Amado H. Aguilar v. State ( 2008 )

Affirmed and Memorandum Opinion filed December 2, 2008

Affirmed and Memorandum Opinion filed December 2, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00362-CR

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AMADO H. AGUILAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 25th District Court

Colorado County, Texas

Trial Court Cause No. 06-138

M E M O R A N D U M   O P I N I O N

Appellant was convicted of aggravated assault with a deadly weapon and sentenced to confinement for 65 years in the Texas Department of Criminal Justice, Institutional Division.  In two issues, appellant challenges the conviction asserting that the trial court erred in (1) admitting evidence of the previous statement of a witness, and (2) denying appellant=s motion for continuance and request to remove counsel in violation of his right to counsel of his choice.  We affirm.

I.  Factual and Procedural Background

On the evening of August 4, 2006, the complainant, Christopher Luhan, walked to the home of Jonathan Aguilar.  Luhan joined appellant and others in the front yard of Aguilar=s home where they enjoyed beer and conversation for several hours.  Before Luhan attempted to leave the Aguilar home, at around 2:30 in the morning, appellant pulled a gun from the waistband of his pants and pointed it at Luhan.  After a few minutes, appellant put the gun away, saying Ait wasn=t for [Luhan]; it was for the Casanova brothers.@^[1]  Shortly thereafter, Luhan started walking toward his mother=s house, but realized that she would not like that he had been drinking, so he started back toward Aguilar=s home to ask if he could spend the night.  As Luhan walked back toward the house, appellant asked Luhan if he was trying to Asneak up on him.@  Luhan said no, but appellant pulled the gun and shot Luhan in the stomach.  As Luhan was lying on the ground, appellant kicked him in the stomach, then walked back into the house.

On January 18, 2007, the Friday before trial began the following Tuesday, appellant filed a motion for continuance alleging that he needed more time to prepare for trial because he wanted to subpoena witnesses, but appellant failed to provide his counsel with the identity of any additional witnesses.  Immediately before voir dire, appellant=s counsel raised the motion for continuance and stated that appellant had requested to issue subpoenas for additional witnesses, but refused to identify those witnesses to counsel.  The trial court denied appellant=s motion for continuance.

On the second day of trial, the trial court asked if appellant intended to testify.  At that time, appellant stated that he wanted a continuance while awaiting a response from the State Bar on a grievance he had filed against his counsel.  Appellant stated that counsel failed to file motions at appellant=s request preventing appellant from obtaining evidence or witnesses.  Appellant failed to identify the evidence or witnesses he intended to obtain if counsel had filed the requested motions. The trial court denied appellant=s request for substitution of counsel.

At trial, the State called Clifton Mancias to testify about a prior statement made to Eagle Lake police officer Steve Nelson.  Appellant objected to Mancias= testimony because he suspected that Mancias did not remember giving the statement to police and that the State=s sole purpose for calling Mancias was to impeach him with his prior statement.  At a hearing outside the presence of the jury, Mancias testified that he had no memory of giving an oral or written statement to the police.  The State specifically requested to call Mancias to Aimpeach him with his statements[.]@  The trial court overruled appellant=s objection and permitted Mancias to testify. 

Before the jury Mancias stated that he had no memory of giving a statement to the police.  The State attempted to refresh his memory by showing him his statement, but appellant objected and the trial court sustained appellant=s objection.  The State later called Officer Nelson to the stand.  Officer Nelson testified that he took a statement from Mancias in which he stated that appellant told Mancias that he had shot Luhan.  Appellant renewed his objection to improper impeachment, but the trial court overruled appellant=s objection.

II.  Issues and Analysis

Appellant contends that the trial court erred in (1) admitting evidence of Clifton Mancias= previous statement, and (2) denying his motion for continuance on the grounds that he was not represented by counsel of his choice.

A.      The admission of evidence of Clifton Mancias= previous statement was harmless error.

We review a trial court=s decision to admit or exclude evidence under an abuse-of-discretion standard.  Long v. State, 130 S.W.3d 419, 426 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  The credibility of a witness may be attacked by any party, including the party calling the witness.  Tex. R. Evid. 607.  A witness may be impeached with a prior statement when he gives testimony at trial that is inconsistent with the prior statement.  Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987).  If the witness claims not to remember making the prior statement, the prior statement is admissible for impeachment purposes.  See Ruth v. State, 167 S.W.3d 560, 566 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  In this case, when questioned about the statement, Mancias stated he did not remember making a statement.

Although Mancias= statement was admissible for impeachment purposes, the State cannot call a witness that it knows will testify unfavorably for the sole purpose of impeaching that witness with otherwise inadmissible hearsay.  Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999).   In Hughes, the court of criminal appeals identified the key issue in the analysis to be the State=s prior knowledge that the witness would testify unfavorably.  Id. at 3.  Rather than limit the language of Rule 607, the court reviewed the State=s knowledge as part of the balancing analysis required by Rule 403.  Id.  The court determined that if the State knows in advance that a witness will recant or claim not to remember the statement, the State cannot call the witness solely for the purpose of impeachment with the prior statement.  Id. at 7.

In this case, the State learned during the hearing outside the presence of the jury that Mancias did not remember making a statement to the police.   Further, Mancias gave no favorable testimony to the State, nor did the State expect that Mancias would give favorable testimony.  Therefore, the trial court abused its discretion in permitting Officer Nelson to testify to the contents of Mancias= prior statement.

The State contends that the trial court did not err because Mancias= statement was admissible as a past recollection recorded under Texas Rule of Evidence 803(5).  The predicate for past recollection recorded is set forth in Rule 803(5) and requires that four elements be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.  Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App. 1998). 

Here, the State did not meet the predicate for admissibility because Mancias did not vouch for the accuracy of the statement. When asked whether he remembered making the statement, Mancias responded that he did not remember making the statement, nor did he remember signing the statement.  Mancias acknowledged that the statement was signed by AIndigo Night Wolf,@ which is his nickname, but testified that he never signs official documents with his nickname.  Therefore, the State failed to meet the fourth criterion for admissibility as a past recollection recorded.  See id. 

The error, however, was harmless.  Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).  At trial, Luhan testified that appellant shot him.  Further, Officer David Wiese, an officer who responded to the scene of the shooting, testified that he asked Luhan who shot him and Luhan identified appellant.  Therefore, the court admitted the only damaging evidence from Mancias= statement, that appellant shot Luhan, through other sources.  Because the same evidence was admitted without objection, the error is harmless.  Appellant=s first issue is overruled.

B.      The trial court did not err in denying appellant=s motion for continuance.

We review the trial court=s denial of a motion for continuance under an abuse-of-discretion standard.  Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).  While there is no mechanical test to evaluate whether a denial of a continuance violates the right to select counsel of one=s choice, the court of criminal appeals has set out several factors to consider, including: (1) the length of the delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused=s counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, and (9) the quality of legal representation actually provided.  Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982).  In addition to those non-exclusive factors, the public interest in the fair and orderly administration of justice may be greater than a defendant=s right to have counsel of his choice.  Id. at 720.

Applying the facts of this case to the factors in Windham, we conclude the trial court did not abuse its discretion in denying appellant=s motion for continuance and his motion to substitute counsel.  Appellant did not specify the length of delay requested, but sought additional time to locate witnesses and evidence.  Appellant was indicted on September 18, 2006.  On September 22, 2006, he filed a motion for substitution of counsel seeking to substitute Leonard Peters, his trial counsel, for K.S. AGator@ Dunn, the Colorado County public defender.  The court granted that motion and Mr. Peters became appellant=s counsel.  On appellant=s behalf, Mr. Peters filed 28 motions before trial, including motions in limine, for discovery, to inspect and test physical evidence, to inspect grand-jury lists, and for inspection of the premises.  On October 10, 2006, Mr. Peters filed a motion to withdraw as counsel on the grounds that he was unable to communicate effectively with appellant.  On October 27, 2006, the trial court denied the motion to withdraw.  Finally, counsel filed a motion for continuance on January 18, 2007, four days before the case was called for trial on January 22, 2007, on the grounds that appellant wished to subpoena witnesses, but had failed to identify those witnesses to counsel. 

Appellant failed to identify the length of time necessary to identify his witnesses, nor did he identify those witnesses to the court. He had been indicted for four months, giving him ample time to identify witnesses and have subpoenas issued.  The prosecution=s witnesses were ready and present for trial, one of whom had been bench-warranted from outside of the county.  Appellant did not indicate that another attorney was prepared to try his case.  Appellant=s reason for the delay was that he wanted to subpoena witnesses, but he refused to identify those witnesses.  The trial court had no assurance that if it granted the continuance appellant would identify the witnesses.  The case was not complex in that the complainant was available to testify that appellant was the person who shot him.  Further, appellant received competent legal representation at trial.

Appellant claims the denial of the motion resulted in identifiable harm because he had filed a grievance against Mr. Peters, which created a conflict of interest.  At trial, appellant told the trial court that he had filed a grievance against Peters and wanted a continuance until the grievance was decided by the State Bar. 

When a defendant alleges a conflict of interest, he must show counsel actually represented conflicting interests and that an actual conflict of interest adversely affected counsel=s performance.  Nethery v. State, 29 S.W.3d 178, 188 (Tex. App.CDallas 2000, pet. ref=d).  An actual conflict of interest exists when counsel must choose between advancing his client=s interest or advancing another=s interests, including his own, to the disadvantage of his client.  Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997).  A disciplinary proceeding brought by a client against his counsel creates an actual conflict of interest.  Garner v. State, 864 S.W.2d 92, 99 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d).  Where the trial court knows or reasonably should know that a particular conflict of interest exists, the court should initiate an inquiry.  See Cuyler v. Sullivan, 446 U.S. 335, 346B47 (1980).

Appellant, however, has not shown this court the nature of his complaint to the State Bar about his trial counsel.  On the second day of trial, appellant asked to be heard on his request for continuance.  Appellant told the judge he had not yet received an answer from the State Bar on a grievance he filed against trial counsel.  He stated he felt that counsel had Anot been giving [him] a fair representation or defense@ because counsel had not filed the motions appellant requested, and counsel had not subpoenaed certain witnesses.  Appellant also stated his desire to ask Luhan to reenact the events of the shooting and his desire to ask Luhan questions about his reenactment.  Appellant, however, did not want to represent himself.  The trial court determined that the evidence appellant sought would not be admissible and continued with the State=s witnesses.

The record does not indicate the nature of the grievance appellant asserts he filed against counsel, nor does it reveal the ultimate disposition of any proceedings against counsel or the timing of any such disposition.  The record contains no copy of the grievance nor any other evidence that any grievance was actually filed.  Neither does the record disclose what requests, if any, appellant made to counsel before trial.  At trial, counsel did not claim a conflict of interest existed between himself and appellant.  We conclude the record does not support appellant's allegations that an actual conflict of interest existed.  At best, appellant=s unsworn allegations show the possibility of a conflict of interest.  The showing of a potential conflict of interest, without more, does not constitute a showing of an actual conflict of interest.  State v. Kelley, 20 S.W.3d 147, 154B55 (Tex. App.CTexarkana 2000, no pet.).  Appellant did not sustain his burden to show an actual conflict of interest and his entitlement to new counsel; therefore, the trial court was not required to make further inquiry into appellant=s allegations of a conflict of interest.  Because he fails to show an actual conflict between himself and counsel, he fails to show he was entitled to a continuance based on identifiable harm.  Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/      Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed December 2, 2008.

Panel consists of Chief Justice Hedges and Justices Brown and Boyce.

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

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^[1]  The prosecutor asked Luhan, AWho were the Casanova brothers?@  Luhan replied, AI don=t know, some brothers that live in Eagle Lake, Texas.@