in Re: Lee Wilson Homes, Inc. & Lee Wilson

6-96-028-CV Long Trusts v. Dowd In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00041-CV ______________________________ IN RE: LEE WILSON HOMES, INC. AND LEE WILSON Original Mandamus Proceeding Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Lee Wilson Homes, Inc. and Lee Wilson, relators, have filed a motion to dismiss their petition for writ of mandamus filed with this Court March 17, 2003. The real parties in interest have joined the relators' motion. Pursuant to Tex. R. App. P. 42.1, the motion is granted. We dismiss the petition. Donald R. Ross Justice Date Submitted: June 5, 2003 Date Decided: June 6, 2003 \r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( ' Close'); floatwnd.document.write( " " ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00132-CR ______________________________ CHRISTOPHER D. HARRIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 30270-A Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Christopher D. Harris was charged with aggravated robbery and assault on a peace officer. At his first trial, a jury found Harris guilty of two counts involving the aggravated robbery and not guilty of aggravated assault on a peace officer. Because a reporter's record could not be obtained, we reversed the case and remanded it for a new trial. On retrial, Harris was convicted of aggravated robbery. His punishment, enhanced with two prior convictions, was set at fifty years' imprisonment. We affirm Harris' conviction and sentence because (1) no error was preserved regarding Harris' motion to suppress his statement, (2) there was no error in failing to remove Harris' counsel, (3) no ineffective assistance of counsel was shown, and (4) granting a new trial was not error. (1) No Error Was Preserved Regarding Harris' Motion To Suppress His Statement We first address the denial of Harris' motion to suppress. The record reflects the court held no separate hearing, but instead consulted the docket information for the companion case involving the allegation of assault on a public servant—which showed that a hearing was held concerning whether the statement should be suppressed and that the motion to suppress in that case had been denied. The trial court adopted that ruling. It is clear trial counsel did not complain about the procedure followed or about the trial court's action taking judicial notice of that ruling and incorporating it into the present case. The only objection raised was counsel's statement that his client claimed the signature on the statement was not his, and therefore objected to its introduction. That objection was overruled. On appeal, Harris argues the trial court erred by denying the motion to suppress without conducting a hearing and without making a record to show the reasons for such a denial rather than a simple recitation that another court had overruled a motion to suppress the same document in a different case. None of those complaints were raised at trial. To preserve a claim of error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. [Panel Op.] 1980). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979). Finally, the point of error on appeal must correspond to the objection made at trial. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). In this case, none of these requirements was met. We therefore cannot address the issue propounded on appeal. The contention is overruled. (2) There Was No Error In Failing To Remove Harris' Counsel Harris next contends the trial court erred in failing to obtain adequate information to determine whether his trial attorney, Mike Lewis, had a potential conflict of interest sufficient to justify removing him from the case. Harris made it clear he believed there was a conflict of interest because Lewis had represented Eddie Allen, Jr., initially Harris' codefendant in the aggravated robbery case. Lewis indicated on the record that he had represented Allen in a parole revocation hearing and that Harris had been called as a witness but declined to testify. It also appears Lewis had represented Harris on another charge that resulted in an acquittal. Little more can be gleaned from the record before us. There is authority for the proposition that a conflict may exist when a lawyer simultaneously represents multiple criminal defendants and that the risk is sufficiently great that the law imposes a presumption of prejudice. Monreal v. State, 923 S.W.2d 61 (Tex. App.—San Antonio 1996), aff'd, 947 S.W.2d 559 (Tex. Crim. App. 1997). This prejudice is well illustrated in cases in which the position of one defendant is that the other defendant committed the offense. Thompson v. State, 94 S.W.3d 11, 19 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd); see Monreal, 923 S.W.2d at 564. If a lawyer represents two or more codefendants in the same matter, he or she is legally and ethically deprived of using the time-honored defense of blaming the other defendant. Thompson, 94 S.W.3d at 19. This is not an automatic pass in all situations, however, but is limited to the specific factual situation where a single attorney represents both defendants in the same proceeding. See Mickens v. Taylor, 535 U.S. 162 (2002); Thompson, 94 S.W.3d at 19. Those are not the facts of this case. Harris' perception that there might be a conflict is not controlling, and there is simply nothing in this record that would even tend to raise the perception that one might exist. The court briefly questioned counsel and Harris about the claims, and saw nothing deserving of further review. We find no error. The contention is overruled. (3) No Ineffective Assistance of Counsel Was Shown Harris next contends he received ineffective assistance of counsel. We review this contention under the standards set out in Strickland v. Washington, 466 U.S. 668 (1984), requiring the appellant to prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his or her defense. Two areas of error are alleged. Harris first argues counsel was ineffective because he may have misled Harris by telling him he needed to file, and Harris needed to sign, a motion for new trial in order to appeal. As correctly pointed out by appellate counsel, it is not necessary to file a motion for new trial in order to file an appeal, and there is no requirement that an appellant actually sign a motion for new trial. Trial counsel's statements were incorrect, but there is no resulting harm. One of the primary three possible outcomes of an appeal is a new trial. If Harris sought appellate review, which he did, then he submitted himself to the possible result of getting what he sought. A more difficult problem is apparent, however, in the sentencing phase of this trial. Harris argues his counsel was ineffective because he chose to have a jury assess his punishment instead of the court, reasoning that, if counsel had elected to have the court assess punishment, it would have been restricted to a term of years no longer than that originally assessed. That is not an entirely accurate appraisal of the state of the law in this regard. A court assessing punishment is not necessarily limited to the former sentence. Due process of law requires that judicial vindictiveness against a defendant for having successfully attacked his or her first conviction must play no part in the assessment of punishment or sentence that defendant receives after the new trial or proceedings. North Carolina v. Pearce, 395 U.S. 711, 725 (1969); Wiltz v. State, 863 S.W.2d 463, 464 (Tex. Crim. App. 1993); Davila v. State, 961 S.W.2d 610, 616 (Tex. App.—San Antonio 1997, no pet.); Tillman v. State, 919 S.W.2d 836, 839 (Tex. App.—Fort Worth 1996, pet. ref'd). Therefore, although the same court may increase a defendant's sentence after a new trial, the reasons for the increase must affirmatively appear on the record. But a different sentencing entity is treated as having no "personal stake" in the prior conviction, and thus the presumption of vindictiveness will not apply. Alabama v. Smith, 490 U.S. 794, 798–800 (1989); Texas v. McCullough, 475 U.S. 134, 139–40 (1986). In the first trial, a jury assessed punishment at thirty years. In this trial, a jury assessed punishment at fifty years. To the first question of whether the trial court would have been bound to assess punishment at no more than the thirty years set by the first jury, the answer is "no." Although the same judge presided at both trials, he did not assess the sentence in the first trial, the jury did. Under the analysis used in the cases cited above, because a different sentencing entity was chosen, there was no constitutional requirement that the sentence be no greater than that assessed the first time. In this situation, the choice of judge rather than jury to assess punishment would not have created a binding limitation that would have prevented imposition of a higher sentence in the new trial. Accordingly, there is no showing of error. The contention is overruled. (4) Granting New Trial Was Not Error Harris next contends there was error in the granting of a new trial. In the first trial, Harris had been sentenced to only thirty and twenty-five years, respectively, on two counts; the second trial resulted in a fifty-year sentence. Harris complains he really did not want a new trial. If so, he should not have appealed. We emphasize that our reversal of the original conviction and remand for a new trial was mandated because of the lack of a reporter's record to properly evaluate Harris' first appeal. Further, at any time before our opinion on the first appeal—that is, during the multiple abatement procedures and correspondence preceding that opinion—had he wished to qualify his actions and proceed on the clerk's record alone, he had the responsibility to so inform this Court at that time. If there were reasons to attack our former opinion, they should have been raised at that time—before that opinion became final and our mandate was issued—not after the completion of the trial on remand. The contention is without legal basis and is outside the scope of the present case and appeal. The contention is overruled. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: July 5, 2005 Date Decided: August 30, 2005 Do Not Publish