The State responded that it had no such evidence in its custody or control. ....yeah right, I guess the tape evidence is contrary to Huberts..........

agenda. Control and custody of that tape would reveal John Hubert for the petty prevaricator he is.






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NUMBER 13-02-169-CR

COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG



WILLIAM RAY GEARHART, Appellant,

v.

THE STATE OF TEXAS, Appellee.



On appeal from the 105th District Court

of Kleberg County, Texas.



O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo



The State indicted William Ray Gearhart, appellant, as a repeat felony offender for assaulting a public servant. Footnote On March 5, 2002, a jury convicted Gearhart and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Gearhart's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

Gearhart filed a pro se notice of appeal on March 8, 2002. In the notice, Gearhart complained about his trial counsel's representation. He asked the trial court to appoint appellate counsel to represent him. The trial court appointed new counsel for him on appeal. Gearhart's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. APPLICABLE APPELLATE RULES

The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gearhart's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on December 10, 2003 that includes the trial court's certification that Gearhart has the right of appeal. We now turn to the merits.

III. DISPOSITION

A. Anders Brief

Gearhart's original court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel certifies: (1) he diligently reviewed the record for reversible error; (2) he was unable to find any error that would arguably require reversal of the trial court's judgment; (3) in his opinion, the appeal is without merit; (4) he served a copy of the brief on Gearhart; and (5) he informed Gearhart of his right to review a complete copy of the appellate record and file a pro se brief on his own behalf. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the indictment, pre-trial motions, voir dire, opening statements, sufficiency of the evidence, jury charge, closing argument, and punishment phase. Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See id. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the “conclusory statement” decried by Anders. See id.

In response to counsel's brief, Gearhart filed a pro se brief. Gearhart's original appointed counsel withdrew while this appeal was pending. The trial court appointed substitute appellate counsel.

B. Pro Se Brief

Gearhart asserts he was falsely accused of assaulting a public servant, a police officer with the Kingsville Police Department. He maintains that after he filed an internal affairs complaint regarding the incident, he was retaliated against when the State arrested him again for filing a false report and charged him with aggravated perjury. Generally, Gearhart challenges the sufficiency of the evidence to support his conviction. He claims he was attacked, without provocation, by two Kingsville police officers. He denies he attacked one of the officers first. He cites to purported inconsistencies in the testimony at trial in support of his position. Gearhart also claims that the State did not present evidence of his prior conviction for assault on a public servant to support his conviction and resulting enhanced punishment as a repeat felony offender.

Gearhart also complains his trial counsel was ineffective. He argues that his trial counsel did not subpoena the videotape from the arresting officer's squad car or the audiotapes of an emergency call made by a witness, a clerk at the convenience store where the altercation took place. The tapes, Gearhart asserts, would have substantiated his version of events. Gearhart also alleges his counsel was ineffective by not objecting to the jury. He claims that jurors who indicated in voir dire they knew the prosecutor or his family ended up on the jury and that his trial counsel permitted venire members to remain on the jury despite Gearhart's instructions to the contrary. Further, Gearhart alleges his trial counsel was ineffective by not delivering a closing argument that challenged the testimony of the officer about an injury that the officer had not included in his original report of the incident. Finally, Gearhart complains that his trial counsel made an inappropriate remark to the prosecutor, after the jury retired to deliberate, reflecting counsel's belief that the jury would find Gearhart guilty.

C. Independent Review of the Record

Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christ 2002, no pet.).

1. The Indictment

The indictment properly alleges the offense of assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b), (d) (Vernon 2003). It also properly alleges three prior offenses as repeat felony offender enhancement. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gearhart did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). We find no arguable error in the indictment.

2. Pre-Trial Motions

The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.

3. Voir Dire

A review of the voir dire examination shows that sixteen venire members knew the prosecutor, a long-time resident of Kingsville, or his family. They all indicated they would consider the facts of the case and not base their decision on their knowledge of the prosecutor or his family. Neither the State nor Gearhart raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App.–Waco 2001, pet. ref'd). Further, the trial court did not limit Gearhart's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). We find no arguable error in voir dire.

4. Opening Statements

As a general rule, to preserve error for appellate review, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Each side presented opening statements. Neither side objected to the other's. Gearhart thus waived any error in the prosecution's opening statement. See Limas v. State, 941 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996, pet. ref'd) (finding waiver for failure to object to prosecutor's closing argument). We find no arguable error in the prosecution's opening statement.

5. Sufficiency of the Evidence

a. Standards of Review

(1) Legal Sufficiency

A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).

In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

(2) Factual Sufficiency

We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.

We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). If the accused did not have the burden of proof at trial, then the first or "manifestly unjust" standard applies. Id. If the accused had the burden of proof at trial, then the second or "against the great weight and preponderance" standard applies. Id.

In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

b. Sufficiency Analysis

(1) Legal Sufficiency

Viewing the evidence in the light most favorable to the prosecution and measuring it against a hypothetically correct jury charge, we find that the arresting officer testified to each of the elements of the offense of assault of a public servant. Gearhart struck the uniformed officer while the officer was in the process of detaining him in response to a public-disturbance complaint. Gearhart's assault bruised the officer and chipped his tooth. The convenience store clerk corroborated the officer's testimony. Gearhart stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Viewing the relevant evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime, including the repeat felony offender allegation. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.

(2) Factual Sufficiency

We view all the evidence neutrally, favoring neither the State nor Gearhart, and measure it against a hypothetically correct jury charge. Johnson, 23 S.W.3d at 6-7; Adi, 94 S.W.3d at 131. In addition to the arresting officer and convenience store clerk's testimony, Gearhart testified in his own defense. He admitted he had been drinking and had gotten into a disagreement with the clerk about getting free matches from the store. He admitted he had marijuana in his pocket. He denied assaulting the officer, however. Rather, he said the officer who testified and a second officer assaulted him without provocation. Finally, Gearhart admitted he had been convicted before for assaulting a public servant, although he stressed that the public servant he assaulted that time was a corrections officer, not a police officer. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gearhart, and with appropriate deference to the jury's credibility determinations, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 6-7.

Accordingly, we find no arguable legal or factual insufficiency of the evidence. 6. The Charge

Gearhart did not object to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh'g). We find no arguable egregious error in the charge. 7. Closing Argument

Neither party objected to the other's closing argument. Thus, Gearhart waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Limas, 941 S.W.2d at 203. We find no arguable error in the prosecutor's jury argument.

8. Punishment Phase

The record shows that Gearhart stipulated to the prior felony assault of a public servant in the culpability phase of the trial, which evidence supported his enhanced punishment as a repeat felony offender. To preserve any error in the punishment phase, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Gearhart did not object at sentencing on any basis. We find that he waived any challenge to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.

9. Ineffective Assistance of Counsel

The record contains no evidentiary support for Gearhart's claims of ineffective assistance of counsel. When the alleged ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex. Crim. App. 1994).

Accordingly, our independent review of the record finds that Gearhart's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App.–Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gearhart on appeal. We hereby order counsel to advise Gearhart promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.

ERRLINDA CASTILLO

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 11th day of December 2003.

A judge shall be patient, dignified and courteous to litigants,

Local
Bañales shifts bond funds to husband's office
Couple: County must provide space for judge

By Dan Kelley (Contact)
Originally published 03:46 a.m., April 29, 2008
Updated 03:46 a.m., April 29, 2008
Bañales' vote, involvement do not appear to be conflict of interest, attorney says.
Bañales' vote, involvement do not appear to be conflict of interest, attorney says.

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Nueces County Commissioner Peggy Bañales voted to take $118,000 for roadwork in her precinct and spend it inside the courthouse instead -- on a new office for her husband, Judge J. Manuel Bañales.

The judge, who presides over the 105th District Court, had been appointed recently to the additional duty of presiding judge of the 5th Judicial District. In those two capacities, he now maintains two offices in the courthouse.

The Bañaleses said the county was obligated to provide an office for the presiding judge, and that the money would have had to come from somewhere.

"No matter where the money came from, the county would have to do it," Commissioner Bañales said.

The transfer occurred June 13 after Commissioner Bañales abstained from two other votes related to the renovation, one on March 21 and another April 17. She said she wanted to avoid the appearance of conflict of interest.

Behind the scenes however, she worked to secure funding.

And on June 13, when a vote to shift the money for the project came up, she was the second of two commissioners who called to bring the transfer to a vote.

Her vote and involvement do not appear to be a potential conflict of interest, according to the county attorney. Commissioner Bañales also said she voted for the transfer because it contained increased funding for other projects, such as the Richard M. Borchard Regional Fairgrounds.

Of the $165,000 used to renovate the judge's offices, about $118,000, came from 2004 bond funds earmarked to rehabilitate County Road 52 in Precinct 1, which is represented by Commissioner Bañales. Commissioner Betty Jean Longoria contributed about $40,000 from funds she controlled.

Each commissioner maintains a portion of the bond funds to be used in his or her district and each has control over that portion of the funds. Some have more than $1 million dollars left since the county issued the certificates of obligation.

When asked why he needed the second office, Judge Bañales said the county was obligated to provide an office for the presiding judge, and that the money would have had to come from somewhere.

Judge Bañales said he uses the office to have regular meetings with judges from across the region. He also uses the office for a committee that issues credentials for lawyers working in death penalty cases.

Commissioner Bañales said she used money slated for County Road 52 because another bond issue, from 2007, also included money for that road. She said other options to pay for the renovation included using money from the general reserve and taking money away from some other project.

"There was money available," she said. "It seemed that was the best solution."

Judge Bañales said he isn't the first presiding judge to have two offices -- two others who held the post in Edinburg and Brownsville also did.

"You have to keep in mind that the county is obligated to provide those funds, if it was for me or another individual," Judge Bañales said.

The judge estimated that he spends 20 percent to 30 percent of his time serving as presiding judge. Duties of that post include assigning cases to other judges in situations where another judge is ill or incapacitated, and presiding over situations in which a party in a lawsuit has asked a judge to step aside or recuse himself or herself from a case.

Judge Bañales also sits on the bench for civil and criminal trials in both Nueces and Kleberg counties.

The office has a kitchen, bathroom, and a large conference room where judges from several counties meet regularly.

Commissioner Bañales' vote likely is not a conflict of interest under Texas law. County officials generally are prohibited from voting on matters in which their close relatives have a financial or business interest, and this situation likely doesn't add up to a financial or business interest, County Attorney Laura Garza Jimenez said.

Bañales was appointed to a four-year term as presiding judge in January 2007.

He is the first judge from Nueces County to hold that post in more than 20 years.

Initially, Judge Bañales asked to house his new offices on the 10th floor of the courthouse, where the 13th Court of Appeals meets. He wanted to use office space the court of appeals wasn't using.

The Court of Appeals had other ideas.

A letter signed by six justices complained that locating Bañales on the 10th floor could allow visitors to his office to overhear the court's deliberations. It also would have ejected some of the court of appeals' staff.

By March, Judge Bañales had agreed to offices on the fifth floor.

Contact Dan Kelley at 886-4316 or kelleyd@caller.com.

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Rule 1.06 notes that "[i]f the lawyer's own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advi

REFERENCES PROCEDURAL & CONDUCT RULES TEXAS PROFESSIONAL ETHICS OPINIONS	MEMBERSHIP CONTACT US SITEMAP ABOUT THE CENTER COURSES & EVENTS REFERENCES RESOURCES BOOKSTORE MEMBERS ONLY Texas Professional Ethics Opinions Type in a specific opinion number or search for specific keywords. OPINION 571 THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS May 2006 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may a prosecutor require as part of a plea agreement that a criminal defendant waive post-conviction appeals based on prosecutorial misconduct and ineffective assistance of counsel? Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a criminal defendant's lawyer to advise the defendant regarding such an agreement, and if agreed to by the defendant, to sign the plea agreement along with the defendant? STATEMENT OF FACTS In the context of negotiating a plea agreement with a criminal defendant, and as a condition to the prosecutor's acceptance of the plea agreement, the prosecutor requires the criminal defendant to execute an agreement waiving post-conviction rights to appeal based on prosecutorial misconduct and ineffective assistance of counsel. Additionally, the prosecutor requires the criminal defendant's lawyer to sign the plea agreement containing these waivers of post-conviction rights to appeal. DISCUSSION The questions presented relate to numerous legal issues that may be involved in the enforceability and effect of waivers contained in plea agreements but that are not within the jurisdiction of the Committee. Because of the limited jurisdiction of the Committee, this opinion is necessarily limited to consideration of the applicability of the Texas Disciplinary Rules of Professional Conduct to the circumstances presented. Prosecutor Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct sets forth certain ethical standards for prosecutors in criminal cases. Rule 3.09(c) states that the prosecutor in a criminal case shall "not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights" (emphasis added). By its terms, Rule 3.09(c) prohibits a prosecutor from attempting to obtain a waiver of post-conviction rights from a criminal defendant who is not represented by counsel. In contrast, the criminal defendant in the circumstances here considered is and has been represented by counsel. In these circumstances, Rule 3.09 does not prohibit a prosecutor from requesting in a plea agreement a waiver of appeals based on prosecutorial misconduct or ineffective assistance of counsel. Paragraphs (a) and (d) of Rule 3.09 provide that a prosecutor shall: "(a) refrain from prosecuting . . . a charge that the prosecutor knows is not supported by probable cause; . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; . . . ." A violation of these requirements can constitute prosecutorial misconduct. While Rule 3.09 does not prohibit a prosecutor from including in a plea agreement a waiver of post-conviction appeals based on claims of prosecutorial misconduct or ineffective assistance of counsel, obtaining such a waiver in a plea agreement does not relieve the prosecutor from complying with the requirements of Rule 3.09. Further, the waiver does not exempt the prosecutor from disciplinary action for misconduct that violates the Texas Disciplinary Rules of Professional Conduct. Defense Counsel The Texas Disciplinary Rules of Professional Conduct impose on defense counsel no special constraints with respect to representation of a criminal defendant concerning a proposed plea agreement containing a waiver of appeals based on claims of misconduct by the prosecutor. However, with respect to a proposed waiver of appeals based on claims of ineffective assistance of the defendant's counsel, the requirements of Rule 1.08(g) and Rules 1.06(b) and 1.06(c) as applied to defense counsel must be considered. Rule 1.08(g) provides in pertinent part that "[a] lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement . . . ." A plea agreement waiving post-conviction appeals based on ineffective assistance of counsel does not expressly limit the defense counsel's liability to the defendant for malpractice. Rather, the waiver is directed at arguments that might be made, on direct appeal, by habeas corpus or otherwise, in an effort by the criminal defendant to set aside the plea agreement and thus the conviction. Nevertheless, depending on the precise language of the plea agreement and the specific facts of a particular case, an attempt could be made to use or interpret the plea agreement waiver of rights to appeal based on a claim of ineffective assistance of counsel as an agreed limitation on defense counsel's liability for malpractice. In this opinion, the Committee assumes that in a malpractice dispute, upon a consideration of the relevant public policy concerns arising from the circumstances surrounding plea agreements and the nature of the relationship between a criminal defendant and criminal defense counsel, a court or other authority would not allow a waiver in the plea agreement to be used or interpreted as an agreement limiting a defendant's malpractice claim. Consequently, the Committee finds that Rule 1.08(g) does not prohibit a lawyer from advising a defendant regarding a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel. However, if such a plea agreement waiver were interpreted to be an agreement limiting a criminal defense lawyer's liability to the defendant for malpractice, Rule 1.08(g) would require that the criminal defendant be represented by separate counsel, at least with respect to considering and entering into the waiver relating to ineffective assistance of counsel. Advising a defendant about a plea agreement that waives post-conviction appeals based on claims that the criminal defendant's lawyer rendered ineffective assistance would normally present for the lawyer conflict of interest issues that are governed by Rules 1.06(b) and 1.06(c). These Rules provide in pertinent part: "(b) . . . except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: . . . (2) reasonably appears to be or become adversely limited . . . by the lawyer's or law firm's own interests. (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any." Depending upon the facts involved in each case, a criminal defense lawyer may or may not have a conflict of interest with respect to advising the defendant about a plea agreement containing a waiver of claims of ineffective assistance of counsel. In some cases, the defense lawyer may have no cause for any reasonable concern as to his effectiveness in representing the defendant. In such cases, the representation of the defendant as to the waiver would not reasonably appear to be adversely limited by the lawyer's interests; consequently, Rule 1.06(b)(2) would not prohibit the lawyer's representation of the defendant as to the waiver. In other cases, if the lawyer has a reasonable basis for concern that he may have rendered ineffective assistance to the defendant, the lawyer's representation of the defendant as to the proposed plea agreement waiver may reasonably appear to be limited by the lawyer's own interest in not being found to have rendered ineffective assistance. Rule 1.06(b)(2) would then prohibit the lawyer's representation as to the waiver unless the requirements of Rule 1.06(c) can be met. In that circumstance, the lawyer would have to apply Rule 1.06(c)(1) and determine whether he reasonably believes that the representation of the defendant with respect to the plea agreement and waiver would not be adversely affected by the lawyer's own interests. In this regard, Comment 5 to Rule 1.06 notes that "[i]f the lawyer's own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advice." In some instances, a disinterested lawyer would conclude that the defendant should not agree to the lawyer's representation with respect to the proposed plea agreement waiver, in which case the lawyer should not ask for the defendant's consent to continue the representation as to the waiver. See Comment 7 to Rule 1.06. In other circumstances, following a determination that the requirements of Rule 1.06(c) apply, the lawyer may reasonably believe after examination of the issue that the representation of the defendant as to the proposed plea agreement waiver will not be materially affected by the lawyer's own interests. In that case, Rule 1.06(c)(2) requires the lawyer to seek the consent of the defendant for the lawyer's representation concerning the waiver after full disclosure to the defendant of the facts and issues involved. In disclosure on this matter and in communications with the defendant generally, the lawyer is required under Rule 1.03(b) to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." In some cases, although the lawyer reasonably believes under Rule 1.06(c)(1) that the representation of the defendant will not be materially affected, it may be impossible to make the required full disclosure or to obtain informed consent from the defendant. For example, a lawyer may not be able to make the necessary disclosure because of duties owed to other clients, or the defendant may for some reason be unable to consider appropriately the question of giving consent after the lawyer's disclosure. In cases where consent after full disclosure is required but for whatever reason cannot be obtained, defense counsel may not advise the defendant as to a plea agreement waiver of appeals based on claims of ineffective assistance of counsel. In summary, a criminal defense lawyer must consider the application of Rule 1.06 in each case involving a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel. In some cases, the criminal defense lawyer will be able to determine that there is no concern on the part of the lawyer as to the effectiveness of the lawyer's assistance to the defendant that would create a conflict of interest for the lawyer under Rule 1.06(b)(2). In that event, the lawyer may represent the defendant with respect to the plea agreement waiver. In other cases, the representation will be permitted after the lawyer's evaluation under Rule 1.06(c)(1) and disclosure and consent under Rule 1.06(c)(2). In other cases, a conflict of interest will exist within the scope of Rule 1.06(b)(2) and it will not be possible for the lawyer to meet the requirements of Rule 1.06(c). In that event, the defendant must be advised by separate counsel concerning the proposed waiver of post-conviction appeals based on claims of ineffective assistance of counsel. CONCLUSION The Texas Disciplinary Rules of Professional Conduct do not prohibit a prosecutor from including in a plea agreement a waiver of post-conviction appeals based on claims of prosecutorial misconduct or ineffective assistance of counsel. However, obtaining such a waiver does not relieve the prosecutor from complying with the requirements of Rule 3.09 and does not preclude discipline for misconduct that violates the Texas Disciplinary Rules. Assuming that a waiver of claims of ineffective assistance of counsel in a plea agreement is not treated as an agreed limitation on possible future malpractice claims by the defendant against the lawyer, the Texas Disciplinary Rules of Professional Conduct do not prohibit a criminal defense lawyer from advising a defendant with respect to a plea agreement that contains a waiver of post-conviction appeals based on prosecutorial misconduct or ineffective assistance of counsel or from signing the plea agreement along with the defendant, provided that in the particular case the defense lawyer fully complies with the applicable requirements of Rules 1.06(b) and 1.06(c) with respect to any conflict of interest arising from the waiver of post-conviction appeals based on ineffective assistance of counsel.
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when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others......

This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity, my only event of today, to speak briefly to you about the mindless menace of violence in America which again stains our land and every one of our lives. It is not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one - no matter where he lives or what he does - can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on and on in this country of ours. Why? What has violence ever accomplished? What has it ever created? No martyr's cause has ever been stilled by an assassin's bullet. No wrongs have ever been righted by riots and civil disorders. A sniper is only a coward, not a hero; and an uncontrolled, uncontrollable mob is only the voice of madness, not the voice of reason. Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded. "Among free men," said Abraham Lincoln, "there can be no successful appeal from the ballot to the bullet; and those who take such appeal are sure to lose their cause and pay the costs." Yet we seemingly tolerate a rising level of violence that ignores our common humanity and our claims to civilization alike. We calmly accept newspaper reports of civilian slaughter in far-off lands. We glorify killing on movie and television screens and call it entertainment. We make it easy for men of all shades of sanity to acquire whatever weapons and ammunition they desire. Too often we honor swagger and bluster and wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of others. Some Americans who preach non-violence abroad fail to practice it here at home. Some who accuse others of inciting riots have by their own conduct invited them. Some look for scapegoats, others look for conspiracies, but this much is clear: violence breeds violence, repression brings retaliation, and only a cleansing of our whole society can remove this sickness from our soul. For there is another kind of violence, slower but just as deadly destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is the slow destruction of a child by hunger, and schools without books and homes without heat in the winter. This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all. I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies, to be met not with cooperation but with conquest; to be subjugated and mastered. We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community; men bound to us in common dwelling, but not in common effort. We learn to share only a common fear, only a common desire to retreat from each other, only a common impulse to meet disagreement with force. For all this, there are no final answers. Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of humane purpose that will recognize the terrible truths of our existence. We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of others. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge. Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanquish it with a program, nor with a resolution. But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment they can. Surely, this bond of common faith, this bond of common goal, can begin to teach us something. Surely, we can learn, at least, to look at those around us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.