Garcia v. State

1

Paul Anthony GARCIA, Appellant v. The STATE of Texas, Appellee

No. 04-22-00338-CR

Court of Appeals of Texas, Fourth District, San Antonio

March 6, 2024

DO NOT PUBLISH

From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 5398 Honorable Kirsten Cohoon, Judge Presiding

Sitting: Beth Watkins, Justice, Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

MEMORANDUM OPINION

BETH WATKINS, JUSTICE

Appellant Paul Anthony Garcia appeals his intoxication manslaughter conviction on the ground that the trial court erred in denying his right to retained co-counsel of choice. We affirm.

Background

On September 1, 2012, close to midnight, Garcia drove a Chevrolet pickup eastbound on a Highway 46 westbound lane and crashed, head-on, into the driver's side of a "tiny car" driven by Destiny Bruce. Bruce's car hit a ditch and flipped on its side. Bruce died while still trapped in the car; her 11-year-old sister survived. A grand jury indicted Garcia for intoxication manslaughter and reckless bodily injury to a child. Garcia retained attorney Paul Goeke to represent him at his 2014 jury trial. The jury convicted Garcia of both offenses, but we reversed his convictions on appeal and, ultimately remanded the case for a new trial.^[1] Before that trial, Garcia again retained Goeke.

Goeke filed several motions for continuance citing medical and scheduling conflicts, his inability to meet with Garcia because of Garcia's contraction of COVID, the State's late-filed discovery, and State-initiated changes in the litigation. On April 9, 2021 and again on July 16, 2021, Goeke failed to appear at Zoom pre-trial conferences to argue the motions, and the trial court denied the motions on that ground.

After a total of four failures to appear, one show cause hearing to address the earlier failures to appear, and another impending show cause hearing, Goeke filed a motion to withdraw. He cited his inability to commit to a trial date due to ongoing medical concerns, relayed that Garcia acquiesced to his withdrawal, and requested that the court appoint Garcia replacement counsel. The trial court granted the motion and subsequently appointed Dante Dominguez to represent Garcia.

The case went to trial on the intoxication manslaughter count in April 2022. On the morning of April 25, 2022, the parties picked a jury. Dominguez asked the venire members whether they knew Garcia, defense counsel, or the prosecutors. One member answered that she knew the prosecutor, and Dominguez followed up to ensure that connection would not affect the potential juror's judgment. After a lunch break, the guilt/innocence phase of trial started. The prosecutor read the indictment, the parties presented opening statements, and the State called six witnesses.

It is unclear from the record when Goeke entered the courtroom, but after the sixth witness's testimony, and during a jury break, the trial court addressed Goeke's presence for the first time. The trial court remarked that Goeke had voluntarily withdrawn from the case and had not filed a new notice of appearance, and that Dominguez had never designated Goeke as an attorney who would assist him. The court announced that Goeke could not question witnesses but could sit behind Dominguez and assist him. After Dominguez asked that Goeke be allowed to file an appearance and to question a witness, the trial court explained, "I did not ask any Jurors or potential Jurors about [Goeke,]" and "If I get an appearance filed, I will discuss him sitting at counsel table with you." The State then called its seventh and eighth witnesses. At 4:20 p.m., the trial court adjourned court and instructed counsel to appear at 8:30 a.m. the next day.

At 7:27 p.m., Goeke filed a notice of appearance as co-counsel, explaining he had cooperated with Dante Dominguez "from the outset and is attempting to assist Mr. Dominguez in the present ongoing jury trial."

The next day, the State called three witnesses before the trial court released the jury for lunch. During the lunch recess, the trial court addressed Goeke's presence for the second time. Again, it is unclear from the record exactly when Goeke entered the courtroom. The trial court:

• acknowledged that Goeke had filed a notice of appearance;

• stated that it would not allow Goeke to approach the bench or recognize Goeke as counsel in the case;

• reminded Dominguez that there had been "no discussion of [Goeke] coming into this case before we impaneled the Jury, before we voir dired the Jury, or before we put under oath the chosen Jury"; • specified that Dominguez would ask the questions of all the witnesses and that Goeke could "assist appointed counsel from the other side of the Bench"; and

• concluded that there would be "no further argument on the matter."

Dominguez then stated that Garcia had told him that Goeke was physically able to represent him and that Garcia "does want him here." The trial court repeated its rulings and noted that Goeke "wasn't here for 30 minutes until after we started this case" and the trial court "had no idea that he was coming back because he was late this morning coming on." Goeke himself then tried to address the trial court but the trial court cut him off and asked him to step away from the bench. Goeke stated, "You required that I withdraw." The trial court did "not accept that."

After a short break, the trial court stated on the record that Goeke could sit at counsel table but would not be recognized as counsel. The State then resumed its case, presented more witnesses, and closed before the court adjourned for the day.

The day after the trial court issued its ruling limiting Goeke's participation, the record does not show that Goeke was present until after the defense rested without calling any witnesses. During the charge conference and outside the presence of the jury, an "interruption occurred." The trial court addressed Goeke's presence for the third time, stating, "If you're going to walk in late, we need to sit back here while I'm talking. Don't walk through the Bench while I'm talking. You can wait." Goeke replied, "I had a flat tire, ma'am, in the parking lot." The trial court stated, "I am in the middle, on the record, addressing." After the charge conference, the trial court brought the jury back to the courtroom and read the charge. The parties made closing statements and, after deliberations, the jury returned its guilty verdict.

The record of the punishment hearing contains no mention of Goeke. The jury recommended fifteen years of confinement, and the trial court sentenced Garcia accordingly.

Garcia filed a motion for new trial, arguing the trial court had violated his right to retained counsel of choice. Garcia attached a declaration attesting to his previously expressed desire that Goeke act as co-counsel. The trial court denied that motion, and Garcia appealed.

Analysis

Right to Counsel of Choice

Applicable Law and Standard of Review

The Sixth Amendment commands that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI; see Tex. Const. art. 1 § 10. This right to counsel includes a criminal defendant's qualified right to be represented by retained counsel of his choice. Wheat v. United States, 486 U.S. 153, 159 (1988); United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The right is qualified in that a defendant cannot "insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation." Gonzalez-Lopez, 548 U.S. at 151-52. And a trial court has wide latitude to balance the right to counsel of choice against "the needs of fairness" and the demands of the trial court's calendar. Id. at 152. But the qualified right to counsel of choice may not be denied arbitrarily. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). If the right to counsel of choice is denied arbitrarily, "it is unnecessary to conduct an ineffectiveness or prejudice inquiry" to establish a reversible Sixth Amendment violation. Gonzalez-Lopez, 548 U.S. at 148. "Deprivation of the right is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received." Id.

We review a trial court's decision affecting a defendant's right to counsel of choice for an abuse of discretion. See Gonzalez v. State, 117 S.W.3d 831, 839-42 (Tex. Crim. App. 2003); Ex parte Windham, 634 S.W.2d 718, 720-21 (Tex. Crim. App. 1982); James v. State, 506 S.W.3d 560, 564 (Tex. App.-Houston [1st Dist.] 2016, no pet.); United States v. Green, 47 F.4th 279, 288-89 (5th Cir. 2023). A trial court abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

Application

Initially we address the State's argument that Garcia failed to preserve error because he failed to object to the trial court's refusal to recognize Goeke in front of the jury or its refusal to allow him to question witnesses or lodge objections. But Garcia appeals the trial court's refusals themselves. He made timely complaints with sufficient specificity to make the trial court aware of the complaints and obtained adverse rulings-the prerequisites to presenting the complaints for appellate review. Tex.R.App.P. 33.1(a).

Turning to the merits, Garcia argues the trial court erred by preventing Goeke from appearing alongside Dominguez, his court-appointed counsel. His argument presumes that defendants who are represented by court-appointed counsel-at least in these circumstances- have a right to be represented by additional retained or pro bono co-counsel of...