Anthony J. Barbaro v. State ( 2003 )

NO. 07-02-0130-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 9, 2003
______________________________
ANTHONY J. BARBARO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-434,611; HON. JIM BOB DARNELL, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
In one issue, appellant Anthony J. Barbaro appeals his conviction for burglary.
Through it, he argues that he received ineffective assistance of counsel. The latter was
purportedly ineffective due to a conflict of interest. We overrule the issue and affirm the
judgment of the trial court.
Background 1
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The facts surrounding the offense are not relevant to appellant’s issue on appeal, and we will
therefore not recite them.
At trial, counsel for appellant revealed to the trial court that he had represented a
particular State’s witnesses in a “DWI” prosecution and a divorce approximately ten years
earlier. Neither the criminal charge nor the divorce were related, in any way, to the
accusation against appellant. Nevertheless, “because of [his] relationship with this
witness, [he could not] adequately cross-examine her on behalf of” appellant, counsel
uttered. So too did he assert that “[i]t would be a conflict of interest for [him] to vigorously
cross-examine a person that [he has] represented and to check her background and so
forth in representing” appellant. “It would be to [appellant’s] detriment that [counsel] would
be his attorney when this witness testifies,” counsel concluded. In response to questioning
from the court, appellant’s trial attorney then stated that it was his “duty to vigorously be
an advocate for” appellant, that it was his “duty not to reveal any secrets of any client that
I have ever represented in the past,” that this “creates a conflict of interest in this
situation,” that he “can’t adequately cross-examine this witness because [he had]
represented her before,” that it was “a classic conflict of interest . . . and it require[d] a
mistrial, and . . . [him] to withdraw . . . if this witness testifies.” However, counsel did not
state that this witness had previously informed him of any confidential or other information
the disclosure of which would be disadvantageous to her or advantageous in any way to
appellant. Nor did he aver that 1) he garnered information during his representation of the
witness the disclosure of which would breach prior confidences or 2) he had information
arising from his past representation of the witness which impeded his ability to represent
appellant. Indeed, when questioning the witness for purposes of developing a bill of
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exceptions, trial counsel said: “I really don’t remember much about your cases, but I
remember you.”
The trial court refused to allow counsel to withdraw. So too did it deny counsel’s
motion for mistrial.
Applicable Law
Counsel may be ineffective when operating under a conflict of interest. Ex parte
Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997), overruled in part on other grounds
by Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003). However, until the accused
shows that his attorney is or was actively representing such interests, he has not
established the predicate for a claim of ineffective assistance. Cuyler v. Sullivan, 446 U.S.
335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 347 (1980); see also Nethery v. State,
29 S.W.3d 178, 188 (Tex. App.–Dallas 2000, pet. ref’d). Moreover, the conflict must be
actual, as opposed to speculative or potential. James v. State, 763 S.W.2d 776, 781-82
(Tex. Crim. App. 1989); Thompson v. State, 94 S.W.3d 11, 16 (Tex. App.–Houston [14th
Dist.] 2002, pet. ref’d). And, it is actual when counsel is required to make a choice
between advancing his client’s interest in a fair trial or advancing other interests (including
his own) to the detriment of his client’s interest. Ex parte Morrow, 952 S.W.2d at 538;
Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997).
Application of Law to Facts
It is undisputed that the matters on which counsel represented the witness ten years
before were completely unrelated to the criminal prosecution of appellant. See Charleston
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v. State, 33 S.W.3d 96, 101 (Tex. App.–Texarkana 2000, pet ref’d) (considering when the
prior representation occurred and whether it involved a matter substantially related to that
at hand). Furthermore, counsel recalled little about the matters but simply remembered
the witness. And, though he thought there existed a conflict of interest, counsel so
believed simply because he represented the witness at one time. Again, he said nothing
about previously obtaining confidential information which was in any way relevant to
appellant’s case or which could be used in any way to advance or impugn the interests of
appellant, the witness or anyone else. See Thompson v. State, 94 S.W.3d at 21-22
(refusing to hold that an actual conflict existed since counsel failed to reveal the nature of
the conflict or explain the adverse impact, if any, on appellant of the prior representation).
This is not a situation, as in Ramirez v. State, 13 S.W.3d 482 (Tex. App.–Corpus
Christi 2000, pet. dism’d), wherein counsel specifically advised the court that he obtained
confidential information as a result of previously representing the witness and which
hampered his ability to assist appellant. See Brink v. State, 78 S.W.3d 478, 485 (Tex.
App.–Houston [14th Dist.] 2001, pet ref’d) (wherein a conflict existed because counsel
represented that he “was not sure how he would cross-examine Gipp and attack her
credibility without using privileged information obtained while he was her attorney”).
Again, counsel said nothing about having any such information and could recall little about
the matters involved in the representation. Nor did he represent both appellant and the
witness at the same time, as in Ramirez. Here again, counsel represented the witness
approximately ten years before the trial of appellant in matters unrelated to the charges
against appellant.
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In short, having represented a witness at a prior time does not alone mean that
counsel is required to make a choice between advancing his current client’s interests in
a fair trial or advancing other interests to the detriment of his client. More is required
before it can be said that a conflict actually exists. Because that extra data is missing
here, the trial court could have reasonably concluded that it had before it a potential or
speculative conflict, and that does and did not warrant a mistrial or the removal of counsel.
Thus, the trial court did not err in refusing counsel’s requests to withdraw and for mistrial.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Publish.
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