Affirmed and Memorandum Opinion filed February 7, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00056-CR

                          JERMEL IRVING, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1524041

                  MEMORANDUM OPINION
      Appellant Jermel Irving appeals his conviction for aggravated robbery with a
deadly weapon. In a single issue, he argues that his counsel failed to provide
effective assistance due to an undisclosed conflict of interest existing when appellant
entered his plea of guilty. Because we conclude that appellant failed to meet his
burden in establishing ineffective assistance of counsel, we affirm the trial court’s
judgment.
                                       Background

       On November 15, 2016, a Harris County grand jury indicted appellant for the
felony offense of aggravated robbery with a deadly weapon. Appellant retained
Lionel Castro to represent him. On June 26, 2017, appellant pleaded guilty to the
charge. On July 6, Castro interviewed to become a Harris County magistrate. On
July 7, Castro accepted a job offer for the magistrate position. On September 15,
Castro withdrew as appellant’s counsel. Appellant hired new counsel, Carl Moore,
who appeared on November 16. On December 14, the trial court held a punishment
hearing and assessed punishment of twenty years in prison.

       Appellant filed a timely motion for new trial, arguing that Castro’s acceptance
of the magistrate job on July 7 created a conflict of interest. Appellant argued that
Moore had “very little time to prepare” for the punishment hearing because Castro
did not timely notify appellant of the conflict. According to appellant, Castro
rendered ineffective assistance by creating a conflict of interest that “affected Carl
Moore’s ability to be an effective advocate.”1 Appellant later filed an untimely
amended motion for new trial, arguing for the first time that Castro’s application for,
not merely his acceptance of, the magistrate job created a conflict of interest. Castro
applied for the magistrate position before appellant pled guilty. After a hearing, the
trial court denied appellant’s motion for new trial, and appellant now appeals.




       1
         Appellant also argued in the trial court that the judge erred in failing to consider
appellant’s eligibility for probation, but he does not re-urge that argument on appeal.

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                                         Analysis

       Appellant argues that the trial court abused its discretion in denying his motion
for new trial because appellant entered his guilty plea involuntarily due to his
counsel’s ineffective assistance.

A.     Applicable Law and Standard of Review

       A defendant has a constitutional right to reasonably effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 692 (1984); McNickles v.
State, 230 S.W.3d 816, 821 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see
also U.S. Const. amend. VI; Tex. Const. art. I, § 10. Ineffective assistance of counsel
may result when an attorney labors under a conflict of interest. See Acosta v. State,
233 S.W.3d 349, 352-53 (Tex. Crim. App. 2007). In such a situation, counsel may
breach the duty of loyalty, perhaps the most basic of counsel’s duties. Strickland,
466 U.S. at 692.

       Different standards apply to conflict of interest claims depending on whether
the defendant or his attorney objected at trial. See Petetan v. State, ---S.W.3d---,
2017 WL 915530, at *42 (Tex. Crim. App. Mar. 8, 2017, reh’g granted); Routier v.
State, 112 S.W.3d 554, 581 (Tex. Crim. App. 2003). When a defendant timely
brings a potential conflict to the trial court’s attention during trial, the trial court has
an obligation to investigate and determine whether the risk of the conflict of interest
is too remote to warrant separate counsel. Petetan, 2017 WL 915530, at *42;
Routier, 112 S.W.3d at 581 (citing Holloway v. Arkansas, 435 U.S. 475, 484 (1978)).
When, on the other hand, the conflict is not timely brought to the trial court’s
attention, but is raised after trial or on appeal, the defendant “must show that his trial
counsel had an actual conflict of interest, and that the conflict actually colored
counsel’s actions during trial.” Acosta, 233 S.W.3d at 356; see also Routier, 112
S.W.3d at 584; Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). An “actual conflict
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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 (perhaps counsel’s own) to
the detriment of his client’s interest. See James v. State, 763 S.W.2d 776, 779 (Tex.
Crim. App. 1989). The parties agree that Cuyler’s “actual conflict” standard applies.

      When, as here, an appellant first asserts ineffective assistance of counsel based
on counsel’s alleged conflict of interest in a motion for new trial, “that court will
decide, in the first instance, whether the appellant has carried his burden with respect
to the elements of his claim of conflict-of-interest ineffective assistance.” Odelugo
v. State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014). In doing so, the trial court
conducts its evaluation under the familiar standards applicable when the court acts
as the factfinder, including the right to weigh credibility and accept or reject part or
all of any witness’s testimony. Id. (explaining standards). We then review the trial
court’s rulings for an abuse of discretion, “reversing only if the trial judge’s ruling
was clearly erroneous and arbitrary[,]” such as when “no reasonable view of the
record could support the trial court's ruling.” Id.; see also Quintero v. State, 467
S.W.3d 671, 676-77 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (reviewing
motion for new trial raising claim of ineffective assistance based on a conflict of
interest for abuse of discretion and applying Cuyler); Washington v. State, 417
S.W.3d 713, 724-25 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). We view
the evidence in the light most favorable to the trial court’s ruling, and we reverse
only if no reasonable view of the record could support the trial court’s finding.
Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013); Parker v. State,
462 S.W.3d 559, 562 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We review
de novo the trial court’s decision on whether the appellant suffered prejudice, while
giving deference to the trial court’s implied resolution of any underlying factual
determinations. Washington, 417 S.W.3d at 725.


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B.     Application

       In his brief, appellant argues that “[t]he conflict of interest began when
[counsel] applied for a position that would require withdrawal from any
representation of clients, if hired, including [appellant].”2 According to appellant,
his counsel “chose to remain silent prior to the plea, rendering it involuntary.”

       Appellant did not raise this argument in his motion for new trial, which was
timely, but rather asserted it for the first time in his amended motion for new trial,
which was untimely. Ordinarily, we do not consider arguments raised for the first
time in an untimely motion or amended motion for new trial because they are not
preserved. See State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007). Here,
however, the State did not object to the issue on untimeliness grounds in the trial
court, so the trial court was entitled to consider appellant’s argument that counsel
rendered ineffective assistance due to an actual conflict of interest created when
counsel applied for a magistrate position prior to entry of appellant’s guilty plea, see
State v. Arizmendi, 519 S.W.3d 143, 150 (Tex. Crim. App. 2017), which is the
argument appellant advances on appeal.3

       The trial court conducted an evidentiary hearing on appellant’s motion for
new trial. Castro testified that:


       2
         According to a notice of appearance filed in the trial court, Castro began representing
appellant before his indictment in November 2016. Castro testified at the hearing on appellant’s
motion for new trial that he was “not entirely certain” but he thought his “application [for the
magistrate position] preceded [appellant’s] plea date.”
       3
         A motion for new trial must be filed within thirty days after sentence is imposed or
suspended in open court. See Arizmendi, 519 S.W.3d at 150; Tex. R. App. P. 21.4(a). The motion
can be amended at any time during that thirty-day period, but the trial court is barred from
considering a ground for new trial raised outside the thirty-day period if the State properly objects.
Arizmendi, 519 S.W.3d at 150. Because the State did not object to the timeliness of appellant’s
amended motion, the trial court was not precluded from considering grounds raised in the amended
motion.

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           he believed his application for the magistrate position preceded
            appellant’s guilty plea;
           his first interview for the magistrate position was July 6, 2017, roughly
            thirteen days after appellant’s guilty plea;
           he accepted an offer for the position on July 7, 2017;

           he filed a motion to withdraw as appellant’s counsel on September 15,
            2017;
           he did not recall informing appellant of Castro’s application to become
            a magistrate prior to appellant’s plea;
           appellant pleaded guilty “on our mutual consultation”;

           he did not think his application “had an impact on [appellant’s]
            representation one way or the other”;
           he “disagree[d] that there was a conflict of interest” before he withdrew
            as appellant’s counsel;
           he thought it was “fair to say that [his] application did not impact the
            representation of [appellant] because [Castro] had no idea whether the
            application would be granted”; and
           he did not believe that his representation “degraded or fell below a
            certain standard because [he was] hired” as a magistrate.
      Carl Moore also testified. According to Moore, he was hired “because the
original trial attorney was forced to withdraw as a result of a conflict of interest.”
Moore began representing appellant in mid-November 2017, around the time when
appellant’s sentencing hearing was scheduled. The trial court reset the hearing until
the end of November, but Moore filed a motion for continuance asking for more
time, because he “had not had enough time to meet, interview, and secure character
witnesses for [appellant].” The court eventually held the hearing in mid-December
2017. Moore was “not aware of what investigation [appellant’s] previous lawyer
did or did not do.” Moore acknowledged that “[a]t no point did [he] approach the
Court and . . . attempt to withdraw the plea of guilty.”

                                          6
      At the conclusion of the hearing, the trial court denied appellant’s motion for
new trial. The trial court, in its discretion, could have believed Castro’s testimony
that Castro’s application to become a magistrate did not impact his representation of
appellant prior to or at the time of appellant’s guilty plea. Viewing the evidence in
the light most favorable to the trial court’s ruling, we conclude that the court could
reasonably have found that no actual conflict existed prior to appellant’s guilty plea.
See Odelugo, 443 S.W.3d at 137; Okonkwo, 398 S.W.3d at 694.

      Appellant’s argument on appeal does not convince us otherwise. Appellant
asserts that Castro’s application to become a magistrate “created the possibility he
would have to withdraw from all cases.” But the mere “possibility of conflict is
insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350. Appellant
has not shown that, at the time he pleaded guilty on June 26, 2017, Castro was
“actively represent[ing] conflicting interests,” id., or was otherwise required to
choose between advancing his client’s interest in a fair trial or advancing Castro’s
own interest to the detriment of his client’s interest, see James, 763 S.W.2d at 779.
While Castro may have desired and sought an offer of employment from the State,
at the time of appellant’s plea no offer had been extended to Castro and thus no risk
existed that Castro would choose to represent the State’s interest to the detriment of
appellant’s interest. Based on the record before us, we conclude that no conflict of
interest existed at the time of appellant’s plea and, therefore, appellant has not shown
that his plea was entered involuntarily. See, e.g., De Leon v. State, Nos. 13-07-
00187-CR, 13-07-00189-CR, 2008 WL 5575064, at *5 (Tex. App.—Corpus Christi
May 15, 2008, no pet.) (mem. op., not designated for publication) (rejecting
appellant’s argument that attorney’s dual representation of appellant and appellant’s
brother constituted conflict of interest when record showed that attorney began
representing brother after appellant’s guilty plea).


                                           7
      We overrule appellant’s first and only issue.

                                    Conclusion

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgment.




                                       /s/       Kevin Jewell
                                                 Justice


Panel consists of Justices Wise, Jewell, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




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