i          i        i                                                                   i      i      i




                                   MEMORANDUM OPINION

                                           No. 04-08-00532-CR

                                             Eddie R. SOSA,
                                               Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                        From the 216th Judicial District Court, Kerr County, Texas
                                         Trial Court No. A07-75
                              Honorable Stephen B. Ables, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis Speedlin, Justice

Delivered and Filed: July 8, 2009

AFFIRMED

           Appellant, Eddie R. Sosa, pled guilty, without a plea agreement, to three counts of aggravated

assault. The trial court assessed punishment at sixty years’ confinement on each count, with the

sentences to run concurrently. In a single issue on appeal, Sosa contends he did not receive effective

assistance of counsel during the sentencing phase because his trial counsel had an actual conflict of

interest. We affirm the trial court’s judgment.
                                                                                        04-08-00532-CR

                                          BACKGROUND

        Sosa initially pled not guilty to the three counts against him, and trial before a jury

commenced. During defense counsel’s cross-examination of Ms. Rhonda Ramos (the complainant),

Sosa interrupted the proceedings and asked to approach the bench. Before the trial court could

excuse the jury, Sosa stated, “My lawyer wants me to commit perjury on the stand and I want these

people [the jury] to know that . . . and I want Ms. Ramos in here too.” The trial court excused both

the jury and Ms. Ramos. At a bench conference, with Sosa, defense counsel, and the prosecutor,

Sosa said he did not want “to put Ms. Ramos through anymore of this, no more. . . . I would like

this to end and I’m throwing myself on the court . . . .” The trial court explained the only way to stop

the trial would be for Sosa to enter into a plea arrangement, at which point Sosa stated, “Well, the

trial - - you want me to go forward with the trial with a lawyer that wants me to commit perjury on

the stand. . . . That’s why I want the jury in here to listen to this.”

        The trial court attempted to explain to Sosa that he could tell his story during trial when he

testified. However, Sosa restated his desire to not subject Ms. Ramos to further questioning. When

the trial court told Sosa it would not stop the trial unless he entered into a plea arrangement, Sosa

agreed to plead guilty. Following a brief conference at which Sosa, defense counsel, and the

prosecutor reached an agreement, the trial court accepted Sosa’s plea of guilty and his plea of true

to the enhancements. A formal sentencing hearing was set to commence after completion of the

presentence investigation. Before the trial court ended the guilt phase, however, the prosecutor

stated her concern over Sosa’s allegation that his attorney wanted him to commit perjury, to which

Sosa responded:

               That, you know, those statements were made back there between me and my
        attorney. Only me and my attorney knows what really went on back there, so I can’t


                                                  -2-
                                                                                        04-08-00532-CR

       – I’m not going to say that didn’t happen, because it did happen, but I’m not going
       to – you know, I can sit here and say anything I want, but again, that – you know, that
       was back there with me and my attorney and I can say he did and he can say he
       didn’t, you know. It’s just going to be that way.

       When the trial court asked if he was comfortable making his plea, Sosa replied, “That’s not

why I pleaded guilty. I pleaded guilty because, again, I say it’s for Ms. Ramos. It has nothing to do

with [defense counsel].” Prior to sentencing, defense counsel filed a motion to withdraw, in which

he stated good cause existed for his withdrawal because Sosa refused to cooperate, Sosa accused him

“of siding with the prosecution,” and he could not effectively communicate with Sosa “in a manner

consistent with good attorney-client relations. He has accused his attorney of unethical conduct.”

The trial court denied the motion.

       At the sentencing hearing nothing further was said about the perjury allegation. Sosa filed

a motion for new trial, in which he did not complain about any conflict of interest or that his attorney

wanted him to commit perjury. The motion for new trial was overruled by operation of law, and

Sosa filed this appeal.

                                   CONFLICT OF INTEREST

       On appeal, Sosa contends that when a defendant accuses his attorney of attempting to suborn

perjury, “an obvious conflict of interest arises because the attorney can no longer argue at sentencing

that his client is credible in expressing remorse.”

       An attorney’s conflict of interest may result in ineffective assistance of counsel. Ex parte

Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). To demonstrate that a conflict of interest

violated his right to reasonably effective assistance of counsel, a defendant must show that: (1) an

actual conflict of interest existed, and (2) trial counsel actually acted on behalf of those other

interests during the trial. Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007). An actual


                                                  -3-
                                                                                        04-08-00532-CR

conflict of interest exists if counsel is required to choose between advancing his client’s interests in

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

See Ex parte Morrow, 952 S.W.2d at 538. A showing of a potential conflict of interest is not

sufficient to constitute an actual conflict of interest. Ex parte McFarland, 163 S.W.3d 743, 759 n.52

(Tex. Crim. App. 2005); James v. State, 763 S.W.2d 776, 780 (Tex. Crim. App. 1989) (“potential,

speculative conflicts of interest” may not be “elevated to the position of actual, significant

conflicts”). Therefore, the issue here is whether Sosa’s allegation that his attorney wanted him to

commit perjury is enough to create an actual conflict of interest. We conclude it does not.

       On appeal, Sosa relies on People v. Brown, 352 N.E.2d 15 (Ill. App. Ct. 1976), for his

argument that the “conflict was readily apparent” because his defense counsel “having been accused

of perjury, was placed in the awkward position of defending himself and denying the validity of

defendant’s accusation while urging the court to consider defendant’s good moral character in an

attempt to obtain probation or leniency.” Id. at 17. However, in Brown, the defendant’s allegation

was specific: “Prior to the date set for the sentencing hearing, defendant submitted a letter to the

court in which he denied participating in the sale [of narcotics] but admitted that his testimony that

he was not present at the sale and was not acquainted with Herbert Anderson was not true.

Defendant stated that he committed perjury because his attorney conditioned his representation of

defendant on defendant testifying falsely.” Id. at 16.

       Unlike in Brown, Sosa’s allegation against his attorney was not specific. During the guilt

phase, the trial court provided Sosa with an opportunity to explain his allegation that defense counsel

wanted him to perjure himself on the stand. Sosa provided no specifics to support his allegation.

In his motion for new trial, Sosa did not raise the complaint. Even on appeal, Sosa provides no



                                                  -4-
                                                                                        04-08-00532-CR

further details in support of his allegation except to argue defense counsel was unable to vouch for

Sosa’s credibility because counsel “suffered from an acute conflict of interest that could not help but

impair [counsel’s] representation . . . .” Although an allegation of perjury may raise a potential

conflict that “may become an actual conflict, . . . we decline to speculate about a strategy an attorney

might have pursued, but for the existence of a potential conflict of interest, in the absence of some

showing that the potential conflict became an actual conflict.” Routier v. State, 112 S.W.3d 554, 585

(Tex. Crim. App. 2003).

                                          CONCLUSION

       For the reasons stated above, we conclude Sosa’s allegation against his attorney amounts to

no more than a potential, speculative conflict of interest, which we will not elevate to the position

of an actual, significant conflict. Therefore, we overrule Sosa’s issue on appeal and we affirm the

trial court’s judgment.

                                                        Karen Angelini, Justice



Do not publish




                                                  -5-
