Neville v. State

622 S.W.3d 99

George Kristopher NEVILLE, Appellant

v.The STATE of Texas, Appellee

No. 10-18-00250-CR

Court of Appeals of Texas, Waco.

Opinion delivered and filed July 20, 2020

Barry N. Johnson, Plano, Sterling A. Harmon, Seminole, Gabriel Price, for Appellee.

Steven Gregory White, for Appellant.

Before Chief Justice Gray, Justice Davis, and Justice Neill

TOM GRAY, Chief Justice

George Kristopher Neville was convicted of Assault and Official Oppression, both Class A misdemeanors, and sentenced to 6 months in jail—both sentences to run concurrently. See TEX. PENAL CODE ANN. §§ 22.01(a)(1) ; 39.03(a)(1). The trial court suspended both sentences, and Neville was placed on community supervision for 12 months. Because the trial court did not err in denying Neville's motion to disqualify the district attorney's office or in failing to submit a requested charge to the jury and because the State was not required to prove excessive force, the trial court's judgment is affirmed.

BACKGROUND

Neville was an officer with the Waco Police Department. He was part of the street-crimes unit and rode with a partner. He and his partner provided backup to another street-crimes unit that was attempting to stop a suspect in a vehicle. By the time Neville and his partner arrived on the scene, the suspect was in custody and handcuffed. When the suspect would not give Neville his name, Neville resorted to calling the suspect a "dumbass." When the suspect returned the name-calling, to which Neville took offense, Neville grabbed the suspect by the throat for a few seconds. Approximately a month later, an internal investigation was conducted, and Neville was ultimately charged with two offenses.

MOTION TO DISQUALIFY

Neville filed a pretrial motion to disqualify the McLennan County District Attorney's Office alleging: (1) that the district attorney, or someone from the office, called the Waco Police Department and suggested the department review a video of Neville's encounter with a criminal suspect; (2) as a result of that call, an internal investigation was conducted in which Neville was required to give a statement; (3) such statement, known as a Garrity¹ statement, may not be used against Neville in a criminal proceeding; (4) the Waco Police Department provided all of its internal investigation materials, including Neville's Garrity statement and a 21-page transcript of Neville's internal investigation interview, to the McLennan County District Attorney's Office; and (5) consequently, due to the possession and review of this material, the District Attorney's Office could "formulate their case strategy and their crossexamination (sic) of Neville with the benefit of a statement which was not to have been used ... for any purpose."

In other words, Neville requested the disqualification of the McLennan County District Attorney's Office because the office had possession of and reviewed the internal investigation materials and could potentially use them in its preparation for the trial against Neville and in formulating the trial tactics to be used. The trial court denied Neville's motion.

For the same reasons stated in his motion to disqualify, Neville contends on appeal that the trial court erred in denying the motion.

The standard of review for disqualification of the prosecutor by the trial court is whether the court abused its discretion. Landers v. State , 256 S.W.3d 295, 303 (Tex. Crim. App. 2008). The trial court abuses its discretion only when the decision lies outside the zone of reasonable disagreement. Id. ; Apolinar v. State , 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). In reviewing the historical facts upon which the trial court's ruling on a motion to disqualify is based, an appellate court should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. ; Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the defendant contends that the lower court erred in applying the law to the trial court's findings, the review is de novo. Id.

"The office of a district attorney is constitutionally created and protected; thus, the district attorney's authority ‘cannot be abridged or taken away’ " lightly. Buntion v. State , 482 S.W.3d 58, 76 (Tex. Crim. App. 2016) (quoting Landers v. State , 256 S.W.3d 295, 303-04 (Tex. Crim. App. 2008) ). Article 2.01 of the Code of Criminal Procedure recognizes that a district attorney "shall represent the State in all criminal cases" except when a district attorney's employment prior to election would be adverse to the prosecution of a particular case, i.e. a conflict of interest. See TEX. CODE CRIM. PROC. ANN. art. 2.01 ; Id. Thus, a trial court has the limited authority to disqualify an elected district attorney and his staff from the prosecution of a criminal case and can only do so when a conflict of interest rises to the level of a due process violation. See Buntion , 482 S.W.3d at 76 ; Landers v. State , 256 S.W.3d 295, 304 (Tex. Crim. App. 2008).

But there may be another avenue for disqualification. It is the "primary duty" of a prosecutor "not to convict, but to see that justice is done." TEX. CODE CRIM. PROC. ANN. art. 2.01. A personal interest which is inconsistent with that duty is a conflict that could potentially violate a defendant's fundamental due process rights, requiring disqualification. See In re State , 572 S.W.3d 264, 279 (Tex. App.—Amarillo 2018) (orig. proceeding) (plurality op.) (Pirtle, J., concurring and dissenting); see also Marshall v. Jerrico, Inc. , 446 U.S. 238, 249-50, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980) ("a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions."). For example, in In re Ligon , 408 S.W.3d 888, 896 (Tex. App.—Beaumont 2013, orig. proceeding), the appellate court declined issuing a writ of mandamus against the trial court because the trial court could have reasonably concluded that the actual and obvious structural conflict of the relator's competing roles, as both district attorney and complainant, amounted to a denial of due process and a legal disqualification. Id. at 896. However, requested disqualifications of a district attorney based on claims of perceived overreaching have not been viewed as conflicts rising to a level of a due process violation. See e.g. In re State ex rel. Warren , 2017 WL 4019244, at *2, 2017 Tex. App. LEXIS 8663, at *5-6 (Tex. App.—Fort Worth Sept. 12, 2017, orig. proceeding) (mem. op.) (no conflict of interest rising to level of due process violation when DA threatened defendant's wife that, if defendant did not accept fifteen-year offer, he would seek fifty-year sentence at trial); Fluellen v. State , 104 S.W.3d 152, 161 (Tex. App.—Texarkana 2003, no pet.) (DA and defendant that had been involved in an altercation where words were exchanged at the time defendant was arrested for the charged offense is not a conflict of interest rising to the level of a due process violation); Hanley v. State , 921 S.W.2d 904, 909-10 (Tex. App.—Waco 1996, pet. ref'd) (that defendant had filed grievances against ADA prosecuting his case, insufficient to prove conflict of interest rising to level of due process violation); State ex rel. Hilbig v. McDonald , 877 S.W.2d 469, 471-72 (Tex. App.—San Antonio 1994, orig. proceeding) (mere allegations of wrongdoing by the DA insufficient to justify disqualification).

In this case, no testimony was taken at the pretrial hearing on the motion to disqualify. Neville argued, as in his motion, that the District Attorney's Office should be disqualified because:

... it influence[d] them in their approach toward the case, their cross-examination of the Defendant, in the theory of the case, and someone with the DA's office reviewed the internal affairs file, because they included that material early in the 404(b) notice, so we -- our argument is not to dismiss the prosecution, but the DA is tainted by the fact they received this privileged, this privileged, immunized material....

There was no testimony or admissions by the State that the investigation file was used in developing a theory of prosecuting the case. The State informed the trial court that a "Mirandized " statement from Neville and an unsolicited email Neville sent to the Assistant Chief of Police were the items upon which the criminal case was based.

Thus, the arguments at the motion to disqualify hearing do not bear out a conflict that rises to the level of a due process violation. Neville only suggested a potential use of the internal investigation file. The State informed the trial court that it was using information learned from Neville's "Mirandized " statement and an email written by Neville, not the information found in the internal investigation file. The trial court could have reasonably believed the State. And we give great deference to the trial court's determinations based on credibility and demeanor. As the Fifth Circuit Court of Appeals stated in United States v. Daniels , "There may be some cases in which the exposure of a prosecution team to a defendant's immunized testimony is so prejudicial that it requires disqualification of the entire prosecution team. But this is not such a case." United States v. Daniels , 281 F.3d 168, 182 (5th Cir. 2002) (where defendant's immunized statements contained no relevant information that was not readily available from legitimate, independent sources, no disqualification of prosecution team necessary).

Accordingly, the trial court did not abuse its discretion in denying Neville's motion to disqualify the McLennan County District Attorney's Office. Neville's first issue is overruled.

SUFFICIENCY OF THE EVIDENCE

Next, Neville contends that since he did not use "excessive...