Opinion issued July 26, 2018




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-17-00349-CR
                           ———————————
                 FERNAND SANTIAGOVARGAS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1458398


                         MEMORANDUM OPINION

      A jury convicted appellant Fernand SantiagoVargas of capital murder. The

court sentenced him to life in prison, without the possibility of parole. See TEX.

PENAL CODE §§ 19.03(a)(2), 12.31(a)(2). SantiagoVargas raises two issues on

appeal. He contends that he was denied effective assistance of counsel due to an
actual conflict of interest arising from his trial lawyer’s prior representation of a

witness. He further contends that after the jury sent a note that indicated a

deadlock, the trial court erred by failing to issue an Allen charge ordering the jurors

to continue deliberating.

      We conclude that SantiagoVargas has failed to establish that there was an

actual conflict of interest, and he did not preserve for review a complaint of error

about the court’s response to the jury note. Accordingly, we affirm.

                                    Background

      The complainant, Michael Phelan, operated a smoke shop and bought

inventory from Umair Ghaffar. They developed a friendship, and Ghaffar visited

Phelan’s smoke shop once or twice a week to socialize.

      One evening, Ghaffar, Phelan, and Phelan’s brother-in-law, Michael Moya,

were “hanging out” in a back room of the smoke shop. Moya left the room to tend

to what the group presumed was a customer who had entered the shop. However

Moya encountered three men with guns, and they shot at him. The men made their

way to the back room, and “they started shooting.”

      Phelan ran away, while Ghaffar hid behind a couch. After the gunfire

stopped, Ghaffar arose and saw Phelan with blood around him, laying on an

outdoor ramp at the back of the building. Phelan later died from multiple gunshot

wounds.


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      Detective Condon of the Houston Police Department recovered video

surveillance footage that depicted the smoke shop entrance during the shooting.

After interviewing witnesses and viewing the video, Det. Condon determined that

three men entered the shop intending to “steal narcotics and money.”

      A short clip of the video, which showed the three suspects entering and

exiting the shop, was released to the public. Based on resulting tips, Det. Condon

identified four suspects: appellant Fernand SantiagoVargas, Jonny Enamorado,

Jose Rivera, and Belisario Lopez. All four men were arrested.

      Upon his arrest, SantiagoVargas admitted in a recorded interview that he

was involved in the shooting. He stated that he, Enamorado, and Rivera entered the

smoke shop with guns to commit a robbery, while Lopez waited for them in the

car. He also admitted to shooting his gun while in the shop. SantiagoVargas was

indicted for capital murder, and the case was tried to a jury.

      At trial, the State called several witnesses, including Ghaffar, Det. Condon,

and Enamorado. An edited version of the surveillance video recovered by Det.

Condon was played for the jury. The recording of SantiagoVargas’s interview,

which was conducted in Spanish, also was entered into evidence along with a

certified transcription of the interview and an English translation. Det. Condon

testified that illegal narcotics were recovered from the shop, and he believed there

was a possibility that drugs were being sold from that location. Enamorado


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testified that the group had information that there was cocaine in the shop, and they

planned to steal it.

       SantiagoVargas was represented at trial by attorney James Crowley. During

cross-examination of Ghaffar, Crowley elicited confirmation that he had

represented Ghaffar previously in a Fort Bend County case that resulted in a

family-violence assault conviction and in a Harris County case that resulted in a

misdemeanor theft conviction.

       SantiagoVargas testified on his own behalf. He admitted that he and the

others planned to rob the smoke shop for money. On the day of the shooting, three

of them entered the shop with loaded firearms. He testified that “everyone was

shooting,” including himself, and he admitted that he shot at Phelan.

       At the close of evidence, the jury was charged on capital murder, felony

murder, and aggravated robbery. The court further instructed the jury:

       Unless you so find from the evidence beyond a reasonable doubt, or if
       you have a reasonable doubt thereof, or if you are unable to agree
       [that the defendant is guilty of capital murder], you will next consider
       whether the defendant is guilty of the lesser offense of felony murder.

The charge also included a general unanimity instruction.

       Following closing arguments, the jury began deliberations. After less than

two hours, the jury submitted to the court a note with three questions. In the first

question, the jury asked:



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      What if we do not have a unanimous decision for capital murder[?]
      [D]o we then have to make a decision that it is a felony murder? Is
      there an option of not agreeing.

The court instructed the jury to refer to the charge. The jury found SantiagoVargas

guilty of capital murder. As required by law, the court sentenced him to life in

prison without the possibility of parole. See TEX. PENAL CODE § 12.31(a)(2).

      SantiagoVargas appealed.

                                     Analysis

I.    Ineffective assistance of counsel

      In his first issue, SantiagoVargas contends that he was denied his rights to

effective assistance of counsel and due process of law because his trial counsel had

an actual conflict of interest arising from his prior representation of Ghaffar. This

issue is raised for the first time on appeal. He argues that because Ghaffar was “a

recent and repeat client” of Crowley, his counsel had a continuing duty to the

witness that prevented him from conducting a thorough cross-examination.

Specifically, SantiagoVargas asserts that Crowley did not fully question Ghaffar

about “his involvement in the illegal activities that occurred in the usual course of

the smoke shop’s business.”

      The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685–86, 104 S. Ct.

2052, 2063 (1984). This includes the right to conflict-free representation. Cuyler v.


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Sullivan, 446 U.S. 335, 348–50, 100 S. Ct. 1708, 1718–19 (1980). To prevail on a

claim of ineffective assistance due to a conflict of interest, an appellant must show

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

the adequacy of counsel’s representation in specific instances. Id. at 349–50, 100

S. Ct. at 1719; Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007); Ex

parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). An appellant who

establishes both of these requirements need not also demonstrate prejudice to

obtain relief, as is typically required under the Strickland standard for ineffective-

assistance claims. Cuyler, 446 U.S. at 349–50, 100 S. Ct. at 1719; Acosta, 233

S.W.3d at 352–53. In the absence of evidence showing otherwise, we presume that

counsel rendered adequate assistance, and that his actions and decisions were

reasonably professional and motivated by sound trial strategy. See Strickland, 466

U.S. at 690, 104 S. Ct. at 2066; see also Jackson v. State, 877 S.W.2d 768, 772

(Tex. Crim. App. 1994).

      In this context, 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 (perhaps counsel’s own) to the detriment of his client’s interest.”

Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex.

Crim. App. 1997)). A potential conflict of interest, without more, is insufficient to

merit the reversal of a conviction. Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719;


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Lopez v. State, 428 S.W.3d 271, 283 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d). Rather, an appellant must demonstrate that his counsel actually acted on

behalf of those other interests during the trial. Lopez, 428 S.W.3d at 283. Although

a potential conflict may become an actual conflict, absent a showing that the

conflict materialized, we will not “speculate about a strategy an attorney might

have pursued, but for the existence of a potential conflict of interest.” Routier v.

State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003).

        The fact that appointed trial counsel represented a witness at a prior time

does not, by itself, establish that he was required to choose between advancing his

client’s interest in a fair trial and advancing other interests to the detriment of his

client’s interest. See Price v. State, No. 01-09-01082-CR, 2011 WL 1587520, at

*4–5 (Tex. App.—Houston [1st Dist.] Apr. 21, 2011, pet. ref’d) (mem. op., not

designated for publication). In analyzing whether counsel’s prior representation of

a witness created an actual conflict, Texas courts have considered the recency of

the prior representation, whether it had any relevance to counsel’s representation of

the appellant, and whether counsel obtained any confidential information relevant

to the appellant’s prosecution. See Lopez, 428 S.W.3d at 283–84; Barbaro v. State,

115 S.W.3d 799, 802 (Tex. App.—Amarillo 2003, pet. ref’d); Fulgium v. State, 4

S.W.3d 107, 115 (Tex. App.—Waco 1999, pet. ref’d); Price, 2011 WL 1587520, at

*4–5.


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      At the start of his cross-examination of Ghaffar, Crowley established that he

had represented the witness on two prior occasions. Although SantiagoVargas

asserts that the representation was recent, apart from the short exchange

acknowledging the previous relationship, the record lacks additional details about

the prior representations, including when they took place. Crowley’s questions

indicated that his past representations of Ghaffar resulted in a family-violence

assault conviction in Fort Bend County and a misdemeanor theft conviction in

Harris County. Nothing in the record suggests that either case had any relation to

Crowley’s representation of SantiagoVargas, or that he obtained any information in

either case that was relevant to SantiagoVargas’s prosecution. The record also

lacks any evidence that Crowley had a continuing obligation to Ghaffar as a result

of the prior representations. See, e.g., Fulgium, 4 S.W.3d at 115 (noting that

number of years elapsed and lack of relevance between counsel’s prior

representation and representation of client dispelled concerns that prior

representation affected counsel’s judgment).

      To support his contention that the prior representations created conflicting

interests, SantiagoVargas relies upon one specific question Crowley asked during

cross-examination of Ghaffar: “you were not connected in any way with the

business end of this particular place, correct?” Ghaffar replied that he was not.

SantiagoVargas contends that by this question, Crowley “appeared to give Ghaffar


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an opportunity to quickly resolve the obvious questions that the jury likely had”

about his involvement in any illegal drug transactions that may have occurred at

the smoke shop. This contention assumes that counsel’s question referred to the

suspected sale of illegal drugs at the smoke shop. However, the record is not clear

whether the question referenced the sale of illegal drugs or the shop’s legitimate

business of selling smoking devices and supplies. Further, Ghaffar already had

testified during direct-examination that he never saw any indication that illegal

narcotics were being sold or purchased at the store. Thus, the nature of Ghaffar’s

involvement with the smoke shop already had been addressed during his direct

testimony. In any case, we will not speculate about the meaning of the question,

nor will we speculate as to counsel’s reason for asking it. See Strickland, 466 U.S.

at 690, 104 S. Ct. at 2066; Jackson, 877 S.W.2d at 772.

       SantiagoVargas also characterizes Ghaffar as a “repeat customer” of trial

counsel. He asserts that “at the very least” Crowley’s own competing interest in

receiving business from Ghaffar in the future is a “cause for concern.” To reach the

conclusion that Crowley’s conduct at trial was affected by his interest in potential

future representation of Ghaffar would require this court to make a number of

assumptions that are not supported by the record. Implied conflicts of interest do

not suffice to support an ineffective-assistance claim. See Fulgium, 4 S.W.3d at

115.


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         SantiagoVargas did not file a motion for new trial, which could have given

him the opportunity to question Crowley about his decisionmaking and trial

strategy. The record is silent as to any matters, if any, upon which Crowley could

have impeached Ghaffar. This court will not speculate that Crowley’s cross-

examination of any witness was somehow affected by ongoing duties he had to a

former client. See Lopez, 428 S.W.3d at 283–84.

         We conclude that any conflict of interest in this case is merely speculative

and thus cannot support a claim of ineffective assistance. See Cuyler, 446 U.S. at

350, 100 S. Ct. at 1719; Thompson v. State, 94 S.W.3d 11, 20–21 (Tex. App.—

Houston [14th Dist.] 2002, pet. ref’d). SantiagoVargas has failed to demonstrate

the existence of an actual conflict of interest. Accordingly, we overrule his first

issue.

II.      Allen charge

         In his second issue, SantiagoVargas argues that the trial court erred by

failing to issue an Allen charge after the jury sent a note indicating a “deadlock”

between capital murder and felony murder. An Allen charge attempts to break a

deadlocked jury by reminding jurors that if they are unable to reach a verdict, a

mistrial will result, the case will still be pending, and there is no guarantee that a

second jury would find the issue any easier to resolve. See Allen v. United States,

164 U.S. 492, 501, 17 S. Ct. 154, 157 (1896); Torres v. State, 961 S.W.2d 391, 393


                                          10
n.1 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). It encourages the jurors to

resolve their differences without coercing one another or violating their individual

choices. Torres, 961 S.W.2d at 393 n.1.

      The Court of Criminal Appeals has defined three categories of rights, each

of which require the application of different error-preservation rules: (1) absolute

requirements and prohibitions, which cannot be waived or forfeited by either party;

(2) waivable-only rights, which must be implemented unless expressly waived; and

(3) forfeitable rights, which are forfeited unless requested by the litigant. See

Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App. 1993). SantiagoVargas

contends that although he did not object to the court’s response to the jury note, he

is entitled to raise this issue for the first time on appeal because the right to a

unanimous verdict is a Marin category-two right that cannot be forfeited by

inaction alone.

      Although SantiagoVargas’s brief presents this complaint as an issue of jury

unanimity, a complaint about the trial court’s response to a jury communication is

analyzed under either article 36.14 or article 36.27 of the Code of Criminal

Procedure. See Daniell v. State, 848 S.W.2d 145, 147–48, nn.3–4 (Tex. Crim. App.

1993). The court’s substantive response to a jury question during deliberations has

been characterized by the Court of Criminal Appeals as “an additional or

supplemental jury instruction” that must be analyzed under article 36.14, which


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governs the court’s charge. Id. at 147; see also Lucio v. State, 353 S.W.3d 873, 875

(Tex. Crim. App. 2011). Article 36.27 applies to complaints about the form of a

communication between the judge and jury. See Daniell, 848 S.W.2d at 147 n.3. A

communication from the court that merely refers the jury to the original charge

does not constitute an additional instruction. See Earnhart v. State, 582 S.W.2d

444, 450 (Tex. Crim. App. 1979).

      The court is required to answer communications of the jury and to give

additional instructions upon questions of law when the request is proper. See

Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972) (citing TEX. CODE

CRIM. PROC. art. 36.27); see also Lucio, 353 S.W.3d at 875 & n.2. If the request is

improper, the court should refer the jury to the court’s charge. See Gamblin, 476

S.W.2d at 20. The court’s response to a jury communication must be written, and

before the answer is given to the jury, the court must exercise “reasonable

diligence” to secure the presence of the defendant and his counsel, and the

defendant or his counsel must be given the opportunity to respond. TEX. CODE

CRIM. PROC. art. 36.27. The court’s written response must be read in open court

unless expressly waived by the defendant. Id.

      When the record is silent as to how the court’s response was presented to the

jury, as it is here, we presume that the response was made in open court and in

appellant’s presence as required by article 36.27. See Green v. State, 912 S.W.2d


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189, 192 (Tex. Crim. App. 1995); Moore v. State, 278 S.W.3d 444, 452 (Tex.

App.—Houston [14th Dist.] 2009, no pet.). We also presume that the appellant had

an opportunity to object, and that he agreed to the trial court’s response. See Green,

912 S.W. 2d at 192–93.

      Because the record does not reflect that SantiagoVargas made a timely

objection concerning the trial court’s response to the jury communication, he did

not preserve anything for review on this issue. See TEX. R. APP. P. 33.1(a); see also

Word v. State, 206 S.W.3d 646, 651–52 (Tex. Crim. App. 2006) (holding that a

silent record requires a decision that appellant “procedurally defaulted any claimed

violation of Article 36.27 and any objection to the trial court’s answers”).

Accordingly we overrule his second issue.

                                        Conclusion

      We affirm the judgment of the trial court.



                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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




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