Affirmed and Opinion filed December 1, 2011.




                                         In The

                           Fourteenth Court of Appeals
                                   ___________________

                                    NO. 14-10-00847-CR
                                   ___________________

                      TERRELL JERMAINE OWENS, Appellant

                                            V.

                           THE STATE OF TEXAS, Appellee


                        On Appeal from the 178th District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1237297


                                      OPINION

       A jury convicted appellant Terrell Jermaine Owens of possession of a controlled
substance. Appellant was found to be a habitual offender and punishment was assessed at
twenty-five years’ imprisonment. On appeal, appellant contends that his counsel was
ineffective because of a conflict of interest. Concluding that appellant showed no actual
conflict of interest, we affirm.

       On October 16, 2009, police officers responded to a call regarding a traffic hazard.
Upon arriving, the officers found appellant sitting in the middle of the street. Appellant
was unresponsive to the officers’ questions, and as the officers approached, appellant
began to run away. Officers suspected appellant of being under the influence of a
substance and moved to detain him. Appellant resisted arrest, and during the struggle
with the officers Appellant’s shorts fell off. During the inventory search of appellant’s
belongings at the city jail, a small bag that contained 1.3 grams of cocaine was found in
appellant’s shorts pocket.

       On the day appellant’s case was set for trial, with the jury waiting in the hall,
appellant asked to speak with the trial judge. Appellant asked the judge to dismiss his
court-appointed counsel because appellant had filed a grievance against his attorney with
the State Bar of Texas. Appellant’s attorney acknowledged that appellant had filed a
complaint with the State Bar, but that the State Bar had dismissed the complaint as being
―totally groundless.‖ Appellant’s attorney added that appellant had been informed of his
right to appeal the State Bar’s decision, that he had chosen to appeal, and that therefore he
and his client were ―in that sense . . . still in conflict, if you will.‖ The trial judge denied
appellant’s motion to have his court-appointed counsel removed.

       Appellant was convicted of the third-degree felony of possession of more than one
gram but less than four grams of a controlled substance. During the punishment phase,
the State introduced evidence of two prior convictions for the purpose of establishing
appellant as a habitual offender. See TEX. PENAL CODE ANN. 12.42(d) (West 2011).
Appellant was sentenced to the statutory minimum twenty-five years’ imprisonment. See
id.

       In the sole issue presented, appellant alleges that his counsel was ineffective
because of a conflict of interest arising from a complaint appellant filed against his attorney
with the State Bar of Texas. Appellant argues that his defense counsel was representing
conflicting interests—his own interest in avoiding a malpractice suit and the client’s
interest in receiving a fair trial—and that the conflict colored defense counsel’s actions
during the trial.

       Ineffective assistance claims are usually analyzed under the test put forward in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
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however, when it is asserted that the ineffective assistance derived from a conflict of
interest, the proper standard is that set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct.
1708, 64 L. Ed. 2d 333 (1980). Acosta v. State, 233 S.W.3d 349, 352–53 (Tex. Crim.
App. 2007). Under the Cuyler test, an appellant must show that (1) his counsel was
burdened by an actual conflict of interest, and (2) his counsel actually acted on behalf of
those other interests during the trial. Cuyler, 446 U.S. at 349–50, 100 S. Ct. at 1719, 80 L.
Ed. 2d 674; Acosta, 233 S.W.3d at 355. An actual conflict of interest exists if counsel is
required to make a choice between advancing his client’s interest or advancing other
interests, including his own, to the detriment of his client’s interests. Monreal v. State,
947 S.W.2d 559, 564 (Tex. Crim. App. 1997). The mere possibility of a conflict, without
more, will not justify reversal. Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719, 80 L. Ed. 2d
674; Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981). The Texas and United
States Constitutions do not entitle a criminal defendant to appointed counsel of
choice—instead, they only guarantee the defendant the right to effective assistance of
counsel. Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991).

       On appeal, appellant contends that defense counsel was acting under a conflict of
interest resulting from a grievance that appellant filed with the State Bar Association.
However, appellant has not shown this court the nature of the complaint filed against his
trial counsel. The record does not contain a copy of appellant’s grievance, nor does it
reveal the final disposition of any proceedings against appellant’s trial counsel. Further,
the record does not contain any motion to dismiss trial counsel that appellant alleges he
filed with the court. The only evidence in the record regarding the complaint indicates
that it was dismissed by the State Bar as being ―totally groundless‖ and that appellant was
in the process of appealing the decision.

       Appellant contends that a complaint filed with the State Bar against trial
counsel—even one that has been dismissed and is being appealed—creates a conflict of
interest. To support this assertion, appellant relies on Mathis v. Hood, 937 F.2d 790 (2nd

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Cir. 1991) and Garner v. State, 864 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1993, pet.
ref’d), but his reliance is misplaced. The filing of the complaint, by itself, does not create
a conflict of interest requiring the removal of counsel. See Dunn, 819 S.W.2d at 519
(filing of a civil action against counsel does not create a per se conflict of interest).

          In Mathis, the Second Circuit affirmed the district court’s decision, on habeas
corpus, that there was an actual conflict of interest based on a disciplinary proceeding filed
by the appellant against his appellate counsel. Mathis, 937 F.2d at 796. In that case, the
appellant filed a grievance against his appointed counsel after counsel failed to file an
appellate brief for over two years. Id. at 793. It was the combination of this delay and the
grievance, not the grievance alone, that formed the basis of the conflict of interest. See id.
at 795–96 (―The district court found that both the disciplinary proceeding filed against
Mathis’s attorney . . . and the possibility of liability for the delay he had caused created an
obvious and actual conflict of interest.‖) (internal quotation marks omitted). In affirming,
the Second Circuit noted the district court’s finding that the prolonged delay meant that
reversal of appellant’s conviction could expose the appointed counsel to liability, whereas
affirmance would have served counsel’s interests in that it would have suggested that the
delay, although egregious, had been harmless. See id. at 795. The court further noted
that the disciplinary complaint in that case was well founded, but that a frivolous
complaint, a complaint filed for the purpose of delay, or even one filed for the purpose of
obtaining new counsel would not create a conflict of interest warranting habeas relief. Id.
at 796.

          In Garner, the appellant testified that he had written a letter to the bar association
complaining about his trial counsel. Garner, 864 S.W.2d at 99. The First Court of
Appeals did not decide whether the trial court had a duty to inquire further into the
existence of a possible conflict because there was nothing in the record indicating the
nature of appellant’s complaint. Id. Much like in the case at hand, the only reference to
the appellant’s complaint in Garner was in recorded testimony. Id. In Garner, no officer

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of the court represented to the trial court on the record that a conflict existed, and the First
Court held that the appellant had at most demonstrated the mere possibility of a conflict of
interest, which without more was insufficient to impugn a criminal conviction. Id.

       Here, although appellant’s trial counsel told the trial judge that, because of
appellant’s appeal of the dismissal of his complaint, they were ―in that sense . . . still in
conflict, if you will,‖ it is clear that appellant’s counsel did not believe an actual conflict
existed. Appellant’s trial counsel did not ask to be removed from the case, announced he
was ready for trial, and explained that the State Bar found appellant’s grievance ―totally
groundless‖ and dismissed it.

       Even if there was an actual conflict of interest, appellant cannot meet the second
prong of Cuyler. See Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719, 80 L. Ed. 2d 674
(―[U]ntil a defendant shows that his counsel actively represented conflicting interests, he
has not established the constitutional predicate for his claim of ineffective assistance.‖).
There is no evidence to suggest that that appellant’s trial counsel acted adversely to
appellant’s interests. Appellant argues that defense counsel’s actions were colored by
counsel’s own self-interest in avoiding a malpractice claim when counsel asked on the
record whether appellant wanted to testify. Counsel’s questions were directed at appellant
while the jury was not present, and appellant has not established how such questioning
conflicted with appellant’s interests. See Monreal, 947 S.W.2d at 565 (no conflict where
defendant’s trial counsel put defendant on the witness stand for the sole purpose of entering
into the record that counsel had advised defendant of a plea offer and the defendant had
rejected it).

       Appellant also argues that counsel was defending against possible malpractice when
counsel sought to establish that appellant had failed to provide him with family witnesses
to assist in the defense. A reading of the record, however, suggests that counsel may have
been attempting to elicit sympathy from the court because appellant had no family
members who could testify on his behalf. Further, the court assessed punishment at the
                                               5
statutory minimum of 25 years’ imprisonment. Appellant has again failed to demonstrate
how counsel’s questioning was against appellant’s interest or harmed appellant in any way.

       There is nothing in the record to suggest that appellant’s trial counsel did not make
every effort to zealously represent his client. Counsel filed multiple motions on behalf of
his client, objected at appropriate times during the trial, and effectively cross examined
witnesses. There is no indication that appellant’s trial counsel acted subject to any
interests other than appellant’s; therefore, appellant has failed to establish that his
appointed counsel provided ineffective assistance.

       In sum, appellant has failed to meet either prong of the Cuyler test. See Cuyler,
446 U.S. at 349–50, 100 S. Ct. at 1719, 80 L. Ed. 2d 674. Appellant has not demonstrated
that an actual conflict of interest existed, nor has appellant established that his counsel
acted on behalf of any conflicting interests. We overrule the sole issue presented on
appeal and we affirm the trial court’s judgment.




                                          /s/       Tracy Christopher
                                                    Justice



Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
Publish — TEX. R. APP. P. 47.2(b).




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