           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



       1
          446 U.S. 335, 348-50 (1980). If the court of appeals incorrectly decided the case on the point
of error it chose to address, it is proper for us to remand the case to the court of appeals to consider
other grounds that were presented but not addressed. See McClintock v. State, 444 S.W.3d 15, 20-21
(Tex. Crim. App. 2014) (holding that it is typically the Court’s practice to remand for resolution of
issues not yet addressed in the lower appellate courts).
                                                                   Green Concurring Opinion — 2


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



       2
           Cuyler, 446 U.S. at 350.
       3
           Id. at 348.
       4
          Appellant is not asserting that Dr. Carter breached any duties under the physician-patient
privilege or divulged to the State any confidential information obtained from Appellant.
                                                                        Green Concurring Opinion — 3


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


        5
            466 U.S. 668 (1984).
        6
         See T EX. R. A PP. P. 38.1(f) (“The statement of an issue or point will be treated as covering
every subsidiary question that is fairly included.”); see also Burks v. State, No. PD-0992-15, 2016 WL
6519139 (Tex. Crim. App. November 2, 2016) (rehearing granted February 1, 2017).
        7
           See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (holding that, when no
reasonable trial strategy could justify the defense counsel’s conduct, counsel’s performance falls below
an objective standard of reasonableness as a matter of law). After the State notified Appellant’s
defense counsel that Dr. Carter was going to be called as an expert witness, trial counsel’s strategy was
evidently to lay low and not call anyone’s attention to the fact that Dr. Carter had been hired by the
defense to evaluate Appellant. As noted above, defense counsel said “[he] didn’t say a word because
[he] wasn’t . . . sure what purpose they were calling him to at that time.” That may not have been a
good trial strategy, but I would not consider it “so outrageous that no competent attorney would have
engaged in it.” Id. A defense counsel’s decisions regarding trial strategy, even if they fail, do not
constitute ineffective assistance of counsel unless they fall below an objective standard of
reasonableness. Medina v. State, No. AP-76036, 2011 WL 378785 *18 (Tex. Crim. App. 2011). Even
if a strategic decision does not produce good results, that is a risk that a defense counsel faces. In this
case, counsel’s decision to wait to object could have been a plausible trial strategy. Dr. Carter may
have given testimony that defense counsel could have spun into a favorable opinion. Plus, it is
                                                                Green Concurring Opinion — 4


       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.
