Roger Olan Brannan v. State

Citation: Not availableDocket: 10-09-00029-CR

Court: Court of Appeals of Texas; September 9, 2009; Texas; State Appellate Court

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Roger Olan Brannan pled guilty to two counts of burglary of a building, along with two enhancements that elevated his offenses from state-jail felonies to second-degree felonies under Texas Penal Code. There was no plea bargain regarding his sentence. The trial court sentenced Brannan to six years in the Texas Department of Criminal Justice after considering evidence and a pre-sentence investigation. Brannan argued that the trial court abused its discretion by allegedly disregarding mitigating evidence. He acknowledged that the sentencing range for his offense was between 2 to 20 years, with a possible fine. The court upheld the trial court's discretion in sentencing, stating that a sentence within the statutory range and supported by the record typically will not be disturbed on appeal. Brannan did not provide evidence that the trial court ignored any evidence, and his six-year sentence was well below the maximum. The court concluded there was no abuse of discretion in the sentencing and affirmed the trial court's judgment.

In a dissenting opinion concerning a separate case involving Wasserman, the author argued against granting a writ of mandamus, emphasizing Wasserman's heavy burden to prove that the trial court's ruling was arbitrary or unreasonable. The dissent noted that Judge Black’s decision regarding the disqualification of Fulcher from representing clients was not clearly erroneous, as Fulcher was not representing any clients against Wasserman at the time of the hearing. The dissent maintained that the trial court did not abuse its discretion regarding the application of legal principles.

Rule 1.09 prohibits a lawyer from representing a new client in matters adverse to a former client, requiring that the representation must involve a matter "against" the former client. In this case, Fulcher was representing the City of Teague and several individuals (Sartor, Shinn, Herrington, and Wylie) in a suit by Smith, McKinley, and Brooke, while Wasserman was represented by W.R. Malone. The court had previously allowed Fulcher to withdraw as Wasserman's attorney, thus he no longer represented Wasserman. During the hearing on the motion to disqualify Fulcher, both Fulcher's clients and Wasserman were in adverse positions to Smith, McKinley, and Brooke. 

Additionally, Fulcher's clients, the City and Sartor, were cross-defendants in Wasserman's wrongful termination claim, with Kenneth R. Stein representing them in that matter. The trial court ordered the original suit and Wasserman's cross-claim to be tried separately. Wasserman seeks a writ of mandamus to disqualify Fulcher, asserting he did not consent to Fulcher's continued representation of defendants in the original suit. He claims that Fulcher may attempt to shift blame onto him during the proceedings, which he believes would harm the integrity of the legal profession. However, the court found that Wasserman could not demonstrate that, at the time of the hearing, Fulcher was representing any party in a matter adverse to him, which is necessary for Rule 1.09's application.

Wasserman has failed to prove that Judge Black could only have made one decision regarding whether Fulcher's representation posed a reasonable probability of violating Rule 1.05. The existence of such a reasonable probability is a factual question, and Wasserman did not show that Fulcher was representing another party in a substantially related matter at the time of the hearing. The record indicates that Fulcher is not representing any parties adverse to Wasserman, as the City and Sartor have distinct roles in the ongoing litigation. Fulcher is still bound by his obligations to Wasserman, which prevent him from using confidential information obtained from Wasserman to his disadvantage or taking any actions adverse to Wasserman during the trial. Fulcher cannot assist in the defense of the City and Sartor against Wasserman's cross-claim nor engage in any adverse cross-examination of Wasserman. While there is a potential conflict, it does not automatically disqualify Fulcher from representing his clients in a matter not directly adverse to Wasserman. The decision to continue with Fulcher as counsel lies with his clients, not Wasserman. Consequently, Wasserman’s attempt to disqualify Fulcher lacks merit, and the petition for a writ of mandamus should be denied as Wasserman has not shown that Judge Black's decision was unreasonable or arbitrary.