                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 MIGUEL RUEDA,                                                  No. 08-08-00186-CR
                                                §
                        Appellant,                                   Appeal from
                                                §
 v.                                                         Criminal District Court No. 1
                                                §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                §
                        Appellee.                               (TC # 20070D01087)
                                                §

                                          OPINION

       Miguel Rueda appeals his conviction of possession with intent to deliver more than 400

grams of cocaine. Appellant waived his right to a jury trial and entered a negotiated plea of

guilty. The trial court found Appellant guilty and assessed his punishment in accordance with the

plea bargain at imprisonment for a term of fifteen years. We affirm.

                                     FACTUAL SUMMARY

       Officer Gabriel Corral, a K-9 officer, conducted a traffic stop of a vehicle driven by

Alfredo Tapia because Tapia did not signal his intent to turn. Appellant was a passenger in the

vehicle. Both Tapia and Appellant were extremely nervous during the traffic stop. Tapia

consented to a search of the truck but added that the truck belonged to someone in Appellant’s

family. Corral then asked Appellant for consent to search the vehicle and Appellant agreed.

Tapia and Appellant exited the vehicle and sat on the curb while Corral searched the truck with

his K-9, Barry. The dog alerted to the odor of narcotics in the portion of the extended cab behind

the seats. Corral found two bricks of cocaine in a compartment behind the driver’s seat. Tapia

gave a statement in which he admitted he was paid $500 to deliver the two packages. Appellant
made a video-recorded statement in which he said he had been present when the truck was

loaned to Tapia.

         Both Tapia and Appellant were indicted for possession of more than 400 grams of

cocaine and El Paso attorney, Gary Hill, represented both men. Following a hearing, the trial

court denied a motion to suppress filed by Tapia and Appellant.1 Appellant later waived his right

to a jury trial and entered a negotiated plea of guilty. The trial court found Appellant guilty and

assessed his punishment in accordance with the plea bargain at imprisonment for a term of fifteen

years. Appellant filed notice of appeal and a motion for new trial alleging that the State failed to

prove a prima facie case and new evidence had been discovered which would exonerate

Appellant. The motion for new trial was overruled by operation of law. The trial court granted

Appellant’s request for permission to appeal.

                                         CONFLICT OF INTEREST

         Appellant raises two issues related to counsel’s alleged conflict of interest. In Issue One,

Appellant contends that the trial court erred by failing to conduct a hearing after becoming aware

of trial counsel’s potential conflict of interest arising from his dual representation of Appellant

and co-defendant Tapia. In his second issue, Appellant argues that he was denied the effective

assistance of counsel at trial because of the conflict.

         In certain cases, representation by the same attorney of multiple defendants in the same

criminal trial may constitute ineffective assistance of counsel. Holloway v. Arkansas, 435 U.S.

475, 489-90, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978); James v. State, 763 S.W.2d 776,

778 (Tex.Crim.App. 1989); Howard v. State, 966 S.W.2d 821, 825 (Tex.App.--Austin 1998, pet.



         1
            Tapia was present at the hearing on the motion to suppress, but Appellant did not appear and the trial court
forfeited his bond.
ref’d). Without an objection to joint representation, however, trial courts have no affirmative

duty to inquire whether a conflict of interest exists. Lerma v. State, 679 S.W.2d 488, 494

(Tex.Crim.App. 2003); Howard, 966 S.W.2d at 825. Unless the trial court knows or reasonably

should know that a particular conflict exists, the court may assume that there is no conflict and

need not initiate an inquiry. Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717-18, 64

L.Ed.2d 333 (1980); Calloway v. State, 699 S.W.2d 824, 829-30 (Tex.Crim.App. 1985);

Howard, 966 S.W.2d at 825.

         The record does not reflect an objection in the trial court to the joint representation, but

Appellant maintains that the existence of the joint representation put the trial court on notice of a

potential conflict of interest. Contrary to Appellant’s argument, the mere fact that an attorney

engages in joint representation of two defendants does not put the trial court on notice of a

potential conflict of interest such that the trial court would be required to conduct a hearing on its

own motion to determine whether a conflict of interest might exist. See Howard, 966 S.W.2d at

825-26 (noting that weight of Texas authority precluded a holding that the district court was

obligated under the Texas Constitution to sua sponte conduct a hearing into the possibility that

trial counsel might experience a conflict of interest by representing both defendants at trial). We

have found nothing in the record showing the trial court was put on notice of that a conflict of

interest might exist. Accordingly, the court did not err by not conducting a hearing on the issue.

See Pina v. State, 127 S.W.3d 68, 73-74 (Tex.App.--Houston [1st Dist.] 2003, no pet.)(rejecting

argument that joint representation of three defendants should have put trial court on notice of a

conflict of interest); Howard, 966 S.W.2d at 826 (rejecting argument that the trial court was

obligated to sua sponte conduct a hearing into potential conflict of interest where attorney

represented two defendants). We overrule Issue One.
        While ineffective assistance of counsel may result when an attorney labors under a

conflict of interest, an attorney’s joint representation of two or more defendants is not per se

violative of constitutional guarantees of effective assistance. Monreal v. State, 947 S.W.2d 559,

564 (Tex.Crim.App.1997); James v. State, 763 S.W.2d 776, 778 (Tex.Crim.App. 1989). In order

to prevail on a claim of ineffective assistance based on a conflict of interest, a defendant must

show that (1) his counsel was burdened by an actual conflict of interest and (2) the conflict had

an adverse effect on specific instances of counsel’s performance. Cuyler v. Sullivan, 446 U.S.

335, 348-350, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980); Monreal, 947 S.W.2d at 564.

An actual conflict of interest exists if counsel is required to choose between advancing his own

client’s interests in a fair trial or advancing other interests, including his own, to the detriment of

his client’s interest. Monreal, 947 S.W.2d at 564; James, 763 S.W.2d at 778. In the context of

multiple representation cases, an actual conflict arises when one defendant stands to gain

significantly by counsel adducing evidence or 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); James, 763 S.W.2d at 779. To show the adverse effect required under

the second prong of the Cuyler standard, the defendant must show that some plausible defense

strategy or tactic might have been pursued but was not because of a conflict of interest. Pina,

127 S.W.3d at 72.

        Appellant maintains that trial counsel labored under an actual conflict of interest because

Appellant could have mounted a defense that he was an “ignorant bystander” and the cocaine

belonged to Tapia. He adds that the two defendants “may have pointed accusatory fingers at one

another, or in some way contradicted or refused the other’s version of the facts.” But the record

does not support Appellant’s claim that he intended to incriminate Tapia while claiming
innocence or that he would have pursued such a defense had he been represented by a different

attorney. And there is no evidence that the two men had conflicting defenses. Appellant has

failed in his burden to prove an actual conflict of interest existed. See James, 763 S.W.2d at 780-

81 (no conflict of interest existed where each defendant’s alibi was distinct, neither defendant

attempted to incriminate the other, and the record did not show that either defendant would have

pursued a defense in which he blamed the other). It is therefore unnecessary to address the

second part of the Cuyler standard. We overrule Issue Two.

                         VOLUNTARINESS OF THE GUILTY PLEA

       In Issue Three, Appellant complains that his guilty plea was not voluntary because the

trial court did not ascertain whether he had read the plea papers, whether his attorney had

explained everything to him, or whether he understood the court’s explanation of the charge.

       The constitutional key to validity of a guilty plea is that it be voluntary and intelligently

made and, if upon advice of an attorney, that counsel be reasonably competent and render

effective assistance. Meyers v. State, 623 S.W.2d 397, 401 (Tex.Crim.App. 1981), citing Brady

v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The purpose of

Article 26.13 is to ensure that only a constitutionally valid plea is entered and accepted by the

judge of the trial court. Meyers, 623 S.W.2d at 402. This article requires a trial court to

admonish a criminal defendant of certain facts and rights prior to accepting a plea of guilty.

TEX .CODE CRIM .PROC.ANN . art. 26.13 (Vernon 2009). Substantial compliance with the

requirements of Article 26.13 is sufficient unless the defendant affirmatively shows he was not

aware of the consequences of his guilty plea and was misled or harmed by the court’s

admonishments. TEX .CODE CRIM .PROC.ANN . art. 26.13(c)(Vernon Supp. 2010). Further, the

admonitions required by Article 26.13 can be made either orally or in writing. TEX .CODE
CRIM .PROC.ANN . art. 26.13(d). If the court makes the admonitions in writing, it must receive a

statement signed by the defendant and the defendant’s attorney that he understands the

admonitions and is aware of the consequences of his plea. TEX .CODE CRIM .PROC.ANN . art.

26.13(d).

       The record before us reflects that the trial court admonished Appellant in writing as

permitted by Article 26.13(d). The clerk’s record includes a ten-page document entitled “Court’s

Notice to Defendant of Rights, Written Admonishments, Waiver of Rights, Judicial Confession,

and Plea Agreement.” The document advised Appellant of his constitutional rights and included

the admonishments required by Article 26.13. At the bottom of the first page which contained

the admonitions regarding Appellant’s constitutional rights and the effect of his guilty plea on

citizenship and immigration status, Appellant signed indicating he had read the page and

understood its contents. The next section addressed the charge against Appellant, the range of

punishment, the punishment recommendation, and the impact on Appellant’s right to appeal.

Appellant placed his signature at the conclusion of the section acknowledging he had read this

section and understood the contents. The following section addressed community supervision,

deferred adjudication, and parole. Appellant again acknowledged he had read the section and

understood the contents by placing his signature at the conclusion of the section. The plea papers

also included a section subtitled “Acknowledgement and Waivers” wherein Appellant

acknowledged his various constitutional rights and waiver of them. Appellant signed at the

conclusion reflecting he had read the section, understood its contents, and had signed it for the

stated purpose. Appellant also acknowledged in writing that he fully understood the nature of the

charges against him, but he wished to avoid trial and to plead guilty. The plea papers included

Appellant’s judicial confession. Appellant’s attorney represented in writing that he had
explained Appellant’s rights to him, and he certified to the trial court that Appellant was fully

aware of the nature of the charges against him, he had advised Appellant of any possible defenses

he might have, Appellant had freely and voluntarily waived his rights, and Appellant understood

the admonishments set forth in the document and was aware of the consequences of his guilty

plea. At the conclusion of the document, the trial court found that Appellant understood the

nature of the charges against him and the consequences of his waiving his rights, and that his

guilty plea was freely and voluntarily made.

       At the guilty plea, the trial court verified that Appellant had signed the plea papers and he

admonished Appellant about the nature of the charge, the range of punishment, what would

happen if the court decided to not follow the plea recommendation, and the impact of Appellant’s

guilty plea on his citizenship and immigration status. Appellant indicated to the trial court he

understood each of the admonishments. Trial counsel represented he had explained these matters

to Appellant and he stated he believed Appellant was making a free, voluntary, and knowing

waiver of his rights.

       Appellant argues his guilty plea is involuntary because the trial court did not ask

Appellant during the guilty plea whether he had read the plea papers, whether his attorney had

explained the papers to him, or whether he understood them. There is no requirement that the

judge orally inquire about voluntariness of a plea after a defendant has signed written

admonishments, statements, or waivers, and it is established that the defendant has understood

them. Lee v. State, 39 S.W.3d 373, 375 n.1 (Tex.App.--Houston [1st Dist.] 2001, no pet.);

Edwards v. State, 921 S.W.2d 477, 479 (Tex.App.--Houston [1st Dist.] 1996, no pet.). Article

26.13(d) expressly permits the trial court to admonish the defendant in writing provided the court

receives a statement signed by the defendant and the defendant’s attorney that he understands the
admonitions and is aware of the consequences of his plea. TEX .CODE CRIM .PROC.ANN . art.

26.13(d). The plea papers contain a statement complying with this requirement. Further,

Appellant’s attorney represented to the trial court during the guilty plea hearing that he had

explained these matters to Appellant and he believed Appellant was making a free, voluntary,

and knowing waiver of his rights.

       The record reflects that the trial court properly admonished Appellant in accordance with

Article 26.13. This is prima facie evidence that Appellant entered a knowing and voluntary

guilty plea; consequently, the burden shifted to Appellant to show he did not fully understand the

consequences of his plea. See Mallett v. State, 65 S.W.3d 59, 64 (Tex.Crim.App. 2001). There

is nothing in the record supporting Appellant’s assertion that he did not understand the

admonishments or the consequences of his guilty plea. We overrule Issue Three and affirm the

judgment of the trial court.


May 28, 2010
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
