                                                                         PD-0746-15
                                                       COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 7/17/2015 1:31:42 PM
                                                         Accepted 7/17/2015 4:31:56 PM
                                                                         ABEL ACOSTA
                                                                                 CLERK
                      No. PD-0746-15
           In the Court of Criminal Appeals of Texas
     ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
                   No. 14-13-00559-CR
In the Fourteenth District Court of Appeals (Houston, Texas)
     ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
                        No. 1368190
      In the 228th District Court, Harris County, Texas
     ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
                    JUAN QUINTERO,
                                        Petitioner
                              v.
                 THE STATE OF TEXAS,
                                        Respondent
     ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
      PETITION FOR DISCRETIONARY REVIEW
     ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

                            PEYTON Z. PEEBLES, III
                            SHELLIST, PEEBLES & MCALISTER, LLP
                            405 Main Street, Suite 200
                            Houston, Texas 77002
July 17, 2015               Tel.:   (713) 715-4500
                            Fax:    (713) 715-4505
                            Email: peebles@texaslegalteam.net
                            SBOT: 24013307
                            Counsel for Petitioner

                ORAL ARGUMENT REQUESTED




                               1
TO THE HONORABLE COURT OF CRIMINAL APPEALS
OF TEXAS:

   Comes now Petitioner, Juan Quintero, by and through his un-
dersigned counsel, and presents this Petition for Discretionary Re-
view (“PDR”) pursuant to TEX. R. APP. P. § 68.


                     PARTY IDENTIFICATION
   Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the
names of all interested parties is provided below:
   Counsel for Petitioner:

     Peyton Z. Peebles, III ⎯ Motion for new trial, appeal & PDR
     Steven D. Shellist ⎯     Motion for new trial
                               Shellist, Peebles & McAlister, LLP
                               405 Main Street, Suite 200
                               Houston, Texas 77002

     Rigoberto Rodriguez ⎯     Plea bargain
                                2120 S Wayside Dr., Ste J
                                Houston, TX 77023

   Appellant (Criminal Defendant):

     Juan Quintero

   Counsel for the State:

     Devon Anderson ⎯          District Attorney
     Mike Anderson—             Former District Attorney
     Patricia Lykos—            Former District Attorney
     Clinton A. Morgan ⎯       Assistant District Attorney



                                  2
  Greg Houlton ⎯       Assistant District Attorney
                        Harris County, Texas
                        1201 Franklin Street, Ste. 600
                        Houston, Texas 77002

Trial Judge:
  Hon. Marc Carter ⎯   Presiding Judge
                        228th District Court
                        Harris County, Texas
                        Criminal Justice Center
                        1201 Franklin, 16th Floor
                        Houston, Texas 77002




                         3
                               TABLE OF CONTENTS


PARTY IDENTIFICATION ............................................................... 2

TABLE OF CONTENTS .................................................................... 4

INDEX OF AUTHORITIES ............................................................... 6

STATEMENT REGARDING ORAL ARGUMENT .............................. 8

STATEMENT OF THE CASE ............................................................ 8

STATEMENT OF PROCEDURAL HISTORY .................................... 8

GROUND FOR REVIEW ..................................................................10

  The panel majority erred in holding that the trial court
  reasonably denied petitioner’s motion for new trial despite a
  record clearly showing: (1) his lawyer had an actual conflict of
  interest; and (2) his lawyer acted contrary to petitioner’s
  interests in at least four instances. .............................................. 10

ARGUMENT .................................................................................... 11

  I.    FACTS LEADING TO MOTION FOR NEW TRIAL ................................ 11

  II. FACTS FROM HEARING ON PETITIONER’S MOTION FOR NEW TRIAL....13

  III. GROUND FOR REVIEW — THE                      PANEL MAJORITY ERRED IN
        HOLDING       THAT     THE     TRIAL       COURT     REASONABLY         DENIED
        PETITIONER’S MOTION FOR NEW TRIAL DESPITE A RECORD
        CLEARLY SHOWING: (1) HIS LAWYER HAD AN ACTUAL CONFLICT OF
        INTEREST;      AND      (2)   HIS     LAWYER       ACTED      CONTRARY        TO
        PETITIONER’S INTERESTS IN AT LEAST FOUR INSTANCES. ................. 22

PRAYER FOR RELIEF .................................................................... 27



                                               4
APPENDIX ..................................................................................... 30




                                               5
                           INDEX OF AUTHORITIES


Cases

Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) .................. 21

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980) ................... 22

Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982) ....................................23

Monreal v. State, 947 S.W.2d 559 (Tex. Crim. App. 1997) ................ 21

Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549
     (Tex. App.—Houston [14th Dist.] May 19, 2015) .......... 7, 20, 24

Ramirez v. State, 13 S.W.3d 482 (Tex. App.—Corpus
    Christi 2000, pet. dism’d) ....................................................... 21

Strickland v. Washington, 466 U.S. 668 (1984) ............................... 20

United States ex rel. Hampton v. Leibach,
     347 F.3d 219 (7th Cir. 2003) ....................................................23

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)......................... 21

United States v. Greig, 967 F.2d 1018 (5th Cir. 1992) .................. 21, 22



Statutes

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv) (Vernon 2011) ............... 6

TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (Vernon 2011) ..................... 6




                                           6
Rules

TEX. R. APP. P. 38.2(a)(1)(A) .............................................................. 2

TEX. R. APP. P. 39.1 ............................................................................ 6

TEX. R. APP. P. 9.4(g) ......................................................................... 6




                                                7
          STATEMENT REGARDING ORAL ARGUMENT
   Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, Peti-
tioner requests oral argument to expand the legal theories stated
herein and to assist the Judges of this Court.
                  ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
                    STATEMENT OF THE CASE
   The State charged appellant by indictment with aggravated sex-
ual assault of a child in violation of TEX. PENAL CODE ANN. §§
22.021(a)(1)(B)(iv) & (2)(B) (Vernon 2011). Appellant pled guilty to
the charge. The judge accepted his plea, found him guilty, and sen-
tenced him pursuant to the plea bargain to confinement for six
years in the Texas Department of Criminal Justice, Institutional Di-
vision.
   Petitioner lodged an unsuccessful motion for new trial, followed
by an unsuccessful appeal. This PDR follows.
                   ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯
            STATEMENT OF PROCEDURAL HISTORY
   The State charged appellant by indictment with aggravated sex-
ual assault of a child in violation of TEX. PENAL CODE ANN. §§
22.021(a)(1)(B)(iv) & (2)(B) (Vernon 2011). Appellant pled guilty to
the charge on June 4, 2013. The judge accepted his plea, found him
guilty, and sentenced him pursuant to the plea bargain to confine-




                                  8
ment for six years in the Texas Department of Criminal Justice, In-
stitutional Division, on that date.
   Appellant filed a timely and written motion for new trial and no-
tice of appeal. The trial court held a hearing on appellant’s motion
for new trial on August 12, 2013, and denied the motion on the same
date. The trial court certified his right to appeal.
   On May 19, 2015, a divided panel from the Fourteenth District
Court of Appeals affirmed petitioner’s judgment and sentence.
Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex.
App.—Houston [14th Dist.] May 19, 2015). Petitioner did not file a
motion for rehearing or motion for en banc reconsideration, opting
to come to this Court directly.
   This Court granted petitioner until July 20, 2015, to file his peti-
tion for discretionary review. This petition is either filed by that
date, or is filed within 15 days afterward and accompanied by a mo-
tion requesting a slight time extension.




                                      9
          GROUND FOR REVIEW
The panel majority erred in holding that the
trial court reasonably denied petitioner’s
motion for new trial despite a record clearly
showing: (1) his lawyer had an actual con-
flict of interest; and (2) his lawyer acted con-
trary to petitioner’s interests in at least four
instances.

         ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯




                      10
                            ARGUMENT
     The panel majority erred in a manner compelling discretion-
ary review followed by a new trial. This case presents an egregious
situation where petitioner’s counsel represented him for over a
year, contemporaneously represented the complainant’s father in
other criminal actions, failed to fully advise appellant about the na-
ture of the potential conflict, and then counseled appellant to plead
guilty despite admittedly performing no investigation into the facts
of this case. Petitioner’s plea was involuntary due to his counsel’s
conduct, warranting a new trial.


I. FACTS LEADING TO MOTION FOR NEW TRIAL

   In early May, 2012, petitioner’s niece made outcry to her mother
that petitioner sexually molested her (RR1 at 35-36). On the same
day as the outcry, petitioner’s brother (the complainant’s father),
Jose Luis Quintero, called their mutual sister Veronica Pina and
told her that if petitioner returned to the house he would kill peti-
tioner (RR1 at 32-33, 35-36).
   Petitioner hired defense lawyer Rigoberto Rodriguez to repre-
sent him (CR at 102-04; RR1 at 13-15, 33; RR2 at Defense Exhibits 1,
2). Rodriguez did no investigation (RR1 at 48-51).




                                   11
    On November 16, 2012, the State charged petitioner with aggra-
vated sexual assault of a child, namely, his brother Jose Luis’s
daughter (CR at 5).
    On January 21, 2013, the State charged petitioner’s brother Jose
Luis with the felony crime of cruelty to animals (CR at 56-58). On
February 1, 2013, the State charged Jose Luis with committing the
felony crime of assault against his wife (the complainant’s mother)
Myrma Quintero (CR at 59-61).
    On February 7, 2013, defense counsel Rodriguez went to court
and announced that he would defend Jose Luis against the cruelty
to animals and family assault charges (CR at 62-69).
    On February 15, 2013, Rodriguez went to court and announced
that he would defend petitioner against the aggravated sexual as-
sault charge (CR at 12).1
    On April 15, 2013, Rodriguez had petitioner and his brother Jose
Luis sign a “Waiver of Potential Conflict of Interest,” and then pre-
sented the motion to the court (CR at 14-15, 70-74). Petitioner’s trial
judge denied the waiver (CR at 14-15, 70-74).
    A grand jury indicted petitioner on May 3, 2013, and indicted
Jose Luis on both charges on May 31, 2013 (CR at 19, 83-91).



1
 The contract petitioner signed for “pre-trial services,” however, appears to be
dated February 25, 2013 (CR at 105-08).




                                      12
   Petitioner next appeared in court on June 4, 2013 (CR at 18). A
visiting judge was presiding, and petitioner waived his right to a ju-
ry and pled guilty to a negotiated six-year prison sentence (CR at 21-
36).


II. FACTS FROM HEARING ON PETITIONER’S MOTION FOR NEW TRIAL

   Petitioner filed a motion for new trial alleging, inter alia, that
Rodriguez counseled him to plead guilty when he had an actual con-
flict of interest and had acted contrary to petitioner’s interests.
                        Petitioner’s Testimony
   Petitioner testified that he was unaware if Rodriguez did any
work on his case between the outcry and the charge being filed (RR1
at 13-14). He was aware that Rodriguez was representing both him
and his brother and he signed a waiver of potential conflict of inter-
est—but did so because Rodriguez told him it was merely a “formali-
ty” for the judge (RR1 at 15). Rodriguez did not discuss what the po-
tential conflict was and did not tell petitioner that the judge denied
the motion (RR1 at 15-16).
   Regarding his knowledge of the case at the time he pled guilty,
petitioner testified that he was not aware that:
        • The complainant had given many different inter-
          views;




                                   13
        • The complainant initially could not describe how
          the ultimate allegation happened;
        • The complainant first said petitioner did not
          penetrate her anus, but later said he did;
        • At one point the complainant said petitioner
          placed his penis on her through her clothing;
        • The complainant gave inconsistent statements
          about whether she had seen appellant’s penis;
        • At one point the complainant said she never saw
          petitioner’s penis; and
        • The complainant said petitioner held her arms
          behind her back while tickling her.

(RR1 at 16-19).
   Petitioner testified that he is innocent of this charge, but that he
pled guilty because Rodriguez said he would probably be convicted
at trial and get a life sentence…or he could accept the State’s six-
year offer (RR1 at 19-20). Rodriguez told petitioner he had to decide
right away (RR1 at 19-20). Fearing a life sentence, petitioner pled
guilty despite the visiting judge admonishing him over the full pun-
ishment range (RR1 at 20, 25-26).
                  Jose Luis Quintero’s Testimony
   The complainant’s father testified that he was at work one after-
noon when his wife, Myrma, called and said that their daughter ac-
cused petitioner of doing something [sexual] to her (RR1 at 35-36).




                                  14
Jose Luis was furious and called his sister, Veronica Pina, to tell her
that if petitioner returned to his house then he would kill petitioner
(RR1 at 36).2
       The State later charged Jose Luis with cruelty to animals and
family assault and he hired Rodriguez to defend him (RR1 at 36-37).
Rodriguez told him there could be a big conflict of interest and he
probably should not represent them both, but that the brothers
could sign a paper so it would not be a problem (RR1 at 37-38). Ro-
driguez did not go specify the nature of the conflict (RR1 at 37-38).3
       At some point Jose Luis told Rodriguez that he no longer
thought petitioner was guilty (RR1 at 38-39). He also told Rodriguez
that the District Attorney’s Office had called wanting to talk to him
about petitioner’s case—but Rodriguez told Jose Luis that it was not
in his best interests to tell the District Attorney’s Office that peti-
tioner was innocent because CPS might try and take his children
away [for seeming to protect someone that they thought abused his
child] (RR1 at 39-40). When asked specifically what Rodriguez said,
Jose Luis testified that Rodriguez told him, “Do not talk to the DA’s
Office and tell them that you think he’s innocent because you may


2
    Pina also testified to this effect (RR1 at 32-33).
3
  Pina also testified that Rodriguez did not go into detail about potential con-
flicts of interest when she talked to him; he merely said he could represent both
brothers (RR1 at 31, 33-34).




                                            15
lose your kids” (RR1 at 40). Jose Luis called the District Attorney’s
Office and told them that he just wanted the “system” to take care of
it (RR1 at 41).4
                     Rigoberto Rodriguez’s Testimony
    Defense counsel Rigoberto Rodriguez testified that petitioner
hired him on May 3, 2012, for an “investigation” concerning the
sexual assault outcry (RR1 at 47). From May, 2012, until petitioner
was formally charged in November, 2012, Rodriguez did nothing
more than “be on call” in case the police wanted to talk to petitioner
(RR1 at 48). He testified that he discussed a polygraph with petition-
er but that petitioner did not want to take one (RR1 at 48-49). Ro-
driguez did not talk to any witnesses and did not know the specifics
of the outcry (RR1 at 50-51).
    When petitioner was charged in November, 2012, Rodriguez ap-
plied the prior fee paid (for investigation) to a new legal services
contract (RR1 at 51). He then accepted representation for petition-
er’s brother Jose Luis (RR1 at 52-53). Rodriguez testified that he ex-
plained the potential for a conflict of interest to the family and said
that both brothers had to sign a waiver of that potential conflict
(RR1 at 52-55). Rodriguez explained that he would never have tried
both cases—if necessary he would have tried petitioner’s and then

4
 Jose Luis testified that he still felt petitioner was innocent of this allegation
(RR1 at 44-45).




                                       16
withdrawn from Jose Luis’s before Jose Luis’s cases went to trial
(RR1 at 53, 59-60). Rodriguez explained, “It’s my choice to take it to
trial or not” (RR1 at 53).
   Rodriguez explained that he filed the motion to waive potential
conflict of interest with the court but did not secure a ruling on it
(RR1 at 58). The court’s staff called him later that day and explained
that the judge denied it (RR1 at 58). Rodriguez approached the judge
the next day and the judge told him that the motion was denied, but
Rodriguez could still represent petitioner if he wanted to (RR1 at
58).
   Rodriguez testified that he filed a grand jury packet containing:
(1) records related to petitioner’s military service and the honorable
discharge therefrom; and (2) a “proffer” of evidence in the form of a
letter from Rodriguez stating that petitioner maintained his inno-
cence and would testify in the grand jury (RR1 at 56). Rodriguez
stated that this was a lie to the grand jury—it was merely a “proffer”
from Rodriguez and that petitioner never really maintained his in-
nocence (RR1 at 78-79). Nonetheless, the grand jury chose not to
hear from petitioner (RR1 at 56).
   Regarding his work defending petitioner, Rodriguez testified
that he did not do any work because his duty to investigate or pre-
pare a defense does not arise until: (1) the case is indicted; and (2)




                                    17
the client rejects a plea bargain and demands a trial (RR1 at 60).
Rodriguez stated, “[Investigating the case] would have been the
next phase after the indictment,” and, “[i]t didn’t develop to that
stage where I could have done that because he took the plea” (RR1 at
60). Although he represented petitioner for over a year, Rodriguez
stated, “What happened here is he took the plea prior to me doing
that. That was the next phase when his case is set for trial” (RR1 at
60). As a result, Rodriguez had never:
         • Gone to the District Attorney’s Office to review
           their file;
         • Reviewed the complainant’s outcry statement;
         • Reviewed any of the multiple interviews that law
           enforcement did with the complainant;
         • Reviewed any interviews by the complainant’s
           parents;
         • Talked to any of the witnesses about the case
           against petitioner 5; or
         • Talked to Jose Luis about a statement he made to
           investigators that he was previously a victim of
           sexual assault.




5
 Those witnesses included the complainant, the complainant’s mother Myrma,
the complainant’s grandmother Armadina Quintero, the complainant’s father
Juan Quintero, Sr., petitioner’s brother-in-law Jesus Pina, or family friend
Johnny Villarreal (RR1 at 69). Most gave affidavits in support of petitioner’s
motion for new trial (RR2 at Defense Exhibit 1).




                                     18
(RR1 at 56, 60, 65-67, 70-71). Rodriguez was unaware whether he
had reviewed any medical records in this case (RR1 at 67).
   When asked, “So, as you sit here today, you don’t know whether
or not she said on one of those tapes, he didn’t do it?” Rodriguez re-
sponded, “It doesn’t matter. He’s indicted. The next thing is trial. He
didn’t want to go to trial. He’s not trying the case to me. It’s whether
he wants to go to trial or not. That’s the next step” (RR1 at 65).
   When asked whether the complainant gave statements that are
inconsistent with the probable cause affidavit used by the officer to
secure petitioner’s arrest, Rodriguez replied, “[it] doesn’t matter.
He’s got to be willing to go to trial. I mean, what difference—I’m not
the jury. He has to want to go to trial” (RR1 at 67).
   Rodriguez was unaware that Jose Luis initially threatened to kill
petitioner and denied that Jose Luis ever told him that he felt peti-
tioner was innocent (RR1 at 56, 78-79). He admitted Jose Luis called
him concerning the District Attorney’s attempt to discuss petition-
er’s case, but stated that he just told Jose Luis to “tell them whatever
you want” (RR1 at 68-69).
   Regarding petitioner’s guilty plea, Rodriguez testified that he
showed up in court on June 4th and the prosecutor on petitioner’s
case was about to be replaced by a new, as yet unidentified, prosecu-
tor (RR1 at 73-75). The prosecutor also told Rodriguez that they




                                   19
could file two more cases against petitioner and then ask the Court
to stack them6 (RR1 at 74). Rodriguez told appellant that a jury
might acquit him, might give him 5 years in prison, or might give
him life in prison (RR1 at 73-74). He told petitioner that the District
Attorney could file more charges and then ask the judge to stack the
sentences (RR1 at 74). He also told petitioner that if the State
brought witnesses who could testify as to each of the indictment’s
allegations then the State would have a “strong case” against him7
(RR1 at 78). Rodriguez conceded that he had no idea whether the
State’s case was actually strong or weak—stating, “I’ll never know
because he pled” (RR1 at 78). Ultimately, Rodriguez testified that pe-
titioner wanted probation but took the six-year plea bargain deal
because probation was not an option8 (RR1 at 75).
                          The Trial Court’s Ruling
    Presiding Judge Marc Carter denied Rodriguez’s motion to waive
the “potential” conflict of interest in this case. He was absent for pe-


6
 Given Rodriguez’s unfamiliarity with the facts, he must have taken the prose-
cutor’s statements at face value.
7
 Nonetheless, Rodriguez testified that in his opinion it did not matter whether
the State’s case was strong or weak because petitioner chose not to go to trial
(RR1 at 76-77).
8
  Rodriguez testified that the prosecutor refused to waive her right to a jury trial
if petitioner intended to plead guilty without an agreed punishment recom-
mendation and request deferred adjudication community supervision from the
judge (RR1 at 75).




                                        20
titioner guilty plea and sentencing, but presided over his hearing on
the motion for new trial.
    At the close of evidence on this hearing, Judge Carter stated that
he felt it unethical for a trial court to approve a conflict of interest,
but stated that he lacked the authority to remove a lawyer from a
case on that bases (admonishing that it’s the lawyer’s “bar card on
the line”) (RR1 at 81-82).
    Judge Carter also agreed that a conflict existed in this case9 (RR1
at 83). Judge Carter agreed with the defense’s arguments both
“morally and ethically” (RR1 at 87).
    Nonetheless, Judge Carter denied the motion in its entirety be-
cause “sometimes people plead guilty to things that they didn’t do
because they believe it’s in their best interest to do so because they
rather take six years than fifty” (RR1 at 87). Thus, the judge found
that despite an actual conflict of interest, petitioner’s motion was ill-
taken because an innocent person can waive their right to a jury and
plead guilty in order to minimize their risk at a larger sentence for a
crime they did not commit—“as long as you do that knowingly and
intelligently” (RR1 at 87).




9
 Judge Carter stated that it was a conflict for Rodriguez to also represent a wit-
ness who could testify against petitioner, but did not elaborate on whether he
felt a conflict existed on other grounds as well (RR1 at 84).




                                       21
III. GROUND FOR REVIEW — THE PANEL MAJORITY ERRED IN HOLDING
   THAT THE TRIAL COURT REASONABLY DENIED PETITIONER’S MOTION
   FOR NEW TRIAL DESPITE A RECORD CLEARLY SHOWING:      (1) HIS LAWYER
   HAD AN ACTUAL CONFLICT OF INTEREST; AND     (2)   HIS LAWYER ACTED
   CONTRARY TO PETITIONER’S INTERESTS IN AT LEAST FOUR INSTANCES.


   The panel majority upheld the trial court’s decision to deny peti-
tioner a new trial, rationing that, although an actual conflict of in-
terest might exist: (1) Rodriguez testified that Jose Luis never told
him he thought petitioner was innocent; (2) Rodriguez testified that
he did not dissuade Jose Luis from talking with the prosecutor
about petitioner’s case; and (3) Rodriguez had no duty to advance
Jose Luis as a helpful witness since he testified that he had no idea
Jose Luis was helpful. Quintero, No. 14-13-00559-CR, at 8-12, 2015
WL 2405549. The Court also noted that petitioner was aware that
Rodriguez was representing Jose Luis, and that the plea admonish-
ments established a prima facie case that he pled guilty knowingly
and voluntarily. Quintero, No. 14-13-00559-CR, at 8-13, 2015 WL
2405549.


A. The right to unburdened counsel.

   The right to counsel guarantees a criminally accused an attorney
unburdened by an actual conflict of interest. See Strickland v. Wash-
ington, 466 U.S. 668, 692 (1984). An actual conflict exists if counsel




                                 22
“‘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 v. State, 233 S.W.3d
349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947
S.W.2d 559, 564 (Tex. Crim. App. 1997)). Actual conflicts of interest
can occur in different ways. For example, when an attorney repre-
sents two clients whose interests in the outcome of a matter are dif-
ferent, an actual conflict of interest exists for the attorney. See
Ramirez v. State, 13 S.W.3d 482, 486–87 (Tex. App.—Corpus Christi
2000, pet. dism’d). Another is when the lawyer is required to make a
choice between advancing his own interests and those of the client.
Acosta, 233 S.W.3d at 355.
   When there is an actual conflict, the trial court must hold a
hearing to ensure that the defendant: (1) is aware of the conflict; (2)
realizes the potential hazard to his defense from using the conflicted
attorney; and (3) knows his right to obtain other counsel. United
States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (synthesizing the
rule from United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975)).
   A defendant is entitled to a new trial if he can demonstrate that
an actual conflict of interest existed and “trial counsel actually acted
on behalf of those other interests during the trial.” Acosta, 233
S.W.3d at 355 (citing Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100




                                   23
S.Ct. 1708 (1980)). Such a showing indicates that the actual conflict
adversely affected the judgment, which mandates a new trial. See
Greig, 967 F.2d at 1024.


B. The only reasonable view of this record shows that counsel labored
   under a conflict and acted adversely to petitioner’s interest, as
   shown by the dissent.

     The trial court expressly found that an actual conflict of interest
existed. Scant evidence exists showing petitioner was aware of the
actual conflict (only that he signed a waiver of any potential con-
flicts) and no evidence shows that petitioner: (1) realized the poten-
tial hazard to his defense from using the conflicted attorney; and (2)
knew his right to obtain other counsel. Greig, 967 F.2d at 1022.
Thus, the trial court’s decision to deny petitioner’s motion for new
trial for a different reason10 was so clearly wrong as to fall outside
the zone within which reasonable persons might disagree. Smith,
286 S.W.3d at 339; Herndon, 215 S.W.3d at 906.
     Moreover, even considering the evidence in the light most fa-
vorable to the trial court’s ruling (thereby effectively ignoring Jose
Luis’s compelling testimony), Rodriguez acted based on the conflict
and contrary to petitioner’s interests in at least four concrete re-


10
  That innocent people can plead guilty to avoid great risk, so long as their de-
cision is free and voluntary.




                                       24
spects. First, Rodriguez testified that he admitted he could not rep-
resent both brothers at a trial and, thus, one of them would have to
accept a plea bargain. Thus, Rodriguez acted to pressure petitioner
into a plea bargain rather than jeopardize his continued representa-
tion.
     Second, Rodriguez testified that he never told petitioner that the
trial court denied his motion to waive the conflict. Thus, Rodriguez
acted pursuant to his own business interests rather than petitioner’s
interest in knowing about the conflict, which would in turn have in-
formed petitioner’s plea bargain considerations.
     Third, Rodriguez testified that, when he learned the prosecutor
wanted to talk to Jose Luis about petitioner’s case, he simply told
Jose Luis to “tell them whatever you want” without further advice.
This violated Rodriguez’s obligation to investigate the State’s case,
ferret out exculpatory and/or mitigating evidence, and advance that
evidence to petitioner’s benefit.11
     Finally, Rodriguez testified that he performed no investigation
into the State’s case, yet advised petitioner to plead guilty despite
knowing nothing about his case. This clearly violates an attorney’s
duty to his client, and the only logical motive would be for Rodri-


11
  The duty to investigate includes the duty to locate exculpatory witnesses. Gray
v. Lucas, 677 F.2d 1086, 1093 n.5 (5th Cir. 1982); United States ex rel. Hampton
v. Leibach, 347 F.3d 219, 236 (7th Cir. 2003).




                                       25
guez to end the case quickly, eliminating any conflict issue and al-
lowing him to continue representing both defendants.
    Based on the above, “[e]ven if the trial court believed counsel’s
testimony and disbelieved the testimony of both appellant and the
father, the undisputed evidence shows the conflicting interests col-
ored counsel’s actions.” Quintero, No. 14-13-00559-CR, at 7, 2015 WL
2405549 (Frost, C.J., dissenting).
    The panel majority erred, and petitioner should receive a new
trial.

                     ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯




                                     26
                      PRAYER FOR RELIEF

   For the reasons described above, this Court should grant discre-
tionary review, sustain petitioner’s grounds for review, reverse the
Court of Appeals’ judgment, and remand the case to the trial court
for a new trial.

                         Respectfully submitted,
                         SHELLIST, PEEBLES & MCALISTER, L.L.P.
                         By:
                         /s/ Peyton Z. Peebles III
                         ____________________________________________________

                         PEYTON Z. PEEBLES III

                         405 Main Street, Suite 200
                         Houston, TX. 77002
                         Tel:   713-715-4500
                         Fax: 713-715-4505
                         Email: peebles@texaslegalteam.net
                         SBOT: 24013307
                         SPN: 01759419
                         Counsel for Petitioner




                                     27
                      ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯

                  CERTIFICATE OF COMPLIANCE
(a) This brief complies with the type-volume limitation of TEX. R.
   APP. P. 9.4(i) because it was produced on a computer and con-
   tains 3,465 words, excluding the parts of the brief exempted by
   TEX. R. APP. P. 9.4(i)(1).
(b) This brief complies with the typeface requirements of TEX. R.
   APP. P. 9.4(e) because it has been prepared in a proportionately
   spaced typeface using Ingeborg 14-point font in text and Inge-
   borg 12-point font in footnotes.


                            /s/ Peyton Z. Peebles III
                            ____________________________________________________

                            PEYTON Z. PEEBLES III




                                        28
                    ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯

                    CERTIFICATE OF SERVICE
   This is to certify that a true and correct copy of the foregoing in-
strument was served upon the parties designated below by e-filing
on July 15, 2015.

   Clinton A. Morgan
   Harris County Assistant District Attorney
   1201 Franklin Street, Suite 600
   Houston, Texas 77002
   (service by e-file to morgan_clinton@dao.hctx.net)

   Lisa C. McMinn
   Texas State Prosecuting Attorney
   P.O. Box 13046
   Capitol Station
   Austin, Texas 78711
   (service by e-file to information@spa.texas.gov)


                          /s/ Peyton Z. Peebles III
                          ____________________________________________________

                          PEYTON Z. PEEBLES III




                                      29
                         Appendix

Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex.
          App.—Houston [14th Dist.] May 19, 2015)




                            30
Quintero v. State, --- S.W.3d ---- (2015)




                                                                    assault of child and new trial based on claim of
                     2015 WL 2405549                                ineffective assistance of counsel due to actual
       Only the Westlaw citation is currently available.            conflict of interest arising out of counsel’s
                 Court of Appeals of Texas,                         simultaneous representation of defendant’s
                   Houston (14th Dist.).                            brother, who was complainant’s father, in
                                                                    unrelated matter, despite evidence that trial court
                  Juan Quintero, Appellant                          had not approved defendant’s conflict waiver,
                              v.                                    and brother’s testimony that he told counsel that
                 The State of Texas, Appellee                       he did not believe defendant was guilty and that
                                                                    counsel advised him not to tell trial court
      NO. 14–13–00559–CR | Majority and Dissenting                  because brother could lose his children; counsel
               Opinions filed May 19, 2015.                         testified that brother never told him that he
                                                                    believed defendant was innocent, that, although
                                                                    brother had approached him about what to tell
Synopsis                                                            prosecutors regarding defendant’s case, he
Background: Defendant was convicted on guilty plea in               denied advising brother to remain quiet about
the 228th District Court, Harris County, of aggravated              his changed attitude toward defendant in order
sexual assault of child, and his motion for new trial was           to advance brother’s own interests, and that he
denied. Defendant appealed.                                         instead advised brother to tell prosecutor
                                                                    whatever brother wanted to tell him. U.S. Const.
                                                                    Amend. 6.

Holdings: The Court of Appeals, J. Brett Busby, J., held
that:                                                               Cases that cite this headnote

[1]
   defendant was not entitled to new trial based on claim
of ineffective assistance of counsel due to actual conflict
of interest;                                                  [2]
                                                                    Criminal Law
[2]
   guilty plea was knowing, voluntary, and intelligent,               Adequacy of Representation
despite conflict of interest; and
                                                                    The Constitution guarantees a criminal
[3]
   interests of justice was not independent basis for               defendant effective assistance of counsel. U.S.
withdrawal of guilty plea based on defendant’s claim that           Const. Amend. 6.
he was denied effective assistance of conflict-free
counsel.                                                            Cases that cite this headnote

Affirmed.

Kem Thompson Frost, C.J., filed dissenting opinion.           [3]
                                                                    Criminal Law
                                                                      Prejudice and harm in general

                                                                    To prevail on a claim of ineffective assistance of
                                                                    counsel based on a conflict of interest, the
 West Headnotes (10)
                                                                    appellant must prove by a preponderance of the
                                                                    evidence that (1) his trial counsel had an actual
 [1]                                                                conflict of interest, and (2) the conflict actually
           Criminal Law
                                                                    colored his trial counsel’s actions during his
             Incompetency or neglect of counsel for
                                                                    representation of appellant. U.S. Const. Amend.
           defense
                                                                    6.
           Defendant was not entitled to vacatur of
           conviction on guilty plea to aggravated sexual
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
Quintero v. State, --- S.W.3d ---- (2015)



                                                                     that he understood charge against him and
        Cases that cite this headnote                                consequences of guilty plea, and that he had
                                                                     fully consulted with his attorney before signing
                                                                     admonishments and agreeing to plea, and
                                                                     defendant was aware of conflict of interest. U.S.
[4]
                                                                     Const. Amend. 6.
        Criminal Law
          Prejudice and harm in general
                                                                     Cases that cite this headnote
        An “actual conflict of interest” exists, as
        required to support a claim of ineffective
        assistance of counsel based on a conflict of
        interest, if counsel is required to make a choice
                                                               [7]
        between advancing his client’s interest in a fair            Constitutional Law
        trial or advancing other interests, including,                 Guilty pleas
        perhaps, his own, to the detriment of his client’s
        interest; in other words, appellant must show                Due process requires that a guilty plea be
        that his trial counsel actually acted on behalf of           entered      knowingly,    intelligently, and
        those other interests, and that he was adversely             voluntarily. U.S. Const. Amend. 14.
        impacted as a result. U.S. Const. Amend. 6.
                                                                     Cases that cite this headnote
        Cases that cite this headnote


                                                               [8]
                                                                     Criminal Law
[5]                                                                    Arraignment and plea
        Criminal Law
          Presumptions and burden of proof
                                                                     In considering the voluntariness of a guilty plea,
        A claim of ineffective assistance of counsel                 an appellate court examines the record as a
        based on an actual conflict of interest will fail if         whole.
        (1) no evidence has been presented on the issue,
        or (2) the evidence relevant to the issue is in
        perfect equipoise. U.S. Const. Amend. 6.                     Cases that cite this headnote


        Cases that cite this headnote
                                                               [9]
                                                                     Criminal Law
                                                                       Evidence as to voluntariness

[6]                                                                  In considering a challenge to the validity of a
        Criminal Law
          Voluntary Character                                        guilty plea, evidence that a defendant was
                                                                     admonished by the trial court creates a prima
        Guilty plea to aggravated sexual assault of child            facie showing that the guilty plea was made
        was knowing, voluntary, and intelligent, despite             voluntarily and knowingly, and the burden then
        conflict of interest arising out of counsel’s dual           shifts to the defendant to show that he entered
        representation of defendant’s brother, who was               the plea without understanding the consequences
        complainant’s father, and counsel’s alleged                  of his action.
        pressure for defendant to plead guilty to avoid
        potential life sentence if he went to trial; trial
        court     gave      defendant      all   requisite           Cases that cite this headnote
        admonishments orally and in writing, defendant
        signed written admonishments and initialed
        several paragraphs specifically acknowledging
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   2
Quintero v. State, --- S.W.3d ---- (2015)



                                                              conflict of interest. We reject this argument because at
[10]
        Criminal Law                                          least one reasonable view of the record evidence supports
          Grounds for Allowance                               an implied finding by the trial court that appellant
                                                              suffered no adverse effect as a result of the actual conflict
        Interests of justice was not independent basis for    of interest.
        withdrawal of guilty plea and new trial on
        charge for aggravated sexual assault of child         Appellant next argues that his guilty plea was not
        based on defendant’s claim that he was denied         voluntary due to counsel’s ineffective assistance. We
        effective assistance of conflict-free counsel,        overrule appellant’s second contention because the
        after trial court denied motion for new trial on      evidence introduced during the hearing on the motion for
        claim that he was denied effective assistance of      new trial supports an implied finding by the trial court
        counsel. U.S. Const. Amend. 6.                        that appellant knowingly, intelligently, and voluntarily
                                                              agreed to accept the State’s plea bargain and plead guilty.

        Cases that cite this headnote                         Finally, appellant argues that the interest of justice entitles
                                                              him to a new trial. We overrule this argument because the
                                                              interest of justice is not an independent basis for a trial
                                                              court to grant a criminal defendant a new trial, and the
                                                              independent legal ground asserted in support of
                                                              appellant’s interest-of-justice argument is identical to one
On Appeal from the 228th District Court, Harris County,
                                                              raised, and rejected, in his first two arguments. We
Texas, Trial Court Cause No. 1368190
                                                              therefore affirm the trial court’s judgment.
Attorneys and Law Firms

Peyton Peebles III, Houston, TX, for Appellant.

Clinton Morgan, Houston, TX, for The State of Texas.                               BACKGROUND
Panel consists of Chief Justice Frost and Justices
                                                              In 2012, appellant’s niece made an outcry that appellant
Christopher and Busby
                                                              had sexually assaulted her in several ways. Appellant
                                                              retained attorney Rigoberto Rodriguez as his trial counsel.
                                                              Appellant was eventually indicted for the offense. At the
                                                              first trial setting after his indictment, the State offered
                                                              appellant a plea bargain of six years’ confinement.
                          OPINION                             Appellant accepted the plea bargain. After admonishing
                                                              appellant regarding his decision to waive his rights, the
                                                              trial court accepted his plea, found him guilty of the
J. Brett Busby, Justice                                       charged offense, and sentenced him to the agreed six-year
                                                              prison term.
*1 Appellant Juan Quintero pled guilty to the offense of
aggravated sexual assault of a child as part of a plea-       Appellant then retained new counsel, who filed a motion
bargain agreement with the State. See Tex. Penal Code         for new trial. The motion asserted that appellant was
Ann. § 22.021 (West 2011). The trial court found              entitled to a new trial for three reasons: (1) Rodriguez
appellant guilty and, in accordance with the plea bargain,    rendered ineffective assistance because he counseled
sentenced him to serve six years in prison. Appellant         appellant to accept the State’s plea bargain when he had
retained new counsel and filed a motion for new trial         an actual conflict of interest; (2) appellant’s guilty plea
alleging that his trial counsel was ineffective. The trial    was involuntary because Rodriguez was ineffective; and
court denied appellant’s motion.                              (3) the interest of justice required that he be granted a new
                                                              trial.1 The trial court conducted a hearing on appellant’s
Appellant contends in a single issue on appeal that the       motion during which several witnesses testified, including
trial court abused its discretion when it denied his motion   appellant, appellant’s brother, and Rodriguez.
for new trial. Appellant makes three separate arguments
within his single issue. Appellant initially contends that
his trial counsel was ineffective because he advised
appellant to plead guilty when counsel had an actual          A. Appellant’s testimony during the new trial hearing

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Quintero v. State, --- S.W.3d ---- (2015)



*2 Appellant testified that his parents located Rodriguez       not in his best interest to tell the prosecutors he now
and hired him on appellant’s behalf. Appellant then             believed appellant was innocent. Rodriguez explained that
testified that he did not know what, if any, work               it might result in his children being taken away based on a
Rodriguez did on his case between the complainant’s             belief that he was trying to protect his brother rather than
outcry and the charge being filed against him. Appellant        his daughter. When asked specifically what Rodriguez
testified he was aware that Rodriguez was also                  had told him, Jose Luis testified that Rodriguez said: “do
representing his brother Jose Luis Quintero—the father of       not talk to the DA’s Office and tell them that you think
the complainant in appellant’s sexual assault case—in two       he’s innocent because you may lose your kids.” Jose Luis
unrelated criminal matters. Appellant acknowledged that         testified that he called the prosecutor’s office back and
he had signed a waiver of potential conflict of interest, but   told them that he just wanted the “system” to take care of
explained that he did so because Rodriguez had told him         it.
it was a formality for the judge. According to appellant,
Rodriguez did not discuss what the potential conflict was
and did not tell him that the trial court ultimately denied a
motion Rodriguez filed seeking the court’s approval of          C. Veronica Pina’s testimony
the conflict waiver.                                            A sister of appellant and Jose Luis, Veronica Pina, also
                                                                testified during the hearing. She explained that she was
Appellant testified that at the time he accepted the plea       involved in the hiring of Rodriguez and discussed his
bargain, he was unaware of the evidence the State               representation of her brothers. She testified that
possessed against him. He went on to testify that he is         Rodriguez did not go into detail about potential conflicts
innocent of the sexual assault charge, but he pled guilty       of interest when she talked to him. According to Pina,
because Rodriguez told him that if he did not accept the        Rodriguez said that he could represent both brothers.
State’s offer, he would probably be convicted at trial and
would receive a life sentence. Appellant testified that he
asked Rodriguez for time to consider the State’s offer, but
Rodriguez told appellant he had to decide right away.           D. Trial counsel’s testimony
Appellant went on to testify that he pled guilty because        *3 Trial counsel Rodriguez testified that appellant hired
his only other choice seemed to be to lose at trial and get     him in May 2012 for an “investigation” concerning the
a life sentence. The record shows that the visiting judge       sexual assault outcry. From that point until appellant was
who accepted appellant’s plea explained the full                formally charged in November 2012, Rodriguez testified
punishment range during the plea hearing.2                      that he did nothing more than “be on call” in case the
                                                                police wanted to talk to appellant. Rodriguez admitted
                                                                that he did not talk to any witnesses and did not know the
                                                                specifics of the outcry.
B. Jose Luis’s testimony
Jose Luis testified that he was very upset and angry when       When appellant was charged in November 2012,
he first learned about his daughter’s outcry accusing           Rodriguez applied the prior fee paid (for investigation) to
appellant of sexual assault. Jose Luis went on to admit         a new legal services contract. He testified that after this
that he was charged with cruelty to animals and family          occurred, he agreed to represent Jose Luis in his criminal
assault after appellant was charged with sexual assault.        cases. Rodriguez testified that he explained the potential
According to Jose Luis, his parents hired Rodriguez to          for a conflict of interest to the family and said that the
defend him in those two cases. Jose Luis testified that         brothers had to sign a waiver of the potential conflict
Rodriguez informed him there could be a big conflict of         before he would represent both. Rodriguez testified that
interest if he represented both brothers, that he probably      he explained the potential conflict to both brothers.
should not represent both, but that the brothers could sign     Rodriguez went on to explain that he would never have
a paper so it would not be a problem. According to Jose         tried both cases; if necessary, he would have tried
Luis, Rodriguez did not specify the nature of the conflict      appellant’s case and then withdrawn before Jose Luis’s
of interest.                                                    cases went to trial. Rodriguez testified that it was his
                                                                choice whether to take them to trial.
Jose Luis testified he eventually told Rodriguez that he no
longer believed his brother was guilty. Jose Luis also          Rodriguez explained that he filed a motion to waive
informed Rodriguez that the prosecutor’s office had             potential conflict of interest. The trial court’s staff called
called him wanting to discuss appellant’s case and his          him later that day and told him the judge had denied the
thoughts on the appropriate punishment for appellant.           motion. Rodriguez testified that he approached the trial
According to Jose Luis, Rodriguez told him that it was          judge the next day and the judge told him that the motion
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Quintero v. State, --- S.W.3d ---- (2015)



was denied, but Rodriguez could still represent both            witness against appellant. He went on to ask the trial court
appellant and his brother if he wished. Rodriguez went on       to grant appellant a new trial.
to testify that he did not know whether an actual conflict
of interest existed.                                            The trial court explained that he believed it unethical for a
                                                                court to approve a conflict of interest, but that he lacked
Rodriguez was also asked about his interactions with Jose       the authority to remove a lawyer from a case based on a
Luis regarding appellant’s case. Rodriguez denied that          conflict of interest. The court went on to find that a
Jose Luis ever told him that he now believed appellant          conflict existed in this case. The court stated that he
was innocent. Rodriguez admitted during his testimony           agreed with appellant’s arguments both “morally and
that Jose Luis had contacted him concerning the                 ethically.” Nevertheless, the court denied appellant’s
prosecutor’s attempt to discuss appellant’s case, but           motion in its entirety, stating: “sometimes people plead
Rodriguez asserted that he told Jose Luis to “tell [the         guilty to things that they didn’t do because they believe
prosecutor] whatever you want to tell [him].” Rodriguez         it’s in their best interest to do so because they [would]
also denied advising Jose Luis not to inform the                rather take six years than fifty. And my understanding of
prosecutor about his belief that appellant was innocent         the law is, as long as you do that knowingly and
because doing so might endanger Jose Luis’s access to his       intelligently, that’s what it’s going to be.” This appeal
children.                                                       followed.

Regarding appellant’s guilty plea, Rodriguez testified that
he showed up in court on June 4, 2013, and the prosecutor
on appellant’s case told him he was about to be replaced
by a new prosecutor yet to be identified. According to                                 ANALYSIS
Rodriguez, the departing prosecutor told him that the new
prosecutor could decide to file two more charges against        Appellant contends that the trial court abused its
appellant and then ask the trial court to stack the             discretion when it denied his motion for new trial. Within
sentences. Rodriguez testified that during his discussions      that single issue, appellant makes three separate
with appellant regarding the State’s plea-bargain offer, he     arguments, which we address in turn.
told appellant that a jury might acquit him, might find him
guilty and sentence him to five years in prison, or might
sentence him to life in prison. Rodriguez also testified that
                                                                I. Appellant has not shown that the trial court abused
he informed appellant about his conversation with the
                                                                its discretion by refusing to grant him a new trial
departing prosecutor. Rodriguez testified that he told
                                                                based on counsel’s alleged conflict of interest.
appellant exactly what the prosecutor had told him              [1]
                                                                    Appellant’s first argument is that the trial court abused
regarding the possibility of more charges and the stacking
                                                                its discretion when it denied his motion for new trial
of any resulting prison terms. Rodriguez also testified he
                                                                because he was denied effective assistance of counsel due
told appellant that if the State brought witnesses who
                                                                to his trial counsel’s actual conflict of interest.
could testily as to each of the indictment’s allegations,
then the State would have a strong case against him.
Rodriguez then conceded that, at the time of the plea deal,
he had no idea whether the State’s case against appellant       A. Standard of review and applicable law
was actually strong or weak. Ultimately, Rodriguez              We review a trial court’s decision on a motion for new
testified that appellant wanted a deal with probation but       trial for an abuse of discretion. State v. Herndon, 215
decided to take the offered plea bargain because the State      S.W.3d 901, 906 (Tex.Crim.App.2007). Under this
was not willing to offer probation. Rodriguez also              standard, an appellate court should reverse the trial
emphasized repeatedly that appellant was not willing to         court’s ruling only if it was clearly erroneous and
go to trial.                                                    arbitrary, such as when no reasonable view of the record
                                                                could support the decision under review. Odelugo v.
                                                                State, 443 S.W.3d 131, 137 (Tex.Crim.App.2014). In the
                                                                absence of express factual findings, we assume that the
E. The trial court’s denial of appellant’s motion for
                                                                trial court made implicit findings of fact that support its
new trial
                                                                ruling. Johnson v. State, 169 S.W.3d 223, 239
*4 At the end of the hearing, appellant’s new counsel
                                                                (Tex.Crim.App.2005). The record on appeal must be
argued that it was unethical for Rodriguez to have
                                                                inspected from every reasonable vantage in the light most
represented Jose Luis at the same time that he represented
                                                                favorable to the trial court’s ruling, and found to be
appellant because Jose Luis could have been called as a
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        5
Quintero v. State, --- S.W.3d ---- (2015)



deficient, before it may be overturned as an abuse of the          interest. That evidence does not address the second part of
trial court’s discretion. Odelugo, 443 S.W.3d at 138. If           the test: whether trial counsel acted on behalf of other
one reasonable view of the record would support the trial          interests to appellant’s detriment. Our dissenting
court’s denial of a motion for new trial, the decision must        colleague argues that such an adverse impact has been
be affirmed on appeal. See id.                                     shown because Rodriguez failed to “disclose to appellant
                                                                   the trial court’s conclusion that the dual representation
[2]   [3]   [4]   [5]
                The Constitution guarantees a criminal             was unethical” and the court’s advice that Rodriguez
defendant effective assistance of counsel. Ex parte                “discontinue the dual representation”—information that
Moore, 395 S.W.3d 152, 157 (Tex.Crim.App.2013). To                 would have allowed appellant to make an informed
prevail on his conflict-of-interest ineffectiveness claim,         decision about waiver and choice of counsel. Post, at 5–6.
appellant must prove by a preponderance of the evidence            But there is no evidence that the trial court disclosed any
that (1) his trial counsel had an actual conflict of interest,     such conclusion or advice to Rodriguez before appellant
and (2) the conflict actually colored his trial counsel’s          entered his guilty plea. Rather, the trial court simply
actions during his representation of appellant. Odelugo,           denied counsel’s motion seeking approval of the waiver
443 S.W.3d at 136. “An ‘actual conflict of interest’ exists        appellant had signed, and Rodriguez testified that the trial
if counsel is required to make a choice between advancing          court said he could still represent both appellant and Jose
his client’s interest in a fair trial or advancing other           Luis if he wished.3
interests (perhaps counsel’s own) to the detriment of his
client’s interest.” Monreal v. State, 947 S.W.2d 559, 564          Appellant’s second and third arguments likewise do not
(Tex.Crim.App.1997). In other words, appellant must                demonstrate an adverse effect because they ignore that the
show that his trial counsel actually acted on behalf of            evidence regarding Rodriguez’s dealings with both Jose
those other interests, and he was adversely impacted as a          Luis and appellant was disputed. Although the brothers
result. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct.           each offered testimony that, if believed, could establish an
1708, 64 L.Ed.2d 333 (1980). Appellant’s claim will fail           adverse impact on appellant, Rodriguez offered directly
if (1) no evidence has been presented on the issue, or (2)         contrary testimony. For example, Rodriguez testified that
the evidence relevant to the issue is in perfect equipoise.        Jose Luis never told him that he now believed appellant
Odelugo, 443 S.W.3d at 136–37.                                     was innocent. Although he agreed that Jose Luis had
                                                                   approached him about what to tell the prosecutors
                                                                   regarding appellant’s case, he denied advising Jose Luis
                                                                   to remain quiet about his changed attitude toward his
B. Appellant did not prove by a preponderance of the               brother in order to advance Jose Luis’s own interests.
evidence that he was adversely impacted by any                     Rodriguez testified that he instead advised Jose Luis to
conflict of interest.                                              “tell [the prosecutor] whatever you want to tell [him].”
*5 Even if we assume the existence of an actual conflict           Our dissenting colleague faults Rodriguez for not
of interest, appellant must still establish, by a                  attempting to secure a statement from Jose Luis in support
preponderance of the evidence, that he was adversely               of appellant. Post, at 8. But according to Rodriguez, he
impacted by his trial counsel’s conflict of interest.              did not know that Jose Luis was now willing to make a
Appellant contends he met this burden through: (1)                 supportive statement. This testimony undercuts the
undisputed evidence that Rodriguez represented his                 dissent’s theory that Rodriguez gave this advice to
brother—the father of the complainant, and therefore a             advance Jose Luis’s interests to the detriment of
potential material witness against him—while continuing            appellant.4
to represent appellant; (2) his brother’s testimony that
Rodriguez advised him to not tell the prosecutors his              *6 The trial court, as the trier of fact, was entitled to
belief that appellant had not sexually assaulted his               believe Rodriguez’s testimony and disbelieve the
daughter; and (3) his own testimony that Rodriguez                 testimony of both appellant and his brother. See Odelugo,
pressured him into accepting the State’s plea-bargain              443 S.W.3d at 138 (stating that trial court can choose to
offer by telling him he would be convicted if he went to           disbelieve even uncontroverted testimony if its probative
trial and would then receive a life sentence. We disagree          value depends on the credibility of the witness). We
that, under the appropriate standard of review, appellant          conclude the trial judge implicitly did so here. See
has established that the trial court abused its discretion         Johnson, 169 S.W.3d at 239. Given the trial court’s
when it denied his motion for new trial based on an actual         implicit rejection of the brothers’ testimony and
conflict of interest.                                              acceptance of Rodriguez’s, it was within the court’s
                                                                   discretion to conclude that appellant failed to show by a
Appellant’s first argument consists simply of evidence             preponderance of the evidence that he was adversely
that the dual representation created an actual conflict of
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Quintero v. State, --- S.W.3d ---- (2015)



affected by his trial counsel’s conflict of interest.           Martinez, 981 S.W.2d at 197.
Odelugo, 443 S.W.3d at 138. Therefore, we hold the trial
court did not abuse its discretion when it denied               Attempting to meet this burden, appellant relies on his
appellant’s motion for new trial based on an actual             testimony that his attorney had not advised him of the
conflict of interest. Id.                                       existence of an actual conflict of interest before he agreed
                                                                to plead guilty and had pressured him to take the plea. But
                                                                there is other evidence in the record that appellant was
                                                                aware of the conflict. In addition, we have already
II. Appellant has not shown that the trial court abused         determined that the trial court could have disbelieved
its discretion by refusing to grant him a new trial on          appellant’s testimony regarding his trial counsel’s
the ground that his guilty plea was not knowingly,              handling of the plea bargain and instead believed
intelligently, and voluntarily entered.                         Rodriguez’s testimony that he discussed the State’s plea-
[6]
    In his second argument, appellant claims that the trial     bargain offer with appellant and that he explained
court erred when it denied his motion for new trial based       appellant’s options prior to appellant’s decision to accept
on the allegedly involuntary nature of his guilty plea.         the plea. We therefore conclude appellant has not met his
According to appellant, his plea was involuntary because        burden to demonstrate that his guilty plea was involuntary
his attorney rendered ineffective assistance by failing to      and, as a result, has not shown that the trial court abused
advise him of the existence of an actual conflict of interest   its discretion when it denied his motion for new trial
and by pressuring him to take the plea when he told him         based on this ground.
he faced two choices: pleading guilty with a six-year
sentence, or going to trial and being found guilty and
sentenced to life in prison. In this argument, appellant
makes no reference to the visiting judge’s admonishments        III. Appellant has not shown that the trial court
regarding his decision to plead guilty to the aggravated        abused its discretion by refusing to grant him a new
sexual assault charge. He also does not contend that the        trial in the interest of justice.
admonishments, which are contained in the record, are           *7 [10]In his final argument on appeal, appellant contends
insufficient.                                                   the trial court abused its discretion when it refused to
                                                                grant him a new trial in the interest of justice. The interest
[7] [8] [9]
        Due process required that a guilty plea be entered      of justice is not an independent basis for granting a new
knowingly, intelligently, and voluntarily. Kniatt v. State,     trial, however. State v. Thomas, 428 S.W.3d 99, 105
206 S.W.3d 657, 664 (Tex.Crim.App.2006). In                     (Tex.Crim.App.2014). The Court of Criminal Appeals has
considering the voluntariness of a guilty plea, an appellate    held that there must be some legal basis underpinning the
court examines the record as a whole. Martinez v. State,        grant of a new trial, even when it is sought in the interest
981 S.W.2d 195, 197 (Tex.Crim.App.1998). Evidence               of justice. Id. As a general rule, a trial court does not
that a defendant was admonished by the trial court creates      abuse its discretion in granting a motion for new trial in
a prima facie showing that the guilty plea was made             the interest of justice if the defendant (1) articulated a
voluntarily and knowingly. Id. The burden then shifts to        valid legal claim in his motion, (2) produced evidence or
the defendant to show that he entered the plea without          pointed to evidence in the trial record that substantiated
understanding the consequences of his action. Arreola v.        his legal claim, and (3) showed prejudice to his
State, 207 S.W.3d 387, 391 (Tex.App.—Houston [1st               substantial rights under the rules of appellate procedure.
Dist.] 2006, no pet.).                                          State v. Sanders, 440 S.W.3d 94, 99 (Tex.App.—Houston
                                                                [14th Dist.] 2013, pet. ref’d).
The record demonstrates that appellant received written
admonishments from the visiting judge. Appellant signed         In an effort to meet these requirements, appellant asserts
those admonishments and initialed several paragraphs            that the trial court should have granted his motion in the
specifically acknowledging that he understood the charges       interest of justice for one of the reasons he asserted
against him and the consequences of a guilty plea, and          previously: his trial counsel was ineffective because he
that he had fully consulted with his attorney before            pressured him into pleading guilty.5 We have already
signing the admonishments and agreeing to the plea. The         addressed, and rejected, this contention as a stand-alone
record also demonstrates that the visiting judge orally         basis for the trial court to grant appellant a new trial.
admonished appellant regarding his decision to plead            Having done so, we hold this contention also cannot serve
guilty. Therefore, there is a prima facie showing that          as the legal basis underlying the grant of a new trial in the
appellant entered his guilty plea knowingly, intelligently,     interest of justice. See id. at 104 (concluding that one
and voluntarily, and appellant had the burden to show the       ground did not support new trial because court had
trial court that his plea was nevertheless involuntary. See     already analyzed essentially the same argument under
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Quintero v. State, --- S.W.3d ---- (2015)



another ground and concluded it did not support new             standard articulated in Cuyler v. Sullivan.2
trial). We therefore hold that the trial court did not abuse
its discretion when it denied appellant’s motion for new        *8 To prevail on his conflict-of-interest ineffectiveness
trial based on this ground.                                     claim, appellant must prove by a preponderance of the
                                                                evidence that (1) appellant’s counsel had an actual
                                                                conflict of interest and (2) the conflict actually colored
                                                                counsel’s actions while representing appellant.3 “An
                                                                ‘actual conflict of interest’ exists if counsel is required to
                      CONCLUSION                                make a choice between advancing his client’s interest in a
                                                                fair trial or advancing other interests (perhaps counsel’s
Having addressed each argument raised in appellant’s            own) to the detriment of his client’s interest.”4 In the
single issue on appeal and concluded that none supports         simplest terms, appellant must show counsel actually
reversal, we overrule that issue and affirm the trial court’s   acted on behalf of other interests, and that appellant was
judgment.                                                       adversely impacted as a result.5 To prove an adverse
                                                                impact, appellant need not show that the conflict changed
                                                                the outcome6 or that but for the adverse impact appellant
                                                                would not have pled “guilty.”7 All that is required is a
(Frost, C.J., dissenting).                                      showing that counsel acted (or chose not to act) to pursue
                                                                other interests and that appellant thereby suffered some
                                                                adverse effect.


Kem Thompson Frost, Chief Justice, dissenting

Today the court must determine whether appellant Juan                     Counsel’s Actual Conflicts of Interest
Quintero is entitled to a new trial based on his counsel’s
actual conflicts of interest. Convicted of aggravated           Appellant’s young niece made outcry that appellant had
sexual assault of a child as part of a plea-bargain             sexually assaulted her. Appellant’s counsel represented
agreement with the State, appellant asserts his retained        both appellant and the complainant’s father, who is
counsel rendered ineffective assistance because the             appellant’s brother. The father’s interests in appellant’s
conflicts colored counsel’s actions. At the heart of the        case diverged from appellant’s interest. While appellant’s
appeal is appellant’s contention that counsel advised           interest was to minimize adverse consequences of
appellant to plead “guilty” while laboring under actual         potential conviction and punishment for the charged
conflicts of interest. To decide the issue we must              offense, the undisputed evidence shows that the father’s
determine the adverse impact, if any, of the conflicts. The     interests were (1) to seek justice for the complainant and
majority concludes that appellant suffered no adverse           against the perpetrator of the crime and (2) to avoid any
impact and that the evidence supports an implied finding        adverse action from the Texas Department of Family and
that appellant knowingly, intelligently, and voluntarily        Protective Services, including action that might
entered the plea. I respectfully disagree.                      jeopardize his rights to possession of his children. The
                                                                objectives of appellant and the objectives of the father
                                                                were incompatible from the beginning, but the conflicts
                                                                became increasingly apparent as the case progressed.

                Applicable Legal Standard                       Appellant’s interests and the father’s interests collided
                                                                head-on when the father received a call from the District
In most cases, ineffective-assistance-of-counsel claims are     Attorney’s Office requesting input on appellant’s
assessed under the familiar two-prong test set out in           prospective punishment. The father, in turn, sought
Strickland v. Washington, which requires the appellant to       counsel’s advice regarding the District Attorney’s inquiry.
prove that (1) counsel’s representation fell below an           In advising the father, counsel found himself between a
objective standard of reasonableness; and (2) but for           rock and a hard place—counsel was required to make a
counsel’s unprofessional errors, the result of the              choice between advancing appellant’s interests on one
proceeding would have been different.1 But, when one            hand and advancing the father’s interests on the other.8
asserts that the ineffective assistance derived from a          Whatever choice the lawyer made would promote the
conflict of interest, the appellate court assesses the          interests of one client while compromising the interests of
ineffective-assistance claim under the less-onerous             the other.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        8
Quintero v. State, --- S.W.3d ---- (2015)



                                                                disclose to appellant the trial court’s conclusion that the
Up to that point, appellant’s counsel had characterized his     dual representation was unethical or inform appellant that
representation of the two clients as posing only a              the trial court advised counsel to discontinue the dual
“potential” conflict despite the facial incompatibility of      representation. This information was material. Indeed,
the clients’ respective interests. Counsel was operating        had appellant known the trial court did not approve of
under the belief that his clients’ divergent interests would    counsel’s simultaneous representation of appellant and the
lead to an actual conflict only if both cases were tried,       father or that the trial court had denounced the
and, according to counsel, the outcome was up to him.           representation as unethical, appellant might well have
Appellant’s counsel advised both appellant and the father       made a different decision about waiver and choice of
of what counsel described as a “potential” conflict.            counsel.
Counsel then presented both clients with written waivers.
Both clients signed the waivers.9                               An attorney serving his clients’ interests would have
                                                                disclosed this information to the clients so that the clients
*9 Appellant’s counsel filed appellant’s waiver in the trial    could make informed decisions regarding their choice to
court, but the trial court refused to approve the waiver of     continue being represented by an attorney with actual
the conflict. According to the trial court, the conflict was    conflicts of interest. The only reasonable interpretation of
unethical.10 Even assuming (for argument’s sake) the            counsel’s testimony and the clients’ testimony is that
accuracy of counsel’s early assessment of the                   counsel briefly informed the clients that there might be a
simultaneous representation of the two clients as creating      potential conflict of interest, but counsel did not explain
only a “potential” conflict, at the point of the District       the ramifications of any conflict to appellant or advise
Attorney’s inquiry to the father, the dual representation       appellant as to how being represented by an attorney with
posed an actual conflict of interest. Likewise, when            conflicts of interest might affect the representation
appellant’s counsel responded to appellant’s request for        appellant was to receive. Because the father’s goals and
advice regarding a plea-bargain offer from the State,           interests were at cross-purposes with what appellant
counsel was acting under an actual conflict of interest. At     hoped to achieve, the interests of both could not be served
that point, appellant’s counsel was required to make a          by the same counsel at the same time.
choice between advancing his own economic interests and
advancing appellant’s interests. The former could only          The majority emphasizes the trial court’s role as the fact-
come at the cost of the latter.                                 finder and the possibility that the trial court may have
                                                                discredited the clients’ testimony and believed only the
Both the economic-self-interest conflict between counsel        attorney’s testimony.13 The majority states that the only
and appellant and the divergent-client-interests conflict       evidence that showed counsel’s actions were colored by
between appellant and the father required appellant’s           conflicts of interest is disputed. This assessment is
counsel to choose between opposing interests. The record        incorrect. Even if the trial court believed counsel’s
contains sufficient evidence showing counsel had actual         testimony and disbelieved the testimony of both appellant
conflicts of interest.11                                        and the father, the undisputed evidence shows the
                                                                conflicting interests colored counsel’s actions.



        Actions Colored by Conflicts of Interests
                                                                             Economic Self–Interest Conflict
Counsel’s conflicts of interest colored his actions during
his representation of appellant.12 Counsel testified that he    *10 Counsel testified that he would have to withdraw, and
concluded he could not take both appellant’s case and the       therefore suffer adverse financial consequences, unless
father’s case to trial. In tacit recognition of the actual      one of the clients pled “guilty.” Counsel chose not to
conflict, counsel admitted that he would have to withdraw       advise appellant that the trial court had refused to approve
from one representation unless at least one of the clients      the waiver of the conflict, an action which suggests
accepted a plea bargain. The evidence shows that this           counsel was motivated to keep the business of both clients
conflict influenced counsel’s representation of appellant.      or, at least, prevent them from learning the trial court’s
After the trial court refused to approve appellant’s waiver     view of the matter. Counsel’s explanation for failing to
of the conflict, counsel chose not to disclose that             fully articulate the implications of the conflicts of interest
information to appellant. Counsel never informed either         was that, in his view, the conflicts of interest would not be
of the clients that the trial court had considered the waiver   an issue as long as at least one client pled “guilty.”
and expressly refused to approve it. Nor did counsel            Counsel then refrained from taking any action to

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         9
Quintero v. State, --- S.W.3d ---- (2015)



investigate the State’s case against appellant.14 When the       supportive statement. But, counsel’s unawareness of what
State offered appellant a plea bargain, counsel advised          the father would say condemns rather than excuses
appellant to plead “guilty” even though counsel did not          counsel’s failure to act.
know anything about the State’s case against appellant,
including whether it was a weak case or a strong case.           Counsel’s testimony that he did not know what the father
Appellant accepted counsel’s advice and pled “guilty.” In        would say shows counsel chose to advise the father
counsel’s mind, appellant’s “guilty” plea eliminated any         without undertaking to investigate what, if anything, the
conflict of interest and allowed counsel to continue             father could offer that might further appellant’s goals of
representing both appellant and the father. The evidence         minimizing the consequences of potential conviction and
shows that counsel’s actions and his choices not to act          punishment. Counsel’s decision not to make inquiry and
were colored by a conflict between his interest in               not to investigate prompts important questions:
retaining both clients and appellant’s interest in
minimizing adverse consequences of conviction and                     • Would an attorney not laboring under a conflict of
punishment, an interest served by appellant’s pleading                interest fail to ask the father what he wanted to say?
“guilty” only if the State’s case against appellant was
strong.                                                               • Would an attorney zealously representing only
                                                                      appellant’s interests squander the opportunity to
                                                                      attempt to secure a supportive statement on behalf of
                                                                      appellant?

           Divergent–Client–Interests Conflict                   At this critical point in counsel’s representation of
                                                                 appellant, counsel chose not to inquire and not to
Counsel’s representation of appellant also was colored by        investigate. Doing so would have furthered appellant’s
a conflict of interest between appellant (the accused) and       interests but compromised the father’s interests. Counsel
the father of the accuser. The undisputed evidence shows         could not serve the interests of both clients. Counsel
the District Attorney’s Office contacted the father to           chose not to serve appellant’s interests.
discuss the father’s thoughts on an appropriate
punishment for appellant. The father and counsel both            *11 By choosing to do nothing, counsel lost the
testified that the father asked counsel for advice in            opportunity to learn what the father would say and
responding to this prosecutorial inquiry. Appellant’s            attempt to secure a statement from the father in support of
interest was in securing statements from the father that         appellant.15 The conflict of interest affected counsel’s
would convince the District Attorney to minimize                 actions—he failed to make inquiry and he failed to
consequences for appellant. In this instance, the father         advocate on appellant’s behalf while interacting with the
testified that at the time he believed appellant to be           father.16
innocent of the charges and that the proper punishment
would be no punishment.

According to the father, counsel thought the father had an
interest in not disclosing his opinion that appellant was                        Cuyler Standard Satisfied
innocent because that opinion might cause the father to
lose custody of his children. The father testified that          The undisputed evidence shows the conflicts of interest
counsel advised him to keep silent about his opinion that        colored counsel’s actions as well as his advice.17
appellant was innocent, lest appellant risk losing custody       Accordingly, the Cuyler standard is satisfied.
of his children. Counsel disputed this testimony. Even
assuming the trial court discredited the father’s testimony,
counsel’s account of this incident itself is sufficient to
show that the actual conflict of interest colored counsel’s                             Conclusion
actions.
                                                                 Counsel had actual conflicts of interest and that those
Counsel testified that he told the father to tell the District   conflicts colored his representation of appellant.
Attorney’s Office “whatever [father] wanted.” This               Therefore, the court should sustain appellant’s first issue
advice was not zealous representation of appellant, who          and reverse and remand the case to the trial court for a
was seeking a lesser sentence than the District Attorney’s       new trial
Office was proposing. The majority notes counsel
testified that he did not know the father wanted to make a

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     10
Quintero v. State, --- S.W.3d ---- (2015)



All Citations                                                                                                              	  
--- S.W.3d ----, 2015 WL 2405549

       Footnotes	  
	  
1	           Appellant	  made	  clear	  in	  the	  trial	  court,	  and	  has	  repeated	  on	  appeal,	  that	  he	  is	  not	  asserting	  as	  the	  basis	  for	  his	  right	  to	  a	  
              new	   trial	   a	   broader	   claim	   of	   ineffective	   assistance	   of	   counsel	   based	   on	   grounds	   such	   as	   his	   trial	   counsel’s	   failure	   to	  conduct	  
	            an	  adequate	  investigation	  of	  his	  case.	  Appellant	  has	  affirmatively	  limited	  his	  claim	  of	  ineffective	  assistance	  of	  counsel	  to	  the	  
              three	  grounds	  mentioned	  in	  the	  text.	  
              	  
2	           The	  visiting	  judge	  specifically	  admonished	  appellant	  that:	  “the	  full	  range	  of	  punishment	  in	  this	  matter	  is	  by	  life	  confinement	  
              in	  the	  Texas	  Department	  of	  Criminal	  Justice,	  or	  a	  term	  of	  years	  not	  less	  than	  five,	  no	  more	  than	  ninety-­‐nine,	  with	  an	  optional	  
	            fine	  in	  any	  amount	  not	  to	  exceed	  $10,000.	  That’s	  the	  full	  range	  of	  punishment.	  In	  addition	  to	  that	  conviction,	  you	  will	  be	  
              required	  to	  register	  under	  the	  Texas	  Sex	  Offender	  Registration	  Act.	  You	  understand	  that?”	  Appellant	  responded	  that	  he	  did.	  
              	  
3	           Appellant	  also	  asserts	  within	  his	  first	  argument	  that	  he	  is	  entitled	  to	  a	  new	  trial	  because	  the	  trial	  court	  failed	  to	  conduct	  a	  
              Greig	   hearing.	   See	   U.S.	   v.	   Greig,	   967	   F.2d	   1018,	   1022	   (5th	   Cir.1992)	   (holding	   when	   actual	   conflict	   exists,	   trial	   court	   must	  
	            hold	  hearing	  to	  ensure	  defendant	  (1)	  is	  aware	  of	  the	  conflict,	  (2)	  realizes	  the	  potential	  hazard	  to	  his	  defense	  as	  a	  result	  of	  
              using	  the	  conflicted	  attorney,	  and	  (3)	  knows	  his	  right	  to	  obtain	  other	  counsel).	  While	  the	  more	  commonly	  used	  name	  for	  
              this	   type	   of	   hearing	   is	   a	   Garcia	   hearing,	   we	   use	   the	   name	   suggested	   by	   appellant	   for	   purposes	   of	   this	   appeal.	   See	   U.S.	   v.	  
              Garcia,	  517	  F.2d	  272,	  277	  (5th	  Cir.1975),	  abrogated	  on	  other	  grounds	  by	  Flanagan	  v.	  U.S.,	  465	  U.S.	  259,	  263	  n.1,	  104	  S.Ct.	  
              1051,	  79	  L.Ed.2d	  288	  (1984).	  It	  is	  undisputed	  that	  the	  trial	  court	  did	  not	  conduct	  a	  Greig	  hearing.	  We	  conclude	  that	  this	  fact	  
              alone	  does	  not	  establish	  appellant	  is	  entitled	  to	  a	  new	  trial	  because	  appellant	  must	  still	  show	  he	  was	  adversely	  affected	  by	  
              the	  actual	  conflict.	  See	  Greig,	  967	  F.2d	  at	  1024;	  Ramirez	  v.	  State,	  13	  S.W.3d	  482,	  487–90	  (Tex.App.—Corpus	  Christi	  2000,	  
              pet.	  dism’d).	  
              	  
4	           In	  contending	  that	  a	  new	  trial	  is	  required	  in	  the	  interest	  of	  justice	  (an	  issue	  we	  address	  in	  Part	  III	  below),	  appellant	  points	  
              to	   record	   evidence	   that	   Rodriguez	   conducted	   no	   investigation	   into	   his	   case	   and	   advised	   him	   to	   accept	   the	   State’s	   plea	  
	            bargain	  offer	  even	  though	  Rodriguez	  had	  no	  information	  on	  the	  strength	  or	  weakness	  of	  the	  State’s	  case	  against	  him.	  Our	  
              dissenting	   colleague	   relies	   on	   this	   argument	   to	   support	   her	   view	   that	   appellant	   was	   adversely	   impacted	   by	   his	   counsel’s	  
              conflict	  of	  interest.	  We	  do	  not	  reach	  this	  specific	  argument,	  however,	  because	  appellant	  has	  affirmatively	  represented	  that	  
              he	   seeks	   a	   new	   trial	   only	   on	   the	   basis	   of	   an	   actual	   conflict	   of	   interest	   and	   has	   expressly	   disclaimed	   any	   attempt	   to	   establish	  
              a	  broader	  claim	  of	  ineffective	  assistance	  of	  counsel	  such	  as	  a	  failure	  to	  investigate.	  
              	  
5	           As	   part	   of	   his	   argument	   that	   Rodriguez	   pressured	   him	   into	   pleading	   guilty,	   appellant	   briefly	   mentions	   an	   allegation	   that	  
              Rodriguez	  conducted	  no	  investigation	  before	  telling	  him	  that	  he	  would	  be	  convicted	  and	  sentenced	  to	  life	  in	  prison	  if	  he	  did	  
	            not	  accept	  the	  State’s	  plea	  bargain.	  Because	  appellant	  has	  affirmatively	  stated	  that	  he	  is	  not	  pursuing	  a	  broader	  ineffective	  
              assistance	  of	  counsel	  claim	  based	  on	  an	  allegation	  of	  failure	  to	  investigate,	  we	  do	  not	  construe	  this	  allegation	  as	  raising	  a	  
              separate	  claim	  that	  he	  should	  be	  granted	  a	  new	  trial	  in	  the	  interest	  of	  justice	  because	  his	  trial	  counsel	  failed	  to	  investigate	  
              his	  case,	  and	  we	  render	  no	  opinion	  on	  that	  issue.	  
              	  
1	           See	  Acosta	  v.	  State,	  233	  S.W.3d	  349,	  352	  (Tex.Crim.App.2007).	  
              	  
	  
2	           See	   id.	   at	   352–53;	   Ex	   parte	   McCormick,	   645	   S.W.2d	   801,	   805	   (Tex.Crim.App.1983)	   (holding,	   in	   habeas	   proceeding,	   that	  
              petitioner	  was	  entitled	  to	  new	  trial	  because	  counsel’s	  conflict	  of	  interest	  adversely	  affected	  petitioner).	  
	            	  
3	           Odelugo	  v.	  State,	  443	  S.W.3d	  131,	  136	  (Tex.Crim.App.2014)	  (citing	  Cuyler	  v.	  Sullivan,	  446	  U.S.	  335,	  350,	  100	  S.Ct.	  1708,	  64	  
              L.Ed.2d	  333	  (1980)).	  
	            	  
4	           Monreal	   v.	   State,	   947	   S.W.2d	   559,	   564	   (Tex.Crim.App.1997).	   See	   Lopez	   v.	   State,	   428	   S.W.3d	   271,	   283	   (Tex.App.—Houston	  
              [1st	  Dist.]	  2014,	  pet.	  ref’d).	  
	            	  
5	           Cuyler,	  446	  U.S.	  at	  349–50,	  100	  S.Ct.	  1708.	  
              	  
	  
6	           Gonzales	  v.	  State,	  605	  S.W.2d	  278,	  280–81	  (Tex.Crim.App.1980);	  Perillo	  v.	  Johnson,	  79	  F.3d	  441,	  448	  (5th	  Cir.1996).	  
              	  
	  
                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                                                                                                 11
Quintero v. State, --- S.W.3d ---- (2015)



7	                See	   Gonzales,	   605	   S.W.2d	   at	   280–81.	   If	   appellant	   establishes	   an	   actual	   conflict,	   prejudice	   is	   presumed.	   Maya	   v.	   State,	   932	  
                   S.W.2d	  633,	  635	  (Tex.App.—Houston	  [14th	  Dist.]	  1996,	  no	  pet.);	  Perillo,	  79	  F.3d	  at	  448.	  
	                 	  
8	                See	   Pina	   v.	   State,	   29	   S.W.3d	   315,	   320	   (Tex.App.—El	   Paso	   2000,	   pet.	   ref’d)	   (holding	   that	   counsel’s	   action	   were	   colored	   by	  
                   conflict	   when	   attorney	   representing	   two	   brothers	   failed	   to	   call	   one	   brother	   to	   testify	   for	   fear	   that	   testimony	   might	  
	                 incriminate	  other	  brother).	  
                   	  
9	                In	   this	   written	   document,	   appellant	   sought	   to	   waive	   a	   potential	   conflict,	   not	   an	   actual	   conflict;	   the	   trial	   court	   declined	   to	  
                   accept	  the	  waiver.	  Even	  if	  this	  waiver	  were	  an	  accepted	  waiver	  of	  an	  actual	  conflict,	  the	  waiver	  was	  not	  knowing,	  intelligent,	  
	                 or	   voluntary	   because	   the	   record	   shows	   that	   appellant	   was	   not	   aware	   of	   the	   actual	   conflict	   and	   did	   not	   realize	   the	  
                   consequences	   of	   continuing	   with	   counsel’s	   representation.	   See	   Maya,	   932	   S.W.2d	   at	   636	   (noting	   that	   absent	   an	   express,	  
                   voluntary	  waiver,	  an	  actual	  conflict	  of	  interest	  that	  hinders	  the	  effectiveness	  of	  counsel	  will	  mandate	  a	  new	  trial).	  
                   	  
10	               The	   trial	   court,	   though	   expressly	   disapproving	   of	   the	   conflict	   waiver,	   did	   not	   stop	   counsel	   from	   continuing	   to	   represent	  
                   appellant.	  
	                 	  
11	               See	  Ramirez	  v.	  State,	  13	  S.W.3d	  482,	  486–87	  (Tex.App.—Corpus	  Christi	  2000,	  pet.	  dism’d).	  
                   	  
	  
12	               See	  id.	  at	  486	  (holding	  that	  evidence	  counsel	  struggled	  to	  “serve	  two	  masters”	  shows	  that	  an	  accused’s	  defense	  has	  been	  
                   impaired).	  
	                 	  
13	               The	  trial	  court	  explained	  it	  agreed	  with	  appellant’s	  position	  “morally”	  and	  “ethically”	  and	  lamented	  the	  “light	  this	  puts	  our	  
                   profession	  in,”	  but,	  the	  trial	  judge	  concluded:	  
	                         I’ve	   been	   on	   the	   bench	   long	   enough,	   and	   as	   a	   prosecutor	   and	   defense	   lawyer	   long	   enough	   to	   know	   that	   sometimes	  
                           people	  plead	  guilty	  to	  things	  that	  they	  didn’t	  do	  because	  they	  believe	  it’s	  in	  their	  best	  interest	  to	  do	  so	  because	  they	  
                           [sic]	   rather	   take	   six	   years	   than	   fifty.	   And	   my	   understanding	   of	   the	   law	   is,	   as	   long	   as	   you	   do	   that	   knowingly	   and	  
                           intelligently,	  that’s	  what	  it’s	  going	  to	  be.	  
                           And	  so	  I	  don’t	  know	  if	  he	  did	  it	  or	  not,	  never	  will;	  even	  if	  there	  was	  a	  trial,	  I	  wouldn’t	  know.	  Okay.	  I	  would	  just	  know	  
                           what	  the	  evidence	  was,	  what	  the	  proof	  was,	  but	  I	  would	  never	  know	  that	  answer.	  
                           So,	  even	  in	  light	  of	  your	  very	  convincing	  argument,	  I	  have	  to	  deny	  the	  motion.	  
                           	  
14	               Even	  assuming	  that	  the	  majority	  is	  correct	  that	  appellant’s	  failure	  to	  preserve	  error	  forecloses	  this	  court	  from	  considering	  
                   appellant’s	   argument	   that	   he	   received	   ineffective	   assistance	   of	   counsel	   because	   his	   counsel	   did	   not	   conduct	   an	   adequate	  
	                 investigation,	   under	   the	   Cuyler	   standard	   this	   court	   still	   must	   consider	   counsel’s	   inaction	   to	   the	   extent	   the	   inaction	   was	  
                   colored	  by	  counsel’s	  conflict	  of	  interest.	  See	  Cuyler	  v.	  Sullivan,	  446	  U.S.	  335,	  349–50,	  100	  S.Ct.	  1708,	  64	  L.Ed.2d	  333	  (1980).	  
                   	  
15	               See	  Lopez	  v.	  State,	  358	  S.W.3d	  691,	  694–95	  (Tex.App.—San	  Antonio	  2011).	  
                   	  
	  
16	               See	  Ex	  Parte	  Parham,	  611	  S.W.2d	  103,	  105	  (Tex.Crim.App.1981)	  (holding	  in	  habeas	  proceeding	  that	  an	  attorney’s	  “divided	  
                   loyalties”	  adversely	  affected	  his	  representation	  when	  he	  advised	  a	  client	  not	  to	  testify	  while	  his	  duty	  to	  another	  client	  was	  
	                 to	  secure	  the	  testimony).	  
                   	  
17	               See	  id.;	  Ramirez,	  13	  S.W.3d	  at	  486;	  Pina,	  29	  S.W.3d	  at	  320;	  Maya,	  932	  S.W.2d	  at	  635.	  
                   	  
	  


       	  
          End	  of	  Document	                                                                                      ©	  2015	  Thomson	  Reuters.	  No	  claim	  to	  original	  U.S.	  Government	  Works.	  
   	                                                                                                                                                                                                                   	  




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