A Texas appeals court upheld on Wednesday a state district judge’s ruling that Beaumont police officer James Cody Guedry should get a retrial of his conviction for official oppression for using a Taser against an unarmed man.
A Jefferson County jury convicted Guedry of the Class A misdemeanor in December 2010. In January 2011, Criminal District Judge John B. Stevens Jr. sentenced Guedry to 30 days in state jail, probated for 90 days.
Guedry was specifically convicted of wrongfully using a Taser at least twice against Derrick Newman during a late-night traffic stop on Aug. 24, 2007. [For more background on the case and a link to a police video of the incident, click here.]
In April 2011, Stevens ruled that Guedry was entitled to a new trial, agreeing with arguments presented by Guedry’s new attorney, Glen Morgan, that his trial attorney, Mitch Adams of the Combined Law Enforcement Associations of Texas (CLEAT), provided ineffective counsel and had a conflict of interest because he was also representing former officer David Todd Burke in his appeal of his official oppresson conviction stemming from the same incident.
In September 2010, a Bexar County jury found Burke guilty of wrongfully using his police baton to strike Newman 13 times while knowing that he was acting illegally. State District Judge Layne Walker of Jefferson County sentenced Burke to 90 days in state jail, also probated. In August 2011, the Ninth Court of Appeals upheld Burke’s conviction.
Burke appealed that ruling to the Texas Court of Criminal Appeals, which heard arguments in March. On June 27, the court ruled that because Walker failed to grant a defense motion to strike for cause a potential juror who had expressed doubts about being impartial, Burke should receive a new trial.
In appealing Stevens’ order for a retrial, Rod Conerly, the chief appellate lawyer for the Jefferson County Criminal District Attorney’s Office, argued in briefs that the original motion filed by Morgan, Guedry’s attorney, was legally insufficient because it did not contain any sworn affidavits.
Conerly argued that Judge Stevens erred by granting Morgan’s motion to file an amended motion, and the lengthy motion itself, just one day before holding the March hearing. Because there was no legal basis to hold the hearing, Conerly argued, Stevens’ retrial order should be overturned.
Conerly also wrote that Doug Barlow, Guedry’s lawyer in the appeal, wrongfully argued that Adams, the trial lawyer, provided ineffective counsel because he failed to “throw Burke under the bus” to distance his client from the other officer’s actions as seen by the jurors on the dashcam videotapes.
In fact, Conerly argued, Adams followed a sound trial strategy which maintained that none of the officers involved, including Burke and Guedry, did anything wrong. It would have been a mistake, Conerly argued, for Adams to make the case that Burke was unjustified in using his baton against Newman but Guedry was correct in using the Taser.
Conerly also wrote that Barlow’s arguments that Adams was deficient in striking a black female juror at the outset of the trial and that Stevens’ finding that the participation of another attorney, Craig Schexnaider, harmed Guedry’s case were merely propositions not supported by the evidence on the record.
In a 16-page ruling issued early Wednesday, Ninth Court Justice Hollis Horton, writing for himself, Chief Justice Steve McKeithen and Justice Charles Kreger, overruled each of the prosecution’s points of appeal.
“While the trial court might not have chosen to hold an evidentiary hearing based on the absence of sworn evidence supporting Guedry’s motion, we conclude the trial court was not prohibited from holding an evidentiary hearing to allow the claims asserted in Guedry’s original motion to be further developed with evidence,” Horton wrote.
The ruling further states that Stevens, the trial court judge, properly allowed Guedry’s attorney to amend the original motion for a new trial based on a claim of ineffective counsel “in the interest of justice.”
As to the claim that Mitch Adams, Guedry’s trial attorney, provided ineffective counsel to his client, the Ninth Court panel agreed that the evidence showed that he did.
“In our view, Guedry should not be subjected to ineffective assistance regardless of whether he knowingly waived any conflict,” Horton wrote, referring to two instances during the trial when Guedry was asked whether he wanted to proceed with the trial despite allegations of conflict of interest by his attorneys.
“We conclude that the record does not support the State’s claim that the trial court abused its discretion by finding Guedry’s trial attorney was guilty of ‘numerous deficiencies, by acts and omissions, [that] certainly adversely affected the outcome of the trial and [Guedry’s] right to a fair trial and effective counsel,'” the ruling states.
The Ninth Court panel further concluded that Adams’ use of Gary Duncan, head of the law enforcement school at the Lamar Institute of Technology, as an expert witness to testify that Guedry’s use of a Taser against Newman was appropriate, was “burdened” by the fact that Duncan had also testified on behalf of Burke. The ruling points out that Duncan’s testimony was different in the separate trials.
“We conclude that Guedry’s substantial rights to a fair trial were prejudiced by trial counsel’s choice to use Duncan. In our view, the same prejudice would exist even if the same choice of expert were to be made by an attorney not burdened by any conflicts arising from their representation of multiple officers involved in the same altercation,” the ruling states.
After his conviction, Guedry was terminated by then-Police Chief Frank Coffin. But after Stevens ordered a new trial, Coffin reinstated Guedry to the force as a community services officer, pending the resolution of the case.
UPDATE: On Oct. 10, the Jefferson County Criminal District Attorney’s Office filed a petition for discretionary review of the Ninth Court’s decision with the Texas Court of Criminal Appeals. After disposing denying the petition on Jan. 16, 2013, the court on Feb. 14, on its own motion, returned the case to the Ninth Court of Appeals in Beaumont. On Feb. 26, the Ninth Court issued a mandate in the appeal, returning the case to the Criminal District Court of Jefferson County.
On the final two days of 2014, after Newman signed an affidavit stating he did not want to continue with the criminal complaints, Jefferson County prosecutors dismissed the official oppression charges against Burke and Guedry. As part of his agreement with prosecutors, Burke stipulated that he would not seek employment as a peace officer in Texas for ten years. There was no such stipulation for Guedry, who remains on the Beaumont police force.
CORRECTIONS: This post originally named David Barlow as Guedry’s appeal attorney. Guedry is represented by Doug Barlow, David’s brother. Also, the post incorrectly stated that Mitch Adams represented Burke in a civil lawsuit filed by Derrick Newman.
Find links to full coverage of the Guedry and Burke cases here.
Copyright © 2012 Ken Fountain. All rights reserved.
Fountain's Pen 
September 5, 2012
Law & Courts