Nathaniel Jones III v. State

Opinion issued October 6, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00821-CR,

NO. 01-10-00822-CR

———————————

Nathaniel Jones , III, Appellant

V.

The State of

Texas , Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Case Nos. 1267896 and 1267897

MEMORANDUM OPINION

A jury convicted Nathaniel Jones, III of murder and

aggravated assault and sentenced him to 45 years’ confinement for each

conviction. Jones raises two issues on appeal: (1) whether the trial court

erred by denying his trial counsel’s motion to withdraw based on a potential

conflict of interests and (2) whether the trial court erred in refusing to

allow him to poll the jury after the guilt phase of the trial. We conclude that

Jones has not demonstrated any actual conflict of interest between himself and

his trial counsel and that he has not demonstrated any harm from the trial

court’s denial of his request to poll the jury on their guilty verdicts. We

therefore affirm.

Background

The State maintains that Jones was

involved in a check fraud scheme with Timothy Lee and Earnest Green. Jones fabricated an employment identification

card that was to be used in cashing a stolen check. Lee agreed to pay Jones $400

for the falsified identification card. Lee paid Jones $200, but still owed him $200.

On November 24, 2008, Jones went to a garage warehouse where Lee and Green were

having a few beers with William Marshall and Brent Powell. When Jones arrived,

Lee went out to the parking lot to meet him. Jones and Lee had a heated

discussion about the money Lee owed Jones. Marshall and Green then went out to the

parking lot to try to break up the argument. Jones pulled out a gun and shot

Lee. Lee turned to run, and Jones continued shooting. One of the additional

shots hit Lee, and another one hit Marshall. Jones picked up the ejected shell

casings and fled the scene. Lee suffered serious injuries, including an open

fracture to his skull, nose bones, and long arm bone. Marshall died.

The State maintains that Jones, in violation of his probation

from prior offenses, fled to Louisiana. He was eventually arrested there and

brought back to Texas. In Texas, he was indicted for murder and aggravated

assault. He pled not guilty. The trial court appointed Kyle Johnson to

represent Jones. A few weeks before trial, Johnson filed a motion to withdraw,

stating that Jones had filed a legal malpractice action against him based on

Johnson’s representation of Jones in a previous criminal matter. Johnson contended

that this created a conflict of interest under Rule 3.08 of the Texas

Disciplinary Rules of Professional Conduct and that withdrawal was required by

Rule 1.15(a)(1). See Tex.

Disciplinary R. Prof’l Conduct 1.15 , 3.08, reprinted in Tex. Gov’t Code Ann ., tit. 2,

subtit. G app. A (West 2005) (Tex. State Bar R. art. X, § 9). At the pretrial

hearing on the motion to withdraw, Jones also requested that he be appointed new counsel. The trial

court denied Johnson’s motion to withdraw and Jones’s request for appointment

of a new attorney.

A jury found Jones guilty of murdering Marshall and committing

aggravated assault against Lee. The trial judge read the jury’s verdict aloud.

No juror dissented or otherwise voiced disagreement with the verdict. After the

judge sent the jury back to the jury room, Johnson requested that the jury be

polled. He stated:

I’ve had a few minutes to think about what’s been

going on this week and about how it seemed like [the jury was] locked up. And

it occurs to me I probably should have asked on the spot to have them polled.

They’ve only been out of the courtroom minutes. And I would request at this

time that the jury come back in and be polled as to their verdict. Because I’m

a little concerned that maybe some people cratered and aren’t comfortable with

their verdict.

The

trial judge denied the request as untimely. He then brought the jury back in

and dismissed them until the following Monday, when they would return for the

punishment phase of the trial. After the jury was dismissed, Johnson renewed

his request to poll the jury, stating that one of the jurors appeared to be

crying as she left and he was concerned that she was not comfortable with the

verdict. The trial court again denied the request.

Jones pled true to two enhancement paragraphs based on prior

felony convictions. They jury assessed punishment at 45 years for murder and 45

years for aggravated assault. Johnson requested the jury be polled regarding

their punishment verdicts. The court granted the request and polled the jurors on

their punishment verdicts. All twelve

jurors indicated that the two punishment verdicts were their verdicts.

Ineffective Assistance

of Counsel

In his first issue, Jones contends

that the trial court erred when it denied his trial attorney’s motion to

withdraw. Jones asserts that, as a result, he did not receive effective, conflict-free

representation at trial. Jones does not disclose the nature of the alleged

conflict or identify any manner in which the alleged conflict adversely affected

his representation.

A. Standard of Review for Motion to Withdraw

An attorney

may not withdraw without the permission of the trial court. Ward v. State , 740 S.W.2d 794, 797 (Tex.

Crim. App. 1987). The decision whether to permit counsel to withdraw is within

the trial court’s sound discretion. Green

v. State , 840 S.W.2d 394, 408 (Tex. Crim. App. 1992), cert. denied , 507 U.S. 1020 , 113 S. Ct. 1819 (1993). A court of

appeals will not disturb that decision absent an abuse of discretion. See id.

B. Conflict-Free Assistance of Counsel

The Sixth

Amendment of the United States Constitution guarantees Jones the right to

reasonably effective, conflict-free assistance of counsel. Strickland v. Washington , 466

U.S. 668, 686 , 104 S. Ct. 2052, 2063 (1984) ;

Cuyler v. Sullivan , 446 U.S. 335 , 344–45, 100

S. Ct. 1708 , 1716–17 (1980) . But Jones does not have the right to his choice of court-appointed

counsel: if he seeks court-appointed representation, he must accept the

attorney selected by the court unless he can show adequate reason for the

appointment of new counsel. McKinny v. State , 76 S.W.3d 463, 477 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (citing Garner v. State , 864 S.W.2d 92, 98 (Tex. App.—Houston [1st Dist.]

1993, pet. ref’d)). A trial court is under no duty to search until it finds an

attorney agreeable to the defendant. Id. When there is an adequate

reason for the appointment of new counsel, the defendant must bring the matter

to the trial court’s attention and carry his burden of proving that he is

entitled to new counsel. Id.

The parties

agree that Jones’s first issue is governed by the standard set forth by the United

States Supreme Court in Cuyler v. Sullivan . Under the Sullivan standard, a criminal defendant asserting that he did not

receive effective assistance of counsel due to a conflict of interest must show

that (1) counsel “actively

represented conflicting interests” and (2) counsel’s performance at trial was

“adversely affected” by the conflict of interest. Sullivan , 446 U.S. at 349–50,

100 S. Ct. at 1719 ; Acosta v.

State , 233 S.W.3d 349 , 352–53 (Tex. Crim. App. 2007) . The mere possibility of conflict is

not sufficient to impugn a jury’s conviction; instead, a defendant must

establish an actual conflict. Sullivan , 446 U.S.

at 350 , 100 S. Ct. 1719 . Once

the defendant shows an actual conflict and that the conflict adversely affected

the adequacy of his representation, the defendant need not demonstrate

prejudice. Sullivan , 446 U.S.

at 349–50, 100 S. Ct. 1719 ; Acosta ,

233 S.W.3d at 353 .

1. Actual Conflict of Interest

An 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)) . When a criminal defendant files a grievance or other legal

proceeding against his court-appointed counsel, it does not necessarily give

rise to an actual conflict of interest, even though the defendant and his

counsel may be adversaries in other legal proceedings. See Dunn v. State , 819 S.W.2d 510, 519 (Tex. Crim.

App. 1991) (rejecting defendant’s conflict of interest claim based on

defendant’s malpractice action against attorneys); Perry v. State , 464 S.W.2d 660, 664 (Tex. Crim. App.

1971) (holding that defendant did not establish actual conflict of interest

based on civil rights action against attorney); McKinny , 76 S.W.3d at

477–78 (holding that defendant did not establish actual conflict of interest or

adverse affect when defendant filed grievance against counsel); see also Garner , 864 S.W.2d at 99 (holding that defendant did not

establish actual conflict in prosecution with respect to which defendant claimed

to have filed complaint with bar association). Courts of appeals have been

weary of the possibility of defendants filing lawsuits and grievances to delay

legal proceedings or force a change of counsel. Perry , 464 S.W.2d at 664 (“[I]f appellant’s contention were upheld,

a defendant could effectively delay or prevent an appeal (or trial) by filing a

civil suit against his appointed counsel.”).

To establish a conflict of interest, Jones relies exclusively

on the civil action he filed against Johnson based on Johnson’s representation

of Jones in an unrelated prosecution for theft. But Jones’s civil suit against

Johnson does not create a per se actual

conflict. See Dunn , 819 S.W.2d at 519 ; Perry , 464 S.W.2d at 664 ; McKinny ,

76 S.W.3d at 477–78. Instead, Jones has the burden of establishing the

existence of an actual conflict between Johnson’s interest in the civil action

and Jones’s interest in his murder and assault prosecution. See Dunn , 819 S.W.2d at 519 ; Perry , 464 S.W.2d at 664 ; McKinny ,

76 S.W.3d at 477–78. Jones fails to meet that burden. He does not identify any

instance in which he claims Johnson was “required to make a choice between

advancing [Jones’s] interest in a fair trial or advancing [Johnson’s own interest

in the civil litigation] to the detriment of [Jones’s] interest.” Acosta ,

233 S.W.3d at 355 . Moreover, our review of the record has not revealed any such

instance. Johnson filed

pretrial motions, cross-examined each of the State’s witnesses, presented

testimony from Jones regarding his version of events, and at the punishment

phase, offered a statement as to why Jones’s punishments should be on the lower

end of the statutorily-defined punishment ranges. Johnson’s defense of Jones on

the basis of self-defense resulted in jury deliberations that spanned three

days and included numerous questions and requests to have testimony read back.

Jones’s only citation to the record in support of his

conflict assertion is to Johnson’s motion to withdraw, in which Johnson states

that there is a conflict of interest under Rule 3.08 of the Texas Disciplinary Rules

because Johnson could be called to give testimony adverse to Jones in the civil

action. Rule 3.08 governs situations when an attorney in a case is or becomes a

material witness in the case. See Tex.

Disciplinary R. Prof’l Conduct

3.08, reprinted in Tex. Gov’t Code Ann. , tit. 2, Subtit. G,

app. A (West 2005). Under Rule 3.08(b), an attorney may not continue to

represent a client when the attorney believes the he will be compelled to

furnish testimony that will be substantially adverse to the client, unless the

client gives informed consent. Id. Rule

3.08 applies to a situation when an attorney provides testimony in a case in

which he also acts as an advocate. See,

e.g., Powers v. State , 165 S.W.3d 357, 359 (Tex. Crim. App. 2005); Gonzalez

v. State , 117 S.W.3d 831, 841 (Tex. Crim. App. 2003). The rule addresses two concerns that arise

when an attorney becomes a likely witness in a proceeding in which he

represents a client: (1) the client’s case may be harmed by counsel assuming

the dual roles of advocate and witness and (2) jury confusion may arise when an

attorney in the case testifies. Gonzalez

v. State , 63 S.W.3d 865, 876 (Tex. App.—Houston [14th Dist.] 2001), aff’d , 117 S.W.3d at 843 ; see also Powers ,

165 S.W.3d at 359 .

Jones does not assert, or cite any authority for the

proposition, that Rule 3.08 is implicated when an attorney may be called as a

witness in another, unrelated proceeding in which the client is a party. Nor

does Jones identify any harm that might result from Johnson’s role as a potential

witness in the civil proceeding and an advocate in this separate criminal

matter. Because Johnson was only an advocate and not a witness in this matter,

there was no risk of the prejudice or jury confusion that may arise when an

attorney plays the dual roles of advocate and witness in a single proceeding. Cf. Powers , 165 S.W.3d at 359 ; Gonzalez , 117 S.W.3d at 843 . The harms

against which Rule 3.08 protects are not threatened here.

We therefore conclude that Jones has not established that

Johnson actually represented conflicting interests, a “constitutional

predicate” for asserting ineffective assistance of counsel on the basis of an

alleged conflict of interests. See Sullivan ,

446 U.S. at 350 , 100 S. Ct. 1719 ; see

also McKinny , 76 S.W.3d at 478 .

2. Inquiry by the

Trial Court

Jones also asserts that the trial

court failed to make an adequate inquiry into the potential conflict created by

Jones’s lawsuit against Johnson. W hen a criminal defendant brings a potential conflict of

interest to the attention of the trial court, the trial court has an obligation

to investigate and determine whether the risk of the conflict of interest warrants

remedial action. Holloway v. Arkansas , 435 U.S. 475, 484 , 98 S. Ct. 1173, 1179 (1978) (addressing

potential conflict created by joint representation of three codefendants); Dunn , 819 S.W.2d at 519 (extending Holloway beyond multiple

representations) . The

failure to conduct such an inquiry, when necessary, is reversible error if the

defendant establishes that the conflict of interest adversely affected his

counsel’s performance. Mickens v. Taylor ,

535 U.S. 162 , 173 –74 , 122 S. Ct. 1237 , 1244 – 45 (2002); see also Routier v. State , 112 S.W.3d 554, 582 (Tex. Crim. App.

2003).

The trial court had actual knowledge of the alleged conflict

of interest between Johnson and Jones because of Johnsons’ motion to withdraw. The

trial court conducted a very

brief hearing on Johnson’s motion to withdraw, during which Jones also

individually requested appointment of new counsel. But neither Jones nor

Johnson raised any new or additional arguments or evidence at the hearing beyond

that put forth in Johnson’s two-page motion for withdrawal.

We have already concluded that the evidence and argument

advanced here and before the trial court do not establish the existence of an

actual conflict of interest. Johnson and Jones had an opportunity to present

additional evidence or argument at their pretrial hearing. Jones does not

contend that he was prevented from doing so. Nor does Jones identify on appeal

any additional evidence of conflict that the trial court could have discovered

upon further investigation. We therefore conclude that the trial court did not

commit reversible error in failing to take further action with respect to the

alleged potential conflict created by Jones’s civil action against Johnson. See Dunn , 819 S.W.2d at 520 (observing

that, despite defendant’s many objections to appointed counsel, he “never made

any claim that there existed a conflict of interest which actually affected the

adequacy of his representation by [his court-appointed counsel].”).

We overrule Jones’s first issue.

Failure to Poll the

Jury After Guilt Phase

In his second

issue, Jones argues that the trial court erred when it refused to poll the jury

shortly after its verdict in the guilt phase of the trial. Jones asserts that the

trial court’s denial of his request to poll the jury caused him some

unspecified harm, such that his conviction should be overturned.

A. Polling the Jury

Article 37.04 of the Texas Code

of Criminal Procedure provides for the reading and entry of the jury’s verdict

by the trial court. Tex. Code Crim. Proc.

Ann. art. 37.04 (West 2006). Under article 37.04, the verdict is entered

into the minutes of the court if it is in proper form, no juror dissents, and

neither party requests a poll of the jury.

Id. Article 37.05 establishes the parties’ right

to have the jury polled and governs the process for entry of the jury’s verdict

when a poll is conducted. Id. art.

37.05 (West 2006). Under article 37.05, each juror is asked if the verdict is

his or her verdict. Id. If each juror

answers affirmatively, then the verdict is entered into the minutes of the

court. Id. If a juror answers in the

negative, the jury must retire again to consider its verdict. Id.

The purpose of the jury poll is to

ensure the unanimity of the jury verdict by establishing that each juror agrees

with the verdict as announced. See

Andrews v. State , No. 05-92-00411, 1993 WL 19931 , at *3 (Tex. App.—Dallas

Jan. 29, 1993, no pet.) (not designated for publication); see

also Humphries v. Dist. of Columbia , 174 U.S. 190, 194 , 19 S. Ct. 637 , 638–39 (1899) (stating

that object of jury poll is “to ascertain for a certainty that each of the

jurors approves of the verdict as returned; that no one has been coerced or

induced to sign a verdict to which he does not fully assent.”). Although

article 37.05 endows a criminal defendant with “the right to have the jury polled,”

Tex.

Code Crim. Proc. art.

37.05, that right is waived

if the defendant fails to properly request the poll. Mathis v. State , 471 S.W.2d 396, 398 (Tex. Crim. App. 1971).

Article 37.05 does not provide a deadline for such a

request, but our law establishes that a jury should not be reassembled after

“their identity as an organized body ha[s] ceased.” Perryman v. State , 102 Tex. Crim. 531 ,

533–34, 278 S.W. 439, 440 (Tex. Crim. App. 1925). “To give a verdict the

vitality that will authorize the imprisonment of

an individual, it is essential that it be by a jury selected and impaneled

under the forms of law, and that the verdict be rendered before the jury is

dissolved.” Id. The Court of Criminal

Appeals has held that the trial court may recall the jury to correct their

verdict if the jury “has not separated or have only momentarily separated and

are still in the presence of the court and it appears that no one has talked to

the jurors about the case.” Webber v.

State , 652 S.W.2d 781, 782 (Tex. Crim. App. 1983). This court has held that, when a jury was

discharged and had been separated over night, it would have been improper for

the trial court to recall the jurors for a jury poll requested by the

defendant. Phan v. State , No. 01-96-01228-CR, 2000 WL 730655 , at *3

(Tex. App.—Houston [1st Dist.] June 8, 2000, no pet.) (not designated for

publication).

Here, the jury was not dissolved, and retained its unity of

identity as a jury. Although the jurors had completed the guilt-innocence phase

of the trial, they retained their identity as a jury for the punishment phase

of the trial. At the time of Johnson’s first request to poll the jury, the

record indicates that the jurors had been out of the court room for only a

short time and had been sent together to the jury room. When the judge sent the

jury to the jury room, he stated that further instructions would follow. He did

not expressly release the jury from any of the instructions that they had been

given with respect to the deliberative process. The trial judge stated on the

record that he went to the jury room and admonished the jurors not to talk

about the case and that they were still in trial. [1]

He stated that they indicated that “they understood my instructions, the same

instructions I have been giving all week.” Under these circumstances, we

conclude that Johnson’s request to poll the jury was not so untimely as to

waive Jones’s “right to have the jury polled” under article 37.05. Tex. Code

Crim. Proc. art. 37.05. The trial court

therefore erred in denying the request to poll the jury.

A.

Harmless Error

Having determined that the trial court erred in denying Jones’s

request to poll the jury, we must now consider whether the error requires

reversal. The state contends that the trial court’s error in failing to poll

the jury is non-constitutional error, which entitles Jones to reversal only if

he meets his burden of demonstrating harm. See

Tex. R. App. P. 44.2(b).

Jones does not argue that a failure to poll the jury is constitutional error or

that he need not show harm. Instead, he asserts in a single sentence that he

“was harmed by [the trial court’s] denial [of his request to poll the jury] and

his conviction should be overturned.” But Jones provides no specific allegations,

authority, or citations to the record to support this contention. Thus, we must

determine whether the denial of a request to poll the jury is constitutional or

non-constitutional error. If it is non-constitutional error for which Jones

must demonstrate harm, he has not satisfied that burden. See id.

We agree with the State that the denial of the right to poll

the jury is not constitutional error. Within the meaning of rule 44.2(a),

constitutional error is an error that directly offends the United States Constitution

or the Texas Constitution, without regard to any statute or rule that might

also apply. Thompson v. State , 95 S.W.3d 537 (Tex. App. —Houston [1st Dist.]

2002, no pet.). “That is, an error is constitutional only if the correct ruling

was constitutionally required.” Id. Although

the constitution guarantees Jones the right to conviction by a unanimous jury, Ngo v. State , 175 S.W.3d 738, 744 (Tex.

Crim. App. 2005), the jury-polling process in article 37.05 merely provides a

procedural means of verifying that right. Jones has not identified any

constitutional provision that would require polling of the jury, and jury

polling is not the only means by which the jury’s unanimity can be tested. See, e.g. , Thomley v. State ,

987 S.W.2d 906, 911 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (observing

that defendant with reason to believe jury’s verdict is not unanimous “could

have conducted his own polling of the jury” through juror testimony upon motion

for new trial).

In Thomley , we

held that the criminal defendant’s request to poll the jury the day after the reading

of the verdict was timely under the “peculiar circumstances” of the case but

that the trial court’s error in denying the request did not require reversal

because the defendant failed to show that he was harmed by the error. Thomley , 987 S.W.2d at 911 . We observed

that, “if there were any substance to appellant’s complaint, he could have

preserved it by filing a motion for new trial. A motion for new trial is

necessary to adduce facts of a matter not otherwise shown on the record.” Id. “In a motion for new trial,

appellant could have brought jurors to testify what their verdict was.

Appellant could have conducted his own polling of the jury. This is the only

way we could determine whether any harm resulted from the trial court’s

misreading of the verdicts.” Id. Here

too, if Jones had serious concern about the unanimity of the jury’s verdict,

those doubts could have been dispelled or substantiated through a motion for

new trial. [2]

But in the absence of any basis for concluding that Jones was harmed by the

trial court’s denial of his request to poll the jury after the guilt phase of

his trial, we cannot reverse his convictions. See Tex. R. App. P. 44.2(b).

Appellant’s second issue is overruled.

Conclusion

We affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1]

It

is not clear from the record whether this occurred before or after Johnson’s

first request to poll the jury.

[2]

It is worth noting that the jury

was polled during the punishment phase of the trial, and each juror answered

affirmatively to the forty-five-year sentences imposed for each of Jones’s

convictions. It is possible that the jury’s demeanor during the punishment

phase and subsequent polling quelled any concerns Johnson had about the

individual jurors’ agreement with the guilty verdicts.