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Ex parte Bowman

Court of Criminal Appeals of Texas

June 28, 2017

EX PARTE RICHARD MARK BOWMAN, Appellant

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

          Yeary, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Keel and Walker, JJ., joined. Alcala, J., filed a dissenting opinion in which Richardson, J., joined. Newell, J., did not participate.

          OPINION

          Yeary, J.

         Appellant was arrested for the misdemeanor offense of driving while intoxicated ("DWI") on September 24, 2004. In a jury trial, he was convicted of that offense on January 11, 2005. His punishment was assessed at 180 days in county jail, probated for a period of one year, and an $800 fine. Although he originally intended to appeal his conviction, Appellant filed a motion to dismiss the appeal, which was granted on January 6, 2006. On September 27, 2013-more than seven and a half years after his conviction became final by the dismissal of his appeal-Appellant filed a post-conviction application for writ of habeas corpus under Article 11.072 of the Code of Criminal Procedure, alleging that his trial counsel's representation had been constitutionally deficient to his substantial detriment. Tex. Code Crim. Proc. art. 11.072.

         The convicting court conducted a hearing on the writ application and ultimately denied relief.[1] On appeal, [2] however, the First Court of Appeals reversed, concluding that counsel had performed deficiently and that Appellant had suffered prejudice. Ex parte Bowman, 444 S.W.3d 272, 282 (Tex. App.-Houston [1st Dist.] 2014). The court of appeals rejected the State's attempt to rely on the equitable doctrine of laches to bar habeas corpus relief on the ground that the State had not invoked laches during the writ hearing at the convicting court level. Id. at 279. On the State's petition for discretionary review, however, this Court vacated the judgment of the court of appeals and remanded the cause for further proceedings, holding that the State did not forfeit its laches argument by failing to raise it first in the convicting court. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim. App. 2014).

         The court of appeals remanded the cause, in turn, to the convicting court for further factual development in a hearing on the laches issue. Ex parte Bowman, 483 S.W.3d 726, 731 (Tex. App.-Houston [1st Dist.] 2016). After conducting the hearing, the convicting court concluded that Appellant should be barred by laches from obtaining habeas corpus relief. The court of appeals reversed the convicting court again, however, holding that laches did not bar Appellant from pursuing his ineffective assistance of counsel claim, and once again granting Appellant relief on that claim. Id. at 738, 741. We granted the State's second petition for discretionary review with respect to two issues: 1) Did the court of appeals err to reach the merits of Appellant's habeas claim when he waited over seven and a half years to assert it; and, if not, then, 2) in any event, did the court of appeals err to hold that Appellant established ineffective assistance of counsel at his 2005 trial for DWI. Because we hold that the court of appeals erred to find trial counsel ineffective, we need not address the laches issue.

         BACKGROUND

         The Offense

         After jet-skiing in the afternoon with one friend, and then drinking at least one glass of wine at the apartment of another friend before briefly falling asleep on her couch, Appellant drove home in the early morning hours of September 24, 2004. Officer William H. Lindsey of the Houston Police Department clocked Appellant driving sixty miles per hour in a thirty-five mile per hour speed zone and pulled him over into the parking lot of a gentlemen's club. Lindsey observed no other infractions of the law before stopping Appellant. Once he did stop Appellant, however, Lindsey detected the odor of alcohol on his breath. He therefore asked Appellant to submit to field sobriety testing. At first, Appellant refused to do any of the field sobriety tests, claiming that he had prior injuries to his knee and ankle. But when Lindsey placed him in handcuffs, Appellant agreed to undergo the testing. Lindsey then uncuffed Appellant and began administering the horizontal gaze nystagmus test. From that test, Lindsey perceived six signs of intoxication. Lindsey next asked Appellant to perform the leg-lift test, but Appellant was unable to do it. He did, however, perform the heel-to-toe test, after which Lindsey arrested him for driving while intoxicated. The sobriety testing and subsequent arrest were recorded on Lindsey's dash camera. Down at the station house, Appellant refused to submit to a breathalyzer test or further physical sobriety testing. He was later charged with misdemeanor DWI.

         The Trial

         In December of 2004, Appellant replaced his originally retained attorney with new counsel, Ned Barnett. The trial judge made it clear to Barnett, however, that he would be expected to go forward on the original trial date set for January 11, 2005. In a jury trial on that date, Lindsey testified against Appellant as summarized above, and the video of Appellant's field sobriety testing was admitted into evidence. In addition, Officer Raymond Cibulski testified that, once Appellant arrived at the station house, he refused to submit a sample of his breath for blood-alcohol analysis. Though Cibulski smelled "a strong odor of an alcoholic beverage on [Appellant's] breath, " saw his "red bloodshot eyes, " and heard his "slurred speech, " he was unwilling to state an opinion about whether Appellant was intoxicated. Officer Chris Green gave Appellant another "opportunity to perform motor skill exercises[, ]" but Appellant "refused them all." Like Cibulski, Green perceived "a strong odor of alcoholic beverage on [Appellant's] breath and red, glassy eyes." But he was also unwilling to offer the opinion that Appellant had necessarily been intoxicated. Lindsey had no such reluctance, confidently asserting at several points during trial that it was his opinion that Appellant had lost the normal use of his physical and mental faculties because of alcohol intoxication.

         On cross-examination of Lindsey, Barnett established that, for eighteen years, Lindsey's duties as a Houston police officer had "focus[ed]" on DWI investigations, most recently as a member of a "D.W.I. task force[.]" Lindsey testified that both Cibulski and Green were also members of the DWI task force. Lindsey acknowledged that he is off duty when he testifies in court, for which he gets "paid overtime, time and a half." He testified that during the previous year he had made four hundred and seventy-six arrests for driving while intoxicated:

Q. So, whenever you make an arrest and you go to court in your off time, you're getting time and a half?
A. I'm required to be here by law, yes, sir.
Q. And that is part of your job description?
A. You're a police officer, you're expected to either -- it's part of your job. I don't see how you can be a police officer and not make an arrest or not write tickets if you're in the street, that's correct.
Q. Testifying is part of your job description?
A. If you make arrests, yes, sir, it comes with the territory.
Q. You make a lot of D.W.I. arrests, don't you?
A. It's what I do solely, yes, sir.
Q. Do you have an estimate of how many D.W.I. arrests you make in a month?
A. No, because each month is different. You have cold weather months, not too many people go out during the cold weather, hot rainy months, rainy weather. On average, well, I can give you -- last year, I can give you a number, I know the total number of arrests I made for the year is four hundred and seventy-six, myself, for the year.
Q. Four hundred and seventy-six in a twelve month period?
A. That's correct.

          From this juncture, Barnett turned to questioning Lindsey specifically about his stop of Appellant. Later, during his final summation to the jury, Barnett made no mention of the above testimony.

         THE ARTICLE 11.072 WRIT APPLICATION

         The Pleading

         A year after he was convicted, Appellant's appeal was dismissed at his own behest, and his 2005 conviction for DWI became final. More than seven years later, in April of 2013, Appellant was again charged by information with misdemeanor DWI. His 2005 DWI conviction was also alleged, as a prior conviction, to enhance the 2013 DWI offense from a Class B misdemeanor, with a minimum term of confinement of 72 hours, see Tex. Penal Code § 49.04(b), to a Class A misdemeanor, with a minimum term of confinement of 30 days, see Tex. Penal Code § 49.09(a).[3]

         Appellant responded by filing an application for writ of habeas corpus under Article 11.072, challenging the 2005 DWI conviction. Tex. Code Crim. Proc. art. 11.072. In his application Appellant alleged, among other things, that Barnett rendered ineffective assistance of counsel during his 2005 trial by failing vigorously enough to develop and present evidence of a pattern on the arresting officer's part of making unwarranted DWI arrests in order to earn overtime pay.

         At the outset of the hearing on the writ application, Appellant introduced a number of exhibits to substantiate this claim. The State made no objection. These exhibits include a letter from the Houston Police Department, generated in response to Appellant's request under the Texas Public Information Act, which shows that in the years 1992 through 2004, inclusive, Lindsey earned more in combined overtime pay than he earned in combined regular salary. In nine of those thirteen individual years, Lindsey earned more in overtime pay than in regular salary. And in the first eleven months of 2004-the year of Appellant's first DWI arrest-Lindsey earned a total of $145, 957, of which only $63, 924 was regular salary while $82, 032 was paid overtime.[4]

          In other exhibits that were admitted at the hearing without objection, three criminal defense lawyers from Harris County, who asserted that they have tried "many" DWI cases there, claimed as follows (as exemplified by the affidavit of Doug Murphy, who described himself as "specializing" in DWI cases):

It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey's tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston-regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape-so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey's payroll records before they tried DWI cases in which he would testify.
* * *
Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey's motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey's opinion regarding intoxication.
I believe that a reasonably competent criminal defense lawyer trying a DWI case in which Lindsey was a key prosecution witness in 2005 would have obtained his payroll records; elicited on cross-examination the amount of money he had received in overtime pay; and argued that his opinion that the driver was intoxicated was not credible because he had a financial motive to make the arrest. Eliciting only the number of DWI arrests that Lindsey made during the previous year and that he was paid time-and-a-half for overtime when he testified would not have given the jury sufficient information to fully assess his financial motivations.

         The other two attorneys' affidavits set out essentially the same information.

         In addition, Appellant introduced an affidavit from the trial judge from Appellant's 2005 DWI trial, former Judge Michael Allen Peters. Appellant's habeas counsel posed the following hypothetical question to Judge Peters: Would he have allowed defense counsel at the 2005 trial to question Lindsey "as to what amount of compensation he, in fact, receives for testifying in a court wherein the trial or hearing involves one of his arrestees, and what would be the amount of overtime compensation both for the specific case (Bowman) as well as for the year[?]" Judge Peters responded:

In all probability I would have allowed the witness to answer that question (if it was asked with the proper predicate) as it would seem to show the jury or allow the jury to determine a possible motive behind the arrests of 476 persons including Mr. Bowman. The jury might conclude that . . . Officer Lindsey had a financial interest, bias, perhaps a monetary influence for his part of the testimony given in a trial or hearing. * * * Moreover, this issue is familiar to me from other cases involving Officer Lindsey, both in my court and other courts, wherein Officer Lindsey had testified regarding the relevance to the trier of fact of this matter.

Appellant contended that his trial counsel, Barnett, was ineffective for not developing and presenting such evidence of Lindsey's self-interest.

         The Writ Hearing

         Barnett was the only witness to testify at the writ hearing. Over and over, he professed not to be able to remember whether he had obtained Lindsey's overtime pay records in preparation for Appellant's 2005 trial:

Q. I want to talk to you, first of all, about your cross-examination of Officer Lindsey. What did you know about him when you tried the case?
A. As I sit here right now, I don't know a -- how -- at some point I learned a lot about Officer Lindsey as everybody did. I don't know what information I had at that point here eight or nine years later.
** *
Q. Did you know that he was the highest paid officer in the city based on the way he worked the overtime system?
A. At some point I knew that. I don't know if I knew that at the time this case was tried.
Q. Well, did you obtain Officer Lindsey's payroll records to determine what he was doing with regard to his overtime pay at the time you tried the case?
A. As I sit here now, I don't, I don't know if I had them at that time.
Q. All right. But at the time you tried the case were you aware of Officer Lindsey's reputation for arresting everybody he stopped for DWI to collect overtime pay for himself and his fellow Task Force officers?
A. I, I knew all these officers did that.
Q. Okay. Did you believe it would be important to obtain the records regarding his overtime pay during that period of time?
A. Well, it could be. I think we talked about that quite a bit in this case.
Q. So the question is: Did you have his overtime pay records or not when you tried the case?
A. Oh, yeah. I don't know the answer to that.
** *
Q. Did you know how to obtain an officer's overtime payroll records back at the time you tried this case?
A. I'm sure I did at that time.
Q. How?
A. With an Open Records ...

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