Opinion filed January 31, 2020




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-18-00016-CR
                                     __________

                   HOWARD DEE STURGIS, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 104th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 20897B


                      MEMORANDUM OPINION
      The jury convicted Howard Dee Sturgis of continuous sexual abuse of a child,
a first-degree felony offense. See TEX. PENAL CODE ANN. § 21.02(b), (h) (West
2019). The jury assessed Appellant’s punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of life. In a single
issue, Appellant contends that his right to effective assistance of counsel was
violated because his trial counsel had a conflict of interest. We affirm.
                                      Background Facts
       In May 2015, Appellant began a romantic relationship with C.D., an adult.
C.D. had two daughters, A.D. and S.D. When the events giving rise to this case
occurred, A.D. was nine and S.D. was seven.
       In early April 2017, A.D. made an outcry accusing Appellant and C.D. of
sexually abusing A.D. and S.D. A few days later, Appellant and C.D. met with an
attorney (Appellant’s trial counsel) to discuss the matter. When criminal charges
were brought later in April, Appellant and C.D. retained Appellant’s trial counsel to
jointly represent them.
       Shortly thereafter, Appellant’s trial counsel learned that the State planned to
offer C.D. a plea agreement in exchange for her testimony against Appellant.1
Because a conflict of interest was likely to arise between C.D. and Appellant,
Appellant’s trial counsel decided that he could not continue representing both
clients. Appellant’s trial counsel met with C.D. and Appellant to discuss the
situation. Appellant and C.D. agreed that C.D. should seek alternative representation
because Appellant was paying the entire fee.                  Appellant’s trial counsel then
withdrew from representing C.D., and C.D. requested a court-appointed attorney.
Thus, Appellant’s trial counsel represented C.D. for approximately one month
between April and early May 2017.
       Appellant’s case went to trial in late October 2017, approximately six months
after Appellant’s trial counsel withdrew from representing C.D. When Appellant’s
trial began, the State had not reached a plea agreement with C.D. On the third day
of trial, immediately after the State closed its case-in-chief, the prosecutor learned
that C.D. wanted to reopen plea negotiations. While the court was in a lunch recess,


       1
        Many of the details concerning the prior joint representation were developed in a hearing on
Appellant’s motion for new trial.

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the prosecutor met with C.D. and her appointed counsel. During this meeting, the
State reached an agreement with C.D. to testify against Appellant.
      When the trial proceedings resumed after the recess, the State moved to
reopen its case-in-chief so that C.D. could testify. Appellant’s trial counsel initially
objected to C.D.’s testimony on the basis that it would be cumulative of other
testimony that the jury had already heard. Appellant’s trial counsel further advised
the trial court that he had jointly represented Appellant and C.D. for a period of time.
He informed the trial court that C.D.’s anticipated testimony would be inconsistent
with what C.D. had told him when he represented her.
      The trial court heard arguments from the State and Appellant’s trial counsel.
The trial court also informally questioned C.D.’s court-appointed attorney. C.D.’s
attorney advised the trial court that C.D. knew that Appellant’s trial counsel could
cross-examine her using their privileged communications. He also stated that C.D.
voluntarily and knowingly waived any privilege she had with Appellant’s trial
counsel. The trial court allowed the State to reopen its case and call C.D. as a
witness.
      On direct examination, C.D. testified that she witnessed Appellant committing
sexual acts with A.D. and S.D. On cross-examination, C.D. admitted that she had
previously told Appellant’s trial counsel a different version of events. Appellant’s
trial counsel then asked C.D. if she remembered what she had said at that time, and
C.D. replied: “I told you that it was a crock of BS and that there’s no way that
[Appellant] could have done this stuff to [A.D. and S.D.].” Appellant’s trial counsel
further questioned C.D. about her use of illicit substances, about A.D.’s and S.D.’s
cognitive and psychological conditions, and about C.D.’s plea agreement and its
effect on her motivation for testifying.
      The jury convicted Appellant of continuous sexual abuse of a child. Appellant
subsequently filed a motion for new trial. The hearing on the motion for new trial
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dealt extensively with Appellant’s claim that his trial counsel was ineffective
because of a conflict of interest. Appellant, his trial counsel, and C.D. all testified
at the hearing. Appellant acknowledged that his trial counsel had confronted C.D.
with C.D.’s prior statements and accused C.D. of lying. The trial court denied
Appellant’s motion for new trial. This appeal followed.
                                       Analysis
      In his sole issue on appeal, Appellant contends that his trial counsel rendered
ineffective assistance due to a conflict of interest. Appellant argues that his trial
counsel’s prior representation of C.D. created an actual conflict of interest when the
State called C.D. as a witness at Appellant’s trial. Appellant also challenges the
thoroughness with which the trial court investigated the purported conflict.
      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) (citing
Strickland v. Washington, 466 U.S. 668, 692 (1984)). The Sixth Amendment
guarantees the right to reasonably effective assistance of counsel, which includes the
right to conflict-free representation. See Strickland, 466 U.S. at 692; Cuyler v.
Sullivan, 446 U.S. 335, 348–50 (1980). In the case of a conflict of interest, the
appellant must demonstrate that (1) trial counsel was burdened by an actual conflict
of interest and (2) the conflict actually affected the adequacy of counsel’s
representation. Cuyler, 446 U.S. at 349–50; Acosta v. State, 233 S.W.3d 349, 356
(Tex. Crim. App. 2007) (citing Cuyler).
      Appellant presented his claim of ineffective assistance of counsel to the trial
court in his motion for new trial. The trial court denied the motion for new trial after
a full evidentiary hearing on the matter. When an appellant presents his ineffective-
assistance claim to the trial court in a motion for new trial, an appellate court
analyzes his claim as a challenge to the denial of his motion for new trial. See
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriate
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standard of review for ineffective-assistance claim brought forth in motion for new
trial is abuse of discretion), superseded by statute on other grounds as stated in
State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007); see also Riley v.
State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds by
Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). As stated in Riley:
      An appellate court reviews a trial court’s denial of a motion for new
      trial for an abuse of discretion, reversing only if the trial judge’s opinion
      was clearly erroneous and arbitrary. A trial court abuses its discretion
      if no reasonable view of the record could support the trial court’s ruling.
      This deferential review requires the appellate court to view the evidence
      in the light most favorable to the trial court’s ruling. The appellate court
      must not substitute its own judgment for that of the trial court and must
      uphold the trial court’s ruling if it is within the zone of reasonable
      disagreement. “Where there are two permissible views of the evidence,
      the factfinder’s choice between them cannot be clearly erroneous.”
378 S.W.3d at 457 (footnotes omitted) (quoting Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574 (1985)).
      In Odelugo v. State, the Texas Court of Criminal Appeals addressed a claim
of ineffective assistance of counsel based on a conflict of interest that was presented
in a motion for new trial. 443 S.W.3d 131, 136–37 (Tex. Crim. App. 2014). The
trial court is initially charged with determining whether the appellant carried the
burden as to the elements of his conflict-of-interest ineffective-assistance claim. Id.
at 137. The trial court “has the right to accept or reject any part of a witness’s
testimony.” Id. (quoting Charles, 146 S.W.3d at 208 n.7).
             [B]ecause claims of ineffective assistance of counsel involve
      “mixed questions of law and fact” that often “contain[] ‘subsidiary
      questions of historical fact, some of which may turn upon the credibility
      and demeanor of witnesses,”’ an appellate court should review the trial
      court’s rulings on the matter “for an abuse of discretion, reversing only
      if the trial judge’s ruling was clearly erroneous and arbitrary[,]” such as
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       when “no reasonable view of the record could support the trial court’s
      ruling.”
      Id. (footnote omitted). But “[w]hen . . . the trial court’s ruling on a motion for
new trial is supported by at least one reasonable view of the record, the ruling may
not be disturbed.” Id. at 140.
      Regarding the first Cuyler prong, “[a]n ‘actual conflict of interest’ exists if
counsel 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 v. State, 947 S.W.2d
559, 564 (Tex. Crim. App. 1997)). An appellant making an ineffective-assistance
claim predicated on a conflict of interest must demonstrate the existence of the
conflict by a preponderance of the evidence. Odelugo, 443 S.W.3d at 136. If an
appellant fails to present any evidence on the issue or if the evidence “‘is in perfect
equipoise,’ the appellant’s claim will fail.” Id. at 136–37 (quoting Broxton v. State,
909 S.W.2d 912, 920 (Tex. Crim. App. 1995)).
      Joint representation of codefendants creates a potential conflict, but it is
insufficient, in and of itself, to demonstrate an actual conflict necessary for an
ineffective-assistance claim. Johnson v. State, 583 S.W.3d 300, 316 (Tex. App.—
Fort Worth 2019, pet. ref’d). Nor does the fact that an attorney has to cross-examine
a former client translate into an actual conflict of interest. Id. (citing United States v.
Olivares, 786 F.2d 659, 663 (5th Cir. 1986)). Instead, an actual conflict of interest
exists when the attorney actively represents conflicting interests. Acosta, 233
S.W.3d at 355 (citing Cuyler, 446 U.S. at 349–50).
      Regarding the second Cuyler prong, an appellant’s allegation alone that
counsel has not been zealous in his representation does not establish an actual
conflict of interest. See Acosta, 233 S.W.3d at 355 (noting that the appellant must
show that trial counsel “actually acted” on behalf of other interests at trial). “[T]he
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possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler, 446
U.S. at 350. Theorizing about possible conflicts does not satisfy an appellant’s
burden; rather, “[a]n 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 [client’s interest] but
harmful to the other [client’s interest].” Johnson, 583 S.W.3d at 315 (first alteration
in original) (quoting Malek v. State, No. 03-10-00534-CR, 2012 WL 370551, at *7
(Tex. App.—Austin Feb. 1, 2012, pet. ref’d) (mem. op. on reh’g, not designated for
publication)).
      An effective cross-examination can risk breaching an attorney’s duty to
maintain a former client’s confidences. Id. at 316 (citing Tex. Disciplinary Rules
Prof’l Conduct R. 1.05, 1.09, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G,
app. A (Tex. State Bar R. art. X, § 9)). A defendant’s right to effective assistance of
counsel is violated when his lawyer cannot cross-examine a government witness, or
is chilled in doing so, because of the attorney–client privilege stemming from the
lawyer’s prior representation of the government witness. Id.
      The facts in Johnson are similar to the facts in this case. See id. at 311–12.
The trial counsel in Johnson had previously represented the defendant and the
defendant’s ex-wife on the “same set of cases.” Id. at 312. The representation of
the ex-wife lasted approximately one month, and it terminated eight months before
trial. Id. When the State sought to call the ex-wife, the trial counsel in Johnson
asserted that he had an ethical dilemma because he would be cross-examining his
former client. Id. at 312–13. The ex-wife waived any claim of privilege between
her and trial counsel. Id. at 313. Afterwards, trial counsel vigorously cross-
examined the ex-wife. Id. The Fort Worth Court of Appeals concluded in Johnson
that the potential conflict did not blossom into an actual conflict because “the very
basis for the actual conflict was removed by the waiver.” Id. at 316. “The waiver
                                           7
removed counsel from the vise of having to decide whether to favor the interests of
one client over the other.” Id. The court also concluded that no potential conflict
colored counsel’s action at trial. Id. at 317.
       Appellant raises a potential concern regarding his trial counsel’s inability to
cross-examine C.D. due to the prior representation. But the concern for this potential
conflict never materialized into an actual conflict in this case. As the holder of the
privilege, C.D. had the right to waive any claim of privilege that existed between
Appellant’s trial counsel and herself. See Bailey v. State, 507 S.W.3d 740, 747 (Tex.
Crim. App. 2016) (“[Texas Rule of Evidence] 511(1) specifies that a person on
whom the rules confer a privilege against disclosure waives the privilege if the
person voluntarily discloses or consents to disclosure of any significant part of the
privileged matter, unless such disclosure itself is privileged.”). Thus, we cannot say
that the potential conflict ever blossomed into an actual conflict because C.D.’s
waiver removed the very basis of the actual conflict. See Johnson, 583 S.W.3d at
316.
       Appellant also argues that his trial counsel had a personal conflict of interest.
Specifically, Appellant contends that his trial counsel continued representing
Appellant to avoid having to refund Appellant’s fee. Appellant has pointed to
nothing in the record that supports this conclusion, nor have we found any support
for it. Appellant’s assertions amount to merely theorizing about potential conflicts,
which is insufficient to sustain his burden. Id. at 315. Thus, Appellant has failed to
demonstrate an actual conflict of interest.
       In addition to the lack of an actual conflict in this case, the record reflects that
no conflict—actual or potential—colored Appellant’s trial counsel’s actions.
Appellant’s trial counsel thoroughly cross-examined C.D. Appellant’s counsel
impeached C.D. with statements C.D. made in the course of their attorney–client
relationship. These statements would have been protected from disclosure because
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of the attorney–client privilege, but as we discussed, C.D. waived the privilege
between herself and Appellant’s trial counsel. While Appellant asserts that the
alleged conflict impeded his trial counsel’s cross-examination of C.D., the record
demonstrates the contrary. Thus, Appellant has not met his burden under the second
Cuyler prong to demonstrate that the alleged conflict adversely affected his trial
counsel’s performance.
      Appellant also challenges the adequacy of the trial court’s inquiry into the
alleged conflict of interest. Appellant contends that, upon learning of the potential
conflict, the trial court should have halted the proceedings and held a hearing sua
sponte to investigate the alleged conflict. Because Appellant concedes that his trial
counsel informed the trial court of the potential conflict, Appellant can only be
challenging the thoroughness with which the trial court investigated the conflict. See
Routier v. State, 112 S.W.3d 554, 581 (Tex. Crim. App. 2003) (citing Holloway v.
Arkansas, 435 U.S. 475, 484 (1978)). This presents Appellant with an uphill battle,
however, because only narrow grounds exist for attacking a conviction based on the
nature of the trial court’s inquiry, and an appellant usually must still prove the
conflict adversely impacted his representation. See Johnson, 583 S.W.3d at 314.
       When a defendant or his attorney brings a potential conflict of interest to the
trial court’s attention, the trial court is obligated to investigate the potential conflict
to determine “whether the risk of the conflict of interest is too remote to warrant
separate counsel.” Routier, 112 S.W.3d at 581 (quoting Holloway, 435 U.S. at 484).
Automatic reversal is required only where the defendant or his counsel informs the
trial court of the conflict and the trial court fails to take adequate steps to investigate
the conflict. Holloway, 135 U.S. at 484. Although Holloway involved a conflict
within the multiple-representation context, the Court of Criminal Appeals has
extended Holloway’s duty to inquire to all attorney conflicts of interest, not just


                                            9
conflicts involving multiple codefendants. See Dunn v. State, 819 S.W.2d 510, 519
(Tex. Crim. App. 1991).
      Whether the trial court’s inquiry into an alleged conflict is adequate depends
on the circumstances. See id. (concluding that the trial court’s inquiry was adequate
given the circumstances of the case); see also United States v. Fields, 483 F.3d 313,
352 (5th Cir. 2007) (“The duty to inquire is not so formalistic as to require
affirmative questioning when such is rendered unnecessary because the parties have
volunteered all the relevant information for a court to determine that no substantial
conflict exists.”). It is not always necessary for the trial court to hold a hearing
concerning an alleged conflict when the defense does not request one or when there
is not a valid basis for the asserted conflict. See, e.g., Malcom v. State, 628 S.W.2d
790, 791–92 (Tex. Crim. App. 1982) (stating that the trial court was not required to
hold a hearing on a motion to withdraw where the defendant did not request one);
see also Calloway v. State, 699 S.W.2d 824, 830–31 (Tex. Crim. App. 1985)
(holding that the trial court did not neglect its duty to hold a hearing when the motion
to withdraw did not advance a valid basis for the conflict).
      We conclude that the trial court adequately investigated the potential conflict
of interest at trial. After Appellant’s trial counsel objected to the State calling C.D.,
the trial court heard arguments from Appellant’s trial counsel and the State. The
trial court learned that the basis for the potential conflict was Appellant’s trial
counsel’s short-lived and long-since-terminated representation of C.D. The trial
court then informally questioned C.D.’s appointed counsel, who informed the trial
court that C.D. was willing to waive any claim of privilege that she had with
Appellant’s trial counsel. Once the trial court was convinced that C.D. had validly
waived the privilege, it was reasonable for the trial court to conclude that there was
no actual conflict of interest. Moreover, at the hearing on the motion for new trial,
the parties and the trial court thoroughly explored the alleged conflict and its effect,
                                           10
if any, on the trial. Therefore, the trial court’s investigation into the conflict was not
constitutionally inadequate.
        Finally, Appellant asserts that the trial court should have sua sponte declared
a mistrial because of the alleged conflict. We disagree. To avoid a double jeopardy
violation, a mistrial granted without the defendant’s consent must be based on
manifest necessity. See Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002).
A trial judge’s discretion to declare a mistrial based on manifest necessity is limited
to “very extraordinary and striking circumstances.” Id. (quoting Downum v. United
States, 372 U.S. 734, 736 (1963)). Given the fact that no actual conflict of interest
existed, a sua sponte mistrial was not warranted. We overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.



                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


January 31, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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