Stanley Bradford Whittington v. State

NUMBER 13-13-00169-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STANLEY BRADFORD WHITTINGTON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Rodriguez
A jury convicted appellant Stanley Bradford Whittington of the offense of cruelty to
livestock animals by causing roosters to fight, a state jail felony. See TEX. PENAL CODE
ANN. § 42.09 (West, Westlaw through 2013 3d C.S.). The trial court sentenced
Whittington to two years community supervision and ordered him to pay a $500 fine. By
a single issue, Whittington contends that his trial counsel rendered ineffective assistance.
We affirm.
I. CONTENTIONS
On appeal, Whittington contends that his counsel rendered ineffective assistance
when he represented multiple defendants at trial, causing an actual conflict of interest
and prejudice to Whittington’s defense. Anticipating the State’s argument that he waived
any conflict of interest, Whittington also asserts that “the waiver [he signed] was void and
ineffective because it was not given knowingly and intelligently.” Because Whittington’s
waiver argument is dispositive of this appeal, we will address it first. See TEX. R. APP. P.
47.1.
II. WAIVER
A. BACKGROUND
It is undisputed that on June 6, 2012, after the State filed a motion to recuse
Whittington’s trial counsel on the basis that he represented multiple defendants in this
case, Whittington signed the following waiver of conflict:
The undersigned Defendant, STANLEY WHITTINGTON, waive[s] in
writing any conflict of interest, known or unknown, presented by the
simultaneous representation of STANLEY WHITTINGTON and any and all
co-defendants, by [the same attorney], and agree[s] that any such conflict
cannot be asserted by me as a ground for reversal of any conviction on
appeal. I have thoroughly discussed the meaning of this waiver, and have
also been admonished by the Court. Inasmuch as my co-defendants and
I are charged with the same criminal offense under the law of parties, I do
not anticipate that any of us will resort to a blame-shifting defense, as such
defense would only bolster the State's case. I have been informed by my
attorney that there are no prior representations of any of the government
witnesses anticipated to be called by the State which would hamper his
ability to properly and thoroughly cross-examine such witnesses.
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The undersigned does not believe that an actual conflict exists from
the representation of the undersigned and my co-defendants by [the same
attorney], because the interests of each of us in the outcome of this matter
are not different. Given the facts of this case that I am aware of, there is
no defense strategy or tactic available to me and my attorney which I am
precluded from using as a result of my attorney's simultaneous
representation of my co-defendants.
In the event that an actual conflict of interest does exist, I hereby
waive such conflict in writing, under the authority of Gray v. Estelle, 574
F[.]2d 209.
At a pretrial hearing that same day, defense counsel advised the trial court that
each defendant he represented and who was present in the courtroom that day, including
Whittington, had executed a waiver of conflict. Defense counsel also informed the court
that he would file the waivers with the clerk. Based on defense counsel’s
representations, the State withdrew its motion.
Six months later, the case was tried to a jury. Whittington did not object to his
attorney’s joint representation during trial. He made no claims of an actual conflict of
interest. And Whittington did not complain about his waiver until he generally alleged
ineffective assistance in his motion for new trial and then asserted conflict-of-interest
concerns on appeal.
More specifically, after filing his notice of appeal, Whittington filed a timely motion
for new trial, which was overruled by operation of law. Subsequently, Whittington filed a
motion in this Court requesting that we abate the appeal and order the trial court to submit
“findings of fact and conclusions of law regarding [Whittington’s] potential waiver of any
conflicts stemming from an attorney representing multiple co-defendants.” We abated
the appeal on Whittington’s motion and remanded the case to the trial court “for purposes
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of conducting a hearing regarding whether [Whittington] was advised regarding the
‘dangers of multiple representations.’”
At the hearing, Whittington testified, in relevant part, that he and his co-defendants
had pooled their money to hire one attorney to represent them in this matter. According
to Whittington, after the State filed a motion to recuse, defense counsel told the
defendants “that the prosecuting attorney said that the only way that he could represent
[them] was for [them] to sign the waivers.” Whittington testified that the first time he saw
the waiver was when he signed it in the trial court’s conference room on the day it was
filed. The trial court took judicial notice of a certified copy of Whittington’s signed and
notarized waiver of conflict.
According to Whittington’s testimony at the hearing, he did not know what a conflict
of interest was. Whittington testified that his trial counsel did not go over anything in the
waiver before he asked him to sign it and did not talk with him about a possible conflict of
interest that could arise when a lawyer represents multiple people. Whittington claimed
to have had no personal knowledge of any statement in the waiver prior to discussing it
with his appellate counsel.
Whittington agreed with his appellate counsel that he was not advised of his right
to effective representation; was not told of any potential perils of a conflict of multiple
representation; and did not actually make an informed decision to waive any possible
conflict. He also agreed that he did not understand the effect of the waiver, and had he
known what he has learned since, he would not have signed the waiver and would have
sought a separate trial. According to Whittington, his trial counsel did not tell him that he
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could seek outside counsel regarding the waiver. Whittington admitted that he had read
the waiver paperwork his attorney gave him, but later indicated that he was not sure if he
had “read over the whole thing or not.”
After Whittington testified at the hearing, the trial court requested that Whittington’s
trial counsel and the prosecutor file affidavits, which they did. In his affidavit,
Whittington’s attorney discussed the pre-trial proceedings regarding the waiver of conflict.
He stated, among other things, that after the State served its motion suggesting that there
was a conflict in his representation of the co-defendants who were charged with the same
offense, he provided the following explanation to his defendants:
I explained that in many cases, representation of co-defendants could give
rise to a conflict, especially if their culpability was different, or if one or more
decided to testify against the other in return for a reduced sentence or more
favorable plea bargain. I explained that in cases of multiple defendants, a
trial could evolve into a “finger pointing” display, where each defendant
would exaggerate the co-defendant’s role to minimize their own role. I
explained that any of them was free to employ another attorney to represent
them.
According to Whittington’s counsel, after he presented this information to the defendants,
all chose to continue with him as their lawyer.
Counsel stated in his affidavit that he sent each defendant a letter explaining that
he saw no conflict. Whittington’s counsel set out that “each of the defendants was clear
and unequivocal that they did not wish to employ other counsel.” He also claimed that
Whittington received favorable plea offers, but chose not to accept them because he
maintained that he was merely an observer.
Finally, Whittington’s counsel avowed that when he mailed the letter mentioned
above to each defendant, he included a waiver of conflict, both of which he attached to
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his affidavit. In his letter, he informed each defendant that if he or she chose to execute
the waiver, he or she should take it to the courthouse on the next appearance date and
sign it in front of the judge’s secretary who was a notary public. Whittington’s counsel
concluded his affidavit by stating that he believed that he “accurately identified the
potential risks and conflicts of interest, none of which, in [his] opinion, materialized at the
trial.”
The prosecutor’s affidavit stated that he expressed his concern to Whittington’s
counsel regarding his multiple representation of the co-defendants in this case and filed
a motion to recuse trial counsel for all but one of the defendants. The prosecutor
explained that, in response, counsel spoke with his clients, including Whittington, advising
them of the dangers of multiple representation and that counsel produced waivers from
all of his clients, including Whittington, “giving up their right to conflict-free counsel.” The
prosecutor concluded his affidavit as follows: “[a]ccording to the events I observed,
through his counsel Whittington was made aware of the dangers and actively opposed
my efforts to remove any appearance of conflict from his representation in a criminal case
by waiving his rights.”
Based on the affidavits and on Whittington’s testimony at the hearing, the trial court
made findings of fact and conclusions of law in compliance with this Court’s order of
abatement. The trial court specifically found that “[t]his [c]ourt was the trial court for the
entire case, including the jury trial, and observed no conflict of testimony or trial strategy
among the co-represented defendants.” It also found that defense counsel “explained
the dangers of multiple representations to each defendant and that they were free to
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employ other counsel,” but declined to do so. The trial court determined that the affidavit
of Whittington’s trial counsel and the representations made within it were credible and to
the extent that Whittington’s hearing testimony contradicted his trial counsel’s affidavit,
that testimony was not credible. The trial court concluded its findings and conclusions
with the following: Whittington “was properly advised regarding the dangers of multiple
representation, understood the advice, and voluntarily waived his right to secure separate
counsel.” After the trial court filed its findings of fact and conclusions of law with this
Court, we reinstated the appeal.
B. Applicable Law
While we usually analyze ineffective assistance of counsel claims under the
Strickland standard, when an appellant asserts that the ineffective assistance derived
from a conflict of interest, a separate standard articulated by the United States Supreme
Court in Cuyler v. Sullivan applies. 446 U.S. 335, 348–50 (1980); see Strickland v.
Washington, 466 U.S. 668, 689 (1984). In Cuyler, the Supreme Court held that for an
appellant to prevail on an ineffective assistance claim, he need only show that his trial
counsel “actively represented conflicting interests” and that counsel's performance at trial
was “adversely affected” by the conflict of interest.” Cuyler, 446 U.S. at 348–50. An
actual conflict of interest exists if counsel is required to make a choice between advancing
a client's interest in a fair trial or advancing other interests to the client's detriment.
Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997) (en banc).
Nonetheless, even if a conflict of interest exists, a defendant may waive his right
to conflict-free counsel so long as the record demonstrates that the defendant knowingly
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and voluntarily waived his right to conflict-free counsel. Ex parte Prejean, 625 S.W.2d
731, 733 (Tex. Crim. App. 1981) (en banc); see United States v. Greig, 967 F.2d 1018,
1021 (5th Cir. 1992) (“For a waiver to be effective, the record must show that the trial
court determined that it was knowingly, intelligently, and voluntarily done[.]”); Ramirez v.
State, 13 S.W.3d 482, 487 (Tex. App.—Corpus Christi 2000, pet. dism'd) (same). The
record should show that the defendant was aware of the conflict of interest, realized the
consequences of continuing with such counsel, and was aware of his right to obtain other
counsel. Ex parte Prejean, 625 S.W.2d at 733 & n.6 (citing Gray v. Estelle, 616 F.2d
801, 804 (5th Cir. 1980)). Moreover, in this case, because the trial court based its
findings, at least in part, on the credibility and demeanor of Whittington when he testified
at the hearing and on counsel’s actions at trial, we will review the trial court’s decision
regarding conflict of interest and waiver under the abuse of discretion standard. See Ex
parte Meltzer, 180 S.W.3d 252, 256 (Tex. App.—Fort Worth 2005, no pet.) (“[T]he trial
judge indicated that his decision[, in this habeas corpus proceeding,] was based upon his
‘knowledge of the procedural history of the case, the observations of [Appellant] at the
time of her plea of guilty, and the testimony adduced at the hearings in this cause.’
Therefore, because the trial court's decision was based at least in part on the credibility
and demeanor of the witnesses and [a]ppellant, we will review the trial court's ruling under
the abuse of discretion standard.”); see also Wheat v. United States, 486 U.S. 153, 164–
65 (1988) (standing for the proposition that the decision to accept or reject a waiver rests
within the sound discretion of the trial court).
C. Discussion
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In its findings and conclusions, the trial court indicated that it “was the trial court
for the entire case, including the jury trial.” It concluded, “[Whittington’s trial counsel] at
all times conducted himself professionally and appeared to be a knowledgeable and
conscientious lawyer.” The trial court also concluded that it “observed no conflict of
testimony or trial strategy among the co-represented defendants.”
Furthermore, the trial court found counsel’s “representation about his advice to
[Whittington was] credible.” And in his affidavit counsel averred that: (1) he had
discussed with all defendants the meaning of the State’s motion that suggested there was
a conflict in his representation of the co-defendants; (2) he explained that the
representation of co-defendants could give rise to a conflict, especially if culpability was
different or if one decided to testify against another; (3) he informed the defendants that
“any of them was free to employ another attorney to represent them”; (4) he wrote and
mailed a letter dated June 1, 2012, to each defendant “explaining that, based on the
representations of each of them,” he saw no conflict and attached the letter to his affidavit;
(5) in the June 1 letter, counsel set out that “the law provides that if a defendant is made
aware of the potential conflict which could arise from representation of multiple
defendants, it also provides that a defendant in a criminal action can make an informed,
knowing choice to waive, or give up, any potential conflict,” and he included a copy of a
waiver of conflict. This is the advice that the trial court found credible. It also found that
Whittington’s testimony was not credible, as far as it conflicted with his trial counsel’s
affidavit.
Relevant to the voluntariness of Whittington’s waiver of any conflict, the trial court
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concluded that his attorney properly advised Whittington regarding the dangers of multiple
representation and that Whittington understood the advice. In other words, the trial court
found that Whittington was aware of the conflict of interest, if any, or at least any potential
conflict of interest, and realized the consequences of continuing with his counsel’s
representation. See Ex parte Prejean, 625 S.W.2d at 733 & n.6 (citing Gray, 616 F.2d
at 804). And the trial court found that Whittington was aware of his right to obtain other
counsel. See id.
The record demonstrates that Whittington knowingly and voluntarily waived his
right to conflict-free counsel. See Ex parte Prejean, 625 S.W.2d at 733; see also Greig,
967 F.2d at 1021; Ramirez, 13 S.W.3d at 487. Because the record supports the trial
court’s findings and conclusions, which are based, in part, on the credibility and demeanor
of the witnesses and counsel, we conclude that the trial court did not abuse its discretion
when it determined that Whittington voluntarily waived his right to secure separate
counsel. See Ex parte Meltzer, 180 S.W.3d at 256; see also Wheat, 486 U.S. at 164–
65. Therefore, even were we to conclude that an actual conflict arose during the trial of
this case, we further conclude that Whittington voluntarily waived “any conflict of interest,
known or unknown, presented by [counsel’s] simultaneous representation of [Whittington]
and any and all co-defendants,” as set out in the waiver Whittington executed.
We overrule Whittington’s sole appellate issue on the basis that he waived his right
to conflict-free counsel. We need not address the merits of Whittington’s contention that
there was an actual conflict of interest because it is not dispositive of this appeal. See
TEX. R. APP. P. 47.1.
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III. CONCLUSION
We affirm.
NELDA V. RODRIGUEZ
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 19th
day of February, 2015.
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