The Importance of a Waiver to a Potential Conflict of Interest

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.

Defendant's Right to Subpoena Witnesses for Trial

Believe it or not, every defendant has the right to subpoena witnesses to appear at trial on his behalf, whether they want to appear or not.

What follows is a quick summary of the compulsory process for Texas defendants, taken from Clark v. Texas, 14th District Court of Appeals (Houston):

Under both the United States Constitution and the Texas Constitution, a defendant has a right to compulsory process in order to call witnesses to testify on his behalf. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994). The Texas Code of Criminal Procedure, however, requires a defendant to file an application for a subpoena with the trial court‘s clerk if the defendant wants to ensure the witness‘s presence. Tex. Crim. Proc. Code Ann. § 24.03(a) (Vernon 2009). The defendant must then properly serve the witness. Id. § 24.04(a) (Vernon 2009). If the witness ignores the ―duly served subpoena, the requesting party shall be entitled to a writ of attachment ―commanding some peace officer to take the body of a witness and bring him before such court . . . on the day named . . . to testify in behalf of the State or of the defendant . . . . Id. § 24.11 (Vernon 2009); see id. § 24.12 (Vernon 2009); see also Rodela v. State, 829 S.W.2d 845, 848 (Tex. App.—Houston [1st Dist.] 1992, pet. ref‘d).

A defendant is not entitled to a writ of attachment if he fails to properly serve the subpoena on the witness. Ford v. State, 14 S.W.3d 382, 391−92 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see Erwin v. State, 729 S.W.2d 709, 713−14 (Tex. Crim. App. 1987), overruled on other grounds, Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994). If a party duly subpoenas a witness and the witness does not appear, the party must follow a three-step process to preserve error—the Erwin procedure. Sturgeon v. State, 106 S.W.3d 81, 85 (Tex. Crim. App. 2003). The Erwin procedure includes: (1) seeking a writ of attachment, which the trial court must deny; (2) showing the court what the witness would have testified to; and (3) demonstrating that the witness‘s testimony would have been relevant and material. Sturgeon, 106 S.W.3d at 85 (citing Erwin, 729 S.W.2d at 714). 

As a practical matter, I would argue that you should serve subpoenas on all of your critical witnesses.  That way, the State is in charge of seeing to it that they appear for trial.  Once you've served your subpoenas be careful to follow the proper procedure to preserve error, because the appellate courts will be all too willing to find waiver where possible.

Is the Verdict Form a Part of the Jury Charge?

It is.  Therefore, if the verdict form contains mistakes or omissions, those errors are analyzed for harm under the Almanza standards of review.  We reverse the court of appeals, which stated that a verdict form is not part of the jury charge and held that if a defendant fails to object to the omission of a 'not guilty' option on the verdict form, she fails to preserve any complaint on appeal.

See Jennings v. State, released January 27, 2010 by the Texas Court of Criminal Appeals.

Duty to Make Specific Objections

Admittedly, this topic is an elementary one.  But I wouldn't be writing about it if it were not a commonly seen appellate issue (or waived appellate issue).  Texas Rule of Appellate Procedure 33.1 provides:

33.1.  Preservation; How Shown

(a)    In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

     (1)     the complaint was made to the trial court by a timely request, objection, or motion that:

          (A)   stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

          (B)   complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

     (2)     the trial court:

          (A)   ruled on the request, objection, or motion, either expressly or implicitly; or

          (B)   refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

With that rule in mind, I do not understand why trial counsel continue to make general objections without stating the specific grounds for the objection.  Maybe in the counsel's mind the specific grounds of the objection "were apparent from the context," but you owe a duty to your client to preserve error for appeal.  Because, as we know, if you fail to make a specific objection and/or fail to obtain a ruling from the trial court, the issue will be deemed "waived" by the appellate courts.  Further, an ineffective assistance of counsel claim will usually not stand because the simple making of the general objection will be enough to clear that hurdle.

Anyway, maybe this is more of a rant than a scholarly post, but take it for what it is.

MAKE SPECIFIC OBJECTIONS!!  PRESERVE APPEAL!!  You owe it to your client!

What if Your Objection Contrasts with Well-established Caselaw?

What should you do if your objection to evidence clearly contrasts with well-established caselaw?  Should you make your objection anyway, knowing full-well that it goes against current precedent?  If so, do you couch your objection in policy or fairness terms, hoping that the court will simply decide to depart from the current state of the law?  Or do you sit back and make no objection at all?

According to the 4th Court of Appeals (San Antonio), you must make any and all objections to the admission of evidence at the trial court (whether the objection follows or contrasts with current precedent).  This is not a novel concept as the general rule is well-established, but it becomes much more interesting when you consider a case like Bishop v. State, 04-08-00693-CR. (Sorry link down, will try to post later).

In Bishop, the defendant did not object at trial to the admission of evidence which was seized from his glove compartment as a search incident to arrest.  At the time of the search, the defendant was in custody in the backseat of a patrol car and could not gain access to his vehicle.  The defendant's counsel did not object at trial because this type of evidence (that seized from a glove compartment as a search incident to arrest) is routinely admitted under the Supreme Court holding in New York v. Belton, 453 U.S. 454 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant's lawful arrest) and the Texas Court of Criminal Appeals' holding in State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999).  As a result the defendant was convicted at trial.

Between the time of the conviction and appeal, the Supreme Court issued its opinion in U.S. v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant's arrest  to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Based on this new caselaw, the defendant argued (for the first time) on appeal that the seach of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car.

Rather than recognize the blatant unreasonable search, the 4th Court of Appeals simply punted the issued on procedural grounds by holding that the issue cannot be raised for the first time on appeal.  So in essence, what the court is saying is that litigants need to make any and all objections at trial even though they may conflict with well-established caselaw.  I would put in the disclaimer that you probably should not make frivolous objections, but if you have an honest, conscientious objection to evidence, even if only based on policy or fairness, make it!

Can a Defendant "Un-waive" his Jury Waiver?

If a defendant submits a written waiver of his right to a jury trial in accordance with Article 1.13 of the Texas Code of Criminal Procedure, can he later reassert that right?  And if so, how does he do it?

In a recent published opinion, the Texas Court of Criminal Appeals considered this issue.  See Hobbs v. State.  Justice Cochran delivered the opinion of the court, wherein he stated:

"once the defendant validly waives his right to a jury trial, he does not have an unfettered right to reassert that right."

However, the CCA noted, that if the defendant can show an "absence of adverse consequences," the trial court may, in his discretion, allow the defendant to reassert his right to a jury trial.


What exactly is the burden on the defendant to show an "absence of adverse consequences?"  Per the CCA:

"He must establish, on the record, that his request to withdraw his jury waiver has been made sufficiently in advance of trial such that granting his request will not:  (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the state.  If the defendant's claims are rebutted by that State, trial court, or the record itself, the trial judge does not abuse his discretion in refusing to allow the withdrawal of the waiver."

Whether a defendant is allowed to reassert his right to a jury trial after making a written waiver is very much dependent upon the facts of the particular case.  In Hobbs, the court denied the defendant's request to continue the start of the case and reassert his right to a jury trial because to do so could have allowed the defendant to continue his efforts at witness tampering, which could result in prejudice to the State.  The trial court's denial, according to the 5th Court of Appeals and the CCA, was not an abuse of discretion.

TAKEAWAY:  Do not submit a written jury waiver unless and until you are sure that it is the right move.