Capital Murder Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Cell Phone Text Message Search Love 2016

Police Must Obtain Search Warrant to See Content of Text Messages

By | Search & Seizure

Cell Phone Text Message Search Love 2016From call logs, to cell tower info, to sent and received text messages, many criminal investigations involve the contents of a defendant’s cell phone.  Under the Stored Communications Act, cell phone providers can provide a users cell phone data to police during an active criminal investigation with a simple court order (like a subpoena).  But what about the actual content of text messages?  Can the police or the prosecutor get the actual content from those text messages with the same court order?

Capital Murder Conviction Gained After Judge Admits Content of Text Messages

Recently, the Texas Court of Criminal Appeals considered a capital murder (death penalty) case in which the State relied on text message evidence during trial. During the trial, the state admitted (over defense objection) the contents of text messages sent and received by the defendant. The messages established the defendant’s presence at the scene of the murder and implied his direct involvement. The state leaned on this evidence during both its opening and closing statements in the case. The defendant was convicted of capital murder and sentenced to death.

The Content of Text Messages are Not Covered by the Stored Communications Act

The appellant argued on appeal that while the Stored Communications Act allows the state to gain evidence of text messages sent and received, it does not allow the dissemination of the content of those messages. The appellant argued that the State should have obtained a search warrant backed by probable cause in order to get these records. The CCA agreed, drawing comparisons to the contents of letters sent in the mail and email stored on a server. Text message enjoy the same reasonable expectation of privacy and should be protected.

The Question in Love v. State is Whether Appellant had an Expectation of Privacy in his Service Provider’s Records

LOVE v. STATE (Tex. Crim. App – 2016), Majority Opinion

Judge Yeary penned the majority opinion in Love. The following excerpts are taken from the opinion:

Many courts have treated text messages as analogous to the content of an envelope conveyed through the United States mail…Admittedly, the analogy is not a perfect one…A letter remains in its sealed envelope until it arrives at its destination, and the telephone company does not routinely record private telephone conversations. But internet and cell phone service providers do routinely store the content of emails and text messages, even if they do not necessarily take the time to read them…[E]mpirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages…All of this leads us to conclude that the content of appellant’s text messages could not be obtained without a probable cause–based warrant. Text messages are analogous to regular mail and email communications. Like regular mail and email, a text message has an “outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient…Consequently, the State was prohibited from compelling Metro PCS to turn over appellant’s content-based communications without first obtaining a warrant supported by probable cause.

Finding that “the probable impact of the improperly-admitted text messages was great,” the CCA then reversed the conviction and remanded the case back to the trial court for a new trial.

TAKEAWAY: Not all records can be gained so easily through a court order. Some require a probably cause warrant.  Is there a reasonable expectation of privacy in the message? It might take a new analysis as our media is changing daily, but it can be worth the fight.

Note: Presiding Judge Keller dissented. She did not believe that the appellant preserved this issue for appeal.

Cell Phone Images Character Evidence

Satanic Cell Phone Images Admitted as Relevant Character Evidence

By | Sentencing

Second Court of Appeals Holds that Satanic Cell Phone Photos Were Relevant Character Evidence in Punishment Phase for Attempted Capital Murder Case


Cell Phone Images Character EvidencePantoja v. State (2nd Court of Appeals – Fort Worth, 2016)

A Cocaine-Fueled Binge Leads to an Attack

During an alcohol and cocaine-fueled binge, nineteen-year-old Rigoberto Pantoja attacked a group of friends in Mansfield, Texas one evening in September of 2014. After watching the Floyd Mayweather fight, Pantoja began talking to himself. Eventually, he pulled a gun and fired two times, hitting Pantoja’s friend in the face. Pantoja put the gun to the head of a second friend, but when the gun would not fire, Pantoja pulled a knife, stabbing the friend three times. He also stabbed a third friend. All of the victims survived the injuries. Pantoja was arrested and charged with aggravated assault and attempted capital murder.

At trial, Pantoja pled guilty to the aggravated assault and attempted capital murder charges before a judge. Pantoja requested a jury for the punishment phase of his trial, asking that the jury grant him community supervision (probation). At the punishment phase, the State called twelve character witnesses; Pantoja’s defense counsel called four, including his father who was set to testify about Pantoja’s Catholic upbringing and religious way of life.

Just before the defense called Pantoja’s father to the stand, and out of the presence of the jury, the State indicated to the Court that it intended to cross-examine Pantoja’s father about satanic images found on Pantoja’s cell phone, confiscated the night he was arrested. The Judge told the State to proceed with calling witnesses and that “whenever you are ready to ask question [regarding the satanic photos], approach up here and then I’ll make a ruling at that time.” After that conversation, the jury returned to the courtroom.

Cross-Examination Regarding the Defendant’s Cell Phone Images

The defense called Pantoja’s father who testified to Pantoja’s good nature. He said that his son helped around the house and helped out with the family’s living expenses. Pantoja’s father also spoke of his son’s strong Catholic faith and upbringing. The defense admitted photos from the father of Pantoja’s first communion, photos of Pantoja’s bedroom with a Virgin of Guadalupe poster on the wall, and photos of Pantoja’s car depicting a rosary hanging from the rearview mirror. The State cross-examined Pantoja’s father, asking, “Were you aware that your son kept pictures of satanic worship on his cell phone?” The father responded, “no.”

The jury assessed Pantoja’s punishment at eighty years’ confinement for both offenses, denying Pantoja’s request for community supervision. Pantoja timely appealed to the Second Court of Appeals, arguing that the satanic photos shown to the jury were highly prejudicial, had no probative value whatsoever, did not establish a material fact that related to any element of his offenses, and ultimately were not relevant to his case and sentencing.

Did the Trial Court Err By Allowing the Satanic Images to Go Before the Jury?

The Second Court of Appeals had to determine whether the trial court should have stopped the State’s cross-examination of Pantoja’s father regarding the Satanic images found on Pantoja’s cell phone. Did the photos have relevance to the case under the Texas Rules of Evidence? If so, were the photos highly prejudicial to the jury?

The Texas Rules of Evidence


Article 37.07 of the Texas Code of Criminal Procedure states that, “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including…his character [and] an opinion regarding his character…” Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a)(1) (West Supp. 2015). Evidence is relevant to a punishment determination if that evidence will assist the fact-finder in tailoring an appropriate sentence. Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.]2000, pet. ref’d.

Community Supervision

When a defendant requests community supervision, a trial court may reasonably deem any character trait that pertains to the defendant’s suitability for community supervision to be a relevant matter for the sentencer to consider. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008).

Character Evidence and Opinion Testimony

When character evidence is admissible—as in a community supervision request during the punishment phase—such character traits may be proven by testimony in the form of an opinion. Tex. R. Evid. 405(a); Wilson v. State, 71 S.W.3d 346, 349-51 (Tex. Crim. App. 2002). An opinion witness is generally to be asked “did you know” questions. Id. at 350.

Cross Examination of Character Witnesses

On cross-examination of a character witness, inquiry may be made about specific incidents of a person’s conduct, subject to the following limitations. Id. at 351.

  1. The incident must be relevant to the character traits at issue. Burke v. State, 371 S.W.3d, 252, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d, untimely filed).
  2. The alleged Bad Act must have a basis in fact. Id.
  3. Before the questions are asked, the foundation for asking the question should be laid outside of the jury’s presence, so that the judge will have an opportunity to rule on them. Id.

The Second Court of Appeals Finds No Error

Here, the Court says that the father’s testimony about Pantoja’s strict Catholic upbringing and religious faith constituted “opinion” character testimony. Additionally, the Court says, his testimony was relevant under the Texas Rules of Evidence, pertinent to the request made for community supervision, as “a sentencer might rationally want to take into account testimony of his good character and that he had a stable home life…and that he possess an indicia of a religious upbringing.”

Further, this character testimony was provided by the defense. Because the defense called the father as a character witness, the State had the right to cross-examine the father “through did-you-know questions” about Pantoja’s character. “The State had the proper predicate for it’s ‘did you know’ question by establishing outside the presence of the jury the factual basis for the specific instances of Pantoja’s conduct (the satanic cell phone photos).” The Court overruled Pantoja’s appeal, and affirmed the trial court’s judgment.

DNA Evidence Biological Testing

DNA Testing of Biological Evidence Under CCP 38.43

By | DNA

Does a defendant charged with capital murder have an absolute right to have all of the biological evidence of the crime tested?

DNA Evidence Biological TestingTexas Code of Criminal Procedure, Section 38.43 deals with “Biological Evidence,” and outlines the rules and responsibilities for testing such evidence. In the mandamus case summary that follows, the relator (the defendant) is requesting that ALL of the biological evidence be tested, while the trial judge has ruled that only some testing is sufficient.

In Re Solis-Gonzalez (Tex. Crim. App. – Mandamus 2016)

A Triple Homicide and Hundreds of Evidence Samples

Luis Solis-Gonzalez was indicted by a grand jury for capital murder for the 2012 triple murder of his ex-wife, her daughter, and her companion. Before trial, the State moved for DNA testing of over 200 pieces of biological material that was collected at the scene. The trial court granted that the testing be done by the Texas Department of Public Safety forensics laboratory.

A few months later, after the lab had already tested a portion of the samples, the lab communicated to the trial court that testing all of the evidence would be a lengthy process, taking three years to complete. Because of such a delay, the trial court asked the defense to identify any specific articles of biological material that it wanted tested, along with reasons why that material should be tested.

At the pretrial hearing, the State asserted that testing each and every piece of the evidence was unnecessary because the testing that the lab had already completed was sufficient for trial. Solis-Gonzalez claimed that Article 38.43 of the Texas Code of Criminal Procedure created an “absolute right to have all evidence tested.” The trial court found that testing all of the biological evidence was unnecessary, as “Article 38.43 does not mandate that every piece of evidence seized by law enforcement in a capital murder case where the State is seeking the death penalty must be forensically analyzed.” Further, the trial court added, “the defense’s response [does] not legally support further delay of trial.”

Should the Trial Judge Have Ordered Tested of All Biological Evidence?

On a petition for a writ of mandamus, the CCA reviewed the case to determine whether Article 38.43 does, in fact, create an absolute right to have all biological evidence collected at a crime scene, especially when the death penalty is at stake.

Article 38.43 of the Texas Code of Criminal Procedure

Article 38.43(j) states, “if the State and the Defendant agree on which biological materials constitute biological evidence, the biological evidence shall be tested…if the State and the Defendant do not agree on which biological materials qualify as biological evidence, the State or the Defendant may request the court to hold a hearing to determine the issue.” The statute defines biological evidence as the contents of a rape kit, blood, semen, hair, saliva, skin tissue, finger nails, fingernail scrapings, bone, bodily fluids that might establish the identity of a suspect or exculpate (show the innocence of) a potential suspect.

Justice Delivered Swiftly, or Justice Delivered Meticulously?

Here, the CCA defers to the legislative policy rationale behind Article 38.43, saying, “it thus appears that the legislature granted discretion to the trial court to separate the evidentiary wheat from the chaff and prevent delay of the proceedings because of needless testing.” Like the CCA, the trial court stated the evidence submitted and analyzed was sufficient for trial in “substantial compliance with the [legislative] intent of the statute.” It appears that the intent behind the statute is to deliver justice swiftly, not meticulously by testing each and every single piece of biological evidence. Accordingly, the CCA affirmed the decision of the trial court, and denied relief to Solis-Gonzalez.

Fort Worth violent crimes attorneys

Burglary of a Former Residence Leads to Capital Murder

By | Burglary, Murder

Felony Murder Conviction is Affirmed on Appeal

Fort Worth violent crimes attorneysGardner v. State (14th Court of Appeals, Houston 2015)

Herbert Gardner and his ex-girlfriend dated for four years and lived together in his ex-girlfriend’s home. When the couple broke up on November 2, 2012, Gardner moved into a hotel. On December 23, 2012, his ex-girlfriend was found murdered in her home and Gardner was found nearby, badly injured. On the way to the hospital Gardner stated to the police officer, “I should not have shot her.” A jury found Gardner guilty of an elevated charge of capital murder, and the trial court sentenced him to mandatory life in prison.

Gardner appealed to the Court of Appeals, arguing (1) that the evidence was insufficient to prove that he murdered his ex-girlfriend in the course of committing a burglary, an aggravating factor that elevates a murder charge to a capital offense with a heavier punishment; and (2) that the evidence was insufficient to prove that when he entered his ex-girlfriend’s home, he committed or intended to commit a felony, theft, or assault, which also carries a heavier punishment in Texas. The Court of Appeals disagreed with both of Gardner’s arguments, affirming his conviction.

First, the language of the statute under which Gardner was convicted states, “A person commits burglary if, without the effective consent of the owner, he: (1) enters a building or habitation with intent to commit a felony, theft or an assault, or, (2) enters a building or habitation and commits or attempts to commit a felony, theft or an assault.”

Gardner argued that he had an equal right to possession of the property and could not be found to have entered without his ex-girlfriend’s consent because he had lived in the home for four years, that the neighbors saw him in the home on a regular basis, and that he used the residence as home address on his driver’s license. The State argued that Gardner lost his right to possession before the murder because he moved into a hotel, his name was not on the property deed, that the front window of the home was broken and blood-stained with Gardner’s blood, that his vehicle registration reflected a different address, and that there were not any items that suggested a male was living in her home at the time of the murder.

In assessing the sufficiency of evidence, the Court of Appeals must view all evidence in the light most favorable to the verdict to determine whether the trial court could have found the elements of the offense beyond a reasonable doubt. Here, the Court of Appeals agreed with the State, that there was indeed sufficient evidence for a rational jury to conclude that Gardner no longer lived with his ex-girlfriend and no longer had consent to enter the home at the time of the murder. Because the evidence was sufficient to prove the unlawful entry element of burglary, the Court of Appeals overruled Gardner’s first argument.

Second, the language of the statute under which Gardner was convicted states, “A person commits capital murder if he intentionally or knowingly causes an individual’s death while in the course of committing or attempting to commit burglary.” Gardner argued that the State wrongly used his murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary. The State argued that the Court of Criminal Appeals—the court of last resort for criminal matters in Texas— has held in several cases that a murder occurring after a break-in can indeed serve as both the basis for the murder charge and the underlying felony required for burglary.

Under the legal doctrine of Stare Decisis, courts must follow the precedent established by the higher court from cases the higher court has heard from previous years. In criminal appeals, these prior cases serve as an example for lower courts to follow when making decisions about upholding or overturning convictions. Here, the Court of Appeals overruled Gardner’s second argument because the court is bound to follow precedent set forth by the Court of Criminal Appeals. The State could use Gardner’s murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary in order to elevate the murder to capital murder, which incurs a higher penalty in Texas.

In criminal appeals, the court is primarily responsible for ensuring that proper form and procedures are followed in the trial courts, rather than determining the facts of the case. The trial court is tasked with determining and recording the facts of the case, to be used later on appeal if necessary.

A criminal defense attorney in Fort Worth will understand the subtle nuances of the statutory language found in the Texas Code of Criminal Procedure and in legal doctrines, such as Stare Decisis. As you can see from the case above, statutory language and legal doctrine have a direct impact on establishing the elements of a crime, elements that may determine the severity of the penalty in the punishment phase of a trial. This essay does not replace legal counsel or advice.

Free Consultation with a Dedicated Team of Fort Worth Criminal Defense Attorneys

Barnett Howard & Williams PLLC is a proven and dedicated criminal defense law firm. With offices in Fort Worth, Keller, and Grapevine, our attorneys stand ready to defend your liberty and your future. Call our office at (817) 993-9249 to arrange a Free consultation of your criminal case today. Do not wait until it is too late.

Texas death penalty

Mental Retardation and the Death Penalty

By | Death Penalty

Texas death penaltyIn 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution’s prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders fit the definition of “mental retardation,” in order to enforce this constitutional restriction.

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

  • Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
  • Has the person formulated plans and carried them through, or is his conduct impulsive?
  • Does his conduct show leadership, or does it show that he is led around by others?
  • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
  • Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
  • Can the person hide facts or lie effectively in his own or others’ interests?
  • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.

In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I’ve had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

Fort Worth Double Jeopardy DWI

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

By | Double Jeopardy

Fort Worth Double Jeopardy DWIUnited States Supreme Court case highlight: Blueford v. Arkansas

The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

Another Dog Scent Lineup Case Overturned

By | Dog Scent Lineup

Drug-Sniffing DogsThe Court of Criminal Appeals does not like dog scent lineup evidence.  While it has not come right out and declared such evidence categorically inadmissible (like polygraph evidence), it seems pretty close.  With each new dog scent lineup case, we learn how unreliable this type of evidence can be.

In Winfrey v. State, the CCA overturned a capital murder conviction wherein the evidence included a dog scent lineup.  The Court noted that the dog scent lineup along with the remainder of the evidence (all of it circumstantial) was only enough to raise a “suspicion of guilt,” but not enough to prove guilt beyond a reasonable doubt.  The CCA overturned the conviction as being legally insufficient.

*Anytime we have a case involving a drug dog, we employ an expert consultant to review the dog handling technique of the officer. One of the best drug dog experts in Steve Scott with Scott’s Police K9 LLC in Flower Mound, Texas.

The Importance of a Waiver to a Potential Conflict of Interest

By | Murder

Back in June of this year the Texas Court of Criminal Appeals addressed a case involving a conflict of interest.  Criminal defense attorneys will find that conflict issues come up frequently. The writ of mandamus that the CCA heard in this case addresses conflicts of interest and provides some assurance as to what attorney’s can do to shore up any issues they may have with conflicts.

In Bowen v. State, a writ of mandamus was filed by a defense attorney representing a client on trial for Capital Murder.  A principal witness in the case against his client was a jailhouse informant who happened to also be a former client of the defense attorney.  The State moved to disqualify the attorney arguing that his ability to cross-examine his former client would be hampered because of the past representation.  At a hearing on the State’s motion to disqualify, the attorney introduced into the record signed written waivers from both his client on trial for capital murder and the witness whom he formally represented.  The trial court granted the State’s motion to disqualify the attorney.

The Court primarily looked to the Sixth Amendment as addressed by the Supreme Court in Wheat v. United States, 486 U.S. 153 (1988).  In Wheat, the Court emphasized the question of whether or not an actual conflict exists.  The Court held that trial courts must, “recognize a presumption in favor of [a defendant’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164.  In absence of an actual conflict, the court gives great weight to a waiver.

The Court in the Bowen case held that the decision to disqualify the attorney was a clear interference with the defendant’s Sixth Amendment right to counsel and that there had been no evidence of the existence of an actual conflict.  Ultimately, the Court held that the waiver that had been signed was sufficient in this case to preclude disqualification of the attorney.

It is a “must” in the defense world to obtain waivers when facing potential conflicts of interest.  Even in a Capital Murder case, a waiver can be effective to disclaim the conflict.  This case does not make waivers the “end-all, be-all,” but it does show the legal world that the court will give great deference to waivers and a defendant’s Sixth Amendment right to the counsel of their choice.

CCA Allows Defense Lawyer to Continue Representing Capital Defendants Despite Apparent Conflict of Interest

By | Conflict of Interest

Yesterday, the Texas Court of Criminal Appeals released a published opinion (In Re Bowen) in an original mandamus proceeding. The relators (i.e. petitioners), two capital murder defendants, requested that the CCA direct the trial judge to rescind his order disqualifying the relators’ mutually retained counsel of choice. The State had moved that the counsel be disqualified due to a perceived conflict of interest and the fact that he would be called to cross-examine another one of his clients (a witness that the State intended to call).

The two defendants and the other client had all signed waivers regarding the actual or apparent conflict, but that did not satisfy the trial judge. In granting the State’s motion to disqualify the counsel, the trial judge stated:

It’s really about the integrity of the judicial process and the public’s perception of the judicial process and what it would look like to go to a trial on a capital murder case where the same attorney representing both defendants is also representing one of the prosecution’s witnesses.

He went on:

I know how these things play out. I’m telling you I can see some reporter that doesn’t understand diddly about what’s going on in the trial but, you know, can pick up an issue like this and make a story out of it.

Surely he doesn’t mean me. I’m confident that I at least know diddly about the system, if not more.

In the mandamus proceeding, the CCA was called upon to overturn the trial court’s order. Citing the U.S. Supreme Court case, Wheat v. United States, 486 U.S. 153 (1988), the CCA explained that trial courts “must recognize a presumption in favor of a defendant’s counsel of choice.” The CCA also noted that “when a trial court unreasonably or arbitrarily interferes with the defendant’s right to choose counsel, its actions rise to the level of a constitutional (6th Amendment) violation.”

The CCA emphasized that conflict of interest cases really turn on the facts found by the trial court. In this case, the trial defense counsel offered a sealed affidavit explaining why his mutual representation would not amount to a conflict. He did not share his reasoning in open court for fear that the State would then know what he had up his sleeve. Once the CCA examined the defense counsel’s affidavit, it was convinced that there was no conflict (especially since all parties waived any potential conflict). Accordingly, the CCA held that the trial judge had violated the defendants’ 6th Amendment right to counsel and directed that the judge rescind his order.