                                             OPINION
                                        No. 04-10-00562-CR

                                       Richard M. LOPEZ II,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR5572
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 31, 2011

AFFIRMED

           Appellant Richard M. Lopez II appeals his two convictions for sexual assault. He argues

four issues on appeal; two of which raise ineffective assistance of counsel. In his remaining two

issues, Lopez argues that the State’s closing argument violated his state and federal constitutional

rights against double jeopardy. We affirm the trial court’s judgment.
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                                         BACKGROUND

       After exchanging text messages and talking on the phone one night, Lopez and a young

woman named Bernadette decided to meet at a McDonald’s. Lopez brought his friends, Vanessa

Peralez and Leonard Howard, and Bernadette was accompanied by her sister. After drinking at a

liquor store and then at a bar, Bernadette’s sister left the group and the remaining four continued

drinking at Lopez’s mother’s home. Later in the evening, Bernadette started falling asleep on the

floor of Lopez’s bedroom. According to Bernadette, Howard then held her down and put his

penis in her mouth, and Lopez penetrated her vaginally and anally.

       Lopez and Howard were charged with sexually assaulting Bernadette. Lopez retained

counsel, Raymond Martinez, to defend him and recommended that Howard retain Martinez as

well. Aware that Martinez was representing Lopez, Howard also decided to retain Martinez.

According to Martinez, both Lopez and Howard asserted that their sexual conduct with

Bernadette was consensual, and thus Martinez did not envision a conflict in representing both

defendants. Lopez and Howard were scheduled to have separate trials, with Lopez’s trial to

proceed first.

       Howard initially volunteered to testify in Lopez’s defense but changed his mind during

Lopez’s trial. The night after the State rested its case, Martinez informed Howard that he had the

right not to testify and that if he still wanted to testify, the court would likely appoint

independent counsel to advise him about that decision in light of his pending trial. Howard

ultimately decided not to testify. Although Martinez believed that Lopez would have appreciated

it if Howard testified, Martinez made no further attempt to secure Howard’s testimony. In

Lopez’s trial, Martinez called Lopez’s mother and Vanessa Peralez to support that Bernadette

consented to sexual relations with Lopez.



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       At the close of the guilt/innocence phase of Lopez’s trial, the jury convicted Lopez of two

counts of sexual assault. During the punishment hearing, the State presented evidence that

Lopez had beaten and vaginally penetrated a woman named Josephine, the mother of his child,

with a metal pole. Lopez had been charged with the sexual assault of Josephine, and that trial

was scheduled after Lopez’s trial concerning Bernadette. During closing arguments (in the case

concerning Bernadette), the State asked the jury to punish Lopez for what he did to Josephine.

Lopez was sentenced to twenty years’ imprisonment for both counts of sexual assault. Lopez

filed a motion for new trial, arguing that he received ineffective assistance of counsel, and

Martinez testified at the hearing. The trial court denied the motion. Lopez appeals.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In two issues, Lopez argues that the trial court erred by denying his motion for new trial,

which was based on claims of ineffective assistance of counsel. Lopez contends that: (1)

Martinez’s joint representation of him and Howard gave rise to an actual conflict of interest that

adversely affected Martinez’s representation; and (2) Martinez failed to object to the State’s

argument regarding Lopez’s extraneous assault of Josephine during the punishment phase.

A. The Cuyler Standard for Ineffective Assistance of Counsel

       The Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.

CONST. amend. VI. This right encompasses both the right to counsel and to reasonably effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685–86 (1984); Monreal v. State,

947 S.W.2d 559, 564 (Tex. Crim. App. 1997). We review most claims of ineffective assistance

of counsel under the standard set out in Strickland, but we review claims involving an actual

conflict of interest where an appellant fails to timely object at trial, such as in this case, under



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Cuyler v. Sullivan, 446 U.S. 335 (1980). Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App.

2007); James v. State, 763 S.W.2d 776, 778–79 (Tex. Crim. App. 1989).

       The Cuyler exception to Strickland has two elements. Acosta, 233 S.W.3d at 356. The

appellant must show (1) there was an actual conflict of interest (2) that conflict adversely

affected counsel’s performance. Cuyler, 446 U.S. at 350; accord Acosta, 233 S.W.3d at 355. If

an appellant shows both elements, then prejudice is presumed. Mitchell v. State, 989 S.W.2d

747, 748 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 692).

B. Actual Conflict of Interest

       1. Applicable Law

       Joint representation does not automatically create an actual conflict of interest. See

Holloway v. Arkansas, 435 U.S. 475, 482 (1978) (explaining that joint representation is not per

se ineffective assistance); James, 763 S.W.2d at 778 (same); De Leon v. State, 657 S.W.2d 160,

165 (Tex. App.—San Antonio 1983, no pet.) (same). Rather, joint representation may actually

enhance a defense when the defendants raise a common defense. See Cuyler, 446 U.S. at 348

(explaining that joint representation does not give rise to a presumption of ineffective assistance

because defendants could benefit from a common defense); Maya v. State, 932 S.W.2d 633, 635

(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (same). Although a potential conflict of

interest “inheres in almost every instance of multiple representation,” an appellant must show an

actual conflict of interest under Cuyler. See Cuyler, 446 U.S. at 348.

       Counsel has an actual conflict of interest if he “‘is required to make a choice between

advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own)

to the detriment of his client’s interest.’” Acosta, 233 S.W.3d at 355 (quoting Monreal, 947

S.W.2d at 564). In joint representation cases, an actual conflict exists if “‘one defendant stands



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to gain significantly by counsel adducing probative evidence or advancing plausible arguments

that are damaging to the cause of a co-defendant whom counsel is also representing.’” Routier v.

State, 112 S.W.3d 554, 584 (Tex. Crim. App. 2003) (quoting James, 763 S.W.2d at 779). “An

appellant must identify specific instances in the record that reflect a choice that counsel made

between possible alternative courses of action, such as ‘eliciting (or failing to elicit) evidence

helpful to one [interest] but harmful to the other.’” Gaston v. State, 136 S.W.3d 315, 318 (Tex.

App.—Houston [1st Dist.] 2004, pet. struck) (en banc) (quoting Ramirez v. State, 13 S.W.3d

482, 488 (Tex. App.—Corpus Christi 2000, pet. dism’d)).

       “[A] potential conflict may become an actual conflict, but [an appellate court may not]

speculate about a strategy an attorney might have pursued . . . in the absence of some showing

that the potential conflict became an actual conflict.” Routier, 112 S.W.3d at 585 (referencing

the analysis in James, 763 S.W.2d at 781). “‘[U]ntil a defendant shows that his counsel actively

represented conflicting interests, he has not established the constitutional predicate for his claim

of ineffective assistance.’” Acosta, 233 S.W.3d at 355 (quoting Cuyler, 446 U.S. at 349–50).

       2. Analysis

       Lopez argues that Martinez had an actual conflict of interest when he informed Howard

of his right not to testify because Martinez was, in effect, counseling Howard against testifying

in Lopez’s defense. Lopez also contends that there was an actual conflict when Martinez failed

to call Howard to testify after Howard decided not to testify. We disagree with both points.

       Martinez planned on raising a common defense in both Lopez’s and Howard’s trial:

Bernadette’s consent. For this reason, Martinez testified that he never anticipated any conflict




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between Lopez and Howard. 1 As such, this is an instance of joint representation that is expected

to benefit both defendants. See Cuyler, 446 U.S. at 348; Maya, 932 S.W.2d at 635.

        Moreover, this case is distinguishable from Ex parte Parham, 611 S.W.2d 103 (Tex.

Crim. App. 1981), which Lopez cites, holding that there was an actual conflict when counsel,

who was aware of a particular conflict from the start of his joint representation, advised one co-

defendant not to testify that he shot the victim in defense of the other. See id. at 105. There is no

evidence in the present case that Martinez instructed Howard not to testify.                         Specifically,

Martinez testified:

        I advised [Mr. Howard] that because he had a case pending, obviously his right
        not to testify and invoke his Fifth Amendment privileges would apply. I
        suggested to him, however, that the judge would probably take it upon himself to
        appoint other counsel to investigate that issue before Mr. Howard testified. . . . I
        tried to couch it in terms of passing on information, I wouldn’t call it advice. Yes,
        I was [Mr. Howard’s] lawyer. However, I knew the Court was not going to allow
        me in the middle of a trial to be consulting with Mr. Lopez, at the same time
        consulting with Mr. Howard. So I suggested to [Mr. Howard] that if he still
        wanted to testify, that he come down to the court, we make the situation known to
        the Court and the Court would probably appoint . . . outside counsel to consult
        with Mr. Howard . . . .

Martinez further testified that Howard had initially volunteered to testify in Lopez’s defense.

Martinez planned to call Howard so long as he was willing to testify and had always considered

it to be Howard’s choice whether to testify. Unlike the attorney in Parham who attempted to

persuade a willing co-defendant not to testify, Martinez merely informed Howard that he had the

right not to testify and Howard thereafter became unwilling to testify.

        An attorney representing a defendant has the duty to inform his client of his privileges

and rights regarding his decision to testify. See Johnson v. State, 169 S.W.3d 223, 235 (Tex.


1
  Martinez testified: “The case never got to the point where I felt there was a conflict that prevented me from
effectively representing Mr. Lopez.” He further explained that he did not anticipate any conflict because he believed
that Lopez and Howard would raise the same defense, neither Lopez nor Howard was likely to try to shift blame to
the other, or no evidence would help one defendant that would hurt the other.

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Crim. App. 2005) (“[D]efense counsel shoulders the primary responsibility to inform the

defendant of his right to testify, including the fact that the ultimate decision belongs to the

defendant.”). Thus, an attorney’s fulfillment of this duty when he is representing co-defendants

does not automatically give rise to an actual conflict of interest because this duty exists in every

instance of joint representation. See Holloway, 435 U.S. at 482; James, 763 S.W.2d at 778

(same); De Leon, 657 S.W.2d at 165.

       We also find Lopez’s second argument unpersuasive.              Martinez could not have

compelled Howard to testify and, after Howard had changed his mind, Martinez was not

permitted to call him to testify. See Whitmore v. State, 570 S.W.2d 889, 896 (Tex. Crim. App.

1976) (“A defendant may not call as a witness a co-defendant who has indicated he will assert

his privilege against self-incrimination under the Fifth Amendment of the United States

Constitution.”); Phelps v. State, 730 S.W.2d 198, 201 (Tex. App.—San Antonio 1987, no pet.);

see also Victoria v. State, 522 S.W.2d 919, 922 (Tex. Crim. App. 1975) (holding that a co-

defendant did not have the right to compel another co-defendant to testify although she had

waived the right in a previous proceeding). Thus, because it was Howard who chose not to

testify, it was not Martinez’s actions or inactions that advanced either Howard’s or Lopez’s

interests over the other’s interests. See Acosta, 233 S.W.3d at 355; Monreal, 947 S.W.2d at 564

(requiring that it be counsel’s choice to advance other interests above a client’s interest to

constitute an actual conflict of interest). We therefore conclude that there was no actual conflict

of interest and Lopez is not entitled to a presumption of prejudice under Cuyler.

B. Failure to Object to Closing Argument

       Lopez also claims he received ineffective assistance of counsel because Martinez failed

to object to the following statement in the State’s closing argument: “Ladies and gentlemen, no



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one can predict the future. No one even knows if [Josephine’s] case will ever be tried or heard.

No one knows. We are here on one case, [Bernadette’s], and part of [Bernadette’s] punishment

includes what happened to [Josephine].” Lopez argues that the State effectively told the jury that

it should convict and punish Lopez for what he did to Josephine independent of his acts with

Bernadette.

       To establish ineffective assistance of counsel based on attorney error, an appellant must

meet both prongs of the Strickland standard by showing that trial counsel’s assistance “fell below

an objective standard of reasonableness” and thereby prejudiced the appellant’s defense.

Strickland v. Washington, 466 U.S. 668, 687–88 (1984); accord Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). When reviewing an ineffective assistance claim for deficient

assistance, we look to “the totality of the representation and the particular circumstances of each

case.” Thompson, 9 S.W.3d at 813. A claim of ineffective assistance of counsel “must be firmly

founded in the record.” Id.

       At the hearing on Lopez’s motion for new trial, Martinez gave four reasons why he did

not object to the States’ closing argument. First, he was concerned that it might draw attention to

the argument when the jurors may not have been paying attention. Second, he explained that

objecting may have caused some jurors to give the evidence more weight because the defense

wanted to keep it out. Third, he stated that the court could have overruled the objection. And

finally, he did not object because the State had spent so little time on the issue that he did not

believe it was worth objecting to. Because Martinez explained that not objecting was part of his

trial strategy, to which we must give great deference, Lopez has not established that Martinez’s

performance was deficient. See Strickland, 466 U.S. at 689.




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                                      DOUBLE JEOPARDY

       In his remaining two issues, Lopez contends that the State’s statement that Lopez needed

to be punished for his acts toward Josephine violated the prohibitions against double jeopardy

under both the Texas and U.S. constitutions.        “The Texas constitutional protection against

multiple punishments is not broader than that provided in the federal constitution.        It is,

therefore, unnecessary to analyze the Texas provisions separately.” Ex parte Williamson, 924

S.W.2d 414, 415 n.4 (Tex. App.—San Antonio 1996, pet. ref’d).

       The Texas and U.S. constitutions prohibit multiple prosecutions for the same criminal

offense.   See U.S. CONST. amend. V; TEX. CONST. art. 1, § 14.         These prohibitions entail

protection against: (1) a second prosecution for the same offense after acquittal; (2) a second

prosecution for the same crime after a conviction; and (3) multiple punishments for the same

offense. N. Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds, Alabama

v. Smith, 490 U.S. 794 (1989); Lopez v. State, 108 S.W.3d 293, 295–96 (Tex. Crim. App. 2003).

When a double jeopardy violation is raised for the first time on appeal, as in this case, the

violation must be apparent on the face of record and the “enforcement of the usual rules of

procedural default [must] serve legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643

(Tex. Crim. App. 2000).

       Lopez’s alleged assaults on Bernadette and Josephine would constitute separate criminal

offenses. Therefore, Lopez’s only plausible argument for a double jeopardy violation is that the

State’s argument in this case constituted a prosecution for Lopez’s acts regarding Josephine and

that the State could not pursue a second prosecution in a subsequent trial.       However, the

admission of evidence of extraneous crimes or bad acts does not constitute a prosecution but




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rather shows the defendant’s character, which is relevant to sentencing. See Lopez v. State, No.

04-07-00472-CR, 2008 WL 859159, at *2 (Tex. App.—San Antonio Apr. 2, 2008, pet. ref’d). 2

                                                  CONCLUSION

         Based on the foregoing analysis, we affirm the judgment of the trial court.

                                                          Rebecca Simmons, Justice

PUBLISH




2
  At oral argument, counsel for Lopez cited United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001), but that case is
highly distinguishable as it does not relate to prosecutorial statements made in closing arguments.

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