Opinion filed October 24, 2013




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-11-00313-CR
                                     __________

                  SANTA MARIA AGUIRRE, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                                 Midland County, Texas
                          Trial Court Cause No. CR35449



                      MEMORANDUM OPINION
      The jury found Santa Maria Aguirre guilty of the offense of theft of property
represented to be stolen by a law enforcement agent and assessed punishment at
confinement in a state jail facility for a term of two years and a fine of $9,000.
Based on the jury’s recommendation, the trial court suspended the imposition of
the sentence, placed Appellant on community supervision for five years, and
required Appellant to pay the fine.
      Appellant urges one issue on appeal: the trial court erred in failing to
disqualify   Appellant’s    attorney    because     he   represented   two   additional
codefendants charged with the same offense and, therefore, had an incurable
conflict of interest that resulted in ineffective assistance of counsel. Because
Appellant expressly waived the claimed conflict in a hearing before trial, we affirm
the trial court on the doctrine of invited error.
                                   Background Facts
      Before Appellant’s trial, the State filed a motion to disqualify Steve
Hershberger as Appellant’s counsel because he also represented two of her
codefendants who had been indicted for the same offense. There was ample time
for Appellant to consider this motion. The trial court first set a hearing on the
motion for May 15, 2009, then reset the hearing for May 29, and again reset the
hearing for June 12. Although the hearing was not recorded, it appears that all
three defendants charged with the crime were at the hearing. On June 22, 2009,
the trial court signed and filed the following order:
            The Defendants’ willingness to waive the ostensible conflict in
      having one attorney represent all three is permissible and it renders
      unnecessary the disqualification of Mr. Hershberger.

                                        Analysis
      Although the trial court referred to Appellant waiving a right, the analysis of
the issue before this court begins with whether she can now complain of an action
that she requested as opposed to the rules for waiver. The doctrine of invited error
is properly thought of, not as a species of waiver, but as estoppel. Prystash v.
State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). The Prystash court noted that
the Court of Criminal Appeals had pointed out the relationship between the

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doctrines of estoppel and invited error in the early case of Carbough v. State, 93
S.W. 738 (Tex. Crim. App. 1906):
      Where a party by a request for a ruling leads the court into error, he
      should be precluded from claiming a reversal of the judgment by
      reason of the error so committed. To hold otherwise would be to
      permit him to take advantage of his own wrong.

Id. at 531.    Under the doctrine of invited error, Appellant is estopped from
complaining that her counsel rendered ineffective assistance of counsel due to the
purported conflict of interest.
      Even if the doctrine of invited error were not conclusive, the State correctly
points out the standard of review that applies when an appellant asserts that
ineffective assistance of his counsel is based on a conflict of interest. Under that
standard, an appellant must show (1) that trial counsel “actively represented
conflicting interests” and (2) that counsel’s performance at trial was “adversely
affected” by the conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 348, 350
(1980); Acosta v. State, 233 S.W.3d 349, 353 (Tex. Crim. App. 2007). A showing
of a potential conflict of interest is not sufficient to constitute an actual conflict of
interest. Routier v. State, 112 S.W.3d 554, 584–85 (Tex. Crim. App. 2003). An
actual conflict of interest exists if counsel is required to make a choice between
advancing his client’s interest in a fair trial or advancing other interests to the
detriment of his client’s interest. Acosta, 233 S.W.3d at 355.
      Appellant admits that the representation of codefendants by a single attorney
does not always violate the guarantee of effective assistance of counsel and that the
mere possibility of a conflict is insufficient to impugn a criminal conviction. See
Cuyler, 446 U.S. at 350. Appellant speculates as to various possibilities that could
have occurred if Appellant’s trial attorney had called her codefendants as
witnesses.    A potential conflict may become an actual conflict; however, we


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decline to speculate about a strategy that an attorney might have pursued, but for
the existence of a potential conflict of interest, in the absence of some showing that
the potential conflict became an actual conflict. Routier, 112 S.W.3d at 581–82.
Appellant was required to show that an actual conflict of interest existed and that
trial counsel actually acted on behalf of those other interests during the trial.
Acosta, 233 S.W.3d at 355. We overrule Appellant’s sole issue on appeal.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


October 24, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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