                         NUMBER 13-10-00381-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ISRAEL ROBALI,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      Appellant, Israel Robali, and co-defendants, Anthony Hernandez, Alfredo Garza,

and Juan Herrera, were tried together in a single trial. The jury convicted appellant of

murder, a first-degree felony, see TEX. PENAL CODE ANN. § 19.02(b), (c) (West 2011), and

aggravated assault with a deadly weapon, a second-degree felony.             See id. §

22.02(a)(2), (b). The jury assessed concurrent sentences of life imprisonment and ten
years' imprisonment, respectively. In four issues, appellant argues: (1) the evidence is

legally and factually insufficient to support his convictions; (2) he received ineffective

assistance of counsel; (3) the trial court prevented his defense counsel from conducting

general voir dire examination; and (4) his defense counsel had a conflict of interest. We

affirm.

                                       I. BACKGROUND

          In the evening of July 31, 2009, Brian Villarreal and his friends, Joel Pacheco,

Isabel Martinez, and John Sardie went to Burlington Coat Factory in Corpus Christi.

While inside the store, Pacheco had a confrontation with Anthony Hernandez.

Thereafter, Villarreal and his friends went outside and saw Juan Herrera drive up with two

passengers, Alfredo Garza and appellant. Garza asked Villarreal and his friends if they

"had a problem." Villarreal testified that when Martinez approached their car, Herrera

drove away and took a pipe out of the trunk. Herrera, Garza, and appellant walked

toward Villarreal and his friends while Hernandez and a juvenile approached the four from

behind.     When appellant hit Pacheco, everybody started fighting.      During the fight,

Villarreal heard Herrera say, "Fuck these fools, blast them already, fuck them."

Appellant pulled a gun from his pocket and shot Martinez. When Martinez tried to grab

the gun, appellant shot him again. Undaunted, Martinez "threw" appellant over his

shoulder. When appellant hit the ground, the gun, which appellant held, went off, striking

Martinez again. Villarreal kicked the gun out of appellant's hand and started choking

him, but stopped when he realized Martinez was dying.




                                              2
       Sardie testified he was fighting someone and "heard a shot and then I heard a

second one and it shot me in the arm." He could not identify the person who shot him;

however, when the prosecutor asked him if the person who shot him "was one of those

three guys in the car [driven by Herrera]?", he said, "Yes." After getting shot, Sardie saw

Herrera pick up a gun that was on the ground. When Herrera pointed it at Sardie, Sardie

hid behind a truck. He testified that "I saw him [Herrera] shooting the gun after I ran

behind the truck and I looked back." He stated he "saw Herrera" grab Martinez "from the

back of his head and like pop, like leaned him over like that, on the side and just shot him

three times."

       Shortly before the fight started, Daniel Pulido was in his truck, which was parked

outside Burlington Coat Factory. He saw four men leave the store and stand against a

wall at the entrance to the store. About five minutes later, Herrera drove up in a blue car

and stopped near the four men. After someone in the blue car made "signs with his

hands," the men approached the car, which drove forward. Herrera and a passenger got

out, and Herrera retrieved what appeared to be a silver-colored gun from the trunk.

Herrera and his passengers started fighting with the four men, who were standing against

the wall. Pulido testified he saw "Juan Herrera and Robali [appellant] fighting about two

guys." After Pulido lost sight of the fight, he "heard about three or four rounds go off."

       Officer Jason Rhodes heard a dispatch about the fight and stopped the suspect

vehicle, which had five occupants—Alfredo Garza, Anthony Hernandez, appellant, O.H.,1

and Herrera, the driver of the vehicle. When Officer Rhodes searched the vehicle, he


       1
           Because this individual is a juvenile, we will not mention the first or last name.

                                                       3
found a handgun under the backseat, and he found a pipe and a bat in the trunk.

       Ray Fernandez, M.D., the Nueces County Medical Examiner who performed

Martinez's autopsy, testified Martinez's cause of death was multiple gunshot wounds.

Martinez had a gunshot wound that went through his aorta.                    He also had gunshot

wounds to the left back and to the left upper arm.

       The forensic evidence showed that, because the bullets removed from Martinez's

body had "insufficient detail," they could not be compared to test bullets fired from the .22

caliber pistol recovered from the car driven by Herrera. However, the bullets were

consistent with being .22 caliber bullets. All of the casings recovered from the crime

scene came from the .22 caliber pistol.

                                           II. DISCUSSION

A. Sufficiency of the Evidence

       In issue one, appellant contends the evidence is legally and factually 2 insufficient

to support a jury finding that he intentionally and knowingly caused Martinez's death and

that he intentionally, knowingly, and recklessly caused bodily injury to Sardie by use of a

deadly weapon.

       1. Standard of Review

       "The standard for determining whether the evidence is legally sufficient to support

a conviction is 'whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.'" Johnson v. State, No. PD-0068-11, 2012 WL 931980, at

       2
         The court of criminal appeals has abolished factual-sufficiency review. See Howard v. State,
333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011). Thus, we will only address appellant's legal-sufficiency
challenges.
                                                   4
*1 (Tex. Crim. App. Mar. 21, 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)) (emphasis in original). In Malik v. State, the court of criminal appeals articulated

the standard for ascertaining what the "essential elements of the crime" are; "they are 'the

elements of the offense as defined by the hypothetically correct jury charge for the case.'"

Johnson, 2012 WL 931980, at *1 (quoting Malik, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). "The hypothetically correct jury charge is one that at least 'accurately sets out

the law, is authorized by the indictment, does not unnecessarily increase the State's

burden of proof or unnecessarily restrict the State's theories of liability, and adequately

describes the particular offense for which the defendant was tried.'" Id. (quoting Malik,

953 S.W.2d at 240). The court of criminal appeals "described the law 'as authorized by

the indictment' to be 'the statutory elements of the offense . . . as modified by the charging

instrument[.]'" Id. (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).

       2. Applicable Law

       A person commits murder "if he: (1) intentionally or knowingly causes the death

of an individual; (2) intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual; . . . ." TEX. PENAL CODE

ANN. § 19.02(b)(1), (2).      Assault is defined in section 22.01 of the penal code.

Subsection (a) of that provision sets out three separate and distinct assaultive crimes,

one of which is relevant to the present discussion: "(a) A person commits an offense if

the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, . . .

." Id. § 22.01(a)(1). "'Bodily injury' means physical pain, illness, or any impairment of

physical condition."    Id. § 1.07(a)(8).     Section 22.02 of the penal code defines


                                              5
aggravated assault as being an assault under section 22.01, "and the person:              (1)

causes serious bodily injury to another, including the person's spouse; or (2) uses or

exhibits a deadly weapon during the commission of the assault." Id. § 22.02(a)(1), (2).

"'Deadly weapon' means: (1) a firearm. . . ." Id. § 1.07(a)(17)(A).

       3. The Law of Parties

       Section 7.01 of the penal code provides that "[a] person is criminally responsible

as a party to an offense if the offense is committed by his own conduct, by the conduct of

another for which he is criminally responsible, or by both." Id. § 7.01(a). Section 7.02

provides, in relevant part, that "[a] person is criminally responsible for an offense

committed by the conduct of another if: . . . (2) acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense; . . . ." Id. § 7.02(a)(2).

       4. Analysis

       Shortly before the fight began, Herrera, Garza, and appellant stopped outside

Burlington Coat Factory while Villarreal and his friends were outside the store. Villarreal

stated that Herrera took a pipe out of the trunk, and Pulido testified Herrera took out what

appeared to be a gun from the trunk.          Afterwards, Herrera, Garza, and appellant

approached Villarreal and his friends, and when appellant hit Pacheco, everybody started

fighting. When Herrera said "blast them," appellant shot Martinez. When Martinez tried

to grab the gun from appellant, he shot him again. When Martinez "threw" appellant over

his shoulder, the gun, which appellant held, went off, striking Martinez. The medical

evidence showed Martinez died from multiple gunshot wounds. Even though Sardie


                                             6
testified Herrera shot Martinez, "[a]s factfinder, the jury is entitled to judge the credibility of

witnesses, and can choose to believe all, some, or none of the testimony presented by the

parties." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Viewing all

of the evidence in the light most favorable to the verdict, we hold the evidence is legally

sufficient for a rational jury to conclude beyond a reasonable doubt that appellant, acting

as a principal or as a party, intentionally or knowingly caused the death of Martinez by use

of a deadly weapon; i.e., a firearm.

       In addition, Sardie testified that during the fight, he "heard a shot and then I heard

a second one and it shot me in the arm." Even though he could not identify who shot

him, when the prosecutor asked him if the person who shot him "was one of those three

guys in the car [driven by Herrera]?", he said, "Yes." There was evidence showing that

appellant was one of the occupants in the car driven by Herrera. In order to convict

appellant of aggravated assault with a deadly weapon, the State was not required to

prove he personally shot Sardie. Rather, the State merely had to prove he was acting as

a party with the person who did in fact shoot him. Viewing all of the evidence in the light

most favorable to the verdict, we hold the evidence is legally sufficient for a rational jury to

conclude beyond a reasonable doubt that appellant, acting as a principal or as a party,

intentionally, knowingly, or recklessly caused bodily injury to Sardie by use of a deadly

weapon; i.e., by shooting him with a firearm. Issue one is overruled.

B. Ineffective Assistance of Counsel

       In issue two, appellant contends he was denied effective assistance of counsel

during both phases of trial, because his defense counsel refused to call necessary and


                                                7
material witnesses to corroborate his self-defense claim.

       1. Standard of Review

           "The Sixth Amendment to the United States Constitution, and section ten of

Article 1 of the Texas Constitution, guarantee individuals the right to assistance of

counsel in a criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

App. 2011) (citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to

counsel requires more than the presence of a lawyer; it necessarily requires the right to

effective assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970);

Powell v. Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right

to errorless counsel,[3] but rather to objectively reasonable representation." Id. (citing

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

       "To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Id.

"Appellant must show that (1) counsel's representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense." Id. (citing

Strickland, 466 U.S. at 689). "Unless appellant can prove both prongs, an appellate

court must not find counsel's representation to be ineffective." Id. (citing Strickland, 466

U.S. at 687).        "In order to satisfy the first prong, appellant must prove, by a

preponderance of the evidence, that trial counsel's performance fell below an objective

standard of reasonableness under the prevailing professional norms." Id. "To prove

prejudice, appellant must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding would
       3
           Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
                                                   8
have been different." Id. (citing Strickland, 466 U.S. at 687).

       "An appellate court must make a 'strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance.'" Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689)).

"In order for an appellate court to find that counsel was ineffective, counsel's deficiency

must be affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his

counsel's actions or omissions during trial were merely of questionable competence.'"

Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).

"When such direct evidence is not available, we will assume that counsel had a strategy if

any reasonably sound strategic motivation can be imagined." Id. at 143 (citing Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "In making an assessment of

effective assistance of counsel, an appellate court must review the totality of the

representation and the circumstances of each case without the benefit of hindsight." Id.

(citing Robertson, 187 S.W.3d at 483).

       The court of criminal appeals "has repeatedly stated that claims of ineffective

assistance of counsel are generally not successful on direct appeal and are more

appropriately urged in a hearing on an application for a writ of habeas corpus." Id.

(citing Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131

(Tex. Crim. App. 2004). "On direct appeal, the record is usually inadequately developed


                                               9
and 'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly

evaluate the merits of such a serious allegation.'" Id. (quoting Bone, 77 S.W.3d at 833).

       In the instant case, appellant argues his defense counsel was ineffective because

he failed to call three necessary and material witnesses—Michael Estrada, Brianna

Garza, and Joseph Calderon. He states these witnesses would have corroborated his

self-defense strategy.

       2. Hearing on Motion for New Trial

       During the new-trial hearing, Michael Estrada testified that on the date in question,

he and his front-seat passenger, Brianna Garza, turned into the Burlington Coat Factory

parking lot and saw two men jump over the hood of their car. Both men started fighting

with some other men. During the fight, the man who was fighting with appellant pulled

"something" out of his pocket and went towards appellant, who was trying to get into a car

that had pulled up.      The man "attacked" appellant, who pushed him away.             When

Estrada "heard something pop," he looked back towards the fight and "saw that guy going

towards" appellant. When the prosecutor asked Estrada, "Did Israel [appellant] shoot

before or after that car got there?", he said, "After."       However, when Estrada was

asked if he had seen "the shooting itself", he said, "Not really."

       Brianna Garza saw the men fighting and testified appellant "was getting beaten

up." Then, appellant pulled a gun from his pants. She testified that when "[t]he taller

guy swung at Robali [appellant], . . . he [appellant] shot him." When the taller man

"swung again, . . . that's when the gun went off more than once."




                                              10
       Calderon did not testify at the new-trial hearing. However, appellant's affidavit,

which is attached to his first amended motion for new trial, states that "[m]y defense was

self-defense.       Three witnesses—Mike Estrada, Briana [sic] Garza and Joseph

Calderon—informed my attorney's investigator that they witnessed the incident and saw

the victims holding a knife or shank."

       Appellant's defense counsel did not testify at the new-trial hearing. However,

Herrera's defense counsel testified that because Estrada and Garza tended to contradict

each other, he decided not to call them as witnesses. He stated that Garza "had a lot of

different things from what she claimed that she was able to see that just didn't fit into what

we understood about the case. We just didn't consider her a very good witness from the

standpoint of either credibility of what she was able to see." He also testified, "We had .

. . additional witnesses . . . including . . . Michael Estrada, . . . . But after interviewing

each of those groups of people they ended up having enough negative stuff in their

testimony where the balance after we considered both sides of it just did not weigh in

favor of calling them as witnesses." Later during the new-trial hearing, Herrera's defense

counsel testified that Garza's "testimony doesn't help at all . . . because she certainly

could have been testifying about things that she saw after Israel [appellant] picked up the

gun off the ground. So we didn't consider her testimony valuable in assistance to [Juan

Herrera] at all."




                                             11
       3. Analysis

       Because "[t]he two prongs of Strickland need not be analyzed in a particular

order,[4] we decide whether appellant satisfied the prejudice prong,[5] which requires us to

"ask whether there is a reasonable probability that the jury would have had a reasonable

doubt as to [a]ppellant's guilt had . . . [Michael Estrada, Joseph Calderon, and Brianna

Garza] appeared at trial. . . ." Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App.

2010). In Perez, the court of criminal appeals followed the guidance of King v. State, 649

S.W.2d 42 (Tex. Crim. App. 1983), in which the defendant "asserted ineffective

assistance of counsel in part because no witnesses testified on his behalf." Id. (citing

King, 649 S.W.2d at 44). The Perez court, quoting from King, stated that "the failure to

call witnesses at the guilt-innocence and punishment stages is irrelevant absent a

showing that such witnesses were available and appellant would benefit from their

testimony." Id. (quoting King, 649 S.W.2d at 44).

       In this case, the record does not show that Calderon was available to testify on

appellant's behalf, and this Court can only speculate about how his testimony might have

benefited appellant. Estrada and Garza were available to testify; however, appellant

would not have benefited from their testimony. Estrada, when asked if he saw the

shooting, stated, "Not really." Garza testified she saw appellant getting beat up and then

saw him shoot the man who swung at him. Estrada testified he saw appellant trying to

get into a vehicle while Garza testified she did not see him trying to get into a vehicle.

During the State's case-in-chief, Brian Villarreal testified appellant shot Martinez after

       4
           Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
       5
           See Strickland v. Washington, 466 U.S. 668, 697 (1984).
                                                   12
Herrera said to "blast them." Thus, appellant has failed to prove that the testimony of

Estrada, Garza, or Calderon would have caused the jury to believe appellant acted in

self-defense. Accordingly, we do not see a reasonable probability that the testimony of

these witnesses would have changed the result of either phase of appellant's trial.

Ineffective-assistance-of-counsel claims must be firmly founded in the record and not

based on retrospective speculation.      See Bone, 77 S.W.3d at 835.        We conclude

appellant has not shown by a preponderance of the evidence that counsel's alleged

"deficiency so compromised the proper functioning of the adversarial process that the trial

court cannot be said to have produced a reliable result." See Ex parte Martinez, 330

S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing Strickland, 466 U.S. at 686). Issue two is

overruled.

C. General Voir Dire Examination

       In issue three, appellant contends the trial court abused its discretion by not

allowing his defense counsel to properly conduct general voir dire examination.

       1. Background

       A different attorney represented each defendant during the trial of this case. On

May 10, 2010, the trial court conducted general voir dire examination of the venire

members. At the end of general voir dire, the trial court addressed the attorneys for the

State and the defendants as follows:

              Gentlemen, I have reviewed my general notes that a Judge relies
       upon in conducting voir dire. I have reviewed your notes. I may not have
       addressed every single word and matter in your notes, but I have
       addressed your notes. I now ask you if you have anything that you would
       like me to further address.


                                            13
       When the prosecutor stated, "[W]e have a quick general voir dire about a few

things[,]" the trial court stated, "No, you're not going to do general voir dire. The next

phase is individual examination of the panel members. Today we'll conclude with the

general voir dire." When the trial court asked appellant's defense counsel, "[A]nything

else that I should address during general voir dire?", he stated, "Judge, I need you to ask

if anyone knows Isabel Martinez [the murder victim]." After the trial judge asked the

venire members if they knew Martinez, appellant's defense counsel did not request the

court to ask any more questions during general voir dire. Afterwards, the trial judge

stated: "All of these attorneys submitted questions and notes to me, all of them, the

State and the Defendant [sic] attorneys. . . . Ladies and gentlemen, that concludes

general voir dire." After the trial judge said this, appellant's defense counsel did not

object and did not advise the court he had any questions or information that the trial court

needed to address during general voir dire.

       Prior to the start of individual voir dire on May 12, 2010, the trial court announced to

the attorneys for the State and the defendants the following:

              We had agreed that the Court would conduct voir dire. The Court
       asked and received notes from counsel on questions and topics to ask
       during that general voir dire. I made it clear to all counsel that general voir
       dire concluded at the end of that session on Monday May 10th, 2010, . . . .

       * * *

        I am now told that Counsel want to continue with general voir dire. The
       door to general voir dire is closed. We're done. Today we pick up with
       individual voir dire.

       Afterwards, when appellant's defense counsel stated, "On behalf of Mr. Robali

we're not ready based on that we don't think that the general voir dire covered pertinent

                                             14
issues that are relevant to this case. . . ." In reply, the trial court stated, "I announced

clearly at the conclusion of the day Monday that we were concluding general voir dire and

that's the Court's position today. . . . I asked each counsel individually if they had any

further matters, questions, issues on general voir dire, and each of you announced no."

       2. Standard of Review

       "The trial court has broad discretion over the process of selecting a jury." Barajas

v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (citing Allridge v. State, 762 S.W.2d

146, 167 (Tex. Crim. App. 1988)); Boyd v. State, 811 S.W.2d 105, 115 (Tex. Crim. App.

1991); see Barnard v. State, 730 S.W.2d 703, 715 (Tex. Crim. App. 1987) (stating "the . .

. [trial] court has discretion to control the manner of voir dire with the exception that in

capital murder cases both the State and the defense must be accorded the right to

examine each prospective juror individually."). "A trial court's discretion is abused only

when a proper question about a proper area of inquiry is prohibited." Barajas, 93 S.W.3d

at 38; Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995). "A question is

proper if it seeks to discover a juror's views on an issue applicable to the case." Barajas,

93 S.W.3d at 38 (citing Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985)).

"An otherwise proper question is impermissible, however, if it attempts to commit the juror

to a particular verdict based on particular facts." Id. (citing Standefer v. State, 59 S.W.3d

177, 181 (Tex. Crim. App. 2001)). "In addition, a voir dire question that is so vague or

broad in nature as to constitute a global fishing expedition is not proper and may be

prevented by the trial judge." Id. at 39 (citing Smith, 703 S.W.2d at 645). A trial court

may also limit voir dire when a question is repetitious. Dinkins, 894 S.W.2d at 345.


                                             15
       3. Analysis

       Upon agreement by the attorneys, and after taking into consideration their "notes,"

the trial court conducted general voir dire.       Toward the end of general voir dire

examination, the trial judge asked the attorneys for the State and the defendants if they

had anything they would like her to further address on general voir dire. Appellant's

defense counsel stated, "Judge, I need you to ask if anyone knows Isabel Martinez."

After the trial court asked the venire members if they knew Martinez, appellant's defense

counsel did not request the court to ask any more questions on general voir dire. When

the trial court told the venire members, "Ladies and gentlemen, that concludes general

voir dire[,]" appellant's defense counsel did not object to the trial court's decision to end

general voir dire, and he did not advise the court he still had questions for the court to ask

on general voir dire. Thus, the trial court did not prohibit appellant's defense counsel

from asking a proper question about a proper area of inquiry before the conclusion of

general voir dire. Therefore, we hold the trial judge did not abuse her discretion when

she decided to end general voir dire examination.         See Barajas, 93 S.W.3d at 38;

Dinkins, 894 S.W.2d at 345. Issue three is overruled.

D. Conflict of Interest

       In issue four, appellant contends his defense counsel had a conflict of interest with

Herrera's defense counsel because both attorneys shared an office.               Specifically,

appellant asserts that without a waiver from himself, both attorneys worked in the same

office and were working in concert on both appellant's and Herrera's trial strategies.

Appellant asserts he was supposed to use a self-defense argument, but at trial, that


                                             16
strategy was abandoned. This change in strategy negated the motion for severance and

allowed a recording containing hearsay to be entered into evidence. Appellant contends

that a prima facie conflict of interest is established because his attorney was working in

the same office and in concert with Herrera's attorney without a waiver.

       1. Standard of Review

       The "standard . . . to analyze claims of ineffective assistance of counsel due to a

conflict of interest is the rule set out in Cuyler v. Sullivan,[6] that is, the appellant must

show that his trial counsel had an actual conflict of interest, and that the conflict actually

colored counsel's actions during trial." Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim.

App. 2007). In other words, "in order to prevail the appellant need show only that trial

counsel 'actively represented conflicting interests' and that counsel's performance at trial

was 'adversely affected' by the conflict of interest." Id. at 353 (quoting Cuyler v. Sullivan,

446 U.S. 335, 349-50 (1980)).             In Acosta, the court of criminal appeals stated the

"essential holding" of Cuyler is:

       [A] defendant who shows that a conflict of interest actually affected the
       adequacy of his representation need not demonstrate prejudice in order to
       obtain relief. But until a defendant shows that his counsel actively
       represented conflicting interests, he has not established the constitutional
       predicate for his claim of ineffective assistance.

Id. at 355 (emphasis added by Acosta court) (quoting Cuyler, 446 U.S. at 349–50).

Based on this quotation from Cuyler, the Acosta court stated that "the appellant must

show that an actual conflict of interest existed and that trial counsel actually acted on

behalf of those other interests during the trial." Id. "'[A]n actual conflict of interest exists

if counsel is required to make a choice between advancing his client's interest in a fair trial
       6
           See Cuyler v. Sullivan, 446 U.S. 335 (1980).
                                                    17
or advancing other interests (perhaps counsel's own) to the detriment of his client's

interest.'" Id. (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997))

(internal quotes omitted).

       2. Analysis

       Our initial inquiry under the first prong of Cuyler is whether trial counsel was

"burdened by an actual conflict of interest in th[is] case[.]" Id. Appellant's defense

counsel did not testify at the new-trial hearing, and we cannot determine from the record

before us whether counsel was required to make a choice between advancing appellant's

interest in a fair trial or advancing other interests to the detriment of appellant's interest.

Appellant has not shown that his defense counsel had any interests to advance other

than appellant's. The mere fact that appellant's defense counsel and Herrera's defense

counsel shared office space does not prove any actual conflict. Therefore, we hold

appellant has failed to establish the first prong of Cuyler. Issue four is overruled.

                                      III. CONCLUSION

       We affirm the judgment of the trial court.




                                                     ROSE VELA
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of July, 2012.



                                              18
