Quintero, Juan ( 2015 )

PD-0746-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/17/2015 1:31:42 PM
Accepted 7/17/2015 4:31:56 PM
ABEL ACOSTA
CLERK
No. PD-0746-15
In the Court of Criminal Appeals of Texas
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
No. 14-13-00559-CR
In the Fourteenth District Court of Appeals (Houston, Texas)
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
No. 1368190
In the 228th District Court, Harris County, Texas
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
JUAN QUINTERO,
Petitioner
v.
THE STATE OF TEXAS,
Respondent
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
PETITION FOR DISCRETIONARY REVIEW
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
PEYTON Z. PEEBLES, III
SHELLIST, PEEBLES & MCALISTER, LLP
405 Main Street, Suite 200
Houston, Texas 77002
July 17, 2015 Tel.: (713) 715-4500
Fax: (713) 715-4505
Email: peebles@texaslegalteam.net
SBOT: 24013307
Counsel for Petitioner
ORAL ARGUMENT REQUESTED
1
TO THE HONORABLE COURT OF CRIMINAL APPEALS
OF TEXAS:
Comes now Petitioner, Juan Quintero, by and through his un-
dersigned counsel, and presents this Petition for Discretionary Re-
view (“PDR”) pursuant to TEX. R. APP. P. § 68.
PARTY IDENTIFICATION
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the
names of all interested parties is provided below:
Counsel for Petitioner:
Peyton Z. Peebles, III ⎯ Motion for new trial, appeal & PDR
Steven D. Shellist ⎯ Motion for new trial
Shellist, Peebles & McAlister, LLP
405 Main Street, Suite 200
Houston, Texas 77002
Rigoberto Rodriguez ⎯ Plea bargain
2120 S Wayside Dr., Ste J
Houston, TX 77023
Appellant (Criminal Defendant):
Juan Quintero
Counsel for the State:
Devon Anderson ⎯ District Attorney
Mike Anderson— Former District Attorney
Patricia Lykos— Former District Attorney
Clinton A. Morgan ⎯ Assistant District Attorney
2
Greg Houlton ⎯ Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Ste. 600
Houston, Texas 77002
Trial Judge:
Hon. Marc Carter ⎯ Presiding Judge
228th District Court
Harris County, Texas
Criminal Justice Center
1201 Franklin, 16th Floor
Houston, Texas 77002
3
TABLE OF CONTENTS
PARTY IDENTIFICATION ............................................................... 2
TABLE OF CONTENTS .................................................................... 4
INDEX OF AUTHORITIES ............................................................... 6
STATEMENT REGARDING ORAL ARGUMENT .............................. 8
STATEMENT OF THE CASE ............................................................ 8
STATEMENT OF PROCEDURAL HISTORY .................................... 8
GROUND FOR REVIEW ..................................................................10
The panel majority erred in holding that the trial court
reasonably denied petitioner’s motion for new trial despite a
record clearly showing: (1) his lawyer had an actual conflict of
interest; and (2) his lawyer acted contrary to petitioner’s
interests in at least four instances. .............................................. 10
ARGUMENT .................................................................................... 11
I. FACTS LEADING TO MOTION FOR NEW TRIAL ................................ 11
II. FACTS FROM HEARING ON PETITIONER’S MOTION FOR NEW TRIAL....13
III. GROUND FOR REVIEW — THE PANEL MAJORITY ERRED IN
HOLDING THAT THE TRIAL COURT REASONABLY DENIED
PETITIONER’S MOTION FOR NEW TRIAL DESPITE A RECORD
CLEARLY SHOWING: (1) HIS LAWYER HAD AN ACTUAL CONFLICT OF
INTEREST; AND (2) HIS LAWYER ACTED CONTRARY TO
PETITIONER’S INTERESTS IN AT LEAST FOUR INSTANCES. ................. 22
PRAYER FOR RELIEF .................................................................... 27
4
APPENDIX ..................................................................................... 30
5
INDEX OF AUTHORITIES
Cases
Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) .................. 21
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980) ................... 22
Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982) ....................................23
Monreal v. State, 947 S.W.2d 559 (Tex. Crim. App. 1997) ................ 21
Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549
(Tex. App.—Houston [14th Dist.] May 19, 2015) .......... 7, 20, 24
Ramirez v. State, 13 S.W.3d 482 (Tex. App.—Corpus
Christi 2000, pet. dism’d) ....................................................... 21
Strickland v. Washington, 466 U.S. 668 (1984) ............................... 20
United States ex rel. Hampton v. Leibach,
347 F.3d 219 (7th Cir. 2003) ....................................................23
United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)......................... 21
United States v. Greig, 967 F.2d 1018 (5th Cir. 1992) .................. 21, 22
Statutes
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv) (Vernon 2011) ............... 6
TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (Vernon 2011) ..................... 6
6
Rules
TEX. R. APP. P. 38.2(a)(1)(A) .............................................................. 2
TEX. R. APP. P. 39.1 ............................................................................ 6
TEX. R. APP. P. 9.4(g) ......................................................................... 6
7
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, Peti-
tioner requests oral argument to expand the legal theories stated
herein and to assist the Judges of this Court.
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
STATEMENT OF THE CASE
The State charged appellant by indictment with aggravated sex-
ual assault of a child in violation of TEX. PENAL CODE ANN. §§
22.021(a)(1)(B)(iv) & (2)(B) (Vernon 2011). Appellant pled guilty to
the charge. The judge accepted his plea, found him guilty, and sen-
tenced him pursuant to the plea bargain to confinement for six
years in the Texas Department of Criminal Justice, Institutional Di-
vision.
Petitioner lodged an unsuccessful motion for new trial, followed
by an unsuccessful appeal. This PDR follows.
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
STATEMENT OF PROCEDURAL HISTORY
The State charged appellant by indictment with aggravated sex-
ual assault of a child in violation of TEX. PENAL CODE ANN. §§
22.021(a)(1)(B)(iv) & (2)(B) (Vernon 2011). Appellant pled guilty to
the charge on June 4, 2013. The judge accepted his plea, found him
guilty, and sentenced him pursuant to the plea bargain to confine-
8
ment for six years in the Texas Department of Criminal Justice, In-
stitutional Division, on that date.
Appellant filed a timely and written motion for new trial and no-
tice of appeal. The trial court held a hearing on appellant’s motion
for new trial on August 12, 2013, and denied the motion on the same
date. The trial court certified his right to appeal.
On May 19, 2015, a divided panel from the Fourteenth District
Court of Appeals affirmed petitioner’s judgment and sentence.
Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex.
App.—Houston [14th Dist.] May 19, 2015). Petitioner did not file a
motion for rehearing or motion for en banc reconsideration, opting
to come to this Court directly.
This Court granted petitioner until July 20, 2015, to file his peti-
tion for discretionary review. This petition is either filed by that
date, or is filed within 15 days afterward and accompanied by a mo-
tion requesting a slight time extension.
9
GROUND FOR REVIEW
The panel majority erred in holding that the
trial court reasonably denied petitioner’s
motion for new trial despite a record clearly
showing: (1) his lawyer had an actual con-
flict of interest; and (2) his lawyer acted con-
trary to petitioner’s interests in at least four
instances.
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
10
ARGUMENT
The panel majority erred in a manner compelling discretion-
ary review followed by a new trial. This case presents an egregious
situation where petitioner’s counsel represented him for over a
year, contemporaneously represented the complainant’s father in
other criminal actions, failed to fully advise appellant about the na-
ture of the potential conflict, and then counseled appellant to plead
guilty despite admittedly performing no investigation into the facts
of this case. Petitioner’s plea was involuntary due to his counsel’s
conduct, warranting a new trial.
I. FACTS LEADING TO MOTION FOR NEW TRIAL
In early May, 2012, petitioner’s niece made outcry to her mother
that petitioner sexually molested her (RR1 at 35-36). On the same
day as the outcry, petitioner’s brother (the complainant’s father),
Jose Luis Quintero, called their mutual sister Veronica Pina and
told her that if petitioner returned to the house he would kill peti-
tioner (RR1 at 32-33, 35-36).
Petitioner hired defense lawyer Rigoberto Rodriguez to repre-
sent him (CR at 102-04; RR1 at 13-15, 33; RR2 at Defense Exhibits 1,
2). Rodriguez did no investigation (RR1 at 48-51).
11
On November 16, 2012, the State charged petitioner with aggra-
vated sexual assault of a child, namely, his brother Jose Luis’s
daughter (CR at 5).
On January 21, 2013, the State charged petitioner’s brother Jose
Luis with the felony crime of cruelty to animals (CR at 56-58). On
February 1, 2013, the State charged Jose Luis with committing the
felony crime of assault against his wife (the complainant’s mother)
Myrma Quintero (CR at 59-61).
On February 7, 2013, defense counsel Rodriguez went to court
and announced that he would defend Jose Luis against the cruelty
to animals and family assault charges (CR at 62-69).
On February 15, 2013, Rodriguez went to court and announced
that he would defend petitioner against the aggravated sexual as-
sault charge (CR at 12).1
On April 15, 2013, Rodriguez had petitioner and his brother Jose
Luis sign a “Waiver of Potential Conflict of Interest,” and then pre-
sented the motion to the court (CR at 14-15, 70-74). Petitioner’s trial
judge denied the waiver (CR at 14-15, 70-74).
A grand jury indicted petitioner on May 3, 2013, and indicted
Jose Luis on both charges on May 31, 2013 (CR at 19, 83-91).
1
The contract petitioner signed for “pre-trial services,” however, appears to be
dated February 25, 2013 (CR at 105-08).
12
Petitioner next appeared in court on June 4, 2013 (CR at 18). A
visiting judge was presiding, and petitioner waived his right to a ju-
ry and pled guilty to a negotiated six-year prison sentence (CR at 21-
36).
II. FACTS FROM HEARING ON PETITIONER’S MOTION FOR NEW TRIAL
Petitioner filed a motion for new trial alleging, inter alia, that
Rodriguez counseled him to plead guilty when he had an actual con-
flict of interest and had acted contrary to petitioner’s interests.
Petitioner’s Testimony
Petitioner testified that he was unaware if Rodriguez did any
work on his case between the outcry and the charge being filed (RR1
at 13-14). He was aware that Rodriguez was representing both him
and his brother and he signed a waiver of potential conflict of inter-
est—but did so because Rodriguez told him it was merely a “formali-
ty” for the judge (RR1 at 15). Rodriguez did not discuss what the po-
tential conflict was and did not tell petitioner that the judge denied
the motion (RR1 at 15-16).
Regarding his knowledge of the case at the time he pled guilty,
petitioner testified that he was not aware that:
• The complainant had given many different inter-
views;
13
• The complainant initially could not describe how
the ultimate allegation happened;
• The complainant first said petitioner did not
penetrate her anus, but later said he did;
• At one point the complainant said petitioner
placed his penis on her through her clothing;
• The complainant gave inconsistent statements
about whether she had seen appellant’s penis;
• At one point the complainant said she never saw
petitioner’s penis; and
• The complainant said petitioner held her arms
behind her back while tickling her.
(RR1 at 16-19).
Petitioner testified that he is innocent of this charge, but that he
pled guilty because Rodriguez said he would probably be convicted
at trial and get a life sentence…or he could accept the State’s six-
year offer (RR1 at 19-20). Rodriguez told petitioner he had to decide
right away (RR1 at 19-20). Fearing a life sentence, petitioner pled
guilty despite the visiting judge admonishing him over the full pun-
ishment range (RR1 at 20, 25-26).
Jose Luis Quintero’s Testimony
The complainant’s father testified that he was at work one after-
noon when his wife, Myrma, called and said that their daughter ac-
cused petitioner of doing something [sexual] to her (RR1 at 35-36).
14
Jose Luis was furious and called his sister, Veronica Pina, to tell her
that if petitioner returned to his house then he would kill petitioner
(RR1 at 36).2
The State later charged Jose Luis with cruelty to animals and
family assault and he hired Rodriguez to defend him (RR1 at 36-37).
Rodriguez told him there could be a big conflict of interest and he
probably should not represent them both, but that the brothers
could sign a paper so it would not be a problem (RR1 at 37-38). Ro-
driguez did not go specify the nature of the conflict (RR1 at 37-38).3
At some point Jose Luis told Rodriguez that he no longer
thought petitioner was guilty (RR1 at 38-39). He also told Rodriguez
that the District Attorney’s Office had called wanting to talk to him
about petitioner’s case—but Rodriguez told Jose Luis that it was not
in his best interests to tell the District Attorney’s Office that peti-
tioner was innocent because CPS might try and take his children
away [for seeming to protect someone that they thought abused his
child] (RR1 at 39-40). When asked specifically what Rodriguez said,
Jose Luis testified that Rodriguez told him, “Do not talk to the DA’s
Office and tell them that you think he’s innocent because you may
2
Pina also testified to this effect (RR1 at 32-33).
3
Pina also testified that Rodriguez did not go into detail about potential con-
flicts of interest when she talked to him; he merely said he could represent both
brothers (RR1 at 31, 33-34).
15
lose your kids” (RR1 at 40). Jose Luis called the District Attorney’s
Office and told them that he just wanted the “system” to take care of
it (RR1 at 41).4
Rigoberto Rodriguez’s Testimony
Defense counsel Rigoberto Rodriguez testified that petitioner
hired him on May 3, 2012, for an “investigation” concerning the
sexual assault outcry (RR1 at 47). From May, 2012, until petitioner
was formally charged in November, 2012, Rodriguez did nothing
more than “be on call” in case the police wanted to talk to petitioner
(RR1 at 48). He testified that he discussed a polygraph with petition-
er but that petitioner did not want to take one (RR1 at 48-49). Ro-
driguez did not talk to any witnesses and did not know the specifics
of the outcry (RR1 at 50-51).
When petitioner was charged in November, 2012, Rodriguez ap-
plied the prior fee paid (for investigation) to a new legal services
contract (RR1 at 51). He then accepted representation for petition-
er’s brother Jose Luis (RR1 at 52-53). Rodriguez testified that he ex-
plained the potential for a conflict of interest to the family and said
that both brothers had to sign a waiver of that potential conflict
(RR1 at 52-55). Rodriguez explained that he would never have tried
both cases—if necessary he would have tried petitioner’s and then
4
Jose Luis testified that he still felt petitioner was innocent of this allegation
(RR1 at 44-45).
16
withdrawn from Jose Luis’s before Jose Luis’s cases went to trial
(RR1 at 53, 59-60). Rodriguez explained, “It’s my choice to take it to
trial or not” (RR1 at 53).
Rodriguez explained that he filed the motion to waive potential
conflict of interest with the court but did not secure a ruling on it
(RR1 at 58). The court’s staff called him later that day and explained
that the judge denied it (RR1 at 58). Rodriguez approached the judge
the next day and the judge told him that the motion was denied, but
Rodriguez could still represent petitioner if he wanted to (RR1 at
58).
Rodriguez testified that he filed a grand jury packet containing:
(1) records related to petitioner’s military service and the honorable
discharge therefrom; and (2) a “proffer” of evidence in the form of a
letter from Rodriguez stating that petitioner maintained his inno-
cence and would testify in the grand jury (RR1 at 56). Rodriguez
stated that this was a lie to the grand jury—it was merely a “proffer”
from Rodriguez and that petitioner never really maintained his in-
nocence (RR1 at 78-79). Nonetheless, the grand jury chose not to
hear from petitioner (RR1 at 56).
Regarding his work defending petitioner, Rodriguez testified
that he did not do any work because his duty to investigate or pre-
pare a defense does not arise until: (1) the case is indicted; and (2)
17
the client rejects a plea bargain and demands a trial (RR1 at 60).
Rodriguez stated, “[Investigating the case] would have been the
next phase after the indictment,” and, “[i]t didn’t develop to that
stage where I could have done that because he took the plea” (RR1 at
60). Although he represented petitioner for over a year, Rodriguez
stated, “What happened here is he took the plea prior to me doing
that. That was the next phase when his case is set for trial” (RR1 at
60). As a result, Rodriguez had never:
• Gone to the District Attorney’s Office to review
their file;
• Reviewed the complainant’s outcry statement;
• Reviewed any of the multiple interviews that law
enforcement did with the complainant;
• Reviewed any interviews by the complainant’s
parents;
• Talked to any of the witnesses about the case
against petitioner 5; or
• Talked to Jose Luis about a statement he made to
investigators that he was previously a victim of
sexual assault.
5
Those witnesses included the complainant, the complainant’s mother Myrma,
the complainant’s grandmother Armadina Quintero, the complainant’s father
Juan Quintero, Sr., petitioner’s brother-in-law Jesus Pina, or family friend
Johnny Villarreal (RR1 at 69). Most gave affidavits in support of petitioner’s
motion for new trial (RR2 at Defense Exhibit 1).
18
(RR1 at 56, 60, 65-67, 70-71). Rodriguez was unaware whether he
had reviewed any medical records in this case (RR1 at 67).
When asked, “So, as you sit here today, you don’t know whether
or not she said on one of those tapes, he didn’t do it?” Rodriguez re-
sponded, “It doesn’t matter. He’s indicted. The next thing is trial. He
didn’t want to go to trial. He’s not trying the case to me. It’s whether
he wants to go to trial or not. That’s the next step” (RR1 at 65).
When asked whether the complainant gave statements that are
inconsistent with the probable cause affidavit used by the officer to
secure petitioner’s arrest, Rodriguez replied, “[it] doesn’t matter.
He’s got to be willing to go to trial. I mean, what difference—I’m not
the jury. He has to want to go to trial” (RR1 at 67).
Rodriguez was unaware that Jose Luis initially threatened to kill
petitioner and denied that Jose Luis ever told him that he felt peti-
tioner was innocent (RR1 at 56, 78-79). He admitted Jose Luis called
him concerning the District Attorney’s attempt to discuss petition-
er’s case, but stated that he just told Jose Luis to “tell them whatever
you want” (RR1 at 68-69).
Regarding petitioner’s guilty plea, Rodriguez testified that he
showed up in court on June 4th and the prosecutor on petitioner’s
case was about to be replaced by a new, as yet unidentified, prosecu-
tor (RR1 at 73-75). The prosecutor also told Rodriguez that they
19
could file two more cases against petitioner and then ask the Court
to stack them6 (RR1 at 74). Rodriguez told appellant that a jury
might acquit him, might give him 5 years in prison, or might give
him life in prison (RR1 at 73-74). He told petitioner that the District
Attorney could file more charges and then ask the judge to stack the
sentences (RR1 at 74). He also told petitioner that if the State
brought witnesses who could testify as to each of the indictment’s
allegations then the State would have a “strong case” against him7
(RR1 at 78). Rodriguez conceded that he had no idea whether the
State’s case was actually strong or weak—stating, “I’ll never know
because he pled” (RR1 at 78). Ultimately, Rodriguez testified that pe-
titioner wanted probation but took the six-year plea bargain deal
because probation was not an option8 (RR1 at 75).
The Trial Court’s Ruling
Presiding Judge Marc Carter denied Rodriguez’s motion to waive
the “potential” conflict of interest in this case. He was absent for pe-
6
Given Rodriguez’s unfamiliarity with the facts, he must have taken the prose-
cutor’s statements at face value.
7
Nonetheless, Rodriguez testified that in his opinion it did not matter whether
the State’s case was strong or weak because petitioner chose not to go to trial
(RR1 at 76-77).
8
Rodriguez testified that the prosecutor refused to waive her right to a jury trial
if petitioner intended to plead guilty without an agreed punishment recom-
mendation and request deferred adjudication community supervision from the
judge (RR1 at 75).
20
titioner guilty plea and sentencing, but presided over his hearing on
the motion for new trial.
At the close of evidence on this hearing, Judge Carter stated that
he felt it unethical for a trial court to approve a conflict of interest,
but stated that he lacked the authority to remove a lawyer from a
case on that bases (admonishing that it’s the lawyer’s “bar card on
the line”) (RR1 at 81-82).
Judge Carter also agreed that a conflict existed in this case9 (RR1
at 83). Judge Carter agreed with the defense’s arguments both
“morally and ethically” (RR1 at 87).
Nonetheless, Judge Carter denied the motion in its entirety be-
cause “sometimes people plead guilty to things that they didn’t do
because they believe it’s in their best interest to do so because they
rather take six years than fifty” (RR1 at 87). Thus, the judge found
that despite an actual conflict of interest, petitioner’s motion was ill-
taken because an innocent person can waive their right to a jury and
plead guilty in order to minimize their risk at a larger sentence for a
crime they did not commit—“as long as you do that knowingly and
intelligently” (RR1 at 87).
9
Judge Carter stated that it was a conflict for Rodriguez to also represent a wit-
ness who could testify against petitioner, but did not elaborate on whether he
felt a conflict existed on other grounds as well (RR1 at 84).
21
III. GROUND FOR REVIEW — THE PANEL MAJORITY ERRED IN HOLDING
THAT THE TRIAL COURT REASONABLY DENIED PETITIONER’S MOTION
FOR NEW TRIAL DESPITE A RECORD CLEARLY SHOWING: (1) HIS LAWYER
HAD AN ACTUAL CONFLICT OF INTEREST; AND (2) HIS LAWYER ACTED
CONTRARY TO PETITIONER’S INTERESTS IN AT LEAST FOUR INSTANCES.
The panel majority upheld the trial court’s decision to deny peti-
tioner a new trial, rationing that, although an actual conflict of in-
terest might exist: (1) Rodriguez testified that Jose Luis never told
him he thought petitioner was innocent; (2) Rodriguez testified that
he did not dissuade Jose Luis from talking with the prosecutor
about petitioner’s case; and (3) Rodriguez had no duty to advance
Jose Luis as a helpful witness since he testified that he had no idea
Jose Luis was helpful. Quintero, No. 14-13-00559-CR, at 8-12, 2015
WL 2405549. The Court also noted that petitioner was aware that
Rodriguez was representing Jose Luis, and that the plea admonish-
ments established a prima facie case that he pled guilty knowingly
and voluntarily. Quintero, No. 14-13-00559-CR, at 8-13, 2015 WL
2405549.
A. The right to unburdened counsel.
The right to counsel guarantees a criminally accused an attorney
unburdened by an actual conflict of interest. See Strickland v. Wash-
ington, 466 U.S. 668, 692 (1984). An actual conflict exists if counsel
22
“‘is required to make a choice between advancing his client’s interest
in a fair trial or advancing other interests (perhaps counsel’s own)
to the detriment of his client’s interest.’” Acosta v. State, 233 S.W.3d
349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947
S.W.2d 559, 564 (Tex. Crim. App. 1997)). Actual conflicts of interest
can occur in different ways. For example, when an attorney repre-
sents two clients whose interests in the outcome of a matter are dif-
ferent, an actual conflict of interest exists for the attorney. See
Ramirez v. State, 13 S.W.3d 482, 486–87 (Tex. App.—Corpus Christi
2000, pet. dism’d). Another is when the lawyer is required to make a
choice between advancing his own interests and those of the client.
Acosta, 233 S.W.3d at 355.
When there is an actual conflict, the trial court must hold a
hearing to ensure that the defendant: (1) is aware of the conflict; (2)
realizes the potential hazard to his defense from using the conflicted
attorney; and (3) knows his right to obtain other counsel. United
States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (synthesizing the
rule from United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975)).
A defendant is entitled to a new trial if he can demonstrate that
an actual conflict of interest existed and “trial counsel actually acted
on behalf of those other interests during the trial.” Acosta, 233
S.W.3d at 355 (citing Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100
23
S. Ct. 1708 (1980)). Such a showing indicates that the actual conflict
adversely affected the judgment, which mandates a new trial. See
Greig, 967 F.2d at 1024.
B. The only reasonable view of this record shows that counsel labored
under a conflict and acted adversely to petitioner’s interest, as
shown by the dissent.
The trial court expressly found that an actual conflict of interest
existed. Scant evidence exists showing petitioner was aware of the
actual conflict (only that he signed a waiver of any potential con-
flicts) and no evidence shows that petitioner: (1) realized the poten-
tial hazard to his defense from using the conflicted attorney; and (2)
knew his right to obtain other counsel. Greig, 967 F.2d at 1022.
Thus, the trial court’s decision to deny petitioner’s motion for new
trial for a different reason10 was so clearly wrong as to fall outside
the zone within which reasonable persons might disagree. Smith,
286 S.W.3d at 339; Herndon, 215 S.W.3d at 906.
Moreover, even considering the evidence in the light most fa-
vorable to the trial court’s ruling (thereby effectively ignoring Jose
Luis’s compelling testimony), Rodriguez acted based on the conflict
and contrary to petitioner’s interests in at least four concrete re-
10
That innocent people can plead guilty to avoid great risk, so long as their de-
cision is free and voluntary.
24
spects. First, Rodriguez testified that he admitted he could not rep-
resent both brothers at a trial and, thus, one of them would have to
accept a plea bargain. Thus, Rodriguez acted to pressure petitioner
into a plea bargain rather than jeopardize his continued representa-
tion.
Second, Rodriguez testified that he never told petitioner that the
trial court denied his motion to waive the conflict. Thus, Rodriguez
acted pursuant to his own business interests rather than petitioner’s
interest in knowing about the conflict, which would in turn have in-
formed petitioner’s plea bargain considerations.
Third, Rodriguez testified that, when he learned the prosecutor
wanted to talk to Jose Luis about petitioner’s case, he simply told
Jose Luis to “tell them whatever you want” without further advice.
This violated Rodriguez’s obligation to investigate the State’s case,
ferret out exculpatory and/or mitigating evidence, and advance that
evidence to petitioner’s benefit.11
Finally, Rodriguez testified that he performed no investigation
into the State’s case, yet advised petitioner to plead guilty despite
knowing nothing about his case. This clearly violates an attorney’s
duty to his client, and the only logical motive would be for Rodri-
11
The duty to investigate includes the duty to locate exculpatory witnesses. Gray
v. Lucas, 677 F.2d 1086, 1093 n.5 (5th Cir. 1982); United States ex rel. Hampton
v. Leibach, 347 F.3d 219, 236 (7th Cir. 2003).
25
guez to end the case quickly, eliminating any conflict issue and al-
lowing him to continue representing both defendants.
Based on the above, “[e]ven if the trial court believed counsel’s
testimony and disbelieved the testimony of both appellant and the
father, the undisputed evidence shows the conflicting interests col-
ored counsel’s actions.” Quintero, No. 14-13-00559-CR, at 7, 2015 WL
2405549 (Frost, C.J., dissenting).
The panel majority erred, and petitioner should receive a new
trial.
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
26
PRAYER FOR RELIEF
For the reasons described above, this Court should grant discre-
tionary review, sustain petitioner’s grounds for review, reverse the
Court of Appeals’ judgment, and remand the case to the trial court
for a new trial.
Respectfully submitted,
SHELLIST, PEEBLES & MCALISTER, L.L.P.
By:
/s/ Peyton Z. Peebles III
____________________________________________________
PEYTON Z. PEEBLES III
405 Main Street, Suite 200
Houston, TX. 77002
Tel: 713-715-4500
Fax: 713-715-4505
Email: peebles@texaslegalteam.net
SBOT: 24013307
SPN: 01759419
Counsel for Petitioner
27
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
CERTIFICATE OF COMPLIANCE
(a) This brief complies with the type-volume limitation of TEX. R.
APP. P. 9.4(i) because it was produced on a computer and con-
tains 3,465 words, excluding the parts of the brief exempted by
TEX. R. APP. P. 9.4(i)(1).
(b) This brief complies with the typeface requirements of TEX. R.
APP. P. 9.4(e) because it has been prepared in a proportionately
spaced typeface using Ingeborg 14-point font in text and Inge-
borg 12-point font in footnotes.
/s/ Peyton Z. Peebles III
____________________________________________________
PEYTON Z. PEEBLES III
28
⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing in-
strument was served upon the parties designated below by e-filing
on July 15, 2015.
Clinton A. Morgan
Harris County Assistant District Attorney
1201 Franklin Street, Suite 600
Houston, Texas 77002
(service by e-file to morgan_clinton@dao.hctx.net)
Lisa C. McMinn
Texas State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, Texas 78711
(service by e-file to information@spa.texas.gov)
/s/ Peyton Z. Peebles III
____________________________________________________
PEYTON Z. PEEBLES III
29
Appendix
Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex.
App.—Houston [14th Dist.] May 19, 2015)
30
Quintero v. State, --- S.W.3d ---- (2015)
assault of child and new trial based on claim of
2015 WL 2405549 ineffective assistance of counsel due to actual
Only the Westlaw citation is currently available. conflict of interest arising out of counsel’s
Court of Appeals of Texas, simultaneous representation of defendant’s
Houston (14th Dist.). brother, who was complainant’s father, in
unrelated matter, despite evidence that trial court
Juan Quintero, Appellant had not approved defendant’s conflict waiver,
v. and brother’s testimony that he told counsel that
The State of Texas, Appellee he did not believe defendant was guilty and that
counsel advised him not to tell trial court
NO. 14–13–00559–CR | Majority and Dissenting because brother could lose his children; counsel
Opinions filed May 19, 2015. testified that brother never told him that he
believed defendant was innocent, that, although
brother had approached him about what to tell
Synopsis prosecutors regarding defendant’s case, he
Background: Defendant was convicted on guilty plea in denied advising brother to remain quiet about
the 228th District Court, Harris County, of aggravated his changed attitude toward defendant in order
sexual assault of child, and his motion for new trial was to advance brother’s own interests, and that he
denied. Defendant appealed. instead advised brother to tell prosecutor
whatever brother wanted to tell him. U.S. Const.
Amend. 6.
Holdings: The Court of Appeals, J. Brett Busby, J., held
that: Cases that cite this headnote
[1]
defendant was not entitled to new trial based on claim
of ineffective assistance of counsel due to actual conflict
of interest; [2]
Criminal Law
[2]
guilty plea was knowing, voluntary, and intelligent, Adequacy of Representation
despite conflict of interest; and
The Constitution guarantees a criminal
[3]
interests of justice was not independent basis for defendant effective assistance of counsel. U.S.
withdrawal of guilty plea based on defendant’s claim that Const. Amend. 6.
he was denied effective assistance of conflict-free
counsel. Cases that cite this headnote
Affirmed.
Kem Thompson Frost, C.J., filed dissenting opinion. [3]
Criminal Law
Prejudice and harm in general
To prevail on a claim of ineffective assistance of
counsel based on a conflict of interest, the
West Headnotes (10)
appellant must prove by a preponderance of the
evidence that (1) his trial counsel had an actual
[1] conflict of interest, and (2) the conflict actually
Criminal Law
colored his trial counsel’s actions during his
Incompetency or neglect of counsel for
representation of appellant. U.S. Const. Amend.
defense
6.
Defendant was not entitled to vacatur of
conviction on guilty plea to aggravated sexual
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Quintero v. State, --- S.W.3d ---- (2015)
that he understood charge against him and
Cases that cite this headnote consequences of guilty plea, and that he had
fully consulted with his attorney before signing
admonishments and agreeing to plea, and
defendant was aware of conflict of interest. U.S.
[4]
Const. Amend. 6.
Criminal Law
Prejudice and harm in general
Cases that cite this headnote
An “actual conflict of interest” exists, as
required to support a claim of ineffective
assistance of counsel based on a conflict of
interest, if counsel is required to make a choice
[7]
between advancing his client’s interest in a fair Constitutional Law
trial or advancing other interests, including, Guilty pleas
perhaps, his own, to the detriment of his client’s
interest; in other words, appellant must show Due process requires that a guilty plea be
that his trial counsel actually acted on behalf of entered knowingly, intelligently, and
those other interests, and that he was adversely voluntarily. U.S. Const. Amend. 14.
impacted as a result. U.S. Const. Amend. 6.
Cases that cite this headnote
Cases that cite this headnote
[8]
Criminal Law
[5] Arraignment and plea
Criminal Law
Presumptions and burden of proof
In considering the voluntariness of a guilty plea,
A claim of ineffective assistance of counsel an appellate court examines the record as a
based on an actual conflict of interest will fail if whole.
(1) no evidence has been presented on the issue,
or (2) the evidence relevant to the issue is in
perfect equipoise. U.S. Const. Amend. 6. Cases that cite this headnote
Cases that cite this headnote
[9]
Criminal Law
Evidence as to voluntariness
[6] In considering a challenge to the validity of a
Criminal Law
Voluntary Character guilty plea, evidence that a defendant was
admonished by the trial court creates a prima
Guilty plea to aggravated sexual assault of child facie showing that the guilty plea was made
was knowing, voluntary, and intelligent, despite voluntarily and knowingly, and the burden then
conflict of interest arising out of counsel’s dual shifts to the defendant to show that he entered
representation of defendant’s brother, who was the plea without understanding the consequences
complainant’s father, and counsel’s alleged of his action.
pressure for defendant to plead guilty to avoid
potential life sentence if he went to trial; trial
court gave defendant all requisite Cases that cite this headnote
admonishments orally and in writing, defendant
signed written admonishments and initialed
several paragraphs specifically acknowledging
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Quintero v. State, --- S.W.3d ---- (2015)
conflict of interest. We reject this argument because at
[10]
Criminal Law least one reasonable view of the record evidence supports
Grounds for Allowance an implied finding by the trial court that appellant
suffered no adverse effect as a result of the actual conflict
Interests of justice was not independent basis for of interest.
withdrawal of guilty plea and new trial on
charge for aggravated sexual assault of child Appellant next argues that his guilty plea was not
based on defendant’s claim that he was denied voluntary due to counsel’s ineffective assistance. We
effective assistance of conflict-free counsel, overrule appellant’s second contention because the
after trial court denied motion for new trial on evidence introduced during the hearing on the motion for
claim that he was denied effective assistance of new trial supports an implied finding by the trial court
counsel. U.S. Const. Amend. 6. that appellant knowingly, intelligently, and voluntarily
agreed to accept the State’s plea bargain and plead guilty.
Cases that cite this headnote Finally, appellant argues that the interest of justice entitles
him to a new trial. We overrule this argument because the
interest of justice is not an independent basis for a trial
court to grant a criminal defendant a new trial, and the
independent legal ground asserted in support of
appellant’s interest-of-justice argument is identical to one
On Appeal from the 228th District Court, Harris County,
raised, and rejected, in his first two arguments. We
Texas, Trial Court Cause No. 1368190
therefore affirm the trial court’s judgment.
Attorneys and Law Firms
Peyton Peebles III, Houston, TX, for Appellant.
Clinton Morgan, Houston, TX, for The State of Texas. BACKGROUND
Panel consists of Chief Justice Frost and Justices
In 2012, appellant’s niece made an outcry that appellant
Christopher and Busby
had sexually assaulted her in several ways. Appellant
retained attorney Rigoberto Rodriguez as his trial counsel.
Appellant was eventually indicted for the offense. At the
first trial setting after his indictment, the State offered
appellant a plea bargain of six years’ confinement.
OPINION Appellant accepted the plea bargain. After admonishing
appellant regarding his decision to waive his rights, the
trial court accepted his plea, found him guilty of the
J. Brett Busby, Justice charged offense, and sentenced him to the agreed six-year
prison term.
*1 Appellant Juan Quintero pled guilty to the offense of
aggravated sexual assault of a child as part of a plea- Appellant then retained new counsel, who filed a motion
bargain agreement with the State. See Tex. Penal Code for new trial. The motion asserted that appellant was
Ann. § 22.021 (West 2011). The trial court found entitled to a new trial for three reasons: (1) Rodriguez
appellant guilty and, in accordance with the plea bargain, rendered ineffective assistance because he counseled
sentenced him to serve six years in prison. Appellant appellant to accept the State’s plea bargain when he had
retained new counsel and filed a motion for new trial an actual conflict of interest; (2) appellant’s guilty plea
alleging that his trial counsel was ineffective. The trial was involuntary because Rodriguez was ineffective; and
court denied appellant’s motion. (3) the interest of justice required that he be granted a new
trial.1 The trial court conducted a hearing on appellant’s
Appellant contends in a single issue on appeal that the motion during which several witnesses testified, including
trial court abused its discretion when it denied his motion appellant, appellant’s brother, and Rodriguez.
for new trial. Appellant makes three separate arguments
within his single issue. Appellant initially contends that
his trial counsel was ineffective because he advised
appellant to plead guilty when counsel had an actual A. Appellant’s testimony during the new trial hearing
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Quintero v. State, --- S.W.3d ---- (2015)
*2 Appellant testified that his parents located Rodriguez not in his best interest to tell the prosecutors he now
and hired him on appellant’s behalf. Appellant then believed appellant was innocent. Rodriguez explained that
testified that he did not know what, if any, work it might result in his children being taken away based on a
Rodriguez did on his case between the complainant’s belief that he was trying to protect his brother rather than
outcry and the charge being filed against him. Appellant his daughter. When asked specifically what Rodriguez
testified he was aware that Rodriguez was also had told him, Jose Luis testified that Rodriguez said: “do
representing his brother Jose Luis Quintero—the father of not talk to the DA’s Office and tell them that you think
the complainant in appellant’s sexual assault case—in two he’s innocent because you may lose your kids.” Jose Luis
unrelated criminal matters. Appellant acknowledged that testified that he called the prosecutor’s office back and
he had signed a waiver of potential conflict of interest, but told them that he just wanted the “system” to take care of
explained that he did so because Rodriguez had told him it.
it was a formality for the judge. According to appellant,
Rodriguez did not discuss what the potential conflict was
and did not tell him that the trial court ultimately denied a
motion Rodriguez filed seeking the court’s approval of C. Veronica Pina’s testimony
the conflict waiver. A sister of appellant and Jose Luis, Veronica Pina, also
testified during the hearing. She explained that she was
Appellant testified that at the time he accepted the plea involved in the hiring of Rodriguez and discussed his
bargain, he was unaware of the evidence the State representation of her brothers. She testified that
possessed against him. He went on to testify that he is Rodriguez did not go into detail about potential conflicts
innocent of the sexual assault charge, but he pled guilty of interest when she talked to him. According to Pina,
because Rodriguez told him that if he did not accept the Rodriguez said that he could represent both brothers.
State’s offer, he would probably be convicted at trial and
would receive a life sentence. Appellant testified that he
asked Rodriguez for time to consider the State’s offer, but
Rodriguez told appellant he had to decide right away. D. Trial counsel’s testimony
Appellant went on to testify that he pled guilty because *3 Trial counsel Rodriguez testified that appellant hired
his only other choice seemed to be to lose at trial and get him in May 2012 for an “investigation” concerning the
a life sentence. The record shows that the visiting judge sexual assault outcry. From that point until appellant was
who accepted appellant’s plea explained the full formally charged in November 2012, Rodriguez testified
punishment range during the plea hearing.2 that he did nothing more than “be on call” in case the
police wanted to talk to appellant. Rodriguez admitted
that he did not talk to any witnesses and did not know the
specifics of the outcry.
B. Jose Luis’s testimony
Jose Luis testified that he was very upset and angry when When appellant was charged in November 2012,
he first learned about his daughter’s outcry accusing Rodriguez applied the prior fee paid (for investigation) to
appellant of sexual assault. Jose Luis went on to admit a new legal services contract. He testified that after this
that he was charged with cruelty to animals and family occurred, he agreed to represent Jose Luis in his criminal
assault after appellant was charged with sexual assault. cases. Rodriguez testified that he explained the potential
According to Jose Luis, his parents hired Rodriguez to for a conflict of interest to the family and said that the
defend him in those two cases. Jose Luis testified that brothers had to sign a waiver of the potential conflict
Rodriguez informed him there could be a big conflict of before he would represent both. Rodriguez testified that
interest if he represented both brothers, that he probably he explained the potential conflict to both brothers.
should not represent both, but that the brothers could sign Rodriguez went on to explain that he would never have
a paper so it would not be a problem. According to Jose tried both cases; if necessary, he would have tried
Luis, Rodriguez did not specify the nature of the conflict appellant’s case and then withdrawn before Jose Luis’s
of interest. cases went to trial. Rodriguez testified that it was his
choice whether to take them to trial.
Jose Luis testified he eventually told Rodriguez that he no
longer believed his brother was guilty. Jose Luis also Rodriguez explained that he filed a motion to waive
informed Rodriguez that the prosecutor’s office had potential conflict of interest. The trial court’s staff called
called him wanting to discuss appellant’s case and his him later that day and told him the judge had denied the
thoughts on the appropriate punishment for appellant. motion. Rodriguez testified that he approached the trial
According to Jose Luis, Rodriguez told him that it was judge the next day and the judge told him that the motion
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Quintero v. State, --- S.W.3d ---- (2015)
was denied, but Rodriguez could still represent both witness against appellant. He went on to ask the trial court
appellant and his brother if he wished. Rodriguez went on to grant appellant a new trial.
to testify that he did not know whether an actual conflict
of interest existed. The trial court explained that he believed it unethical for a
court to approve a conflict of interest, but that he lacked
Rodriguez was also asked about his interactions with Jose the authority to remove a lawyer from a case based on a
Luis regarding appellant’s case. Rodriguez denied that conflict of interest. The court went on to find that a
Jose Luis ever told him that he now believed appellant conflict existed in this case. The court stated that he
was innocent. Rodriguez admitted during his testimony agreed with appellant’s arguments both “morally and
that Jose Luis had contacted him concerning the ethically.” Nevertheless, the court denied appellant’s
prosecutor’s attempt to discuss appellant’s case, but motion in its entirety, stating: “sometimes people plead
Rodriguez asserted that he told Jose Luis to “tell [the guilty to things that they didn’t do because they believe
prosecutor] whatever you want to tell [him].” Rodriguez it’s in their best interest to do so because they [would]
also denied advising Jose Luis not to inform the rather take six years than fifty. And my understanding of
prosecutor about his belief that appellant was innocent the law is, as long as you do that knowingly and
because doing so might endanger Jose Luis’s access to his intelligently, that’s what it’s going to be.” This appeal
children. followed.
Regarding appellant’s guilty plea, Rodriguez testified that
he showed up in court on June 4, 2013, and the prosecutor
on appellant’s case told him he was about to be replaced
by a new prosecutor yet to be identified. According to ANALYSIS
Rodriguez, the departing prosecutor told him that the new
prosecutor could decide to file two more charges against Appellant contends that the trial court abused its
appellant and then ask the trial court to stack the discretion when it denied his motion for new trial. Within
sentences. Rodriguez testified that during his discussions that single issue, appellant makes three separate
with appellant regarding the State’s plea-bargain offer, he arguments, which we address in turn.
told appellant that a jury might acquit him, might find him
guilty and sentence him to five years in prison, or might
sentence him to life in prison. Rodriguez also testified that
I. Appellant has not shown that the trial court abused
he informed appellant about his conversation with the
its discretion by refusing to grant him a new trial
departing prosecutor. Rodriguez testified that he told
based on counsel’s alleged conflict of interest.
appellant exactly what the prosecutor had told him [1]
Appellant’s first argument is that the trial court abused
regarding the possibility of more charges and the stacking
its discretion when it denied his motion for new trial
of any resulting prison terms. Rodriguez also testified he
because he was denied effective assistance of counsel due
told appellant that if the State brought witnesses who
to his trial counsel’s actual conflict of interest.
could testily as to each of the indictment’s allegations,
then the State would have a strong case against him.
Rodriguez then conceded that, at the time of the plea deal,
he had no idea whether the State’s case against appellant A. Standard of review and applicable law
was actually strong or weak. Ultimately, Rodriguez We review a trial court’s decision on a motion for new
testified that appellant wanted a deal with probation but trial for an abuse of discretion. State v. Herndon, 215
decided to take the offered plea bargain because the State S.W.3d 901, 906 (Tex.Crim.App.2007). Under this
was not willing to offer probation. Rodriguez also standard, an appellate court should reverse the trial
emphasized repeatedly that appellant was not willing to court’s ruling only if it was clearly erroneous and
go to trial. arbitrary, such as when no reasonable view of the record
could support the decision under review. Odelugo v.
State, 443 S.W.3d 131, 137 (Tex.Crim.App.2014). In the
absence of express factual findings, we assume that the
E. The trial court’s denial of appellant’s motion for
trial court made implicit findings of fact that support its
new trial
ruling. Johnson v. State, 169 S.W.3d 223, 239
*4 At the end of the hearing, appellant’s new counsel
(Tex.Crim.App.2005). The record on appeal must be
argued that it was unethical for Rodriguez to have
inspected from every reasonable vantage in the light most
represented Jose Luis at the same time that he represented
favorable to the trial court’s ruling, and found to be
appellant because Jose Luis could have been called as a
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Quintero v. State, --- S.W.3d ---- (2015)
deficient, before it may be overturned as an abuse of the interest. That evidence does not address the second part of
trial court’s discretion. Odelugo, 443 S.W.3d at 138. If the test: whether trial counsel acted on behalf of other
one reasonable view of the record would support the trial interests to appellant’s detriment. Our dissenting
court’s denial of a motion for new trial, the decision must colleague argues that such an adverse impact has been
be affirmed on appeal. See id. shown because Rodriguez failed to “disclose to appellant
the trial court’s conclusion that the dual representation
[2] [3] [4] [5]
The Constitution guarantees a criminal was unethical” and the court’s advice that Rodriguez
defendant effective assistance of counsel. Ex parte “discontinue the dual representation”—information that
Moore, 395 S.W.3d 152, 157 (Tex.Crim.App.2013). To would have allowed appellant to make an informed
prevail on his conflict-of-interest ineffectiveness claim, decision about waiver and choice of counsel. Post, at 5–6.
appellant must prove by a preponderance of the evidence But there is no evidence that the trial court disclosed any
that (1) his trial counsel had an actual conflict of interest, such conclusion or advice to Rodriguez before appellant
and (2) the conflict actually colored his trial counsel’s entered his guilty plea. Rather, the trial court simply
actions during his representation of appellant. Odelugo, denied counsel’s motion seeking approval of the waiver
443 S.W.3d at 136. “An ‘actual conflict of interest’ exists appellant had signed, and Rodriguez testified that the trial
if counsel is required to make a choice between advancing court said he could still represent both appellant and Jose
his client’s interest in a fair trial or advancing other Luis if he wished.3
interests (perhaps counsel’s own) to the detriment of his
client’s interest.” Monreal v. State, 947 S.W.2d 559, 564 Appellant’s second and third arguments likewise do not
(Tex.Crim.App.1997). In other words, appellant must demonstrate an adverse effect because they ignore that the
show that his trial counsel actually acted on behalf of evidence regarding Rodriguez’s dealings with both Jose
those other interests, and he was adversely impacted as a Luis and appellant was disputed. Although the brothers
result. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. each offered testimony that, if believed, could establish an
1708, 64 L. Ed. 2d 333 (1980). Appellant’s claim will fail adverse impact on appellant, Rodriguez offered directly
if (1) no evidence has been presented on the issue, or (2) contrary testimony. For example, Rodriguez testified that
the evidence relevant to the issue is in perfect equipoise. Jose Luis never told him that he now believed appellant
Odelugo, 443 S.W.3d at 136–37. was innocent. Although he agreed that Jose Luis had
approached him about what to tell the prosecutors
regarding appellant’s case, he denied advising Jose Luis
to remain quiet about his changed attitude toward his
B. Appellant did not prove by a preponderance of the brother in order to advance Jose Luis’s own interests.
evidence that he was adversely impacted by any Rodriguez testified that he instead advised Jose Luis to
conflict of interest. “tell [the prosecutor] whatever you want to tell [him].”
*5 Even if we assume the existence of an actual conflict Our dissenting colleague faults Rodriguez for not
of interest, appellant must still establish, by a attempting to secure a statement from Jose Luis in support
preponderance of the evidence, that he was adversely of appellant. Post, at 8. But according to Rodriguez, he
impacted by his trial counsel’s conflict of interest. did not know that Jose Luis was now willing to make a
Appellant contends he met this burden through: (1) supportive statement. This testimony undercuts the
undisputed evidence that Rodriguez represented his dissent’s theory that Rodriguez gave this advice to
brother—the father of the complainant, and therefore a advance Jose Luis’s interests to the detriment of
potential material witness against him—while continuing appellant.4
to represent appellant; (2) his brother’s testimony that
Rodriguez advised him to not tell the prosecutors his *6 The trial court, as the trier of fact, was entitled to
belief that appellant had not sexually assaulted his believe Rodriguez’s testimony and disbelieve the
daughter; and (3) his own testimony that Rodriguez testimony of both appellant and his brother. See Odelugo,
pressured him into accepting the State’s plea-bargain 443 S.W.3d at 138 (stating that trial court can choose to
offer by telling him he would be convicted if he went to disbelieve even uncontroverted testimony if its probative
trial and would then receive a life sentence. We disagree value depends on the credibility of the witness). We
that, under the appropriate standard of review, appellant conclude the trial judge implicitly did so here. See
has established that the trial court abused its discretion Johnson, 169 S.W.3d at 239. Given the trial court’s
when it denied his motion for new trial based on an actual implicit rejection of the brothers’ testimony and
conflict of interest. acceptance of Rodriguez’s, it was within the court’s
discretion to conclude that appellant failed to show by a
Appellant’s first argument consists simply of evidence preponderance of the evidence that he was adversely
that the dual representation created an actual conflict of
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
Quintero v. State, --- S.W.3d ---- (2015)
affected by his trial counsel’s conflict of interest. Martinez, 981 S.W.2d at 197.
Odelugo, 443 S.W.3d at 138. Therefore, we hold the trial
court did not abuse its discretion when it denied Attempting to meet this burden, appellant relies on his
appellant’s motion for new trial based on an actual testimony that his attorney had not advised him of the
conflict of interest. Id. existence of an actual conflict of interest before he agreed
to plead guilty and had pressured him to take the plea. But
there is other evidence in the record that appellant was
aware of the conflict. In addition, we have already
II. Appellant has not shown that the trial court abused determined that the trial court could have disbelieved
its discretion by refusing to grant him a new trial on appellant’s testimony regarding his trial counsel’s
the ground that his guilty plea was not knowingly, handling of the plea bargain and instead believed
intelligently, and voluntarily entered. Rodriguez’s testimony that he discussed the State’s plea-
[6]
In his second argument, appellant claims that the trial bargain offer with appellant and that he explained
court erred when it denied his motion for new trial based appellant’s options prior to appellant’s decision to accept
on the allegedly involuntary nature of his guilty plea. the plea. We therefore conclude appellant has not met his
According to appellant, his plea was involuntary because burden to demonstrate that his guilty plea was involuntary
his attorney rendered ineffective assistance by failing to and, as a result, has not shown that the trial court abused
advise him of the existence of an actual conflict of interest its discretion when it denied his motion for new trial
and by pressuring him to take the plea when he told him based on this ground.
he faced two choices: pleading guilty with a six-year
sentence, or going to trial and being found guilty and
sentenced to life in prison. In this argument, appellant
makes no reference to the visiting judge’s admonishments III. Appellant has not shown that the trial court
regarding his decision to plead guilty to the aggravated abused its discretion by refusing to grant him a new
sexual assault charge. He also does not contend that the trial in the interest of justice.
admonishments, which are contained in the record, are *7 [10]In his final argument on appeal, appellant contends
insufficient. the trial court abused its discretion when it refused to
grant him a new trial in the interest of justice. The interest
[7] [8] [9]
Due process required that a guilty plea be entered of justice is not an independent basis for granting a new
knowingly, intelligently, and voluntarily. Kniatt v. State, trial, however. State v. Thomas, 428 S.W.3d 99, 105
206 S.W.3d 657, 664 (Tex.Crim.App.2006). In (Tex.Crim.App.2014). The Court of Criminal Appeals has
considering the voluntariness of a guilty plea, an appellate held that there must be some legal basis underpinning the
court examines the record as a whole. Martinez v. State, grant of a new trial, even when it is sought in the interest
981 S.W.2d 195, 197 (Tex.Crim.App.1998). Evidence of justice. Id. As a general rule, a trial court does not
that a defendant was admonished by the trial court creates abuse its discretion in granting a motion for new trial in
a prima facie showing that the guilty plea was made the interest of justice if the defendant (1) articulated a
voluntarily and knowingly. Id. The burden then shifts to valid legal claim in his motion, (2) produced evidence or
the defendant to show that he entered the plea without pointed to evidence in the trial record that substantiated
understanding the consequences of his action. Arreola v. his legal claim, and (3) showed prejudice to his
State, 207 S.W.3d 387, 391 (Tex.App.—Houston [1st substantial rights under the rules of appellate procedure.
Dist.] 2006, no pet.). State v. Sanders, 440 S.W.3d 94, 99 (Tex.App.—Houston
[14th Dist.] 2013, pet. ref’d).
The record demonstrates that appellant received written
admonishments from the visiting judge. Appellant signed In an effort to meet these requirements, appellant asserts
those admonishments and initialed several paragraphs that the trial court should have granted his motion in the
specifically acknowledging that he understood the charges interest of justice for one of the reasons he asserted
against him and the consequences of a guilty plea, and previously: his trial counsel was ineffective because he
that he had fully consulted with his attorney before pressured him into pleading guilty.5 We have already
signing the admonishments and agreeing to the plea. The addressed, and rejected, this contention as a stand-alone
record also demonstrates that the visiting judge orally basis for the trial court to grant appellant a new trial.
admonished appellant regarding his decision to plead Having done so, we hold this contention also cannot serve
guilty. Therefore, there is a prima facie showing that as the legal basis underlying the grant of a new trial in the
appellant entered his guilty plea knowingly, intelligently, interest of justice. See id. at 104 (concluding that one
and voluntarily, and appellant had the burden to show the ground did not support new trial because court had
trial court that his plea was nevertheless involuntary. See already analyzed essentially the same argument under
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
Quintero v. State, --- S.W.3d ---- (2015)
another ground and concluded it did not support new standard articulated in Cuyler v. Sullivan.2
trial). We therefore hold that the trial court did not abuse
its discretion when it denied appellant’s motion for new *8 To prevail on his conflict-of-interest ineffectiveness
trial based on this ground. claim, appellant must prove by a preponderance of the
evidence that (1) appellant’s counsel had an actual
conflict of interest and (2) the conflict actually colored
counsel’s actions while representing appellant.3 “An
‘actual conflict of interest’ exists if counsel is required to
CONCLUSION make a choice between advancing his client’s interest in a
fair trial or advancing other interests (perhaps counsel’s
Having addressed each argument raised in appellant’s own) to the detriment of his client’s interest.”4 In the
single issue on appeal and concluded that none supports simplest terms, appellant must show counsel actually
reversal, we overrule that issue and affirm the trial court’s acted on behalf of other interests, and that appellant was
judgment. adversely impacted as a result.5 To prove an adverse
impact, appellant need not show that the conflict changed
the outcome6 or that but for the adverse impact appellant
would not have pled “guilty.”7 All that is required is a
(Frost, C.J., dissenting). showing that counsel acted (or chose not to act) to pursue
other interests and that appellant thereby suffered some
adverse effect.
Kem Thompson Frost, Chief Justice, dissenting
Today the court must determine whether appellant Juan Counsel’s Actual Conflicts of Interest
Quintero is entitled to a new trial based on his counsel’s
actual conflicts of interest. Convicted of aggravated Appellant’s young niece made outcry that appellant had
sexual assault of a child as part of a plea-bargain sexually assaulted her. Appellant’s counsel represented
agreement with the State, appellant asserts his retained both appellant and the complainant’s father, who is
counsel rendered ineffective assistance because the appellant’s brother. The father’s interests in appellant’s
conflicts colored counsel’s actions. At the heart of the case diverged from appellant’s interest. While appellant’s
appeal is appellant’s contention that counsel advised interest was to minimize adverse consequences of
appellant to plead “guilty” while laboring under actual potential conviction and punishment for the charged
conflicts of interest. To decide the issue we must offense, the undisputed evidence shows that the father’s
determine the adverse impact, if any, of the conflicts. The interests were (1) to seek justice for the complainant and
majority concludes that appellant suffered no adverse against the perpetrator of the crime and (2) to avoid any
impact and that the evidence supports an implied finding adverse action from the Texas Department of Family and
that appellant knowingly, intelligently, and voluntarily Protective Services, including action that might
entered the plea. I respectfully disagree. jeopardize his rights to possession of his children. The
objectives of appellant and the objectives of the father
were incompatible from the beginning, but the conflicts
became increasingly apparent as the case progressed.
Applicable Legal Standard Appellant’s interests and the father’s interests collided
head-on when the father received a call from the District
In most cases, ineffective-assistance-of-counsel claims are Attorney’s Office requesting input on appellant’s
assessed under the familiar two-prong test set out in prospective punishment. The father, in turn, sought
Strickland v. Washington, which requires the appellant to counsel’s advice regarding the District Attorney’s inquiry.
prove that (1) counsel’s representation fell below an In advising the father, counsel found himself between a
objective standard of reasonableness; and (2) but for rock and a hard place—counsel was required to make a
counsel’s unprofessional errors, the result of the choice between advancing appellant’s interests on one
proceeding would have been different.1 But, when one hand and advancing the father’s interests on the other.8
asserts that the ineffective assistance derived from a Whatever choice the lawyer made would promote the
conflict of interest, the appellate court assesses the interests of one client while compromising the interests of
ineffective-assistance claim under the less-onerous the other.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
Quintero v. State, --- S.W.3d ---- (2015)
disclose to appellant the trial court’s conclusion that the
Up to that point, appellant’s counsel had characterized his dual representation was unethical or inform appellant that
representation of the two clients as posing only a the trial court advised counsel to discontinue the dual
“potential” conflict despite the facial incompatibility of representation. This information was material. Indeed,
the clients’ respective interests. Counsel was operating had appellant known the trial court did not approve of
under the belief that his clients’ divergent interests would counsel’s simultaneous representation of appellant and the
lead to an actual conflict only if both cases were tried, father or that the trial court had denounced the
and, according to counsel, the outcome was up to him. representation as unethical, appellant might well have
Appellant’s counsel advised both appellant and the father made a different decision about waiver and choice of
of what counsel described as a “potential” conflict. counsel.
Counsel then presented both clients with written waivers.
Both clients signed the waivers.9 An attorney serving his clients’ interests would have
disclosed this information to the clients so that the clients
*9 Appellant’s counsel filed appellant’s waiver in the trial could make informed decisions regarding their choice to
court, but the trial court refused to approve the waiver of continue being represented by an attorney with actual
the conflict. According to the trial court, the conflict was conflicts of interest. The only reasonable interpretation of
unethical.10 Even assuming (for argument’s sake) the counsel’s testimony and the clients’ testimony is that
accuracy of counsel’s early assessment of the counsel briefly informed the clients that there might be a
simultaneous representation of the two clients as creating potential conflict of interest, but counsel did not explain
only a “potential” conflict, at the point of the District the ramifications of any conflict to appellant or advise
Attorney’s inquiry to the father, the dual representation appellant as to how being represented by an attorney with
posed an actual conflict of interest. Likewise, when conflicts of interest might affect the representation
appellant’s counsel responded to appellant’s request for appellant was to receive. Because the father’s goals and
advice regarding a plea-bargain offer from the State, interests were at cross-purposes with what appellant
counsel was acting under an actual conflict of interest. At hoped to achieve, the interests of both could not be served
that point, appellant’s counsel was required to make a by the same counsel at the same time.
choice between advancing his own economic interests and
advancing appellant’s interests. The former could only The majority emphasizes the trial court’s role as the fact-
come at the cost of the latter. finder and the possibility that the trial court may have
discredited the clients’ testimony and believed only the
Both the economic-self-interest conflict between counsel attorney’s testimony.13 The majority states that the only
and appellant and the divergent-client-interests conflict evidence that showed counsel’s actions were colored by
between appellant and the father required appellant’s conflicts of interest is disputed. This assessment is
counsel to choose between opposing interests. The record incorrect. Even if the trial court believed counsel’s
contains sufficient evidence showing counsel had actual testimony and disbelieved the testimony of both appellant
conflicts of interest.11 and the father, the undisputed evidence shows the
conflicting interests colored counsel’s actions.
Actions Colored by Conflicts of Interests
Economic Self–Interest Conflict
Counsel’s conflicts of interest colored his actions during
his representation of appellant.12 Counsel testified that he *10 Counsel testified that he would have to withdraw, and
concluded he could not take both appellant’s case and the therefore suffer adverse financial consequences, unless
father’s case to trial. In tacit recognition of the actual one of the clients pled “guilty.” Counsel chose not to
conflict, counsel admitted that he would have to withdraw advise appellant that the trial court had refused to approve
from one representation unless at least one of the clients the waiver of the conflict, an action which suggests
accepted a plea bargain. The evidence shows that this counsel was motivated to keep the business of both clients
conflict influenced counsel’s representation of appellant. or, at least, prevent them from learning the trial court’s
After the trial court refused to approve appellant’s waiver view of the matter. Counsel’s explanation for failing to
of the conflict, counsel chose not to disclose that fully articulate the implications of the conflicts of interest
information to appellant. Counsel never informed either was that, in his view, the conflicts of interest would not be
of the clients that the trial court had considered the waiver an issue as long as at least one client pled “guilty.”
and expressly refused to approve it. Nor did counsel Counsel then refrained from taking any action to
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9
Quintero v. State, --- S.W.3d ---- (2015)
investigate the State’s case against appellant.14 When the supportive statement. But, counsel’s unawareness of what
State offered appellant a plea bargain, counsel advised the father would say condemns rather than excuses
appellant to plead “guilty” even though counsel did not counsel’s failure to act.
know anything about the State’s case against appellant,
including whether it was a weak case or a strong case. Counsel’s testimony that he did not know what the father
Appellant accepted counsel’s advice and pled “guilty.” In would say shows counsel chose to advise the father
counsel’s mind, appellant’s “guilty” plea eliminated any without undertaking to investigate what, if anything, the
conflict of interest and allowed counsel to continue father could offer that might further appellant’s goals of
representing both appellant and the father. The evidence minimizing the consequences of potential conviction and
shows that counsel’s actions and his choices not to act punishment. Counsel’s decision not to make inquiry and
were colored by a conflict between his interest in not to investigate prompts important questions:
retaining both clients and appellant’s interest in
minimizing adverse consequences of conviction and • Would an attorney not laboring under a conflict of
punishment, an interest served by appellant’s pleading interest fail to ask the father what he wanted to say?
“guilty” only if the State’s case against appellant was
strong. • Would an attorney zealously representing only
appellant’s interests squander the opportunity to
attempt to secure a supportive statement on behalf of
appellant?
Divergent–Client–Interests Conflict At this critical point in counsel’s representation of
appellant, counsel chose not to inquire and not to
Counsel’s representation of appellant also was colored by investigate. Doing so would have furthered appellant’s
a conflict of interest between appellant (the accused) and interests but compromised the father’s interests. Counsel
the father of the accuser. The undisputed evidence shows could not serve the interests of both clients. Counsel
the District Attorney’s Office contacted the father to chose not to serve appellant’s interests.
discuss the father’s thoughts on an appropriate
punishment for appellant. The father and counsel both *11 By choosing to do nothing, counsel lost the
testified that the father asked counsel for advice in opportunity to learn what the father would say and
responding to this prosecutorial inquiry. Appellant’s attempt to secure a statement from the father in support of
interest was in securing statements from the father that appellant.15 The conflict of interest affected counsel’s
would convince the District Attorney to minimize actions—he failed to make inquiry and he failed to
consequences for appellant. In this instance, the father advocate on appellant’s behalf while interacting with the
testified that at the time he believed appellant to be father.16
innocent of the charges and that the proper punishment
would be no punishment.
According to the father, counsel thought the father had an
interest in not disclosing his opinion that appellant was Cuyler Standard Satisfied
innocent because that opinion might cause the father to
lose custody of his children. The father testified that The undisputed evidence shows the conflicts of interest
counsel advised him to keep silent about his opinion that colored counsel’s actions as well as his advice.17
appellant was innocent, lest appellant risk losing custody Accordingly, the Cuyler standard is satisfied.
of his children. Counsel disputed this testimony. Even
assuming the trial court discredited the father’s testimony,
counsel’s account of this incident itself is sufficient to
show that the actual conflict of interest colored counsel’s Conclusion
actions.
Counsel had actual conflicts of interest and that those
Counsel testified that he told the father to tell the District conflicts colored his representation of appellant.
Attorney’s Office “whatever [father] wanted.” This Therefore, the court should sustain appellant’s first issue
advice was not zealous representation of appellant, who and reverse and remand the case to the trial court for a
was seeking a lesser sentence than the District Attorney’s new trial
Office was proposing. The majority notes counsel
testified that he did not know the father wanted to make a
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10
Quintero v. State, --- S.W.3d ---- (2015)
All Citations
--- S.W.3d ----, 2015 WL 2405549
Footnotes
1
Appellant
made
clear
in
the
trial
court,
and
has
repeated
on
appeal,
that
he
is
not
asserting
as
the
basis
for
his
right
to
a
new
trial
a
broader
claim
of
ineffective
assistance
of
counsel
based
on
grounds
such
as
his
trial
counsel’s
failure
to
conduct
an
adequate
investigation
of
his
case.
Appellant
has
affirmatively
limited
his
claim
of
ineffective
assistance
of
counsel
to
the
three
grounds
mentioned
in
the
text.
2
The
visiting
judge
specifically
admonished
appellant
that:
“the
full
range
of
punishment
in
this
matter
is
by
life
confinement
in
the
Texas
Department
of
Criminal
Justice,
or
a
term
of
years
not
less
than
five,
no
more
than
ninety-­‐nine,
with
an
optional
fine
in
any
amount
not
to
exceed
$10,000.
That’s
the
full
range
of
punishment.
In
addition
to
that
conviction,
you
will
be
required
to
register
under
the
Texas
Sex
Offender
Registration
Act.
You
understand
that?”
Appellant
responded
that
he
did.
3
Appellant
also
asserts
within
his
first
argument
that
he
is
entitled
to
a
new
trial
because
the
trial
court
failed
to
conduct
a
Greig
hearing.
See
U.S.
v.
Greig,
967
F.2d
1018,
1022
(5th
Cir.1992)
(holding
when
actual
conflict
exists,
trial
court
must
hold
hearing
to
ensure
defendant
(1)
is
aware
of
the
conflict,
(2)
realizes
the
potential
hazard
to
his
defense
as
a
result
of
using
the
conflicted
attorney,
and
(3)
knows
his
right
to
obtain
other
counsel).
While
the
more
commonly
used
name
for
this
type
of
hearing
is
a
Garcia
hearing,
we
use
the
name
suggested
by
appellant
for
purposes
of
this
appeal.
See
U.S.
v.
Garcia,
517
F.2d
272,
277
(5th
Cir.1975),
abrogated
on
other
grounds
by
Flanagan
v.
U.S.,
465
U.S.
259,
263
n.1,
104
S.Ct.
1051,
79
L.Ed.2d
288
(1984).
It
is
undisputed
that
the
trial
court
did
not
conduct
a
Greig
hearing.
We
conclude
that
this
fact
alone
does
not
establish
appellant
is
entitled
to
a
new
trial
because
appellant
must
still
show
he
was
adversely
affected
by
the
actual
conflict.
See
Greig,
967
F.2d
at
1024;
Ramirez
v.
State,
13
S.W.3d
482,
487–90
(Tex.App.—Corpus
Christi
2000,
pet.
dism’d).
4
In
contending
that
a
new
trial
is
required
in
the
interest
of
justice
(an
issue
we
address
in
Part
III
below),
appellant
points
to
record
evidence
that
Rodriguez
conducted
no
investigation
into
his
case
and
advised
him
to
accept
the
State’s
plea
bargain
offer
even
though
Rodriguez
had
no
information
on
the
strength
or
weakness
of
the
State’s
case
against
him.
Our
dissenting
colleague
relies
on
this
argument
to
support
her
view
that
appellant
was
adversely
impacted
by
his
counsel’s
conflict
of
interest.
We
do
not
reach
this
specific
argument,
however,
because
appellant
has
affirmatively
represented
that
he
seeks
a
new
trial
only
on
the
basis
of
an
actual
conflict
of
interest
and
has
expressly
disclaimed
any
attempt
to
establish
a
broader
claim
of
ineffective
assistance
of
counsel
such
as
a
failure
to
investigate.
5
As
part
of
his
argument
that
Rodriguez
pressured
him
into
pleading
guilty,
appellant
briefly
mentions
an
allegation
that
Rodriguez
conducted
no
investigation
before
telling
him
that
he
would
be
convicted
and
sentenced
to
life
in
prison
if
he
did
not
accept
the
State’s
plea
bargain.
Because
appellant
has
affirmatively
stated
that
he
is
not
pursuing
a
broader
ineffective
assistance
of
counsel
claim
based
on
an
allegation
of
failure
to
investigate,
we
do
not
construe
this
allegation
as
raising
a
separate
claim
that
he
should
be
granted
a
new
trial
in
the
interest
of
justice
because
his
trial
counsel
failed
to
investigate
his
case,
and
we
render
no
opinion
on
that
issue.
1
See
Acosta
v.
State,
233
S.W.3d
349,
352
(Tex.Crim.App.2007).
2
See
id.
at
352–53;
Ex
parte
McCormick,
645
S.W.2d
801,
805
(Tex.Crim.App.1983)
(holding,
in
habeas
proceeding,
that
petitioner
was
entitled
to
new
trial
because
counsel’s
conflict
of
interest
adversely
affected
petitioner).
3
Odelugo
v.
State,
443
S.W.3d
131,
136
(Tex.Crim.App.2014)
(citing
Cuyler
v.
Sullivan,
446
U.S.
335,
350,
100
S.Ct.
1708,
64
L.Ed.2d
333
(1980)).
4
Monreal
v.
State,
947
S.W.2d
559,
564
(Tex.Crim.App.1997).
See
Lopez
v.
State,
428
S.W.3d
271,
283
(Tex.App.—Houston
[1st
Dist.]
2014,
pet.
ref’d).
5
Cuyler,
446
U.S.
at
349–50,
100
S.Ct.
1708.
6
Gonzales
v.
State,
605
S.W.2d
278,
280–81
(Tex.Crim.App.1980);
Perillo
v.
Johnson,
79
F.3d
441,
448
(5th
Cir.1996).
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11
Quintero v. State, --- S.W.3d ---- (2015)
7
See
Gonzales,
605
S.W.2d
at
280–81.
If
appellant
establishes
an
actual
conflict,
prejudice
is
presumed.
Maya
v.
State,
932
S.W.2d
633,
635
(Tex.App.—Houston
[14th
Dist.]
1996,
no
pet.);
Perillo,
79
F.3d
at
448.
8
See
Pina
v.
State,
29
S.W.3d
315,
320
(Tex.App.—El
Paso
2000,
pet.
ref’d)
(holding
that
counsel’s
action
were
colored
by
conflict
when
attorney
representing
two
brothers
failed
to
call
one
brother
to
testify
for
fear
that
testimony
might
incriminate
other
brother).
9
In
this
written
document,
appellant
sought
to
waive
a
potential
conflict,
not
an
actual
conflict;
the
trial
court
declined
to
accept
the
waiver.
Even
if
this
waiver
were
an
accepted
waiver
of
an
actual
conflict,
the
waiver
was
not
knowing,
intelligent,
or
voluntary
because
the
record
shows
that
appellant
was
not
aware
of
the
actual
conflict
and
did
not
realize
the
consequences
of
continuing
with
counsel’s
representation.
See
Maya,
932
S.W.2d
at
636
(noting
that
absent
an
express,
voluntary
waiver,
an
actual
conflict
of
interest
that
hinders
the
effectiveness
of
counsel
will
mandate
a
new
trial).
10
The
trial
court,
though
expressly
disapproving
of
the
conflict
waiver,
did
not
stop
counsel
from
continuing
to
represent
appellant.
11
See
Ramirez
v.
State,
13
S.W.3d
482,
486–87
(Tex.App.—Corpus
Christi
2000,
pet.
dism’d).
12
See
id.
at
486
(holding
that
evidence
counsel
struggled
to
“serve
two
masters”
shows
that
an
accused’s
defense
has
been
impaired).
13
The
trial
court
explained
it
agreed
with
appellant’s
position
“morally”
and
“ethically”
and
lamented
the
“light
this
puts
our
profession
in,”
but,
the
trial
judge
concluded:
I’ve
been
on
the
bench
long
enough,
and
as
a
prosecutor
and
defense
lawyer
long
enough
to
know
that
sometimes
people
plead
guilty
to
things
that
they
didn’t
do
because
they
believe
it’s
in
their
best
interest
to
do
so
because
they
[sic]
rather
take
six
years
than
fifty.
And
my
understanding
of
the
law
is,
as
long
as
you
do
that
knowingly
and
intelligently,
that’s
what
it’s
going
to
be.
And
so
I
don’t
know
if
he
did
it
or
not,
never
will;
even
if
there
was
a
trial,
I
wouldn’t
know.
Okay.
I
would
just
know
what
the
evidence
was,
what
the
proof
was,
but
I
would
never
know
that
answer.
So,
even
in
light
of
your
very
convincing
argument,
I
have
to
deny
the
motion.
14
Even
assuming
that
the
majority
is
correct
that
appellant’s
failure
to
preserve
error
forecloses
this
court
from
considering
appellant’s
argument
that
he
received
ineffective
assistance
of
counsel
because
his
counsel
did
not
conduct
an
adequate
investigation,
under
the
Cuyler
standard
this
court
still
must
consider
counsel’s
inaction
to
the
extent
the
inaction
was
colored
by
counsel’s
conflict
of
interest.
See
Cuyler
v.
Sullivan,
446
U.S.
335,
349–50,
100
S.Ct.
1708,
64
L.Ed.2d
333
(1980).
15
See
Lopez
v.
State,
358
S.W.3d
691,
694–95
(Tex.App.—San
Antonio
2011).
16
See
Ex
Parte
Parham,
611
S.W.2d
103,
105
(Tex.Crim.App.1981)
(holding
in
habeas
proceeding
that
an
attorney’s
“divided
loyalties”
adversely
affected
his
representation
when
he
advised
a
client
not
to
testify
while
his
duty
to
another
client
was
to
secure
the
testimony).
17
See
id.;
Ramirez,
13
S.W.3d
at
486;
Pina,
29
S.W.3d
at
320;
Maya,
932
S.W.2d
at
635.
End
of
Document
©
2015
Thomson
Reuters.
No
claim
to
original
U.S.
Government
Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12