim. App. 1983); In re R.M., 880 S.W.2d 297, 299 (Tex. App.—Fort Worth 1994, no pet.). That appellant was only fourteen years of age at the time of the offenses was a factor considered by the magistrate and, according to her affidavit, she found appellant to have understood the nature and content of his statement, and that he knowingly, intelligently, and voluntarily waived his rights.  She further attested that appellant understood the nature and content of his statement and signed it voluntarily.  Giving the required deference to the trial court as required under Manzi and Kober, we find no error.

                Appellant also contends that his intellectual capacity would have established a viable ground for suppressing his written statement. While it is a factor to be considered, an appellant’s limited intelligence does not alone mandate a finding of involuntariness of a confession as a matter of law.  See Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Appellant points to the psychological assessment report he submitted at the hearing which suggests he has a sixth-grade reading level, limited coping skills, poor insight, and a tendency to withdraw from challenge.  The conclusions and recommendations in this report, however, are inapposite to appellant’s position because the psychologist concludes that appellant is functioning in the overall average range of intelligence and  his intellectual abilities are adequate for him to understand the conditions and details of his current situation and any conditions of punishment which may be imposed by the court.  Because the report was considered by the court, we afford the trial court’s ruling the required deference and find no error.

    4.  Promises by the Police

                Appellant also asserts he signed his written statement because he was promised leniency by police officers.  A promise will render a confession involuntary if it: (1) is of some benefit to the accused; (2) is positive; (3) is made or sanctioned by a person in authority; and (4) is of such a character as would likely influence the accused to speak untruthfully.  Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989); Espinosa v. State, 899 S.W.2d 359, 363 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).  According to appellant’s affidavit, he “didn’t want to answer [the officers’] questions at first, but they kept telling [him] that if they talked to them, [he] could get [his] time reduced.”  The record does not reveal further elaboration upon this allegation, and this brief statement is the only reference in appellant’s affidavit to any promises or allegedly coercive conduct by the police.  The trial court was free to disbelieve appellant’s allegation that the police made this statement.  See Kober, 988 S.W.2d at 234; see also Manzi, 88 S.W.3d at 243–44.

                Even assuming the officers told appellant that making a statement would help him, such a remark by the officers, standing alone and viewed within the totality of the circumstances surrounding appellant’s interrogation, does not make the statement involuntary.  Espinosa, 899 S.W.2d at 362–64.  In Espinosa, we found that the mere fact the officer told the suspect to “Go ahead and tell us what happened . . . Everything will be better for you . . .You will get less time” did not render the defendant’s statement involuntary.  Id.

                Thus, even if the trial court was inclined to believe appellant, the single sentence in his affidavit alleging a promise of leniency by the officers is not sufficient to establish an impermissible promise in this context.  According to appellant’s affidavit, the officers stated that appellant could get less time if he cooperated; they did not promise that he would receive leniency in exchange for a confession.  We find no substance to appellant’s allegations of an involuntary confession procured through coercion and cannot say the trial court erred in denying the motion for new trial on grounds of ineffective assistance of counsel.

    5.  Other Factors

                The remainder of appellant’s allegations, collectively argued as “other factors impacting the voluntariness,” have no support in the motion for new trial evidence.  Among these “other factors” are:  appellant thought his father would be present during his questioning by the officers; appellant was never told how much time he could serve for the charged offenses; and appellant was not advised that he could be certified as an adult. 

                We begin by noting that under the Family Code there is no requirement that appellant’s father accompany him during questioning by the officers.  See Tex. Fam. Code § 51.095.  In his affidavit, appellant stated that he “thought [his] dad would be able to come with [him and the officers] and be there with [him] when the officers talked to [him].”  Likewise, appellant’s father stated that he would not have signed the form allowing police to take appellant for questioning had he known he could not accompany him.  Further, his father claimed that had he been with appellant, he would never have allowed him to make a statement and would have ensured appellant invoked his right to counsel.  At the hearing on the motion for new trial, appellant’s counsel argued:

    Specifically, it is also clear that the defendant’s father believed – whether or not he had a good faith belief, he was entitled to accompany the detective in this case to the police substation . . . to be present while the defendant was interrogated, I believe is of little moment.  What matters . . . is that the defendant believed that his father would be going with him . . .  And had he known or realized that his father would not accompany him, he would have exercised both his right to silence and his right to counsel as the defendant made clear in his affidavit and as the defendant’s father makes clear in his.

     

    Again, the trial court was entitled to disbelieve appellant’s father’s statements, and indeed, entitled to conclude that he was not being truthful by failing to support his affidavit with live testimony.[3]  See Kober, 988 S.W.2d at 234.

                We note that allowing access to a family member weighs in favor of voluntariness.  See Pace v. State, 986 S.W.2d 740, 747 (Tex. App.—El Paso 1999, pet. ref’d).  However, nowhere in appellant’s affidavit does he contend that he requested his father be present.  Thus, even assuming appellant’s father’s allegations were true, it does not establish that appellant’s statement was involuntary.  See Cammon v. State, 672 S.W.2d 845, 848–49 (Tex. App.—Corpus Christi 1984, no writ) (noting that confession was not involuntary because a family member was not present inasmuch as defendant never requested their presence).  Here, there is no evidence in the record to suggest that appellant was denied access to his father.

                As to the contention that he was not advised he could be certified as an adult or told of how much time he could serve for the charged offenses if certified, appellant concedes that such warnings are not required by the Family Code.  Again, applying the deferential standard, we cannot say the trial court erred in overruling appellant’s motion for new trial based on ineffective assistance of counsel on the grounds of appellant’s “other facts.”

    B.  Deference to the Trial Court

                Considering the foregoing, we cannot say that appellant’s trial counsel offered erroneous advice, as there was no viable legal basis for suppression of the written statement.  Considering the great deference to be given the trial court’s determination of historical facts, and faced with the fact that without appellant and his father’s affidavits there is nothing in the record to suggest that appellant’s guilty plea was involuntary, we are not in a position to disturb the trial court’s ruling on the motion for new trial.  Cf. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).  Having reviewed the evidence and the affidavits, we cannot say that the statements were involuntarily made.  Id.  Therefore, the first prong of the Strickland test has not been satisfied.  Id.

                Accordingly, appellant’s second point of error is overruled.

    C.  Independent Investigation by Attorney

                In his related first point of error, appellant contends that he was denied effective assistance of counsel when his counsel failed to adequately investigate the aforementioned facts and circumstances surrounding his written statement and failed to file a motion to suppress.  Counsel has a duty to independently investigate the facts of the case.  McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).  A criminal defense lawyer has the responsibility to conduct a legal and factual investigation and to seek out and interview potential witnesses.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  Indeed, a defense lawyer must have a firm command of the facts of the case, as well as governing law, before he can render reasonably effective assistance of counsel.  Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).  We assess counsel’s purported decision not to investigate for “reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”  McFarland, 928 S.W.2d at 501. We will not reverse a conviction unless the only viable defense available to the accused is not advanced and there is a reasonable probability that but for counsel’s failure to advance the defense, the result of the proceeding would have been different.  Pinkston v. State, 744 S.W.2d 329, 332 (Tex. App.—Houston [1st Dist.] 1988, no pet.).

                Appellant argues that had Hardeway independently investigated the facts surrounding the written statement, he would have discovered the aforementioned grounds for seeking suppression of the written statement.  To establish ineffective assistance, an appellant must prove that had a motion to suppress been pursued, it would have been granted.  See Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998); Pipkin v. State, 997 S.W.2d 710,

    class=Section7>

    712 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).[4]  We have already addressed the grounds for suppression articulated by appellant and concluded that they are without merit.  Therefore, appellant cannot establish ineffective assistance of counsel in this case because he cannot establish that the motion to suppress, if pursued, would have been granted.

                Furthermore, appellant raised his claim of ineffective assistance for the first time in his motion for new trial and supported his claims with the aforementioned affidavits.  The trial court was free to disbelieve the testimony of affiants who refused to support their accounts with live testimony.  Manzi, 88 S.W.3d at 243–44; Kober, 988 S.W.2d at 234.  Without appellant’s affidavits, there is no reason to believe that any further investigation by defense counsel would have dissuaded appellant from pleading guilty.  Indeed, if the trial court disbelieved the testimony of the affiants, then it may have concluded that any additional investigation by the attorney would have not yielded such information.  Thus, even if appellant could satisfy the first prong of the Strickland test, he cannot establish prejudice.  See Strickland, 466 U.S. at 698; Kober, 988 S.W.2d at 233.

                Appellant’s first point of error is overruled.

    IV.  Conclusion

                Finding no error, we overrule appellant’s two points of error and affirm the judgment.

     

                                                                                       

                                                                            /s/        Eva M. Guzman

                                                                                        Justice

     

    Judgment rendered and Memorandum Opinion filed July 3, 2003.

    Panel consists of Justices Edelman, Seymore, and Guzman.

    Do Not Publish — Tex. R. App. P. 47.2(b).

     

     


                [1]  The prosecutor, however, testified at the hearing on appellant’s motion for new trial. He stated that he had dealt with Hardeway throughout the course of his representation of appellant and observed Hardeway as he sat with his client.  According to the prosecutor, Hardeway asked questions and fully investigated the State’s file.  The trial court overruled appellant’s objection to the prosecutor’s statements and appellant has not challenged that ruling on appeal. However, appellant does argue that the prosecutor could not properly testify as a witness at the hearing on the motion for new trial.  See Tex. Disciplinary R. Prof’l Conduct 3.08, reprinted in Tex. Gov’t Code, tit. 2, subtit. G app. A.  Rule 3.08 provides that a lawyer shall generally not accept or continue employment in an adjudicatory proceeding if he believes that he may be a necessary witness to establish an essential fact on behalf of his client.  Id.  In this context, the principal concern is the possible confusion for the trier of fact as to whether statements by an advocate-witness should be taken as evidence or argument.  Id. at cmt. 4.  We note, however, Rule 3.08 operates to disqualify lawyers from acting as counsel, not as witnesses.  House v. State, 909 S.W.2d 214, 217 (Tex. App.—Houston [14th Dist.] 1995), aff’d, 947 S.W.2d 251 (Tex. Crim. App. 1997).  Rule 3.08 is an ethical, not an evidentiary, rule.  See id.

                [2]  As noted, appellant offered only affidavits in support of his motion.  None of the affiants supported their statements with live testimony.  In Manzi, the Texas Court of Criminal Appeals emphasized that we are to apply a deferential standard of review of the trial court’s resolution of historical facts when they are, as here, based upon conflicting affidavits.  Manzi, 88 S.W.3d at 242–43. 

                [3]  We also note that appellant did not state in his affidavit he would not have waived any of his rights had his father been present at the interrogation.

                [4]  We note that failure to file a suppression motion does not constitute per se ineffective assistance of counsel.  Kizzee v. State, 788 S.W.2d 413, 415 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).