Green, Clifford Wayne

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0171-16 CLIFFORD WAYNE GREEN, Appellant v. THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

MCLENNAN COUNTY R ICHARDSON, J., filed a concurring opinion in which K ELLER, P.J., joined.

CONCURRING OPINION

I agree with the majority’s decision to reverse and remand this case so that the Tenth Court of Appeals can address Appellant’s complaint that he was denied conflict-free representation under Cuyler v. Sullivan.1 In Cuyler, the Supreme Court held that a defendant must show that his attorney performed deficiently by demonstrating that his attorney actively represented conflicting interests. In other words, a defendant must show that his attorney had an actual conflict of interest and that this conflict adversely affected the attorney’s performance.2 A defendant must point to specific instances in the record to suggest an actual conflict or impairment of their interests and demonstrate that the attorney made a choice between possible alternative courses of action.3

Appellant asserts that his right to conflict-free counsel extends to experts retained by the defense. He equates conflict-free counsel with conflict-free representation, which, he says, includes the entire “defense team.” Appellant is arguing for the rule in Cuyler to extend to more than just defense counsel—i.e., Dr. Carter had an actual conflict of interest (he was paid by the defense to evaluate Appellant and paid by the State to testify as an expert);4 Dr. Carter testified adversely to Appellant; Dr. Carter was a member of the defense team; Appellant’s lawyer allowed Dr. Carter to testify; therefore he was deprived of conflict-free representation. Appellant attempts to prevail under Cuyler by meshing his attorney and Dr. Carter into one seamless defense entity. It is the allowing of Dr. Carter to testify that does not quite fit into the Cuyler framework. Nevertheless, that is the complaint that was not addressed by the court of appeals, and I agree that it should be.

Although the court of appeals correctly observed that “Appellant’s argument focuses primarily on his right to conflict-free representation as set out in Cuyler,” it chose instead to reverse Appellant’s conviction based on a claim of ineffective assistance of counsel under Strickland v. Washington.5 The court of appeals decided that Appellant’s counsel was ineffective because he failed to object to Dr. Carter’s testimony until Dr. Carter had testified for thirty minutes. While I believe that it was appropriate for the court of appeals to address what it identified as the heart of Appellant’s claim for relief,6 I disagree with its Strickland analysis. Defense counsel made a strategic move in not objecting to Dr. Carter testifying for the State, but it was not such a bad strategic move as to be deficient per se.7

The core of Appellant’s complaint is that Dr. Carter was permitted to testify in the first place and that Dr. Carter’s testimony was damaging to the defense. Appellant argued that he should get relief under Cuyler. The court of appeals held that he should get relief under Strickland.

I agree that we should reverse the decision of the court of appeals on Appellant’s ineffective-assistance-of-counsel claim under its Strickland analysis. I also agree that we should remand the case to the court of appeals to address Appellant’s ineffective-assistance- of-counsel claim under a Cuyler analysis.

With these comments, I join the majority opinion.

FILED: March 22, 2017 DO NOT PUBLISH unknown whether a different expert witness might have given testimony that could have been even more damaging than Dr. Carter’s.