                                   NO. 07-01-0353-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                  MARCH 20, 2002
                          ______________________________

                               JOSEPH PETE ROCKHOLT,

                                                         Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

            FROM THE 46th DISTRICT COURT OF HARDEMAN COUNTY;

                       NO. 3686; HON. TOM NEELY, PRESIDING
                        _______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

       Joseph Pete Rockholt (appellant) appealed his conviction for driving while

intoxicated. His two points of error concerned the sufficiency of the evidence underlying

the conviction and the trial court’s failure to grant him a new trial. We affirm.

                            Issue One – Conflict of Interest

       Appellant initially contended that the trial court erred in denying his motion for new

trial. He believed himself entitled to same because “of the conflict of interest between the

Prosecutor and the attorney for the Defendant.” The supposed conflict existed because
the prosecutor and counsel were uncle and nephew, respectively. Furthermore, this

conflict “prejudiced [the appellant] in the form of ineffective counsel.” (Emphasis added).

We overrule the contention for the following reasons.

        First, appellant admitted to knowing of the relationship between his attorney and the

prosecutor before trial. Despite having this knowledge, he voiced no objection. Under this

situation, he must show that an actual conflict existed before we can hold that he was

denied effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct.

1708, 1719, 64 L. Ed. 2d 333, 347-48 (1980); Pollan v. State, 612 S.W.2d 594, 596 (Tex.

Crim. App. 1981). A potential conflict is not enough. Id. Here, the only purported

evidence of a conflict consisted of the familial relationship between defense counsel and

the prosecutor. However, that alone is not evidence of an actual conflict. State v. Kelley,

20 S.W.3d 147, 154-55 (Tex. App.–Texarkana 2000, no pet.). Given this and the absence

of any evidence tending to illustrate that trial counsel was required to choose between

advancing appellant’s interests or those of another, see Ex parte Morrow, 952 S.W.2d 530,

538 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 810, 142 L.Ed.2d. 31, 119 S.Ct. 40

(1998) (stating that a conflict exists when counsel must choose between advancing his

client’s interests or those of another to his client’s detriment), appellant failed to illustrate

that his counsel was ineffective.1

        Second, appellant’s trial counsel was not appointed by the State but retained. So

too did appellant know of the relationship in question before trial and withheld objection


        1
        That no actual conflict existed distinguishes the situation before us from that in Ramirez v. State,
13 S.W.3d 482 (Tex. App.-Corpus Christi 2000, pet. denied), a case upon which appellant relied. Thus,
Ramirez is not controlling.

                                                     2
or comment. Moreover, the trial court afforded him opportunity to develop the supposed

conflict via a hearing on his motion for new trial. Other than opining that trial counsel may

not have fought for him “like I thought he should have,” no evidence of how the relationship

impacted upon the quality of counsel’s representation or the outcome of the trial was

presented. On the other hand, appellant did acknowledge that 1) his attorney and the

State’s representative came “to words” at least once during the trial and 2) trial counsel

did not refuse to do anything which appellant asked him to do.

          While the court in Kelley stated that a potential conflict may be a factor to weigh

when a trial court is asked to grant a new trial, it did not hold that a potential conflict alone

warrants a new trial. Kelley v. State, 20 S.W.3d at 155. This is especially so when the trial

court gave the appellant a chance to develop the purported conflict (albeit post-trial) and

appellant proved neither a conflict nor its affect. Under these circumstances, we cannot

say that the trial court abused its discretion in refusing to grant appellant a new trial. See

id. at 150 (holding that the decision to grant a new trial lies in the discretion of the trial

court).

                          Issue Two – Sufficiency of the Evidence

          Next, appellant questioned the sufficiency of the evidence underlying his conviction.

The entirety of his argument consisted of the following:

          The Defendant does not recite point by point the relative weight of the
          evidence for reversal because of the presumed error heretofore set forth in
          Point of Error No. 1. Vel non this assertion, it is submitted that the weight
          and sufficiency of the evidence is contrary to the verdict rendered in this
          case justifying a reversal and remand for new trial.




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As can be readily seen, neither legal authority nor analysis accompanies the contention.

Consequently, appellant failed to comply with Texas Rule of Appellate Procedure 38.1(h)

requiring same and, thereby, waived the contention. Alvarado v. State, 912 S.W.2d 199,

210 (Tex. Crim. App. 1995) (holding that one waives an issue if he neither cites authority

supporting it or provides substantive analysis explaining it).

       Accordingly, the judgment is affirmed.



                                                                 Brian Quinn
                                                                    Justice

Do not publish.




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