TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00014-CR
v.
The State of Texas, Appellee
NO. 47,777, HONORABLE MARTHA TRUDO, JUDGE PRESIDING
BACKGROUND
Daniels was indicted on one count of aggravated sexual assault of a child. On October 17, 1997, he entered an open plea of guilty to the indictment without a plea bargain. The trial court concluded that the evidence was sufficient to support the plea, but withheld a finding of guilt until a presentence report could be prepared.
The punishment hearing commenced on November 10. The State offered into evidence by stipulation Daniels's juvenile record for enhancement purposes. Daniels's attorney, F. Edward Brown, objected, claiming improper certification and authentication. Brown informed the trial court that he had a discussion with the State about a stipulation regarding the juvenile record, but that he did not agree to it. Claiming surprise and an inability to locate another witness to identify and authenticate Daniels's juvenile record, the State called Brown to testify about his representation of Daniels in the juvenile case. Brown declined to answer the State's questions, asserting both attorney-client privilege and conflict of interest. The trial court overruled Brown's objections and instructed him to answer each of the State's questions. Daniels's juvenile record was subsequently admitted into evidence.
After Daniels's juvenile record was admitted, the State requested that he be given the opportunity to request new counsel in light of the possible conflict of interest arising from Brown's testimony. Brown requested a recess to confer with Daniels's family, which the trial court granted.
When the hearing reconvened on November 26, Daniels presented the trial court with a motion for mistrial. On direct examination, Daniels testified that he did not wish to waive his right to assert a conflict of interest. When he was cross-examined, however, Daniels stated that there was no conflict of interest between him and his attorney and that he desired to have Brown continue to represent him. The trial court found that Brown's testimony regarding Daniels's juvenile record did not create a conflict of interest and denied the motion for mistrial. The court again admitted the juvenile record over Daniels's objection. On December 1, following a third recess and after all the evidence was presented, the court found Daniels guilty of aggravated sexual assault of a child and assessed punishment at fifteen years' imprisonment.
DISCUSSION AND HOLDING
Daniels contends that his substantial rights were violated when his counsel, Brown, testified about Daniels's juvenile record. He argues that the trial court compelled Brown to violate rule 3.08(b) of the Texas Disciplinary Rules of Professional Conduct by testifying against Daniels. (1) Daniels contends that he was denied effective assistance of counsel because Brown was placed in the position of having to attack his own credibility in order to contest the admission of Daniels's juvenile record which was identified and authenticated only through Brown's testimony. As a result, Daniels asserts, the trial court effectively deprived Daniels of his ability to contest the admission of his juvenile record on those grounds. Further, Daniels argues that by overruling Brown's objections to testifying and by denying his motion for mistrial, the trial court violated Daniels's right to due process of law.
The State argues that Daniels failed to preserve error, citing Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995), DeBlanc v. State, 799 S.W.2d 701, 718 (Tex. Crim. App. 1990), and Texas Rule of Appellate Procedure 33.1. Specifically, the State claims that Daniels failed to object when Brown was called to testify, and that he did not claim that Brown's testimony would deny him either due process of law or effective assistance of counsel.
Under the general rule, an objection need only be specific enough to apprise the trial court of the defendant's complaint. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); Young v. State, 826 S.W.2d 141, 150 (Tex. Crim. App. 1991) (on rehearing); Smith v. State, 930 S.W.2d 227, 229 (Tex. App.--Beaumont 1996, pet. ref'd). "It is only when the nature of a defendant's complaint is unclear that we should consider his objection waived." Ex parte Little, 887 S.W.2d 62, 66 (Tex. Crim. App. 1994) (citing Lankston, 827 S.W.2d at 909). The reviewing court should reach the merits of a defendant's complaint unless it appears from the context the defendant failed to effectively communicated his desire. Lankston, 827 S.W.2d at 908-09.
From our review of the record, it is clear that Brown effectively communicated his objection to the trial court. Brown objected as soon as he was questioned by the State. Based upon his refusal to testify and the State's response thereto, the grounds of Daniels's objection were apparent. After Brown testified and Daniels's juvenile record was admitted, the State requested that Daniels be given the opportunity to consider firing his attorney:
[PROSECUTOR]: Your Honor, we would further ask the Court that because of the possible conflict this might have created as Mr. Brown says that the defendant be given the opportunity if he wishes at this time to move to retain other counsel or to apply for other counsel if he wishes or to waive any conflict because of Mr. Brown's testimony.
The trial court also acknowledged Brown's objection by asking the State if there was a means of authenticating Daniels's juvenile record other than through Brown's testimony. We find Brown's objections sufficient to convey Daniels's complaint to the trial court. Accordingly, we conclude that error was properly preserved and we will address the merits of Daniels's issues on appeal.
The basis of Daniels's complaint on appeal is the alleged violation of rule 3.08 of the Disciplinary Rules of Professional Conduct. Daniels argues that his attorney's compelled violation of rule 3.08 alone denied him of due process and effective assistance of counsel. Rule 3.08 is designed primarily to insure the testifying lawyer's client is not harmed when his lawyer assumes dual roles of advocate and witness. Tex. Disciplinary R. Prof. Conduct 3.08, comments 1-10; House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997). A violation of rule 3.08 does not require reversal, however, unless a defendant can show the violation affected his substantial rights or deprived him of a fair trial. Brown v. State, 921 S.W.2d 227, 230 (Tex. Crim. App. 1996).
Daniels fails to establish the alleged violation of rule 3.08 affected his substantial rights or deprived him of a fair trial. Immediately following his counsel's testimony, the State gave Daniels the opportunity to hire a new attorney or have one appointed for him. Daniels requested a recess to consider the offer. When his punishment hearing resumed, Daniels testified that he did not wish to fire his attorney and that there was no conflict of interest between him and his counsel.
Daniels pleaded guilty to aggravated sexual assault of a child. The State used Brown's testimony to introduce Daniels's juvenile record into evidence for enhancement purposes only. The trial court admitted Daniels's juvenile record; however, it does not appear that his sentence was enhanced by it. (2) Having found no harm or showing that Daniels's substantial rights were affected by his counsel's testimony, we overrule all issues presented on appeal.
The judgment of the trial court is affirmed.
J. Woodfin Jones, Justice
Before Chief Justice Yeakel, Justices Aboussie and Jones
Affirmed
Filed: October 29, 1998
Do Not Publish
1. Rule 3.08 provides in pertinent part:
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.
Tex. Disciplinary R. Prof. Conduct 3.08(b) (State Bar Rules art. 10, § 9).
2. A co-defendant, who did not have a prior record, received the same sentence as Daniels.
ed his desire. Lankston, 827 S.W.2d at 908-09.
From our review of the record, it is clear that Brown effectively communicated his objection to the trial court. Brown objected as soon as he was questioned by the State. Based upon his refusal to testify and the State's response thereto, the grounds of Daniels's objection were apparent. After Brown testified and Daniels's juvenile record was admitted, the State requested that Daniels be given the opportunity to consider firing his attorney:
[PROSECUTOR]: Your Honor, we would further ask the Court that because of the possible conflict this might have created as Mr. Brown says that the defendant be given the opportunity if he wishes at this time to move to retain other counsel or to apply for other counsel if he wishes or to waive any conflict because of Mr. Brown's testimony.
The trial court also acknowledged Brown's objection by asking the State if there was a means of authenticating Daniels's juvenile record other than through Brown's testimony. We find Brown's objections sufficient to convey Daniels's complaint to the trial court. Accordingly, we conclude that error was properly preserved and we will address the merits of Daniels's issues on appeal.
The basis of Daniels's complaint on appeal is the alleged violation of rule 3.08 of the Disciplinary Rules of Professional Conduct. Daniels argues that his attorney's compelled violation of rule 3.08 alone denied him of due process and effective assistance of counsel. Rule 3.08 is designed primarily to insure the testifying lawyer's client is not harmed when his lawyer assumes dual roles of advocate and witness. Tex. Disciplinary R. Prof. Conduct 3.08, comments 1-10; House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997). A violation of rule 3.08 does not require reversal, however, unless a defendant can show the violation affected his substantial rights or deprived him of a fair trial. Brown v. State, 921 S.W.2d 227, 230 (Tex. Crim. App. 1996).
Daniels fails to establish the alleged violation of rule 3.08 affected his substantial rights or deprived him of a fair trial. Immediately following his counsel's testimony, the State gave Daniels the opportunity to hire a new attorney or have one appointed for him. Daniels requested a recess to consider the offer. When his punishment hearing resumed, Daniels testified that he did not wish to fire his attorney and that there was no conflict of interest between him and his counsel.