X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision The court of appeals did not err in finding the trial court’s conclusion that there was a real possibility that the defendant’s choice of counsel would have to testify was within the zone of reasonable disagreement. FACTS:Ralph Gonzalez, appellant’s counsel of choice was disqualified as counsel on the state’s pretrial motion. The state argued that he would be a witness necessary to establish an essential fact on behalf of appellant and that the dual roles of advocate and witness would taint the jury, resulting in actual prejudice to the state. After conviction, appellant appealed, claiming among other things, that the trial court’s ruling dismissing his attorney violated his Sixth Amendment right to counsel of his choice. HOLDING:Affirmed. First, appellant contends the court of appeals applied the abuse of discretion standard incorrectly. Appellant argues that the state’s failure to allege or show actual prejudice and comments made by the judge at the hearing regarding his interpretation of the disciplinary rule demonstrate that the trial court did not consider whether the state had shown that actual prejudice would result from attorney Gonzalez’s continued representation of appellant. Although the trial court did not make an explicit finding that the state had demonstrated actual prejudice would occur from attorney Gonzalez’s continued representation, the court defers to the implied findings that the record supports. Also, the court uphold the trial court’s ruling if it is correct on any theory of the law and as long as the trial court’s ruling is within the zone of reasonable disagreement. Therefore, the court of appeals did not err in failing to find the trial court abused its discretion by failing to consider whether actual prejudice would result from the continued representation when the record supports a finding that the trial court did consider actual prejudice. Second, appellant contends that the court of appeals erred in failing to apply the same burden of proving actual, not just speculative, prejudice to the state as was applied to the defendant in House. House v. State, 947 S.W.2d 251 (Tex. Crim. App. 1997). The court of appeals, in its statement of law, cited House for the proposition that a party moving to disqualify opposing counsel for an alleged disciplinary rule violation must demonstrate actual harm, and the state does not contest that actual harm is required. Therefore, the crux of appellant’s argument is that the court of appeals did not correctly apply the requirement of actual prejudice in its review of the trial court’s ruling. A defendant’s right to a fair trial, or due process, emanates from the 14th Amendment of the U.S. Constitution regarding individual rights. Furthermore, it is not clear what the state would be required to demonstrate to show that its “substantial rights “would be affected by an opposing attorney’s alleged ethical violation. Similar “substantial rights” language is used in Texas Rule of Appellate Procedure 44.2(b) concerning harmless error. In that harmless error context, a reviewing court must determine whether the error had a substantial influence on the proceeding itself or whether it had a substantial and injurious effect or influence on the jury’s verdict. Assuming, without deciding, that this is the standard the state must meet to show that disqualification of opposing counsel is justified, the court finds that the court of appeals did not err in concluding that the state met its burden in this case. Third, appellant contends the court of appeals erred in relying either on the unsworn witness rule, not yet recognized in Texas, or on the state’s ability to call counsel as a witness, in finding the record supported the trial court’s ruling that he was a necessary witness to establish an essential fact on behalf of his client. He further argues that the court of appeals erred in so concluding without explaining why it would be necessary for the state to call counsel as a witness and without explaining what essential fact his testimony could have established, especially when his testimony was not substantially adverse to his client. The court of appeals erred neither by considering the confusion caused by an unsworn witness acting as advocate nor by considering the necessity of the state to call such an advocate as a sworn witness. Neither did the court err by not explaining what it considered the essential fact to be or why it considered the state’s calling defense counsel as witness to be necessary. Fourth, appellant contends that the court of appeals erred in finding that the trial court’s ruling was reasonable and not arbitrary when the ruling was impermissibly based on mere speculation regarding whether counsel was a necessary witness and whether performing such a dual role in this instance would result in actual prejudice to the state. The court of appeals found that the record supported the trial court’s conclusion that there was a real possibility that counsel would be called as a witness. The court of appeals did not err in finding the trial court’s conclusion that there was a real possibility that attorney Gonzalez would have to testify was within the zone of reasonable disagreement. Fifth, appellant contends the court of appeals erred in not determining whether the trial court had considered less drastic means to protect the state’s interests. The court of appeals did address one of the alternatives appellant suggested in his brief, the same argument appellant made to the trial court at the hearing on the motion to disqualify. Appellant first argues that the state’s interests would have been protected if defense counsel had been held to his promise not to put himself on the stand to testify and had been allowed to rebut Percy Gonzalez’s testimony by introducing the tapes or transcripts of the conversations he had recorded and by cross-examining Percy regarding the untaped conversations. As long as the basis for the disqualification is adequately shown by the record, the trial judge need not expressly state its consideration of less drastic alternatives in the record. The court of appeals explained why the record showed appellant’s first suggestion would not adequately protect the state’s interest. OPINION:Holcomb, J.; Keller, P.J., Meyers, Price and Cochran, JJ., join. Womack, J., dissents without opinion. DISSENT:Hervey, J., Keasler and Johnson, JJ., join. “I would decide that the government’s removal of appellant’s retained lawyer violated appellant’s Sixth Amendment right to counsel. This would require that the judgment of the Court of Appeals be reversed and the case remanded to the trial court for a new trial since this is a “structural” defect that is not subject to a harm analysis.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.