Sturgis v. State

HOWARD DEE STURGIS, Appellant v. THE STATE OF TEXAS, Appellee

No. 11-18-00016-CR

State of Texas in the Eleventh Court of Appeals

January 31, 2020

On Appeal from the 104th District Court Taylor County, Texas

Trial Court Cause No. 20897B

MEMORANDUM OPINION

The jury convicted Howard Dee Sturgis of continuous sexual abuse of a child, a first-degree felony offense. See TEX. PENAL CODE ANN. § 21.02(b), (h) (West 2019). The jury assessed Appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of life. In a single issue, Appellant contends that his right to effective assistance of counsel was violated because his trial counsel had a conflict of interest. We affirm.

Background Facts

In May 2015, Appellant began a romantic relationship with C.D., an adult. C.D. had two daughters, A.D. and S.D. When the events giving rise to this case occurred, A.D. was nine and S.D. was seven.

In early April 2017, A.D. made an outcry accusing Appellant and C.D. of sexually abusing A.D. and S.D. A few days later, Appellant and C.D. met with an attorney (Appellant's trial counsel) to discuss the matter. When criminal charges were brought later in April, Appellant and C.D. retained Appellant's trial counsel to jointly represent them.

Shortly thereafter, Appellant's trial counsel learned that the State planned to offer C.D. a plea agreement in exchange for her testimony against Appellant.¹ Because a conflict of interest was likely to arise between C.D. and Appellant, Appellant's trial counsel decided that he could not continue representing both clients. Appellant's trial counsel met with C.D. and Appellant to discuss the situation. Appellant and C.D. agreed that C.D. should seek alternative representation because Appellant was paying the entire fee. Appellant's trial counsel then withdrew from representing C.D., and C.D. requested a court-appointed attorney. Thus, Appellant's trial counsel represented C.D. for approximately one month between April and early May 2017.

Appellant's case went to trial in late October 2017, approximately six months after Appellant's trial counsel withdrew from representing C.D. When Appellant's trial began, the State had not reached a plea agreement with C.D. On the third day of trial, immediately after the State closed its case-in-chief, the prosecutor learned that C.D. wanted to reopen plea negotiations. While the court was in a lunch recess,the prosecutor met with C.D. and her appointed counsel. During this meeting, the State reached an agreement with C.D. to testify against Appellant.

When the trial proceedings resumed after the recess, the State moved to reopen its case-in-chief so that C.D. could testify. Appellant's trial counsel initially objected to C.D.'s testimony on the basis that it would be cumulative of other testimony that the jury had already heard. Appellant's trial counsel further advised the trial court that he had jointly represented Appellant and C.D. for a period of time. He informed the trial court that C.D.'s anticipated testimony would be inconsistent with what C.D. had told him when he represented her.

The trial court heard arguments from the State and Appellant's trial counsel. The trial court also informally questioned C.D.'s court-appointed attorney. C.D.'s attorney advised the trial court that C.D. knew that Appellant's trial counsel could cross-examine her using their privileged communications. He also stated that C.D. voluntarily and knowingly waived any privilege she had with Appellant's trial counsel. The trial court allowed the State to reopen its case and call C.D. as a witness.

On direct examination, C.D. testified that she witnessed Appellant committing sexual acts with A.D. and S.D. On cross-examination, C.D. admitted that she had previously told Appellant's trial counsel a different version of events. Appellant's trial counsel then asked C.D. if she remembered what she had said at that time, and C.D. replied: "I told you that it was a crock of BS and that there's no way that [Appellant] could have done this stuff to [A.D. and S.D.]." Appellant's trial counsel further questioned C.D. about her use of illicit substances, about A.D.'s and S.D.'s cognitive and psychological conditions, and about C.D.'s plea agreement and its effect on her motivation for testifying.

The jury convicted Appellant of continuous sexual abuse of a child. Appellant subsequently filed a motion for new trial. The hearing on the motion for new trialdealt extensively with Appellant's claim that his trial counsel was ineffective because of a conflict of interest. Appellant, his trial counsel, and C.D. all testified at the hearing. Appellant acknowledged that his trial counsel had confronted C.D. with C.D.'s prior statements and accused C.D. of lying. The trial court denied Appellant's motion for new trial. This appeal followed.

Analysis

In his sole issue on appeal, Appellant contends that his trial counsel rendered ineffective assistance due to a conflict of interest. Appellant argues that his trial counsel's prior representation of C.D. created an actual conflict of interest when the State called C.D. as a witness at Appellant's trial. Appellant also challenges the thoroughness with which the trial court investigated the purported conflict.

An attorney's conflict of interest may result in ineffective assistance of counsel. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997) (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)). The Sixth Amendment guarantees the right to reasonably effective assistance of counsel, which includes the right to conflict-free representation. See Strickland, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). In the case of a conflict of interest, the appellant must demonstrate that (1) trial counsel was burdened by an actual conflict of interest and (2) the conflict actually affected the adequacy of counsel's representation. Cuyler, 446 U.S. at 349-50; Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007) (citing Cuyler).

Appellant presented his claim of ineffective assistance of counsel to the trial court in his motion for new trial. The trial court denied the motion for new trial after a full evidentiary hearing on the matter. When an appellant presents his ineffective-assistance claim to the trial court in a motion for new trial, an appellate court analyzes his claim as a challenge to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriatestandard of review for ineffective-assistance claim brought forth in motion for new trial is abuse of discretion), superseded by statute on other grounds as stated in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007); see also Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). As stated in Riley:

An appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if the trial judge's opinion was clearly erroneous and arbitrary. A trial court abuses its discretion if no reasonable view of the record could support the trial court's ruling. This deferential review requires the appellate court to view the evidence in the light most favorable to the trial court's ruling. The appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."

378 S.W.3d at 457 (footnotes omitted) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)).

In Odelugo v. State, the Texas Court of Criminal Appeals addressed a claim of ineffective assistance of counsel based on a conflict of interest that was presented in a motion for new trial. 443 S.W.3d 131, 136-37 (Tex. Crim. App. 2014). The trial court is initially charged with determining whether the appellant carried the burden as to the elements of his conflict-of-interest ineffective-assistance claim. Id. at 137. The trial court "has the right to accept or reject any part of a witness's testimony." Id. (quoting Charles, 146 S.W.3d at 208 n.7).

[B]ecause claims of ineffective assistance of counsel involve "mixed questions of law and fact" that often "contain[] 'subsidiary questions of historical fact, some of which may turn upon the credibility and demeanor of witnesses,"' an appellate court should review the trial court's rulings on the matter "for an abuse of discretion, reversing only if the trial judge's ruling was clearly erroneous and arbitrary[,]" such aswhen "no reasonable view of the record could support the trial court's ruling."

Id. (footnote omitted). But "[w]hen . . . the trial court's ruling on a motion for new trial is supported by at least one reasonable view of the record, the ruling may not be disturbed." Id. at 140.

Regarding the first Cuyler prong, "[a]n 'actual conflict of interest' exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps counsel's own) to the detriment of his client's interest." Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997)). An appellant making an ineffective-assistance claim predicated on a conflict of interest must demonstrate the existence of the conflict by a preponderance of the evidence. Odelugo, 443 S.W.3d at 136. If an appellant fails to present any evidence on the issue or if the evidence "'is in perfect equipoise,' the appellant's claim will fail." Id. at 136-37 (quoting Broxton v. State, 909 S.W.2d 912, 920 (Tex. Crim. App. 1995)).

Joint representation of codefendants creates a potential conflict, but it is insufficient, in and of itself, to demonstrate an...