Aimee Charlene Orgo v. State ( 2018 )

Affirmed and Opinion filed August 23, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00253-CR
NO. 14-17-00254-CR
NO. 14-17-00255-CR
AIMEE CHARLENE ORGO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause Nos. 15CR2803, 15CR2806, 16CR0162
OPINION
Appellant Aimee Charlene Orgo appeals her convictions on two counts of
sexual assault of a child and one count of sexual performance of a child. Appellant
pleaded guilty to all three charges, and a jury assessed her punishment at 20 years’
incarceration for each of the sexual-assault offenses and 12 years’ incarceration for
the sexual-performance-of-a-child offense. In a single issue, appellant contends that
the trial court erred in failing to conduct a hearing or otherwise adequately inquire
regarding whether there was a conflict of interest between appellant and her trial
counsel. Concluding that the trial court conducted a sufficient inquiry regarding
potential conflicts, we affirm.
Background1
The trial court held a hearing on appellant’s pro se motion to dismiss her
appointed lawyer five days before her trial was set to begin. In her motion, appellant
specifically complained that her counsel had been unable to find a court date posted
on a website, lacked knowledge of probation programs, had been unable to negotiate
a plea deal, was slow to return communications, had an inconsistent strategy, and
disagreed with appellant regarding strategy. During the hearing on the motion,
appellant explained that she felt that her counsel had waited too long to prepare with
her for trial, took weeks at a time to respond to messages, failed to know when a
particular court date was, even though her family was able to find that information
on the internet, and gave inconsistent advice regarding whether she should accept a
plea bargain or proceed to trial. She further complained regarding counsel’s apparent
lack of concern regarding the forfeiture of her bond. She said that counsel’s alleged
delinquency in preparing her for trial led her to have a “nervous breakdown.”2 She
requested that the court dismiss her counsel and appoint new counsel.
Appellant’s counsel told the trial court that he normally does not prepare for
trial until about ten days before a trial setting and that he did not need months to
prepare a case for trial. He further stated that he had met with appellant previously
1
Because the facts of the underlying offenses play no role in the analysis of the issue raised
in these appeals, we will not recount them in this opinion.
2
Appellant apparently checked herself into a Veterans Administration mental health
facility and this action allegedly led to her bond forfeiture.
2
and saw her at every hearing date except the one date that occurred while appellant
was in the hospital. Counsel also explained the steps that he took regarding the bond
forfeiture but admitted that his efforts had been insufficient to sway the court. The
trial court denied appellant’s motion.
Five days later, appellant’s jury trial began. During a pretrial discussion,
appellant’s counsel informed the court that appellant was “still trying to fire [him],
made some sort of report somewhere [and] believes [they had] a conflict of interest.”
When the judge asked appellant about it, she responded that “[d]ue to the denial of
my petition, my family[,] who has my power of attorney, filed a complaint with the
Texas Bar against [defense counsel,] creating an immediate conflict of interest.” The
trial judge indicated that appellant could not create her own conflict of interest by
filing a bar grievance. Appellant identified no other new issue with her attorney.
Later, when the judge was taking appellant’s plea to the charges, the judge
asked appellant whether she had discussed with her attorney the range of punishment
and the fact that she was pleading guilty and requesting a jury to assess punishment.
After appellant answered affirmatively, the judge further asked whether she was
satisfied with her attorney’s representation, and she replied, “Not truly, Your
Honor.” The judge responded, “Okay, then there is no plea agreement on this,” and
suggested that they could proceed to trial on both guilt/innocence as well as
punishment. When the prosecutor then asked if they could also try appellant for a
fourth charged offense, one that was not part of the parties’ agreement to consolidate,
defense counsel said that he could not agree to that and asked permission to speak
with his client in private.
After a brief recess, the following exchange occurred:
THE COURT: Okay, we’re back on the record. Anything new?
[DEFENSE COUNSEL]: Yes, Your Honor. If I may ask my client a
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couple of questions.
THE COURT: Sure.
[DEFENSE COUNSEL]: Ms. Orgo, would you like to proceed with our
original trial strategy which was to plead guilty to the three cases that
are consolidated . . . ? And, if so, are you satisfied with my
representation in regard to that strategy?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: You’re Honor, we would ask that we plea.
THE COURT: So you want to stick with the original agreement to
consolidate . . . ?
[DEFENSE COUNSEL]: Yes . . . .
THE COURT: Now, Ms. Orgo, I guess what you’re saying is that while
you may have some differences of opinion with your attorney . . . , the
general strategy that he is trying the case under you’re in agreement
with; is that right?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Well, then I’ll let y’all stick with the original
agreement to consolidate . . . .
Appellant then pleaded guilty to the three consolidated offenses, and trial
commenced on punishment.
Appellant argues in this appeal that the trial court should have inquired further
regarding the alleged conflict of interest appellant raised on the day trial began. She
further alleges that the trial court essentially coerced her into stating that she was
satisfied with defense counsel’s strategy by threatening her with trial on a fourth
charged offense if she did not indicate satisfaction with counsel.
4
Discussion
Standards of review. The Sixth Amendment to the United States Constitution
guarantees the right to reasonably effective assistance of counsel, which includes the
right to conflict-free representation. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 348–
50 (1980); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997); Goody
v. State, 433 S.W.3d 74, 79 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). A
conflict of interest exists if counsel is required to make a choice between advancing
the client’s interest in a fair trial or advancing other interests (perhaps counsel’s own)
to the detriment of the client’s interest. Monreal, 947 S.W.2d at 564. To demonstrate
a violation of the right to effective assistance of counsel based on an actual conflict
of interest, a defendant must prove by a preponderance of the evidence that (1)
appellant’s counsel had an actual conflict of interest and (2) the conflict actually
colored counsel’s actions while representing appellant. Odelugo v. State, 443
S.W.3d 131, 136 (Tex. Crim. App. 2014).
Once a possible conflict of interest is brought to the trial court’s attention by
a pre-trial motion or trial objection, the court “has the constitutional obligation to . . .
take adequate steps to ascertain whether the risk of the conflict of interest is too
remote to warrant remedial action.” Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim.
App. 1991) (citing Holloway v. Arkansas, 435 U.S. 475, 484 (1978)). “[I]n
evaluating Sixth Amendment claims, ‘the appropriate inquiry focuses on the
adversarial process, not on the accused’s relationship with [the accused’s] lawyer as
such.’” Wheat v. United States, 486 U.S. 153, 159 (1988) (quoting United States v.
Cronic, 466 U.S. 648, 657, n.21 (1984). “[T]he essential aim of the Amendment is
to guarantee an effective advocate for each criminal defendant rather than to ensure
that a defendant will inexorably be represented by the lawyer whom [the defendant]
prefers.” Id. Moreover, a defendant should not be permitted to manipulate her right
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to counsel in order to throw the trial process into disarray. King v. State, 29 S.W.3d
556, 565–66 (Tex. Crim. App. 2000).
Analysis. As stated, appellant complains that the trial judge failed to conduct
a hearing or otherwise adequately inquire regarding whether there was a conflict of
interest between appellant and her trial counsel when appellant raised the possibility
of such a conflict on the day trial began. As set forth above, the trial court held a
hearing on appellant’s pro se motion to dismiss her appointed counsel just five days
earlier. In that hearing, the trial court heard from appellant and considered her
position on various complaints before denying the motion. Appellant does not
complain on appeal regarding the outcome of that hearing.3
The record reflects that appellant’s suggestion of a conflict of interest raised
on the day of trial was related only to the same complaints she raised in her motion
to dismiss. When counsel informed the court on the day trial began that appellant
believed there was a conflict, the trial court asked appellant, “Okay. Do you want to
go ahead and tell me about it?” Appellant stated that “[d]ue to the denial of my
petition, my family[,] who has my power of attorney, filed a complaint with the
Texas Bar against [defense counsel,] creating an immediate conflict of interest.”
(Emphasis added). There is no suggestion in the record, or in appellant’s briefing,
that she filed or the trial court had denied any “petition” or other document other
than the motion to dismiss counsel. Therefore, it was reasonable for the trial judge
to conclude that the only alleged conflict of interest was based on appellant’s family
having filed a complaint on her behalf with the State Bar of Texas. As appellant
concedes, the mere fact that appellant or her family allegedly had filed a complaint
with the State Bar did not by itself create a conflict of interest requiring removal of
3
Appellant asserts there was no hearing on the motion to dismiss. Appellant is mistaken
on this point. A supplemental reporter’s record of the hearing has been included in our record.
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counsel. See Dunn, 819 S.W.2d at 519; Owens v. State, 357 S.W.3d 792, 795 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). To the extent that appellant reurged
the issues she had raised in her motion to dismiss, the trial court already had inquired
into those issues five days earlier. Having already considered these alleged conflicts
in a hearing called for that very purpose, the trial court had no further obligation to
consider them again on the day of trial. See Dunn, 819 S.W.2d at 519; see also King,
29 S.W.3d at 565–66 (explaining that a defendant should not be allowed to
manipulate the right to counsel to throw the trial process into disarray).
The trial judge made an adequate inquiry regarding appellant’s complaints in
her motion to dismiss when the judge held a hearing and provided appellant with an
opportunity to express her reasons for dissatisfaction with counsel. The trial judge
further adequately inquired regarding the alleged conflict of interest raised just
before trial when he asked appellant about the alleged conflict and she responded
that her family had filed a complaint with the bar apparently after her motion to
dismiss counsel was denied. The trial judge was not required to make further inquiry.
Appellant’s assertion that the trial judge coerced her into expressing
satisfaction with her trial counsel’s strategy to avoid trial on a fourth charge is not
relevant to her complaint that the judge failed to adequately inquire regarding the
alleged conflict of interest. Disagreements regarding strategy generally do not create
conflicts of interest. See, e.g., United States v. Fields, 483 F.3d 313, 353 (5th Cir.
2007); Chavez v. State, 6 S.W.3d 66, 73 (Tex. App.—San Antonio 1999, pet. ref’d).
Moreover, the judge had already made adequate inquiry before the alleged coercion
occurred.4
4
We need not, and therefore do not, express any opinion regarding appellant’s assertion
that the trial judge coerced her into expressing satisfaction with her counsel’s strategy. We note,
however, that when appellant expressed dissatisfaction during plea proceedings, the trial judge
merely indicated that without appellant’s agreement, there was no plea agreement and they could
7
Because the trial court adequately inquired into the alleged conflict of interest
between appellant and her counsel, we overrule appellant’s sole issue and affirm the
trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
proceed to trial on both guilt and innocence. It was the State that then indicated a desire to withdraw
their agreement to consolidate three offenses and sought to add the fourth offense for trial.
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