Exparte Kathyrn Buffington-Bennett ( 2005 )

Cause No

Cause No. 14-04-00760-CR   Dismissed, Judgment in Cause No. 14-04-00838-CR Affirmed, and Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00760-CR

KATHRYN BUFFINGTON-BENNETT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 872168

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NO. 14-04-00838-CR

EX PARTE KATHRYN BUFFINGTON-BENNETT

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 996426

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M E M O R A N D U M   O P I N I O N

In these two consolidated appeals, appellant, Kathryn Buffington-Bennett, (1) challenges the validity of her guilty plea in response to the March 2001 indictment for obtaining drugs by a forged prescription; (2) appeals the trial court=s denial of her application for a writ of habeas corpus; and (3) appeals the trial court=s exclusion of hearsay testimony during the writ hearing.

We dismiss appellant=s direct appeal of the trial court=s adjudication of her guilt for lack of jurisdiction, and we affirm the trial court=s denial of appellant=s application for a writ of habeas corpus.

I.  Factual and Procedural Background

On March 20, 2001, appellant attempted to pick up prescriptions for the medications Vicodin and Soma at a Walgreens pharmacy in West Houston.  The prescriptions, which were in the name of Jason Goodman, were called in earlier that morning.  Because the prescriptions were filled a few days before, the pharmacist thought it was too soon to refill them.  The pharmacist called the doctor=s office and discovered the prescriptions were fraudulent.  The pharmacist notified the police, and appellant was arrested.

Appellant was charged by indictment with obtaining drugs by a forged prescription, and she entered a Aguilty@ plea pursuant to a plea agreement with the State. The trial court signed an order deferring adjudication of guilt and placing appellant on community supervision for three years.

In December 2003, the State sought to adjudicate appellant=s guilt.  In a first amended motion, the State asserted appellant violated the terms of her community supervision by driving while intoxicated on multiple occasions, failing to perform community service at the court-ordered rate, failing to report to her community-supervision officer as ordered, failing multiple drug tests, and failing to attend prison for a day as directed.  In February 2004, appellant entered a plea of true to the reasons to revoke.  Appellant then filed an application for habeas corpus relief challenging the validity of her plea of guilty in the original cause.  At the hearing, the trial court found the State=s allegations true, found appellant guilty, and assessed punishment at three years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $400 fine.  The trial court also denied appellant=s application for writ of habeas corpus.

II.  Analysis

A.        Does this court have jurisdiction over appellant=s direct appeal?

As a preliminary matter, we must determine whether this court has jurisdiction to consider appellant=s first challenge, via direct appeal, to the voluntariness of her guilty plea.  A defendant placed on deferred-adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred-adjudication community supervision is first imposed.  Manuel v. State, 994 S.W.2d 658, 661B62 (Tex. Crim. App. 1999).  This includes complaints about the voluntariness of the prior guilty plea and complaints of ineffective assistance of counsel.  Guillory v. State, 99 S.W.3d 735, 738 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d); see Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001).  In this case, if appellant desired to appeal the order placing her on deferred adjudication, she should have done so when the order was imposed.  At this point, we are precluded from hearing the merits of appellant=s challenge to the voluntariness of her plea by direct appeal.  Therefore, we dismiss appellant=s direct appeal for want of jurisdiction.

B.        Did the trial court err by excluding hearsay testimony during the writ hearing?

In her second and third issues, appellant contends the trial court erred by excluding the hearsay testimony of Michelle Fontenot and Randall Kasper during the writ hearing.^[1]  Appellant argues that this testimony was admissible under the excited-utterance hearsay exception in Texas Rule of Evidence 803(2).  Tex. R. Evid. 803(2). Appellant asserts that exclusion of this testimony prevented the trial court from fully evaluating her ineffective-assistance-of-counsel claim, which is based on her trial counsel=s alleged conflict of interest.

Both Fontenot and Kasper were friends of Shaun Bennett, appellant=s husband, who is now deceased.  Kasper testified about a conversation with Bennett in the spring of 2001, weeks after appellant=s arrest.  He described Bennett=s demeanor at the time of their conversation as emotional, distraught, and depressed.  Kasper said that Bennett was upset about appellant=s arrest.  On a bill of exception, Kasper testified that Bennett said he sent appellant to pick up the prescription for him and that appellant was arrested for a prescription that he wrote.  Bennett also said that he is the one who should have been arrested, not appellant.

Fontenot testified that on the day appellant was arrested, Fontenot drove Bennett to the Walgreens store where appellant had been arrested so that he could pick up appellant=s car.  She described Bennett=s demeanor as upset and testified that he was crying.  On a bill of exception, Fontenot stated that Bennett said he was very upset because appellant had been arrested.  Bennett said that he should have been the one arrested because appellant did not know the prescription was forged.

Whether an out-of-court statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court=s discretion.  Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).  We are only to determine whether the record supports the trial court=s ruling.  Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). We will reverse only when A>the trial judge=s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.=@  Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted.  Tex. R. Evid. 801(d).  For hearsay to be admissible, it must fit into an exception provided by statute or the Rules of Evidence.  Tex. R. Evid. 802.  An excited utterance under Rule 803(2) is one such exception. Tex. R. Evid. 803(2).

An excited utterance is Aa statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.@  Tex. R. Evid. 803(2).  For hearsay to be admitted under this exception, the proponent must predicate the statement by showing the following: (1) the statement was a product of a startling occurrence that produced a state of nervous excitement in the declarant and rendered the utterance spontaneous; (2) the state of excitement dominated the declarant=s mind such that there was no time or opportunity for him to contrive or misrepresent; and (3) the statement related to the circumstances of the occurrence preceding it.  See Jackson v. State, 110 S.W.3d 626, 633 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).

When determining whether a hearsay statement is admissible as an excited utterance, a reviewing court may consider the amount of time that elapsed between the startling event and the statement.  Salazar v. State, 98 S.W.3d 141, 154 (Tex. Crim. App. 2001).  It is not dispositive that the statement was separated by a period of time from the startling event; it is only a factor to consider in determining if the statement is admissible under the excited-utterance hearsay exception.  Zuliani, 97 S.W.3d at 596.  The critical factor to consider when determining if a statement is an excited utterance is A>whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.=@  Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)).  A reviewing court must decide if the statement was made A>under such circumstance as would reasonably show that it resulted from impulse rather than reason or reflection.=@  Zuliani, 97 S.W.3d at 596 (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964)).

We conclude that the trial court did not err in excluding the hearsay testimony of Kasper and Fontenot because appellant failed to show that Bennett=s statements fell within the excited-utterance hearsay exception.  Bennett=s statements to Kasper were made weeks after appellant was arrested.  Because such a large amount of time passed between Bennett=s learning of appellant=s arrest and Bennett=s statements to Kasper, we conclude that the trial court did not err in implicitly finding that these statements resulted from reason or reflection and were made while Bennett was no longer dominated by the emotions or excitement of learning about appellant=s arrest.

Bennett=s statements to Fontenot, however, were made the same day as appellant=s arrest.  These statements might well have been admissible as excited utterances, but the record before us lacks a sufficient predicate and so we cannot make that determination.  An unknown length of time elapsed between Bennett=s learning about appellant=s arrest and his statements to Fontenot. Appellant did not show that Bennett=s mind was still dominated from the excitement or emotion of learning that appellant had been arrested so that he had no time or opportunity to concoct a version of events exculpating his wife.

We find that the trial court did not abuse its discretion by excluding the hearsay statements of Kasper and Fontenot.  Accordingly, we overrule appellant=s second and third issues.

C.        Was appellant=s plea of guilty involuntary?

In her first issue, appellant alleges that she received ineffective assistance of counsel at the original plea hearing, and therefore, her plea of guilty was involuntary.  Specifically, she claims her trial counsel was ineffective because he was burdened by an alleged conflict of interest that caused him to advance her husband=s interests over her own.  Appellant asserts that because her counsel=s loyalty was impaired, he was unable to consider, recommend, or carry out appropriate courses of action.  Appellant contends that, if her trial counsel had not been burdened with the alleged conflict, she would not have pleaded guilty to the indictment and would have insisted on proceeding to trial and calling her husband as a witness to exculpate her.

Appellant argues her plea was involuntary because her trial counsel=s alleged conflict (1) prevented him from advising appellant to inculpate her husband in order to get the charges against her dropped or reduced, and (2) caused trial counsel not to interview Kasper and Fontenot, who could have inculpated her husband.

We review a trial court=s ruling on a habeas corpus application for an abuse of discretion.  Ex parte Alakayi, 102 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  Applicants for a writ of habeas corpus have the burden of proving their allegations by a preponderance of the evidence.  Id.  We decide whether a trial court abused its discretion by determining whether the court acted without reference to any guiding rules or principles, or in other words, whether the court acted arbitrarily or unreasonably.  Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).  A trial court abuses its discretion when its decision lies outside of the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063B64, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). This right extends to the plea bargaining process.  Kegler v. State, 16 S.W.3d 908, 911 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To prove that a plea was involuntary because of ineffective assistance of counsel, appellant must show (1) counsel=s representation and advice fell below an objective standard of reasonableness, and (2) this deficient performance prejudiced the defense by causing her to give up her right to a trial.  See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); see also Strickland, 466 U.S. at 688B92; 104 S. Ct. at 2064B67. Appellant must prove ineffective assistance of counsel by a preponderance of the evidence.  See Ex parte Morrow, 952 S.W.2d at 536.

Because appellant=s ineffective-assistance claim involves an alleged conflict of interest, she urges us to analyze her claim under the standard articulated in Cuyler v. Sullivan. 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Under Cuyler, a defendant demonstrates a violation of her right to reasonably effective assistance of counsel based on a conflict of interest if she can show that (1) her counsel was burdened by an actual conflict of interest; and (2) the conflict had an adverse effect on specific instances of counsel=s performance.  Id. at 348B50, 100 S. Ct. at 1718B19; Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). Under Strickland, prejudice is not presumed.  See Strickland, 466 U.S. at 692B93, 104 S. Ct. at 2067.  The defendant must show that counsel made an error that was Aso serious as to deprive the defendant of a fair trial, a trial whose result is reliable.@ Id. at 687, 104 S. Ct. at 2064.  Under Cuyler, however, a defendant need only show that her counsel=s performance was Aadversely affected@ by a conflict of interest.  See Cuyler, 446 U.S. at 349B50, 100 S. Ct. at 1718B19.

In order to take advantage of the Cuyler test, a defendant is required to prove that her counsel was burdened by an actual conflict of interest.  Cuyler, 446 U.S. at 348B50, 100 S. Ct. at 1718B19. Until a defendant establishes that her counsel actively represented conflicting interests, she has not established the Constitutional predicate for her ineffective-assistance claim under Cuyler.  Id. at 350, 100 S. Ct. at 1719.  An actual conflict arises when A>one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing.=@ Foster v. State, 693 S.W.2d 412, 413 (Tex. Crim. App. 1985) (quoting Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir. 1975)).  An actual conflict also arises when counsel is required to make a choice between advancing his client=s interest in a fair trial or advancing other interests to the detriment of his client=s interests.  Monreal, 947 S.W.2d at 564.  The conflict must be more than merely speculative; the defendant must prove that an actual conflict of interest existed.  See Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719.

Appellant claims that there was an actual conflict of interest in this case because of the relationship between her trial counsel, Jim Rose, and her late husband, Bennett.  Bennett=s mother lived with and was engaged to Rose in the 1970s.  Rose considered Bennett to be his surrogate son.  Appellant alleges that the close relationship between Bennett and Rose caused Rose to advance Bennett=s interests over hers.

Cuyler does not apply to this case because appellant has not established an actual conflict of interest.  Appellant and Bennett were not co-defendants; Rose was representing only appellant.  See Foster, 693 S.W.2d at 413.  In addition, appellant does not point to an instance during the course of Rose=s representation of her in which an actual conflict of interest was evident, nor does our review of the trial record indicate that Rose was ever required to choose to advance Bennett=s interests to the detriment of appellant=s interests.  See Monreal, 947 S.W.2d at 564.  On both direct and cross-examination during the writ hearing, Rose testified that he did not change his representation of appellant because of his relationship with Bennett.  Because appellant is unable to establish an actual conflict of interest, we evaluate appellant=s ineffective-assistance-of-counsel claim under the Strickland test. See Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719.

In assessing appellant=s claims under the Strickland test, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did.  See id.  Trial counsel=s performance falls below an objective standard of reasonableness as a matter of law when no reasonable trial strategy would justify trial counsel=s actions, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as he did.  Andrews v. State, __ S.W.3d __, 2005 WL 658979, at *2 (Tex. Crim. App. Mar. 23, 2005).

We conclude that the trial court did not abuse its discretion in denying appellant=s application for writ of habeas corpus.  See Ex parte Alakayi, 102 S.W.3d at 430. Presuming without deciding that trial counsel=s representation fell below an objective standard of reasonableness, appellant cannot establish that counsel=s performance prejudiced appellant by causing her to give up her right to a trial. See Ex parte Morrow, 952 S.W.2d at 536.  From the face of the record, we cannot find any indication that appellant would have opted not to plead guilty had her trial counsel discovered and interviewed Kasper and Fontenot.  There is also no indication that appellant would not have pleaded guilty had Rose encouraged appellant to inculpate her husband.  There is no testimony from appellant stating that she would not have pleaded guilty had Rose discovered and interviewed the two witnesses or encouraged appellant to implicate her husband.  At the writ hearing, Rose testified that he advised appellant that if she implicated Bennett, the charges against her might be reduced or dropped, but in that event, Bennett likely would be charged and face two to ten years in prison.  Rose stated that appellant did not want to pursue that course of action.  Because appellant refused to exculpate herself by implicating her husband, the trial court did not abuse its discretion in impliedly ruling appellant still would have pleaded guilty had her trial counsel discovered and interviewed the two witnesses or encouraged appellant to implicate her husband.  Accordingly, we overrule appellant=s first issue.

We dismiss appellant=s direct appeal for lack of jurisdiction, and we affirm the trial court=s denial of appellant=s application for a writ of habeas corpus.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The State argues that the record does not show that the trial court excluded the hearsay testimony of Fontenot and Kasper from the trial court=s consideration. Upon reviewing the record, however, we conclude that the trial court did exclude the testimony in question.