Opinion issued March 11, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NOS. 01-12-01138-CR
                                01-12-01139-CR
                                01-12-01140-CR
                                01-12-01141-CR
                          ———————————
                       JEROME GOODY, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



                 On Appeal from the 178th District Court
                          Harris County, Texas
      Trial Court Cause Nos. 1339911, 1339912, 1339913, and 1339914


                        OPINION ON REHEARING

     Following the issuance of our original opinion, Jerome Goody moved for

rehearing en banc. The panel withdraws our original opinion, vacates our prior
judgment, and issues this opinion on rehearing and a new judgment in their stead.

      Appellant Jerome Goody pleaded guilty to an aggravated robbery charge and

three aggravated assault charges, without an agreed punishment recommendation

from the State. TEX. PENAL CODE ANN. §§ 22.02, 29.03 (West 2011). He also

pleaded true to an enhancement paragraph alleging that he had been adjudged to

have engaged in delinquent conduct.          The trial court ordered a pre-sentence

investigation (PSI) and, after receiving the PSI report, held a punishment hearing.

See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9 (West Supp. 2013). The court

assessed punishment at life imprisonment for the aggravated robbery charge, sixty

years’ imprisonment for aggravated assault against a public servant, and ten years’

imprisonment for each of the two counts of aggravated assault with a deadly

weapon. Goody appeals from the trial court’s denial of his motion for new trial,

contending that he received ineffective assistance of counsel because (1) his

counsel had a conflict of interest which compromised his representation, (2) his

counsel was incompetent as a matter of law, and (3) his counsel failed to

adequately investigate for mitigation evidence. Finding no error, we affirm.

                                   Background

      In September 2010, Jerome Goody, Charles Davis, and Jay Scott Garrison

pulled into a bank parking lot in north Houston. Goody and Davis entered the

bank wearing masks and displaying handguns. Mitchell Bettin, a sheriff’s deputy


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who was present at the scene, drew his handgun. Goody and Davis fired at Deputy

Bettin and struck him twice in the left arm. As the robbers fled, Deputy Bettin

returned fire, firing five or six shots at them through the bank’s glass door.

        Some hours later, Goody presented to LBJ Hospital with a gunshot wound to

his leg. Following an investigation, he was indicted for aggravated robbery and

aggravated assault. He also was indicted on two aggravated assault charges arising

out of a June 2010 altercation with a man and a woman, Zachary Thrasher and

Carol Boston, during which Goody fired a handgun at Thrasher’s feet and his car.

        Following guilty pleas by his co-defendants, Goody pleaded guilty to all

charges without an agreement with the State as to sentencing. After the trial court

assessed punishment, Goody moved for a new trial, contending that he received

ineffective assistance of counsel. He appeals from the denial of his motion.

                                     Discussion

I.      Standard of Review

     We review a trial court’s ruling on a motion for new trial under an abuse of

discretion standard, reversing “only if the trial judge’s opinion was clearly

erroneous and arbitrary.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.

2012). We view the evidence in the light most favorable to the trial court’s ruling,

must not substitute our judgment for that of the trial court, and must uphold the

ruling if it was within the zone of reasonable disagreement. Id.; Wead v. State, 129


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S.W.3d 126, 129 (Tex. Crim. App. 2004) (under abuse of discretion standard,

appellate court must uphold trial court’s ruling if within zone of reasonable

disagreement). If there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous. Riley, 378 S.W.3d at 456–58.

Thus, a trial court abuses its discretion in denying a motion for new trial only when

no reasonable view of the record could support its ruling. Id.; Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007).

II.      Ineffective Assistance of Counsel

      We evaluate claims of ineffective assistance of counsel under the analytical

framework set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). To prevail under Strickland, an appellant must show both that

(1) counsel’s performance fell below an objective standard of reasonableness and

(2) but for counsel’s unprofessional error, there is a reasonable probability that the

result of the proceeding would have been different. Id.; Vasquez v. State, 830

S.W.2d 948, 949 (Tex. Crim. App. 1992).              Strickland defines reasonable

probability as a “probability sufficient to undermine confidence in the outcome.”

466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look

to the totality of the representation to determine the effectiveness of counsel,

indulging a strong presumption that the attorney’s performance falls within the

wide range of reasonable professional assistance or trial strategy. Thompson v.


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State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Furthermore, a claim of

ineffective assistance must be firmly supported in the record. Id.

      A. Conflict of Interest

      Goody contends that his trial counsel had a conflict of interest that affected

the adequacy of his counsel.      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.668, at 692, 104 S. Ct. at 2064, 2067;

Cuyler v. Sullivan, 446 U.S. 335, 348–50, 100 S. Ct. 1708, 1718–19 (1980); see

also TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.06(b), reprinted in TEX.

GOV’T CODE ANN., tit. 2, subtit. G, app. A (TEX. STATE BAR R. art. X, § 9)

(providing that attorney shall not represent person if representation “reasonably

appears to be or become adversely limited by the lawyer’s . . . responsibilities to

another client or to a third person”). In the case of a conflict of interest, trial

counsel renders ineffective assistance if the defendant can demonstrate (1) that trial

counsel was burdened by an actual conflict of interest and (2) that the conflict

actually affected the adequacy of counsel’s representation. Cuyler, 446 U.S. at

349–50, 100 S. Ct. at 1719. If a defendant establishes both of these requirements,

he need not demonstrate prejudice—the second prong of ineffective assistance

claims under the usual Strickland standard—to obtain relief. Id.; see also Banda v.

State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) (“If appellant demonstrates [the


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Cuyler requirements], then the second prong of the Strickland test will be met

because prejudice is presumed.”).

      An “actual conflict of interest” exists if “counsel is required to make a

choice between advancing his client’s interests in a fair trial [and] advancing other

interests . . . to the detriment of his client’s interest.” Acosta v. State, 233 S.W.3d

349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947 S.W.2d 559, 564

(Tex. Crim. App. 1997)); McKinny v. State, 76 S.W.3d 463, 477 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (citing Ex parte Morrow, 952 S.W.2d 530, 538

(Tex. Crim. App. 1997)).       A potential conflict of interest, without more, is

insufficient to reverse a conviction. See Cuyler, 446 U.S. at 350, 100 S. Ct. at

1719; Ex parte Meltzer, 180 S.W.3d 252, 256 (Tex. App.—Fort Worth 2005, no

pet.) (“The showing of a potential conflict of interest does not constitute an actual

conflict of interest.”). Absent a showing that a potential conflict of interest became

an actual conflict, we will not “speculate about a strategy an attorney might have

pursued, but for the existence of a potential conflict of interest.” Routier v. State,

112 S.W.3d 554, 585 (Tex. Crim. App. 2003).

      During the motion for new trial hearing, Goody adduced evidence that his

attorney, Ronald Ray, had been indicted for barratry. Goody contends that the

barratry offense presents a conflict of interest that compromised Ray’s

representation of Goody in this case. A lawyer who employs a non-lawyer to


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solicit business for him commits barratry. See TEX. PENAL CODE ANN. § 38.12

(West 2011). Ray employed Jeremiah Binder, purportedly a minister, to solicit

business for him.

      Goody cites the Second Circuit’s decision in United States v. Cancilla, 725

F.2d 867 (2d Cir. 1984), for the proposition that an attorney who fears criminal

liability may avoid mounting a vigorous defense because, by doing so, he may call

attention to his own crimes. Goody points to the court’s observation that “[s]uch a

person cannot be wholly free from fear of what might happen if a vigorous defense

should lead the prosecutor or the trial judge to inquire into his background . . . .”

Cancilla, 725 F.2d at 869–70 (quoting Solina v. United States, 709 F.2d 160, 164

(2d Cir. 1983)).

      In Cancilla, Peter Cancilla was involved in an insurance fraud scheme in

which he submitted false insurance claims relating to damaged cars. Id. at 868.

Cancilla appealed his conviction on the basis that his counsel’s representation of

the body shop that repaired the cars constituted a conflict of interest. Id. While the

appeal was pending, the government discovered information suggesting that

Cancilla’s trial counsel had himself committed such a fraud with one of Cancilla’s

co-conspirators. Id. The court reasoned that “with the similarity of counsel’s

criminal activities to Cancilla’s schemes and the link between them, it must have

occurred to counsel that a vigorous defense might uncover evidence or prompt


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testimony revealing his own crimes . . . .” Id. at 870. The court’s holding that an

attorney’s own crimes might compromise his representation of his client was

predicated on the similarity between the attorney’s crimes and the defendant’s

crimes and they related to the same facts. See id.

      In contrast to counsel’s misconduct in Cancilla, Ray’s criminal misconduct

does not share a common factual basis with Goody’s crimes such that a vigorous

defense would expose Ray’s misdeeds. Goody did not demonstrate that Ray’s

conduct actually affected the adequacy of Ray’s representation. See Cuyler, 446

U.S. at 349–50, 100 S. Ct. at 1719. In the absence of specific allegations or

evidence of an actual adverse effect on Ray’s representation of Goody, the trial

court was within its discretion to deny the motion for new trial; we will not

speculate as to how a fear of prosecution might have affected Ray’s performance.

See Routier, 112 S.W.3d at 585.

      Goody further responds that, because Ray was under indictment for barratry

while he represented Goody, his license to practice law was in jeopardy, making

him ineffective as a matter of law. In Cantu v. State, the Court of Criminal

Appeals held that a layman acting as counsel is ineffective as a matter of law. 930

S.W.2d 594, 602 (Tex. Crim. App. 1996).          In that case, however, the Court

prescribed a different rule for suspended or disbarred counsel, holding that “[a]

suspended or disbarred attorney is incompetent as a matter of law if the reasons for


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the discipline imposed reflect so poorly upon the attorney’s competence that it may

reasonably be inferred that the attorney was incompetent to represent the defendant

in the proceeding in question.” Id. at 602. The court listed seven relevant factors

to consider in determining whether a suspended or disbarred attorney is

incompetent. Id. at 602-03.

      Although Ray’s barratry charge was pending while he represented Goody,

the record does not indicate that he lacked a valid license to practice law, or that he

had been suspended or disbarred. Cantu’s per se rule applies only to attorneys who

are not properly licensed at the time of representation. As a result, we do not reach

the Cantu factors. Because Goody has not demonstrated that the pending criminal

charge actually conflicted with Ray’s representation of him or that it affected his

assistance as counsel, we hold that the trial court did not abuse its discretion in

concluding that Goody failed to demonstrate that Ray was incompetent as a matter

of law.

      B. Failure to Investigate

      Second, Goody contends that his counsel’s investigation of mitigating

evidence was inadequate, particularly evidence relating to Goody’s developmental

disability and history of mental illness.

      In considering whether trial counsel conducted an adequate investigation for

potential mitigating evidence, we focus on whether the investigation supporting


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counsel’s decision not to introduce mitigating evidence of Goody’s background

was reasonable. See Freeman v. State, 167 S.W.3d 114, 117 (Tex. App.—Waco

2005, no pet.) (quoting Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 2535

(2003)).      While “Strickland does not require counsel to investigate every

conceivable line of mitigating evidence,” “counsel can . . . make a reasonable

decision to forego presentation of mitigating evidence [only] after evaluating

available testimony and determining that it would not be helpful.” Wiggins, 539

U.S. at 533, 123 S. Ct. at 2537; Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d). Counsel’s representation is ineffective,

then, if counsel failed to conduct an adequate pretrial investigation. Wiggins, 539

U.S. at 521, 123 S. Ct. at 2535–36; Freeman, 167 S.W.3d at 117.

          If counsel’s investigation was deficient, then a defendant must show that a

reasonable probability exists that the fact-finder’s assessment of punishment would

have been less severe in the absence of defense counsel’s deficient performance.

Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d).      “The likelihood of a different result must be substantial, not just

conceivable.” Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 792

(2011). In reviewing whether the defendant satisfied this showing, we accord

“almost total deference to a trial court’s findings of historical fact as well as mixed

questions of law and fact that turn on an evaluation of credibility and demeanor.”


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Riley, 378 S.W.3d at 458–59. Further, when the trial judge presiding over a

motion for new trial also presided over the trial itself, we presume that the judge

knew how evidence admitted at the motion for new trial would have affected his

ruling on punishment. See Smith v. State, 286 S.W.3d 333, 344–45 (Tex. Crim.

App. 2009).

      Goody contends that his counsel was ineffective for failing to discover

mitigation evidence which would have shown that he is developmentally disabled

and had cognitive deficiencies which would have reduced his moral culpability at

sentencing. He suggests that if his counsel had obtained his mental health records

and presented them at his punishment hearing, he would have received a reduced

sentence.

      We need not reach the question of whether Goody’s trial counsel erred

because he has not established prejudice. The same judge who presided over

Goody’s punishment hearing heard his motion for new trial. All of the documents

which Goody’s trial counsel purportedly should have discovered were included in

the record at the motion for new trial. Goody’s appellate counsel discussed the

exhibits in considerable detail at the hearing on the motion. We presume from the

trial court’s denial of Goody’s motion that the documents, even if

discovered, would not have affected its decision on sentencing. See Smith, 286

S.W.3d at 344–45. The trial court rejected the credibility of some of the new trial


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evidence as conflicting with other evidence heard at the punishment hearing; he

concluded that none of it outweighed Goody’s escalating violent criminal conduct

or his gang affiliation and leadership. In short, the trial court rejected the idea that

the punishment that it assessed would have been mitigated by this evidence. We

hold that Goody has failed to show that he was prejudiced by his attorney’s failure

to produce the documents at his punishment hearing.

      Goody contends alternatively that the mitigation evidence admitted at the

motion for new trial hearing might have influenced plea negotiations. However, to

defeat the presumption of reasonable professional assistance, any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.         Thompson v. State, 9

S.W.3d 808, 813–14 (Tex. Crim. App. 1999); Rivera v. State, 123 S.W.3d 21, 29

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The record in the present case

provides scant information on the plea-bargaining process, counsel’s strategy at

that stage in the proceedings, or counsel’s awareness of Goody’s mental health

history. Without an adequate showing, we decline to hold that Goody’s counsel

was ineffective in connection with negotiating Goody’s guilty plea.




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                                    Conclusion

      We hold that Goody has not carried his burden to prove ineffective

assistance of counsel. We therefore affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.4.




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