                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      §                 No. 08-13-00013-CR

                                                      §                      Appeal from
    EX PARTE: ANNA KNELSEN
                                                      §            Criminal District Court No. 1

                                                      §              of El Paso County, Texas

                                                      §           (TC # 20060D02425-DCR1-1)

                                       CORRECTED OPINION

        The State of Texas appeals from an order granting Anna Knelsen’s petition for writ of

habeas corpus. See TEX.CODE CRIM.PROC.ANN. art. 11.072 (West 2015). We reverse and render

judgment denying the writ of habeas corpus. Knelsen’s conviction is reinstated.

                                        FACTUAL SUMMARY

        On April 30, 2006, Anna Knelsen, a permanent resident alien, and her husband, Johan

Knelsen, were entering the United States through the Bridge of Americas port of entry in El Paso

County, Texas.1 Immigration and Customs Enforcement searched the Knelsens’ vehicle and

found more than thirty pounds of marihuana hidden inside of the spare tire. An El Paso County

grand jury indicted Knelsen for possessing more than five but less than fifty pounds of

marihuana, a third-degree felony. Peter Giovannini represented both of the Knelsens and each of

them entered a guilty plea on June 1, 2006 during the same hearing. The trial judge, Sam

1
  The opinion will refer to the two defendants collectively as the Knelsens, to Anna Knelsen as Knelsen, and to
Johan Knelsen as Johan.
Paxson, advised the Knelsens that no one expected the Knelsens to plead guilty unless they were

guilty, and each of them had an absolute right to plead not guilty and to have the case heard by a

jury. The following exchange occurred when Judge Paxson asked Knelsen whether she pled

guilty or not guilty to the charge offense:

       [Knelsen]: Not guilty.

       [The Court]: Huh?

       [Knelsen]: Not guilty.

       [The Court]: Not guilty?

       [Defense counsel]: Your Honor, we’ve made an agreement. We amended that
       plea with [the prosecutor] to allow for time served, and basically she’s -- was
       that --

       [The prosecutor]: No, no. She’s still pleading guilty -- that was the plea
       agreement. She’s still pleading guilty to six foreign national, but I took off the
       days as a condition of her probation. But she’s entered a ‘not guilty’ plea, so --


       [Defense counsel]: Your Honor, actually, that’s correct. She entered a ‘no con’ --

       [The Court]: You have to talk to her. She’s entering the plea.

       [Defense counsel]: Correct, Your Honor. She’s -- it’s been explained to her,
       Your Honor. Can she enter a ‘no contest’ plea, Your Honor, in this court? This is
       my first time in Impact Court, Your Honor; but, if that’s okay with Mr. Duke.

       [The Court]: Well, I would normally say ‘yes,’ except she’s already said ‘not
       guilty;’ so, I have to have her say that she’s guilty, you know. And I won’t accept
       a no --

       [Defense counsel]: She understands, Your Honor. She’s going to.

       Knelsen then entered a plea of guilty and the trial court placed her under oath. When the

court asked Knelsen whether she possessed marihuana on April 30, 2006, she replied: “Well, I

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didn’t know about it, but, yeah. Yes, yes.” The following exchange then occurred:

       [The Court]: You had marijuana? Okay. Now, ma’am, I don’t want to accept the
       plea if you’re not guilty. Do you understand that? You have a right to go to trial;
       okay? Now, how old are you again?

       [Knelsen]: 54.

       [The Court]: And on the 30th day of April of 2006, were you here in El Paso,
       Texas?

       [Knelsen]: Yes.

       [The Court]: And did you possess some marijuana?

       [Knelsen]: Yes.

       [The Court]: You don’t contest that the amount of marijuana that you had was
       more than five pounds?

       [Knelsen]: Yes.

       [The Court]: And you at this time are telling me that all the allegations set forth
       in this indictment are true and correct?

       [Knelsen]: Yes.

       [The Court]: I can’t hear you.

       [Knelsen]: Yes.

The trial court then found Knelsen guilty and assessed her punishment at imprisonment for six

years, probated for six years foreign-national community supervision. Knelsen did not appeal.

       Almost six years later, Knelsen filed an application for writ of habeas corpus pursuant to

Article 11.072.   See TEX.CODE CRIM.PROC.ANN. art. 11.072.          The application alleged the

following as grounds for relief:

       1. the record of Knelsen’s guilty plea does not show that the plea was made

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           intelligently and knowingly;

       2. Knelsen is actually innocent;

       3. Knelsen was deprived of the effective assistance of counsel where counsel
          failed to advise Knelsen that she could not be found guilty of unlawful
          possession based on mere presence in the vehicle where the marihuana was
          found;

       4. Knelsen was constructively deprived of the effective assistance of counsel
          because counsel labored under an actual conflict of interest;

       5. the trial court failed to take appropriate action against trial counsel to protect
          Knelsen from the conflict of interest;

       6. Knelsen’s guilty plea is involuntary because trial counsel erroneously advised
          her that a ‘no contest’ plea is different than a guilty plea; and

       7. the record does not affirmatively demonstrate a sufficient factual basis to
          support Knelsen’s guilty plea.

The State filed a timely answer to the writ application.

       At the evidentiary hearing, Knelsen relied exclusively on her sworn pleadings and the

record of the guilty plea, while the State presented the testimony of Knelsen’s attorney, Peter

Giovannini. Giovannini met with both of the Knelsens in the courtroom on June 1, 2006. He

advised both of them that there could be a potential conflict of interest in dual representation and

it could jeopardize each person’s defense. After discussion of the matter, Knelsen told him that

she wanted him to represent her and she would waive any conflict of interest. Giovannini did not

get a written waiver from Knelsen. He also discussed the facts and circumstances of the case

with Knelsen and advised her what he believed the State could prove beyond a reasonable doubt

at a jury trial. He recalled that Knelsen chose to plead guilty, but she was worried about the

immigration consequences of a guilty plea. It was Giovannini’s understanding at the time that a

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person who pled no contest might have a better chance of reentering the United States upon

application. Consequently, he advised Knelsen to plead no contest. Judge Paxson refused to

accept a no contest plea, and after consulting briefly with Giovannini, Knelsen changed her plea

to guilty. He recalled that she wanted to plead guilty and put the case behind her instead of

going to trial. Giovannini testified that there was no actual conflict of interest because Knelsen

told him that she knew the marihuana was concealed in the tire and they had done this before.

          At the conclusion of the hearing, the habeas court orally granted habeas relief. The court

thereafter entered written findings of facts and conclusions of law and vacated Knelsen’s

conviction. In its fact findings, the judge expressly made a finding that Giovannini’s testimony

was not credible. The conclusions of law reflect that the trial court granted the writ on two

grounds: (1) Knelsen was deprived of the effective assistance of counsel by Giovannini’s dual

representation of the Knelsens on the same charge because he labored under an actual conflict of

interest; and (2) Knelsen’s guilty plea was not voluntarily, knowingly, and intentionally entered

because it was a product of ineffective assistance of counsel by her trial counsel. The State

appealed.

          We granted the State’s motion to abate the appeal in order for the habeas court to make

supplemental findings of fact and conclusions of law with respect to the actual conflict of interest

ground. Our order also directed the trial court to address both prongs of the Strickland v.

Washington test for ineffective assistance of counsel.2 The trial court filed supplemental findings

and conclusions.           The supplemental findings reiterated the court’s determination that

Giovannini’s testimony was not credible. In its conclusions of law, the habeas court found that
2
    Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
                                                        -5-
Knelsen, as a result of her attorney’s deficient performance, did not freely, voluntarily, and

knowingly waive her rights and enter the guilty plea. Additionally, the court concluded that

Knelsen and her husband had conflicting defenses, trial counsel never informed Knelsen of any

possible conflicts of interest, and never obtained a knowing waiver of the conflicts of interest.

                                     ACTUAL CONFLICT OF INTEREST

          In its first issue, the State asserts that the record does not support the habeas court’s

factual findings related to the existence of an actual conflict of interest, and even assuming a

conflict existed, Knelsen failed to prove that the conflict had an adverse effect on specific

instances of counsel’s performance.

                                             Standard of Review

          The burden is on the habeas corpus applicant to prove her claims by a preponderance of

the evidence.       Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App. 2011) Ex parte

Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App. 2002). The trial judge is the sole finder of fact

in an Article 11.072 habeas case. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex.Crim.App. 2011).

When reviewing a trial court’s decision to grant or deny habeas relief in an Article 11.072 habeas

case, we apply the highly deferential Guzman3 standard of review. State v. Guerrero, 400

S.W.3d 576, 583 (Tex.Crim.App. 2013); Ex parte Garcia, 353 S.W.3d at 788. Under this

standard, we afford almost total deference to the trial court’s findings of historical fact that are

supported by the record. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App. 2006).

Likewise, we will defer to the trial court’s rulings on “application of law to fact questions” if the

resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Ex
3
    Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).
                                                      -6-
parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003), overruled in part on other grounds

by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). On the other hand, if the resolution

of the ultimate questions turns on an application of legal standards absent any credibility issue,

we review the determination de novo. Ex parte Peterson, 117 S.W.3d at 819.

                            Actual Conflict of Interest Ineffectiveness

       Ineffective assistance may result from an attorney’s conflict of interest. Strickland, 466

U.S. at 692, 104 S.Ct. at 2067. An attorney’s representation of co-defendants is not per se

violative of the constitutional guarantee of effective assistance of counsel. See Holloway v.

Arkansas, 435 U.S. 475, 483, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978); James v. State, 763

S.W.2d 776, 778 (Tex.Crim.App. 1989). Absent special circumstances or a timely objection to

multiple representation, the Sixth Amendment does not require a trial judge to initiate an inquiry

into the propriety of multiple representation in every case. Cuyler v. Sullivan, 446 U.S. 335,

345-47, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980).

       Because Knelsen’s conflict of interest claim arises from trial counsel’s dual

representation of the Knelsens, the correct standard is the one articulated in Cuyler v. Sullivan,

446 U.S. 335, 348-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980) rather than Strickland v.

Washington. See Acosta v. State, 233 S.W.3d 349, 352-53 (Tex.Crim.App. 2007). To establish a

Sixth Amendment violation, a defendant who raised no objection at trial must demonstrate by a

preponderance of the evidence that an actual conflict of interest adversely affected counsel’s

performance. Cuyler, 446 U.S. at 348-49, 100 S.Ct. at 1718; Odelugo v. State, 443 S.W.3d 131,

136 (Tex.Crim.App. 2014). Under the Cuyler standard, the defendant must show that trial


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counsel actively represented conflicting interests and he was adversely impacted as a result. See

Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719. If the defendant makes these showings, prejudice

is presumed. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Cuyler, 446 U.S. at 348-50, 100

S.Ct. at 1718-19; Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997).

       An actual conflict of interest exists when one defendant “stands 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.”            James, 763 S.W.2d at 779.

Counsel’s failure to emphasize the culpability of one defendant over another defendant does not

create an actual conflict. Kegler v. State, 16 S.W.3d 908, 911 (Tex.App.--Houston [14th Dist.]

2000, pet. ref’d). To show the required adverse impact, the defendant must show that some

plausible defensive strategy or tactic might have been pursued but was not due to the conflict of

interest. Ramirez v. State, 13 S.W.3d 482, 487 (Tex.App.--Corpus Christi 2000), pet. dism’d

improvidently granted, 67 S.W.3d 177 (Tex.Crim.App. 2001). Finally, the defendant must show

an actual conflict exists as the mere possibility of a conflict is insufficient to overturn a criminal

conviction. Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719.

                                     The State of the Evidence

       In support of her conflict of interest claim, Knelsen relied exclusively on her sworn

pleadings and the reporter’s record of the guilty plea. Knelsen’s writ application sets forth a

recitation of “[f]acts obtained from the El Paso Police Department’s offense reports.” The writ

application states that the police offense reports are attached, but the offense reports are not

attached to the copy of the application in the clerk’s record or to the copy admitted at the hearing


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as Applicant’s Exhibit 1. Many of the habeas court’s findings of fact, including those relevant to

the conflict of interest claim, are drawn directly from the sworn pleadings and its recitation of

what was purportedly stated in the police reports.

        In a habeas action brought under Article 11.072, matters alleged in the application that

are not admitted by the State are considered denied. TEX.CODE CRIM.PROC.ANN. art. 11.072,

§ 5(e); State v. Guerrero, 400 S.W.3d 576, 583 (Tex.Crim.App. 2013). In this case, the State did

not admit any matters in its answer. Further, it is well established that sworn pleadings are an

inadequate basis upon which to grant relief in any habeas case. Guerrero, 400 S.W.3d at 583.

Knelsen asserts in her brief that the State waived any complaint about the habeas court

considering the sworn pleadings because it did not object when she offered a copy of her

pleadings at the end of the hearing. The State’s failure to object to the pleadings does not

transform them into competent evidence nor does it override the rule that sworn pleadings are

insufficient to support relief in any habeas case.

        We are also required to defer to the habeas court’s express determination that trial

counsel lacked credibility, and as a result, we are not permitted to consider his testimony except

in those limited instances where the habeas court expressly found some aspect of counsel’s

testimony to be true.4 Knelsen’s actual conflict of interest claim must be evaluated in light of

that testimony and the only remaining evidence--the reporter’s record of the guilty plea hearing.

                                No Evidence Knelsen Adversely Affected

        The habeas court found that trial counsel conceded that Knelsen had a viable defense to


4
   The habeas court stated in original finding of fact nine that trial counsel conceded that Knelsen had a viable
defense to the possession of marihuana charge.
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the possession charge.      Counsel testified that Knelsen never told him that it was not her

marihuana and it belonged to her husband, and she did not try to “pin the blame on him.”

Counsel believed this would have been a viable defense, but Knelsen would not even consider

going to trial “so that was a moot point.” At the guilty plea hearing, Knelsen initially entered a

plea of not guilty. After a momentary discussion whether the court would accept a no contest

plea, Knelsen changed her plea to guilty. When asked whether she possessed marihuana as

alleged in the indictment, Knelsen replied in the affirmative but added that she did not know

about it. The trial court informed Knelsen he would not accept her guilty plea if she was not

guilty.    Knelsen subsequently admitted that she possessed the marihuana and all of the

allegations in the indictment were true. Johan also entered a plea of guilty during this same

proceeding.

          Other than stating during the guilty plea hearing that she was unaware the marihuana was

hidden in the spare tire, Knelsen offered no evidence that she had a viable defense to the

possession charge. Even if we assume for the sake of argument that Knelsen had a viable

defense in that she could have gone to trial and placed the blame on her husband, there is no

evidence in the record that this defensive strategy was not pursued as a result of the conflict of

interest. Consequently, Knelsen failed to establish by a preponderance of the evidence that she

was adversely impacted by an actual conflict of interest. See Ramirez, 13 S.W.3d at 487. Issue

One is sustained.

                          VOLUNTARINESS OF THE GUILTY PLEA

          In Issue Two, the State challenges the habeas court’s determination that Knelsen’s guilty


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plea was involuntary because it was based on erroneous advice from trial counsel. The State

additionally argues that Knelsen failed her burden to prove that trial counsel’s performance was

deficient or that any deficient performance resulted in prejudice to her.

                                         Scope of the Issue

       Before addressing the merits of Issue Two, it is necessary to consider the scope of the

issue because Knelsen argues in her brief that the State does not address a ground on which the

habeas court granted relief, and therefore, the order granting habeas relief must be upheld. The

habeas court found in Knelsen’s favor on two areas of advice provided by trial counsel: (1)

counsel erroneously advised her that she could be convicted of possession even if she was

unaware of the marihuana found concealed in the vehicle; and (2) counsel erroneously advised

her regarding the difference between a no contest plea and a guilty plea. The State focuses much

of its argument on the habeas court’s findings related to the first area of advice, and it contends

that the evidence does not support the habeas court’s determination that counsel’s performance

was deficient. This argument pertains to the first prong of the Strickland standard. The State

additionally more broadly argues that Knelsen did not meet her burden of proof with respect to

the second part of the Strickland test. If Knelsen failed to carry her burden on either parts of the

Strickland test, then her ineffective assistance of counsel claim fails. We do not find that the

State failed to address a ground on which the habeas court granted relief.

                                        Standard of Review

       To be constitutionally valid, a guilty plea must be entered voluntarily, knowingly, and

intelligently. See Fuller v. State, 253 S.W.3d 220, 229 (Tex.Crim.App. 2008). A defendant has


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the right to effective assistance of counsel during plea proceedings. Ex parte Harrington, 310

S.W.3d 452, 458 (Tex.Crim.App. 2010). A guilty plea is not knowing or voluntary if it is made

as a result of ineffective assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689

(Tex.Crim.App. 2012).

       A writ applicant seeking habeas relief on the basis of ineffective assistance of counsel

must prove by a preponderance of the evidence that: (1) counsel’s performance was deficient;

and (2) that he was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. When

a person challenges the validity of a plea entered upon the advice of counsel, contending that his

counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel’s advice

was within the range of competence demanded of attorneys in criminal cases and if not, (2)

whether there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty. Ex parte Harrington, 310 S.W.3d at 458. In determining whether a defendant

would not have pled guilty but for counsel's deficient advice, we consider the circumstances

surrounding the plea and the gravity of the alleged failure material to that determination. Ex

parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App. 1999).              The habeas applicant must

demonstrate that a decision to reject the plea bargain would have been rational under the

circumstances. See Ex parte Fassi, 388 S.W.3d 881, 887 (Tex.App.--Houston [14th Dist.] 2012,

no pet.). This objective test turns on “what a reasonable person in the defendant’s shoes would

do.” Id.

                                    No Evidence of Prejudice

       As discussed in Issue One, Knelsen relied exclusively on her sworn pleadings and the


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reporter’s record of the guilty plea. She did not testify at the writ hearing or present other

evidence such as her own affidavit setting forth facts related to the advice provided by counsel

and entry of the guilty plea. Under these circumstances, Knelsen failed to prove that, but for

counsel’s allegedly faulty advice, she would have rejected the plea bargain and would not have

entered a plea of guilty. Even if Knelsen’s sworn pleadings could be accepted as evidence, she

does not affirmatively and definitively state in her pleadings that she would have rejected the

plea bargain and would have insisted on going to trial. She instead states that she would have

insisted on being represented by a different attorney than the one who represented her husband

and “it is more likely than not that Anna Knelsen would have refused to enter a ‘no contest’ or

‘guilty’ plea to the indicted marijuana possession charge and would have insisted upon a trial

instead.” In the absence of more definitive evidence, Knelsen simply failed to prove that she

would have rejected the plea bargain and would not have entered the guilty plea. Consequently,

the habeas court erred by granting relief on this ground. Issue Two is sustained. Having

sustained both issues presented, we reverse the habeas court’s order granting habeas relief and

vacating the conviction, and we render judgment denying the application for writ of habeas

corpus. Knelsen’s conviction is reinstated.


August 26, 2015
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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