Opinion
No. 04-17-00199-CR
07-11-2018
Emmanuel Gerardo GALINDO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR3792A
Honorable Steve Hilbig, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Appellant Emmanuel Galindo was found guilty by a Bexar County jury of four counts of second-degree sexual assault, four counts of second-degree compelling prostitution, and thirteen counts of class A misdemeanor official oppression. The jury found him not guilty of two counts of official oppression. The jury assessed punishment on three of the sexual assault convictions at eight years' confinement in the Institutional Division of the Texas Department of Criminal Justice; on the fourth sexual assault conviction, the jury assessed ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of ten years. On each of the compelling prostitution convictions, the jury assessed five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Galindo was sentenced to one-year confinement in the Bexar County Jail, suspended and probated for a term of two years on each of the official oppression convictions. On appeal, Galindo contends that because his trial counsel represented both he and his co-defendant during the course of the trial, he was denied effective assistance of counsel in violation of his Sixth Amendment rights. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2015, San Antonio Police Officers Emmanuel Galindo and Alejandro Chapa began recruiting women to help in an "undercover program."
In April of 2015, C.R. met Galindo and Chapa at Starbucks. The officers showed her their badges, explained the undercover program and how it would work, the different levels of participation and what she would have to do to qualify for those levels. She described some of the questions:
For purposes of this opinion, we use initials to protect the identities of the victims, C.R., F.V., and S.F.
Would we be okay with killing somebody, would we be okay with sexual activity and what type of sexual activity, how far we were willing to go with sexual activity, if we're okay with breaking the law, like driving over the speed limit, shooting somebody, stealing.Galindo and Chapa explained if she qualified, she would be entering into a contract punishable by prison if she told anyone. C.R. explained that she agreed to participate because she had recently been granted custody of her little sister and her mother was threatening to take her away. C.R. could not afford a lawyer and she was also trying to adopt her nephew. "[W]hen the opportunity arose, it kind of seemed like a miracle that I was going to be able to get them." The next test was at her apartment. Galindo arrived, he searched the apartment, put his gun in his briefcase, and started the alcohol testing. He made her continue to take shots of tequila, dance in her underwear, and he would test her with a horizontal gaze nystagmus test. He told her only the highest ranking girls would continue in the program. C.R. then explained,
[H]e basically said we had to do a sexual act. He said the more that's involved, the higher the score is for it.C.R. testified she only had sex with him so that she could "move up to the next level in the undercover program." Galindo came to her apartment a second time, but had to leave shortly after he arrived. He then set up another training session. When they arrived, Galindo told her that she needed to pass her second test, the "exotic test and sexual act." The next mission was at a hotel. Galindo took C.R. aside and told her that he could help with her custody issues, but that she would have to perform a sex act with Chapa. That was the last time she spoke to either Galindo or Chapa.
So if you are only willing to hold hands, your score will be lower, whereas if you have sex, your score will be higher. Then, he said that the higher your score is, the more you're allowed to get paid. Because my plan was to only do it temporarily, so he said if you want to get paid the most for the shortest amount of time, sex would be your best option.
In April of 2015, F.V. met for an interview with Galindo at Starbucks. The initial communication began through texting. F.V. was instructed to look for "the detective with the yellow envelope." At trial, F.V. identified Galindo as the individual she met at Starbucks that day. Galindo presented F.V. with a long questionnaire, including what sexual activities she would partake in, questioned how comfortable she was with different illegal drugs, and whether she would ever hurt or kill someone. F.V. was told she faced serious punishments if she spoke to anyone or divulged the information Galindo had disclosed. After she left Starbucks, F.V. received a text that Galindo's detective "recommended [her] a Level 4" for purposes of pay and operations. Several days later, when Galindo and Chapa arrived to pick her up, Galindo told F.V. that if she went through with the mission, the officers would "take care of" her pending DWI. F.V. met with both Galindo and Chapa on several occasions. On the first occasion she did not have sexual intercourse with Galindo. When F.V. received her points, they were insufficient to dispose of her DWI. On the next occasion, she had sexual intercourse with Galindo—for the sole purpose of acquiring sufficient points to dispose of her DWI. But when she told Chapa that she was not interested in Galindo, the "missions" stopped.
On June 16, 2015, S.F. met Galindo at Starbucks. He showed her his credentials, told her that he worked with special ops forces, and explained that he and other officers were looking for help in a covert operation to hunt drug lords, terrorists, and other criminals. Galindo conveyed that the officers were looking for women to act as girlfriends and wives, and the women could earn up to $5,000.00 per day. S.F. told Galindo she was desperate for the money because her mother needed a kidney transplant. Galindo showed S.F. a confidential form; he asked her to provide her information and identifiers, and explained that if she told anyone about the program she could be fined up to $10,000.00 and be sent to federal prison. Galindo told S.F. to text him if she was interested; the first step would be to participate in a series of "tests" to see if she could hold her alcohol, perform lap dances, or other sex acts to see how comfortable she was in an undercover capacity. He also asked her about her comfort level with illegal drugs and whether she would kill someone. S.F. testified that during her first test, Galindo came to S.F.'s apartment. He had S.F. continue to drink shots until she was intoxicated and then sexually assaulted her. After he left, S.F. committed herself to a treatment facility and never spoke to Galindo again.
The State also presented testimony from several witnesses who met with Galindo at Starbucks around the same time in 2015 with similar stories. Galindo met each of these witnesses and asked them to serve in an undercover capacity. Each witness testified that Galindo: (1) told them that their pay would depend on their test results and how far they were willing to go; (2) gave them a confidentiality agreement and told them that, if they breached it, they faced fines and potential jail sentences; (3) asked about illegal drugs, personal information, body measurements, and whether they were willing to hurt or kill someone; and (4) told them that the first test would include a determination of how much alcohol they could hold and still exercise or perform sexual dances. For different reasons, something made each of these witnesses stop texting and not follow through with the testing requested by Galindo.
On April 26, 2016, a Bexar County Jury returned a twenty-three-count indictment alleging four-counts of sexual assault, four-counts of compelling prostitution, and fifteen-counts of official oppression. The jury found Galindo not guilty on two-counts of official oppression and guilty on the remaining twenty-one counts.
In his sole issue on appeal, Galindo contends that because his defense counsel represented his co-defendant during the course of the trial, Galindo asserts he was denied his Sixth Amendment right to effective assistance of counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
The Sixth Amendment guarantees the right to reasonably effective assistance of counsel, which includes the right to "conflict-free" representation. Strickland v. Washington, 466 U.S. 668, 692 (1984); Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). In the case of a conflict of interest, trial counsel renders ineffective assistance if the defendant can demonstrate that (1) trial counsel was burdened by an actual conflict of interest and (2) the conflict actually affected the adequacy of counsel's representation. Cuyler, 446 U.S. at 349-50. If a defendant establishes both of these requirements, he need not demonstrate prejudice—the second prong of ineffective assistance claims under the usual Strickland standard—to obtain relief. Id.; see also Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) ("If appellant demonstrates [the Cuyler requirements], then the second prong of the Strickland test will be met because prejudice is presumed.").
If trial counsel "is burdened by an actual conflict of interest," there is a limited presumption of prejudice but only if "the defendant demonstrates" that his attorney "'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S. at 692 (citing Cuyler, 446 U.S. at 348-50). If the defendant fails to present any evidence regarding the issue, his "claim will fail." Odelugo v. State, 443 S.W.3d 131, 136-37 (Tex. Crim. App. 2014). An actual conflict of interest exists if counsel is required to make a choice between advancing a client's interest in a fair trial or advancing other interests to the client's detriment. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997).
We recognize that "the allegation[s] of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). "This is true with regard to the question of deficient performance . . . where counsel's reasons for failing to do something do not appear in the record." Id. (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Id. If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
B. Arguments of the Parties
Galindo contends he was denied effective assistance of counsel because his trial counsel represented both Galindo and his co-defendant during the course of the trial resulting in a violation of his Sixth Amendment rights. The State counters that Galindo specifically waived any conflict prior to the start of the trial.
C. Waiver
Even if a conflict of interest exists, a defendant may waive his right to conflict-free counsel so long as the record demonstrates that the defendant knowingly and voluntarily waived his right to conflict-free counsel. Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981). The record should show that the defendant was aware of the conflict of interest, realized the consequences of continuing with such counsel, and was aware of his right to obtain other counsel. Ex parte Prejean, 625 S.W.2d at 733 & n.6. Moreover, in this case, because the trial court based its findings, at least in part, on Galindo's credibility and demeanor when he testified at the hearing and on counsel's actions at trial, we will review the trial court's decision regarding conflict of interest and waiver under the abuse of discretion standard. See Ex parte Meltzer, 180 S.W.3d 252, 256 (Tex. App.—Fort Worth 2005, no pet.) ("[B]ecause the trial court's decision was based at least in part on the credibility and demeanor of the witnesses and [a]ppellant, we will review the trial court's ruling under the abuse of discretion standard.").
D. Testimony Before the Trial court
On November 28, 2016, Galindo was represented by Attorney Alan Brown, and Chapa was represented by Attorney R.C. Pate. Pate was employed by Brown. The trial court addressed the issue of dual representation with Galindo and Chapa.
Trial court: Well, when you say you've heard a little bit about it—I'm not trying to interfere with attorney-client privilege, but I want to make
sure—any time one attorney represents two folks, sometimes it's a situation where there could be a conflict in the matter.
In other words, it might be beneficial sometime for one person to do something different than the other person. When an attorney represents both of those individuals, then his loyalty could sometimes be divided, that is he may feel like, "Well, I can't do this certain thing to help one person because that might hurt my other client."
And so as a result of that, there is a potential for conflict with both of y'all being represented by one attorney. Has that been explained to y'all by your attorney?
Galindo: Yes, sir.
Chapa: Yes, sir.
Trial Court: Y'all have had that thorough conversation, because you said it's been something that you've heard about, but I want to make sure that you've got a thorough—
Galindo: Yes, sir. I was confused with another matter.
Trial Court: Okay. So y'all had that conversation with your attorney?
Galindo: Yes, sir.
Trial Court: And both of y'all are willing to waive any conflict that may exist by both of y'all being represented by a single attorney?
Galindo: Yes, sir.
. . . .
Trial Court: And, Mr. Galindo, do you waive it?
Galindo: Yes, sir.
Trial Court: State, do you want me to inquire any further?
State: Well, I appreciate you doing that. It needed to be done. And I discussed that with Adam previously and, yes, it definitely needed to be done.
Trial Court: All right. And, [defense counsel], when I did that, there was no reflection on your representation.
There again, down the road it's the circumstance where we want to make sure—y'all have the right to be represented by whatever counsel you choose. It doesn't matter to me. But sometimes there just needs to be a record clear that y'all have been made aware of a potential conflict and you waived any potential conflict.
At the time of trial, Chapa was represented by Attorney Leigh Cutter. Although Cutter represented Chapa throughout the trial, Brown represented to the trial court that, like Pate, Cutter was an attorney in his office and she was also his employee. Although defense counsel urged a motion for severance on behalf of both Galindo and Chapa on the day the case was called for trial, the prosecutor affirmed that Chapa's statement did not implicate Galindo and Galindo's statement did not implicate Chapa. The trial court denied the motion.
E. Analysis
Here, the trial court concluded that Galindo was aware of the potential conflict of interest and the consequences of continuing with his defense counsel, and he knowingly and voluntarily waived his right to conflict-free counsel. See Ex parte Prejean, 625 S.W.2d at 733; accord Whittington v. State, 457 S.W.3d 621, 626 (Tex. App.—Corpus Christi 2015, no pet.). The trial court further confirmed that defense counsel discussed with Galindo the possibility of a conflict of interest and that the situation could give rise to a conflict where one client's interests were averse to that of the other client. The trial court concluded that Galindo understood the advice, was aware of the conflict, if any, or the potential for a conflict, and understood the consequences of proceeding with defense counsel's representation. See Ex parte Prejean, 625 S.W.2d at 733; Whittington, 457 S.W.3d at 626.
Even if we were to assume a conflict of interest, Galindo has failed to provide evidence that any such conflict actually affected the adequacy of counsel's representation. See Cuyler, 446 U.S. at 349-50. At no point during the trial did the defendants point the finger at each other. The testimony was generally consistent that Galindo took the lead, and Chapa was his side-kick. Galindo was the individual who had sexual intercourse with C.R. at her apartment and who told C.R. they would help with her custody battle, if she performed sexual acts on Chapa. F.V. testified that she had sexual intercourse with Galindo simply to earn enough points to dispose of her DWI, and S.F. testified Galindo sexually assaulted her in her own apartment after he convinced her to drink enough alcohol to where she was too intoxicated to resist. All of the women testified Galindo was the individual who led the interviews at Starbucks and all of the women testified Galindo was the individual who cautioned them if they disclosed information they faced financial penalties and incarceration. The record does not reflect that Galindo's defense was damaged or that defense counsel advanced Chapa's interests to Galindo's detriment at any point during the pendency of the case. See James v. State, 763 S.W.2d 776, 779 (Tex. Crim. App. 1989) (requiring appellant show "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"); Gonzales v. State, 605 S.W.2d 278, 282 (Tex. Crim. App. 1980) (holding actual and significant conflict of interest exists if one defendant stands to gain by evidence or arguments adduced by counsel damaging the cause of co-defendant represented by same counsel). Because Galindo failed to show any potential conflict affected defense counsel's representation, he failed to show both Cuyler elements and, thus, both Strickland prongs.
CONCLUSION
We conclude the record supports the trial court did not abuse its discretion in determining Galindo voluntarily and knowingly waived his right to conflict-free counsel. Ex parte Prejean, 625 S.W.2d 733. Moreover, the record does not contain—and Galindo does not direct our attention to—any evidence that any potential conflict actually affected the adequacy of defense counsel's representation of Galindo. Cuyler, 446 U.S. at 349-50. Because Galindo voluntarily waived conflict-free counsel and Galindo failed to prove the alleged conflict affected the adequacy of counsel's representation, we overrule Galindo's sole issue on appeal and affirm the trial court's judgment.
Patricia O. Alvarez, Justice DO NOT PUBLISH