Opinion issued February 4, 2014




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                                NO. 01-12-00997-CR
                            ———————————
                     JOHN ANTHONY LOPEZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1282701


                             DISSENTING OPINION

      I respectfully dissent.     Appellant, John Anthony Lopez, appeals his

conviction for murder entered after a plea of guilty. Lopez argues in two issues

that he received constitutionally ineffective assistance of counsel and is entitled to

a new trial because: (1) his trial counsel erroneously advised him that he would be
eligible for community supervision only if he pled guilty to murder, rendering his

guilty plea involuntary, and his counsel’s failure to investigate and to introduce

mitigating and rebuttal evidence was constitutionally inadequate and deprived him

of a fair trial; and (2) his trial counsel’s prior representation of the complainant’s

brother-in-law, a participant in the events leading to the complainant’s death,

adversely affected counsel’s ability to represent him and, likewise, deprived him of

a fair trial.

       I would conclude, on the basis of the facts in the record and controlling law,

that: (1) Lopez’s trial counsel conducted a constitutionally inadequate investigation

into the facts and was constitutionally ineffective in failing to offer mitigating and

rebuttal evidence on Lopez’s behalf; (2) Lopez’s trial counsel was constitutionally

compromised by his conflict of interest in having represented Landon Johnson, one

of Lopez’s two assailants in the underlying incident, on six charges of theft,

robbery, and aggravated robbery in a period spanning from 1998 to 2001;

(3) Lopez’s trial counsel’s advice that Lopez plead guilty to murder without an

agreed recommendation as to punishment as the only way to receive community

supervision and avoid jail time was erroneous and coercive and deprived Lopez of

his constitutional right to present his defenses to the murder charge; and thus

(4) Lopez’s trial counsel’s representation fell below an objective standard of

professional representation and deprived Lopez of a fair trial. I would restate and

                                          2
supplement the relevant facts as follows, and I would reverse and remand for a new

trial.

                                    Background

         On the afternoon of October 22, 2010, Lopez visited a Wing Stop with his

four-year-old daughter. Lopez was a twenty-nine-year-old Houston native and

high school graduate with a consistent employment history, including positions as

a supervisor to other employees.         His criminal record consisted of four

misdemeanor convictions, all stemming from 2003, the year he graduated from

high school. While his daughter played just inside the restaurant’s doors, Lopez

took a place in line to order food from the cashier. The complainant, Travone

Ford, and his brother-in-law, Landon Johnson, were standing in line in front of

Lopez. Once Lopez reached the front of the line, he took time to speak with the

cashier about a special discount. Lopez’s dialogue with the cashier was interrupted

by Ford, who returned to add a drink to the order he had just placed. Lopez asked

Ford to hold on until he was finished. According to Lopez’s testimony, this

request perturbed Ford, who demanded that Lopez say “please” and threatened

Lopez by stating he was a member of the Bloods street gang and would leave

Lopez “bloody.” Lopez gathered up his daughter and left the restaurant.

         Lopez testified by sworn declaration attached to his motion for new trial

that, as he was leaving the restaurant, he overheard Johnson encouraging Ford to


                                         3
follow and fight him. When he got outside, he opened his trunk, looked inside, and

then closed it. He could see Johnson and Ford through the windows and glass door

of the restaurant standing inside by the front door, and he heard Johnson instigating

Ford to go outside and fight him.

      After he placed his daughter in the back seat of the car, Lopez decided “to

try to diffuse the situation verbally” and approached the two men. They met him at

the door. Johnson began to choke Lopez and threw him against the trunk of a car

in the parking lot, and both Ford and Johnson began punching him. While trying

to avoid blows to his head, Lopez tripped and fell onto the ground, which

prompted Ford and Johnson to switch to kicking him in the body and face. As

Lopez’s daughter screamed in response to the attack on her father, Johnson and

Ford allowed Lopez to return to his feet. But they continued to assault him with

punches as they pinned him against the wall of the Wing Stop. After delivering a

final blow that once again knocked Lopez to the ground, they gave him back his

keys, which had fallen, and Ford told Lopez that he was lucky Ford and Johnson

did not shoot him, that the next time they saw him he should hope not to have his

daughter with him, and that he would kill him. Lopez testified that this threat

frightened him and put him in fear not only for his own life but for that of his

daughter. He stumbled into his car as Johnson and Ford watched him.




                                         4
      As Lopez began to reverse his way out of the parking lot, Ford climbed into

his own car and reversed it in the same direction as Lopez. As Ford was reversing

his car in the parking lot, Lopez stopped his car, retrieved a shotgun from the

trunk, and shot at the rear of Ford’s vehicle. Ford sped off. Time stamps from the

Wing Stop’s security camera footage show that approximately twenty-four seconds

elapsed from the time Lopez exited his vehicle to retrieve his shotgun and the time

he fired the shot at Ford’s car. Lopez stated that the shot he fired was aimed at the

car’s bumper in order to “deflect him away.” He stated that because of the injuries

he had suffered, he was unsure whether he could successfully retreat from another

potential attack at the hands of Ford and that he was not thinking with a clear mind

because of the attack. It was not immediately clear to Lopez that Ford had been hit

or wounded, as Ford began to travel forward and drive out of the parking lot after

Lopez fired the shot. The bullet, however, had entered Ford’s car just above the

bumper and had traveled through two rows of seats, striking Ford and mortally

wounding him.

      After firing the shot and seeing Ford’s car leave the scene, Lopez travelled

directly to his mother’s house, where she treated his injuries. He learned that Ford

had died that same evening when news covering the incident at the Wing Stop was

broadcast locally. Hours after the incident occurred, Lopez voluntarily turned

himself in to the Stafford Texas Police Department and cooperated with the police

                                         5
investigation into Ford’s death. Pictures of Lopez taken by law enforcement

personnel after he turned himself in demonstrated numerous large cuts to his face,

back, and hands. Lopez also suffered a large knot on the top of his head and

considerable swelling to his face.

      Photos from the investigation into the incident revealed that the car Ford was

driving contained a single bullet hole directly above the back bumper. Photos also

revealed two cups of alcohol in the car’s center console and a large bottle of vodka

in the front passenger area. The car’s trunk held a disassembled handle and trigger

mechanism for a pistol, and the barrel and slide of the same pistol were in the

interior door panel of the front passenger area. An autopsy performed on Ford

revealed that, at the time of his death, he had a blood alcohol level of 0.10 and also

had benzoylecgonine, the main metabolite of cocaine, in his system, indicating that

he had ingested an indeterminate amount of cocaine within twenty-four to forty-

eight hours prior to his death.

      Lopez hired attorney Don Hecker to represent him. According to both

Lopez’s unsworn declaration and Hecker’s affidavit, presented at the hearing on

Lopez’s motion for new trial, Hecker advised Lopez to plead guilty to murder

without a sentencing recommendation as the only way for Lopez to avoid jail time

and a felony on his record.




                                          6
      At the presentence investigation (“PSI”) hearing, rather than cross-examine

the complainant Ford’s aunt and guardian, Alecia Roberts, about Ford’s violent

nature, Hecker elicited information from her about Ford’s educational background

and employment history, then he asked her whether she knew Ford to be an

assaultive individual.   When she answered “no,” Hecker followed up with a

question about Ford’s employment history as a truck driver rather than confronting

her with Ford’s prior conviction for assault with a deadly weapon. Similarly, when

Hecker questioned Johnson’s wife, Kaylon Johnson, about whether either Ford or

Johnson, Ford’s brother-in-law and Lopez’s co-assailant, had an assaultive nature,

he permitted her to give an unchallenged narrative answer that they were not

assaultive, were not confrontational, and would allow anyone that they might

happen to assault to leave, as, she testified, they had done in the present case.

Hecker did not seek to introduce evidence of Johnson’s or Ford’s violent pasts and

prior criminal records or photographs of Ford, available on the internet, showing

him wearing a red bandana and exhibiting apparent gang signs.

      Hecker also allowed the State to elicit characterization of the events shown

on the surveillance camera at the restaurant in a way adverse to Lopez, without

rebuttal and without having shown Lopez either his statement or the video prior to

trial to allow him to refresh his memory of the events and inform his counsel.

      The trial court assessed Lopez’s punishment at eighteen years’ incarceration.

                                         7
      Lopez then dismissed Hecker in favor of attorney Brittany Carroll and filed

a motion for new trial.

      At the hearing on Lopez’s motion for new trial, Lopez, his mother, and his

fiancée all presented affidavits attesting to Hecker’s assurance that Lopez could

avoid going to jail by pleading guilty to murder.

      Lopez averred:

             Mr. Hecker told me that if I went to the Judge for a PSI hearing
      the Judge was going to give me probation. He told me that I had two
      options: 1) go to trial and risk going to jail, or 2) plead guilty to a PSI
      and get probation, but that if I was going to plead “guilty” that I
      should do so quickly because the Judge might change her mind about
      giving me probation. When the Judge read the admonishments I
      thought that was just procedural, and that the Judge and Mr. Hecker
      had already discussed punishment, and that we just had to go through
      the PSI hearing. Mr. Hecker told me the purpose of the PSI interview
      was to see if I was a good candidate for probation. I trusted that my
      attorney was telling me the truth. I did not know that the law did not
      allow the Judge to give me probation if I pled guilty to Murder. My
      attorney never discussed receiving deferred adjudication. I would not
      have pled guilty and waived a jury trial but for my attorney telling me
      that I would receive probation.

      Three affidavits by Hecker were also introduced at the motion for new trial

hearing. According to his own affidavit, Hecker advised Lopez that he could

receive probation but could also receive a sentence of five to ninety-nine years. He

stated, “I told him, as the Court did at the time of the plea, that there was

absolutely no way anyone could predict which of these alternatives the Judge

would select in this case.” He also stated, “The primary reason that the client did

                                          8
not want to have a jury trial in this case was that if a jury gave him adult probation

it would be a conviction and his only chance to avoid a conviction was a not guilty

from a jury trial or deferred adjudication probation from the Court. He selected the

plea to the Court after I thoroughly went over the facts of this case.” Hecker then

described the facts as they had been presented by the prosecution at trial and

averred that these made the defense of self-defense unavailable to Lopez. He then

averred:

             I thoroughly explained to Mr. Lopez on several occasions that
      the range of punishment was 5 years to 99 years or life as well as a
      possible $10,000 fine. I also explained to him that if in fact the jury
      convicted him of the lesser-included offense of manslaughter and they
      gave him probation for 2-10 years or penitentiary time for 2-20 years
      there would still be a final felony conviction. Again, he elected to
      plead guilty as it was the only possibility under the facts in this case to
      avoid going to prison as well as avoid a felony conviction. . . . There
      is no question in my mind that he thoroughly understood every option
      available to him prior to his plea of guilty.

(Emphasis added.)

      Lopez also testified by unsworn declaration that Hecker did not advise him

of the possible defenses of self-defense or defense of a third person; nor did he

advise him that, should he go to trial, the State would have the burden of proving

intent before he could be convicted of murder. He also testified that Hecker did

not interview him about the incident prior to trial; did not refresh his memory

about the incident with his own statement, which he had given to police; did not

advise him that photographs of his injuries were available as evidence; and did not
                                          9
show him the surveillance video. Nor did Hecker introduce the photograph of

Ford’s vehicle, showing the bullet entering just above the rear bumper,

corroborating Lopez’s account of events, or call the experienced Stafford Police

sergeant who participated in the investigation and was ready and willing to testify,

based on his investigation, training, and experience, that Lopez did not intend to

kill anyone.

      Lopez also presented evidence, which Hecker did not refute, that Hecker

appeared in the case a year before the trial but did not attempt to review the State’s

case files, including Lopez’s statement; that an assistant district attorney advised

Hecker of his right to review the files a month before trial, stating that they had

been open to him all along; and that Hecker first signed the required confidentiality

agreement for permission to review the file on the date he advised Lopez to plead

guilty. In his own affidavit, Hecker conclusorily averred that the evidence had all

been available to him for a year and that he had done a thorough investigation. He

did not deny any of the facts of his investigation and representation cited by Lopez.

      Lopez further testified that Hecker failed to introduce evidence of Ford’s

arrest for a terroristic threat in 1998, Ford’s plea of guilty to assault on a public

servant in 2000, or Ford’s being on community supervision for robbery at the time

of his death. Hecker also failed to introduce into evidence the two halves of a

pistol found in the front area of Ford’s car; the bottle of vodka found in the front

                                         10
seat; or the metabolite of cocaine and the 0.10 alcohol level found in Ford’s system

at the time of his death. Hecker did not introduce pictures of Ford, available on the

internet, wearing a red bandana and displaying what appeared to be gang signs.

      In addition, Lopez presented evidence that Hecker had represented Johnson,

the complainant’s brother-in-law who participated in the assault on Lopez at the

Wing Stop, in six criminal prosecutions between 1998 and 2001 in both Fort Bend

and Harris counties. These included a 1998 theft charge in Fort Bend County, in

which Johnson pleaded guilty and was sentenced to three years’ probation; a 1999

Fort Bend County theft charge, which resulted in one year of confinement; a 1999

Harris County robbery charge, which resulted in six years’ confinement; a 2000

Harris County charge of aggravated robbery with a deadly weapon, which resulted

in five years’ confinement; a 2001 Fort Bend County robbery charge, which

resulted in six years’ confinement; and a second 2001 Fort Bend County robbery

charge, which resulted in six years’ confinement. Lopez averred that Hecker did

not reveal to him his prior representation of Johnson.

      Lopez stated, “If I had known all this information I would never have pled

guilty and waived my right to a jury trial.”

      Hecker denied remembering Johnson, but he also confirmed in his affidavit

that he had represented Johnson and that he never told Lopez that he had

represented “a Landon Johnson.”

                                          11
      The trial court denied Lopez’s motion for new trial as to guilt and granted it

as to punishment only. After a new punishment hearing, the trial court entered a

second judgment of conviction and assessed Lopez’s punishment at fifteen years in

prison. Lopez responded with a second motion for new trial as to both guilt and

punishment, which the trial court denied. Lopez now appeals that denial. The

majority affirms the judgment of the trial court. I would reverse and remand for a

new trial.

                   Motion for New Trial: Standard of Review

      Appellate courts review a trial court’s denial of a motion for new trial under

an abuse of discretion standard, reversing it only if it was clearly erroneous and

arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). The trial

court’s denial of the motion is arbitrary if no reasonable view of the evidence could

support the ruling. Id. This standard requires that the appellate court review the

evidence in the light most favorable to the trial court’s ruling. Id. Appellate courts

do not substitute their own views for those of the trial court; instead, an appellate

court must affirm the ruling of the trial court if it was within the zone of reasonable

disagreement. Id. “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Id.

      The same deferential review applies to historical facts. Id. The appellate

court is free to disbelieve the statements in an affidavit, especially one unsupported

                                          12
by live testimony. Id. The Court of Criminal Appeals cited the Rules of Civil

Procedure in holding that “affidavits from an interested party may establish a fact

for summary-judgment purposes only if that evidence is ‘clear, positive and direct,

otherwise credible, and free from contradictions and inconsistencies, and could

have been readily controverted.’” Id. (quoting Charles v. State, 146 S.W.3d 204,

210 (Tex. Crim. App. 2004), superseded in part on other grounds by TEX. R. APP.

P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex.

Crim. App. 2007)); see TEX. R. CIV. P. 166a(c). It further held, “The phrase ‘could

have been readily controverted’ means ‘the testimony at issue is of a nature which

can be effectively countered by opposing evidence.’”             Id.   By contrast,

“[s]tatements in affidavits of interested witnesses concerning their own state of

mind are ‘uncontrovertible’ because ‘the mental workings of an individual’s mind

are matters about which adversaries have no knowledge or ready means of

confirming or controverting.’” Id. The trial court has discretion to disregard

statements in an affidavit that do not meet this test. Id.; Charles, 146 S.W.3d at

210.

                        Ineffective Assistance of Counsel

       Lopez argues in two issues that his trial counsel’s representation was

constitutionally defective and deprived him of a fair trial. Legal assistance that is

ineffective in preserving the fairness of a trial does not satisfy the mandate of the

                                         13
Sixth Amendment. Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 1240

(2002); Strickland v. Washington, 466 U.S. 668, 685–86, 104 S. Ct. 2052, 2063

(1984).   This Sixth Amendment protection extends to defendants who have

retained counsel as well as those who have appointed counsel. Cuyler v. Sullivan,

446 U.S. 335, 344–45, 100 S. Ct. 1708, 1716 (1980).

      Texas adopted the Strickland standard in Hernandez v. State. 726 S.W.2d

53, 57 (Tex. Crim. App. 1986); see Riley, 378 S.W.3d at 456 n.5. Under that

standard, “[i]t is the role of the court of appeals . . . to determine whether any

reasonable view of the record, viewed in the light most favorable to the trial court’s

ruling, could support the trial court’s implicit findings.” Riley, 378 S.W.3d at 459.

As a general rule, a defendant alleging a Sixth Amendment violation must

demonstrate not only (1) representation falling below an objective standard of

representation under prevailing professional norms but also (2) “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Strickland, 466 U.S. at 687, 694, 104 S.

Ct. at 2064, 2068; see Mickens, 535 U.S. at 166, 122 S. Ct. at 1240. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Riley, 378 S.W.3d at 458.

   A. First Prong of Strickland: Counsel’s Unprofessional Errors




                                         14
      Lopez argues that Hecker’s representation was constitutionally defective on

three grounds: (1) Hecker failed to do the reasonable investigation that was

necessary for him to represent Lopez professionally; (2) Hecker’s previous

representation of Johnson created a conflict of interest that prevented Hecker from

representing Lopez adequately, as shown by specific instances in the record; and

(3) Hecker erroneously advised Lopez that he should plead guilty to murder

without an agreed recommendation on punishment as the only way to avoid both

jail time and conviction for a felony.         I agree with Lopez that Hecker’s

representation was constitutionally defective because of each of these errors.

      1. Hecker’s Constitutionally Inadequate Investigation and Failure to
         Investigate and Introduce Mitigating and Rebuttal Evidence on Lopez’s
         Behalf

      Lopez contends that Hecker failed to conduct a constitutionally adequate

investigation of the facts of his case and that the failure to investigate, together

with the coerced guilty plea, prejudiced the outcome of the case such that there was

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceedings would have been different.” See Strickland, 466 U.S. at 694, 104

S. Ct. at 2068. I agree with Lopez.

      Under the Sixth Amendment, “counsel has a duty to make reasonable

investigations,” and “[p]revailing norms of practice as reflected in American Bar

Association standards and the like . . . are guides to determining what is

                                         15
reasonable. . . .” Id. at 688, 690–91, 104 S. Ct. at 2065–66; see Wiggins v. Smith,

539 U.S. 510, 521–22, 123 S. Ct. 2527, 2535–36 (2003). Put otherwise, counsel

has an obligation to become acquainted with the facts of the case and conduct a

reasonable investigation. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; Ex

parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983) (“It is fundamental that

an attorney must have a firm command of the facts of the case as well as the law

before he can render reasonably effective assistance of counsel.”); Ex parte Ewing,

570 S.W.2d 941, 947 (Tex. Crim. App. 1978) (holding that counsel has duty to

make independent investigation of facts surrounding allegations against his client).

“A natural consequence of this notion is that counsel also has a responsibility to

seek out and interview potential witnesses and failure to do so is to be ineffective,

if not incompetent, where the result is that any viable defense available to the

accused is not advanced.” Ex parte Lilly, 656 S.W.2d at 493.

      Where counsel has decided not to introduce mitigating evidence we

determine whether the investigation supporting that decision “was itself

reasonable.” Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536 (citing Strickland, 466

U.S. at 691, 104 S. Ct. at 2066) (emphasis in Wiggins). “[I]nvestigations into

mitigating evidence ‘should comprise efforts to discover all reasonably available

mitigating evidence and evidence to rebut any aggravating evidence that may be

introduced by the prosecutor.’” Id. at 524, 123 S. Ct. at 2537 (quoting ABA

                                         16
Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases 11.4.1(C), p. 93 (1989)) (emphasis added in Wiggins). An investigation into

mitigating circumstances is unreasonable when counsel abandons his investigation

after having acquired only rudimentary knowledge of relevant facts when evidence

regarding relevant facts is actually available. See id. at 524–25, 123 S. Ct. at 2537.

“In assessing the reasonableness of an attorney’s investigation, . . . a court must

consider not only the quantum of evidence already known to counsel, but also

whether the known evidence would lead a reasonable attorney to investigate

further.” Id. at 527, 123 S. Ct. at 2538. “‘[S]trategic choices made after less than

complete investigation are reasonable’ only to the extent that ‘reasonable

professional judgments support the limitations on investigation.’” Id. at 533, 123

S. Ct. at 2541 (quoting Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066).

      Here, Hecker appeared as Lopez’s attorney on November 12, 2010, a full

year before trial. An assistant district attorney faxed Hecker a letter on October 6,

2011, advising him of her office’s open-file policy and expressing concern that

Hecker might not at that time have obtained a copy of Lopez’s statement contained

in the State’s files. The assistant district attorney filed her letter with the trial court

the following day. On November 14, 2011—the same day Lopez entered a plea of

guilty on Hecker’s advice—Hecker executed a confidentiality agreement with the

District Attorney’s office that was necessary for him to obtain access to Lopez’s

                                            17
statement.   In other words, the record conclusively shows that, although he

appeared in the case a year before trial, Hecker took no steps to obtain the State’s

files containing Lopez’s statement about the facts and the surveillance video of the

incident until the day he advised Lopez to plead guilty.

      Despite Hecker’s opportunity to provide facts regarding his investigation in

his affidavit, there is no evidence in the record that Hecker at any point took the

next step of actually obtaining the State’s file and verifying whatever facts Lopez

told him. Rather, the record shows that Hecker did not introduce at trial any of the

evidence in the file favorable to Lopez, including photos of Lopez’s injuries;

photos of the interior of Ford’s car showing a gun and a bottle of vodka; Ford’s

autopsy report showing alcohol and the principal metabolite of cocaine in his

system; and photos showing the bullet entering above the rear bumper of Ford’s

car. Nor did Hecker refresh Lopez’s memory by showing him the video and his

statement so that he could rebut the State’s characterization of events. Nor did he

obtain and introduce Johnson’s and Ford’s criminal records or internet photos of

Ford wearing a red bandana and sporting apparent gang signs. Nor did he seek to

impeach or rebut any of the narrative testimony favorable to Ford and Johnson that

he elicited from Ford’s aunt and sister, Johnson’s wife, with any of the evidence of

Ford’s and Johnson’s prior bad acts.




                                         18
      The only evidence that Hecker did any investigation whatsoever is his own

self-serving and conclusory statement in his affidavit that he received all of the

State’s evidence well in advance of Lopez’s plea. However, this self-serving and

conclusory statement was readily controverted by all of the other evidence. See

Riley, 378 S.W.3d at 457. The trial court had discretion to disregard statements in

Hecker’s affidavit—and any of the other affidavits, including Lopez’s unsworn

declaration—that were not “clear, positive and direct, otherwise credible, and free

from contradictions and inconsistencies, and could have been readily

controverted.” See id. This appellate court must defer to the trial court’s ruling to

the extent it is supported by a reasonable view of the evidence. See id. But, like

the trial court, this court may not disregard evidence that is clear, direct, and easily

controvertible, as Lopez’s statements were. See id.

      Lopez testified in his declaration that “Mr. Hecker never discussed self-

defense, defense of a third person, or the state’s requirement to prove ‘intent’ as an

element of Murder,” even though, as I discuss below, the facts plainly supported

the availability of these defenses to Lopez and the potential for the State’s being

unable to prove the intent element of murder—any of which, if found by a jury in

Lopez’s favor, could have resulted in Lopez’s acquittal or conviction for a lesser-

included offense. And, again, Hecker’s affidavit confirms that “[t]he primary

reason that the client did not want to have a jury trial in this case was that if a jury

                                          19
gave him adult probation it would be a conviction and his only chance to avoid a

conviction was a not guilty from a jury trial or deferred adjudication probation

from the Court.”

      In short, the primary reason that Lopez pled guilty to murder was that his

attorney urged him to do so (1) on a false promise that a plea of guilty to murder

was his only path to deferred adjudication and avoidance of a felony on his record,

and (2) on an unfavorable presentation of the facts that effectively denied the

availability of any defenses.    Hecker gave Lopez this advice without having

obtained and reviewed with Lopez either the surveillance video or Lopez’s

statement. Thus, he advised Lopez that his complete defense of self-defense would

not succeed, that the penalty for manslaughter would be worse than that for

murder, and that he should waive a jury trial. Specifically, Hecker averred that

Lopez “selected the plea to the Court after I thoroughly went over the facts of this

case, which included a scene video of the fight between the Defendant and the

deceased Complainant and the shooting by the Defendant after he moved his

vehicle and the deceased Complainant had also driven off.” Lopez, however,

disputed this version of the facts after he reviewed his statement and the video—

which, he testified by affidavit, showed Ford’s car starting to reverse before Lopez

fired at it and struck it from behind, contrary to the State’s representation at the

punishment hearing.

                                        20
      Hecker also averred, “The basis for his defense that he was acting in self-

defense, having been beaten by the deceased Complainant and a friend, could have

failed due to the time lapse between the fight and the possible removal of the threat

being posed by the Complainant at the time the Defendant elected to fire the

weapon.” Yet time-lapse notations in the video actually showed that only twenty-

four seconds elapsed between the time Lopez retrieved his gun, after Ford started

to reverse his car into the path of Lopez’s retreating vehicle, and the time Lopez

fired at Ford’s vehicle. So Hecker’s affidavit actually shows that he pre-judged the

facts adversely to his client without showing him either the video or his statement

and without getting the client’s account of events and that he advised his client,

accordingly, to reject defenses and lesser-included offenses that could reasonably

have been found in Lopez’s favor.

      Finally, Hecker averred, “I also explained to him that if in fact the jury

convicted him of the lesser-included offense of manslaughter and they gave him

probation for 2-10 years or penitentiary time for 2-20 years there would still be a

final felony conviction. Again, he elected to plead guilty as it was the only

possibility under the facts in this case to avoid going to prison as well as avoid a

felony conviction.”

      Despite the fact that the trial court heard only facts adverse to Lopez at the

PSI hearing, the court nevertheless sentenced Lopez to only eighteen years on a

                                         21
plea of murder, and it subsequently granted a new trial on punishment and reduced

Lopez’s sentence to fifteen years following the hearing on the motion for new trial.

The historical facts, supplemented by the new evidence presented at the motion for

new trial, must be taken to support the new trial on punishment granted by the trial

court. See Riley, 378 S.W.3d at 457 (“[D]eferential review requires the appellate

court to view the evidence in the light most favorable to the trial court’s ruling.”).

The only remaining question is whether the trial court clearly erred in failing to

grant Lopez a new trial on guilt in light of the prejudicial and unprofessional

account of the law and the facts given to Lopez by his counsel to induce his plea.

See id.

      I conclude that no reasonable finder of fact could credit Hecker’s actions as

reasonable trial strategy, precluding the trial court from granting Lopez a new trial.

See id. at 459 (“It is the role of the court of appeals . . . to determine whether any

reasonable view of the record, viewed in the light most favorable to the trial court’s

ruling, could support the trial court’s implicit findings.”).       Rather, Hecker’s

investigation was objectively unreasonable and, therefore, constitutionally

defective. See Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536; Strickland, 466 U.S.

at 690–91, 104 S. Ct. at 2066; Ex parte Lilly, 656 S.W.2d at 493.

      I would hold that, even in the absence of other errors, the first prong of

Strickland—unprofessional errors by counsel—is established by Hecker’s

                                         22
constitutionally inadequate investigation and its results. See Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064.

      2. Counsel’s Conflict of Interest

      Lopez also argues that Hecker’s prior representation of Johnson—who was

Ford’s brother-in-law and who participated in the assault against Lopez on the day

in question—adversely affected Hecker’s ability to represent him and deprived him

of a fair trial. I agree with Lopez that his counsel’s conflict of interest prevented

his counsel from conducting a proper investigation, presenting arguments

favorable to Lopez, and advancing plausible arguments damaging to Ford and

Johnson, a conflict which is manifested in the record. Therefore, I would hold that

Hecker’s representation of Lopez was unprofessional on this ground as well.

      The Texas Court of Criminal Appeals has held that the proper standard by

which to analyze claims of ineffective assistance of counsel on grounds of conflict

of interest is the Cuyler v. Sullivan standard. Acosta v. State, 233 S.W.3d 349, 356

(Tex. Crim. App. 2007) (citing Cuyler, 446 U.S. at 349–50, 100 S. Ct. at 1719).

Under this standard, the defendant must show (1) that his trial counsel had an

actual conflict of interest and (2) that the conflict actually colored his counsel’s

actions during trial. Id. Stated differently, “[T]he appellant must show that an

actual conflict of interest existed and that trial counsel actually acted on behalf of

those other interests during the trial.” Id. at 355. The conflict of interest must

                                          23
manifest itself in specific instances of counsel’s performance. Pina v. State, 127

S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “[A]n actual and

sufficient 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 codefendant whom counsel is also representing.” Id.

(quoting Ferguson v. State, 639 S.W.2d 307, 310 (Tex. Crim. App. [Panel Op.]

1983)). Counsel is constitutionally ineffective due to a conflict of interest when

“an attorney is unable to cross-examine, or is chilled in the cross-examination of, a

government witness because of the attorney/client privilege arising from counsel’s

prior representation of the witness or from his duty to advance the interest of the

witness as a current client.” Ramirez v. State, 13 S.W.3d 482, 487 (Tex. App.—

Corpus Christi 2000, pet. dism’d).

      Here, the record contains numerous specific instances of inadequate

representation demonstrating Hecker’s conflict of interest. These include Hecker’s

deficient cross-examination of Ford’s aunt and of Johnson’s wife during the first

punishment hearing, in which he elicited testimony beneficial to the State’s case

against his client, Lopez—including testimony that neither Ford nor Johnson was

associated with a gang, that Ford was a peaceful individual, that Ford’s and

Johnson’s assault on Lopez was not within their normal character, and that they

had good employment histories. They also included Hecker’s failure to impeach

                                         24
these witnesses with Johnson’s previous convictions, including a conviction for

aggravated robbery with a deadly weapon, which supported Lopez’s case that these

were violent individuals and that he was justified in shooting at Ford’s car in self-

defense or in defense of another. 1

      Hecker’s performance presents a scenario similar to that in Ramirez, in

which the defense attorney was unable to cross-examine a witness because of a

conflict of interest. See Ramirez, 13 S.W.3d at 487. Therefore, applying Cuyler,

Acosta, and Ramirez, I conclude that the adverse impact of Hecker’s conflict of

interest in having represented Johnson in multiple representations on criminal

matters clearly manifested itself in the record, satisfying the standard of proof

required by those cases for Hecker to be found to have been constitutionally

ineffective as Lopez’s counsel due to a conflict of interest. See Cuyler, 446 U.S. at

349–50, 100 S. Ct. at 1719; Acosta, 233 S.W.3d at 356.

      3. Counsel’s Advice that Lopez Plead Guilty to Murder

      Finally, as the principal thrust of his first issue, Lopez contends that

Hecker’s advice that he plead guilty to murder as the only way to avoid conviction


1
      See TEX. R. EVID. 404(a)(2); Torres v. State, 71 S.W. 3d 758, 760–61 (Tex. Crim.
      App. 2002) (“A defendant in a homicide prosecution who raises the issue of self-
      defense may introduce evidence of the deceased’s violent character. The
      defendant may offer opinion or reputation testimony to prove the deceased acted
      in conformity with his violent nature. Specific, violent acts of misconduct may be
      admitted to show the reasonableness of the defendant’s fear of danger, or to show
      that the deceased was the first aggressor.”) (internal citations omitted).
                                          25
and jail time under the circumstances of this case was clearly erroneous and clearly

prejudicial and reflected constitutionally inadequate representation. Again, I agree

with Lopez.

      A guilty plea entered after a proper demonstration of ineffective assistance

of counsel is considered involuntary and therefore invalid. Ex parte Moody, 991

S.W.2d 856, 857–58 (Tex. Crim. App. 1999); Ex parte Battle, 817 S.W.2d 81, 82

(Tex. Crim. App. 1991) (“A defendant’s election to plead guilty or nolo contendere

when based upon erroneous advice of counsel is not done voluntarily and

knowingly.”). The Court of Criminal Appeals has held that erroneous advice

regarding eligibility for probation satisfies the first prong of Strickland. Riley, 378

S.W.3d at 458.

      Here, at the hearing on Lopez’s motion for new trial, Lopez introduced his

own unsworn declaration stating, “Mr. Hecker told me that if I went to the judge

for a PSI hearing the Judge was going to give me probation. He told me that I had

two options: 1) go to trial and risk going to jail, or 2) plead guilty to a PSI and get

probation, but that if I was going to plead ‘guilty’ that I should do so quickly

because the Judge might change her mind about giving me probation.” This

testimony was corroborated by affidavits from Lopez’s mother, godmother, and

fiancée. Lopez’s mother testified, “From the beginning of his representation, Mr.

Hecker told my son that he was going to try to get the case dismissed and assured

                                          26
me my son would not go to jail. He told John and I in front of Victoria Izquierdo

and Murita McKellery that the Judge was going to give him probation at the

hearing. Don Hecker said he was friends with the Judge.” Lopez stated, “I did not

know that the law did not allow the Judge to give me probation if I pled guilty to

Murder. My attorney never discussed receiving deferred adjudication.” He stated,

“I would not have pled guilty and waived a jury trial but for my attorney telling me

that I would receive probation.”

      Hecker, likewise, testified by affidavit. He stated that he approached the

judge and asked her whether she would be able to consider probation in the case.

He further testified that he “urged the Court that this case was at worst a case of

sudden passion,” and the judge told him that she would consider probation. He

then reported to Lopez “that if he entered a plea of guilty the Judge could sentence

him to 5 to 99 years or life or 5 to 10 years deferred adjudication probation” and

“that there was absolutely no way anyone could predict which of these alternatives

the Judge would select in this case.”

      Taking Hecker at his word that he told the judge “this case was at worst a

case of sudden passion,” his advice to Lopez to plead guilty to murder was

constitutionally unprofessional. “Sudden passion” is second-degree murder and,

like first-degree murder, is also charged under Penal Code section 19.02. See TEX.

PENAL CODE ANN. § 19.02(a)(2),(d) (Vernon 2011). Proof of sudden passion at the

                                        27
punishment stage of trial reduces the offense of murder to a second-degree felony.

Id. But Hecker both failed to advise Lopez on second-degree murder and failed to

put on the evidence in Lopez’s favor that could have reduced the charge to the

second-degree felony murder. He likewise failed to consider and advise Lopez of

the fact that the State would have to prove Lopez’s intent to murder to obtain a

murder conviction. Nor did he advise Lopez of the availability of other lesser-

included offenses, such as manslaughter or criminally negligent homicide. Hecker

also failed to consider and improperly advised Lopez on the availability of the

defenses of self-defense and defense of a third person. This deficient advice was

compounded by Hecker’s failure to present any of the mitigating evidence favoring

Lopez or to present any evidence establishing Lopez’s entitlement to conviction on

a lesser-included offense or to acquittal based upon the lack of intent to murder or

on the defenses of self-defense or defense of a third person.

      By having Lopez plead guilty to first-degree murder, as he did, Hecker

foreclosed the possibility that Lopez could present evidence that he acted with

sudden passion or that he did not intend to kill Ford, or another, and did not

anticipate that human life would be taken. Hecker’s deficient advice likewise

foreclosed the availability of the defenses of self-defense and defense of a third

person. Hecker’s deficient advice failed to inform Lopez of the possibility that

Lopez could have bargained for a plea to a lesser-included offense, such as

                                         28
criminally negligent homicide, manslaughter, or sudden passion, all of which were

available to him under the circumstances of this case. 2 It likewise foreclosed the

possibility of Lopez’s seeking a jury charge on these lesser-included offenses or on

the complete defenses of self-defense or defense of a third person. Instead, as

demonstrated by Hecker’s own affidavit testimony, Hecker did not challenge the

time frame the State presented by the time-lapsed video evidence available to him

to support a claim of sudden passion. He also erroneously informed Lopez that the

lesser-included offenses and defenses were not available, in spite of affirmative

evidence in the record showing that they were available to him. Hecker’s advice

also deprived Lopez of his right to a jury trial with a charge instructing the jury




2
      See TEX. PENAL CODE ANN. §§ 9.31 (self-defense); 9.33 (defense of third person);
      19.02(a)(2),(d) (sudden passion or second-degree murder); 19.04 (manslaughter);
      19.05 (criminally negligent homicide) (Vernon 2011); see also Sweed v. State, 351
      S.W.3d 63, 68 (Tex. Crim. App. 2011) (holding that, if offense is lesser included
      of charged offense and there is scintilla of evidence supporting conviction only for
      lesser offense, defendant is entitled to have lesser-included offense submitted to
      jury); Cardenas v. State, 30 S.W.3d 384, 392–93 (Tex. Crim. App. 2000) (setting
      out criminally negligent homicide and manslaughter as lesser-included offenses of
      murder with reduced mens rea requirements); Hamel v. State, 916 S.W.2d 491,
      494 (Tex. Crim. App. 1996) (holding that, where defendant was entitled to
      instruction on self-defense, he was also entitled to instruction on defense of third
      person where defendant testified he believed his use of deadly force was necessary
      to protect his own life and that of his father); Frank v. State, 688 S.W.2d 863, 868
      (Tex. Crim. App. 1985) (“[A] defendant is entitled to a charge on the right of self-
      defense against multiple assailants if ‘there is evidence, viewed from the accused’s
      standpoint, that he was in danger of an unlawful attack or a threatened attack at the
      hands of more than one assailant.’”) (quoting Wilson v. State, 145 S.W.2d 890,
      893 (Tex. Crim. App. 1940)).
                                           29
that the State had the burden of proving intent beyond a reasonable doubt to

convict Lopez of murder.

      A criminal defendant has a constitutional right under the due process clause

of the Fourteenth Amendment to present a valid defense.               Chambers v.

Mississipppi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045 (1973). Hecker’s erroneous

advice directly foreclosed any possibility of the deferred adjudication that he had

held out to Lopez to induce his guilty plea—as well as any possibility of a reduced

sentence on sudden passion, manslaughter, or criminally negligent homicide, and

any possibility of Lopez’s acquittal on grounds of self-defense or defense of a third

person.

      I would hold that Lopez’s plea of guilty was involuntary and therefore

invalid and that Hecker’s advice was unprofessional, in satisfaction of the first

prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Riley, 378

S.W.3d at 458 (concluding that erroneous advice regarding availability of

probation satisfied first prong of Strickland). I would also hold that, because

Hecker’s erroneous advice caused Lopez to waive his best options for a more

favorable outcome, the second prong of Strickland was satisfied if the record at the

motion for new trial hearing not only supported the availability of those defenses

and lesser charges to Lopez, but also supported the inference that the outcome of

the case would have been different if Hecker had not erroneously advised his client

                                         30
to plead guilty to murder. See Riley, 378 S.W.3d at 458 (holding that “counsel’s

performance in giving incorrect advice regarding probation was deficient,” so that

appellant had “met his burden under the first prong of Strickland,” but that analysis

of “the prejudice prong turns on whether the deficiency made any difference to the

outcome of the case”). I, therefore, turn to the second prong of Strickland.

   B. Second Prong of Strickland: Prejudice

      To prove constitutionally ineffective assistance of counsel, a criminal

defendant must ordinarily prove not only unprofessional errors of counsel but also

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; see Mickens, 535 U.S. at 166, 122 S. Ct. at 1240.

      For an inadequate investigation to constitute a Sixth Amendment violation,

as Lopez has alleged here, an appellant must show that his counsel’s failures

prejudiced his defense. Wiggins, 539 U.S. at 534, 123 S. Ct. at 2542 (citing

Strickland, 466 U.S. at 692, 104 S. Ct. at 2067). In assessing prejudice, the

appellate courts “reweigh the evidence in aggravation against the totality of

available mitigating evidence.” Id. The appellate court must determine whether

there is a reasonable probability that a reasonably competent attorney, aware of the

evidence, would have introduced it in an admissible form and whether there is a

reasonable probability that a fact finder confronted with the mitigating evidence

                                         31
would have returned a different verdict or sentence. See id. at 535–36, 123 S. Ct.

at 2542–43.

      Likewise, when an attorney has given incorrect advice regarding how his

client should plead, there must be a reasonable probability that but for the

erroneous advice the outcome of the case would have been different.              See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Riley, 378 S.W.3d at 458.

      However, there is an exception to the general rule that plaintiffs must prove

the second prong of Strickland—namely, when assistance of counsel has been

denied at a critical stage of the proceeding, including those cases in which the

defendant’s attorney actively represented conflicting interests. See Mickens, 535

U.S. at 166, 122 S. Ct. at 1240–41. In those cases, the defendant must establish

that the conflict of interest actually adversely affected his counsel’s performance,

but he need not establish that the result of the proceedings would have been

different but for counsel’s unprofessional errors. Id. at 170–73, 122 S. Ct. at 1243–

44. In other words, he need not prove the second prong of Strickland so long as he

establishes that the conflict of interest actually adversely affected his counsel’s

performance.

      In this case, I would conclude that Lopez established that Hecker’s conflict

of interest was at least in part responsible for Hecker’s failure to conduct a

constitutionally adequate investigation, for his failure to present Lopez’s case at

                                         32
trial, and, arguably for his urging Lopez to plead guilty to murder. However, I

would find it unnecessary to decide whether the conflict of interest rose to the level

in which proof of the second prong of Strickland is unnecessary because the

cumulative effect of counsel’s errors clearly establishes Strickland’s second prong,

      When counsel’s actions have deprived his client of his Fourteenth

Amendment right to present a valid defense, the representation clearly creates a

reasonable probability that but for counsel’s unprofessional errors, the result of the

proceedings would have been different. See Chambers, 410 U.S. at 294, 93 S. Ct.

at 1045 (recognizing constitutional right to present valid defense); Riley, 378

S.W.3d at 458 (holding that “the prejudice prong turns on whether the deficiency

made any difference to the outcome of the case”). Likewise, when trial counsel

fails to conduct a constitutionally adequate investigation and, as a result, fails to

put on mitigating and rebuttal evidence on behalf of his client, the outcome is

prejudiced. See Wiggins, 539 U.S. at 535–36, 123 S. Ct. at 2542–43.

      I would hold that prejudice under the second prong of Strickland was clearly

proved by the preponderance of the evidence in this case, where Hecker ignored all

arguably available defenses and lesser-included offenses, which he failed to

explain to Lopez or explained away; where facts favorable to those defenses and

lesser-included offenses were likewise ignored or explained away; where Hecker

failed to procure Lopez’s statement, which was in the possession of the State and

                                         33
readily available; where Hecker failed to show Lopez the surveillance video of the

incident or interview him about the facts; where there is no evidence that Hecker

did any independent investigation into facts material to elements of the offense

with which Lopez was charged and the defenses he might claim; where Hecker

failed to call an investigating police officer, whose proposed testimony was

favorable to Lopez, to testify; where Hecker failed to introduce evidence of the

criminal records and gang affiliations of Lopez’s assailants, but instead actively

solicited testimony regarding their good character; where Hecker failed to

introduce photographs of the gun and alcohol in the assailants’ car; where Hecker

failed to procure or introduce the available photographs of the injuries Lopez

sustained in the attack leading up to Ford’s death; where Hecker failed to introduce

photographs showing the bullet entering Ford’s car just above the rear bumper and

traveling through two rows of seats to reach Ford; and where Hecker urged Lopez

to plead guilty to murder on the erroneous advice that only in that way could he

receive deferred adjudication and that he had no viable defense for self-defense and

could not receive such a favorable outcome on a charge of manslaughter, while

defense of a third person or criminally negligent homicide were never mentioned

as a possible defense or lesser-included offense.

      Not only did Hecker fail to conduct a constitutionally adequate investigation

and to introduce rebuttal evidence and mitigating evidence favorable to Lopez’s

                                         34
interests—including testimony regarding the video of the incident, the photographs

of Lopez’s injuries, the photograph of the bullet hole just above the rear bumper of

Ford’s car, photographs of the alcohol and gun in Ford’s car, testimony regarding

Ford’s statement that he was a member of the Bloods, and the photographs from

the internet of Ford displaying what appeared to be gang signs—he actively

elicited lengthy narrative testimony favorable to Johnson and Ford from Johnson’s

wife and Ford’s aunt, while failing to cross-examine those witnesses on Johnson’s

and Ford’s violent pasts. He also failed to introduce evidence of the short time

lapse between the end of Lopez’s beating at Ford’s and Johnson’s hands and

Lopez’s shot at the back of Ford’s car that could have supported a charge of

sudden passion or other lesser-included offenses. These acts and omissions were

clearly prejudicial to Lopez under the circumstances of this case, since critical

evidence in support of Lopez’s interests was omitted while evidence adverse to

Lopez’s interests was left unrebutted or actively solicited.

      Under Strickland, counsel has an obligation to become acquainted with the

facts of the case and to conduct a reasonable investigation. See Strickland, 466

U.S. at 690–91, 104 S. Ct. at 2065–66; Ex parte Lilly, 656 S.W.2d at 493 (stating

that attorney must have firm command of facts of case as well as law to render

reasonably effective assistance). I would hold that the “strategy” evinced by

Hecker’s acts and omissions was unreasonable as a matter of law and prejudiced

                                          35
Lopez’s defense, satisfying the second prong of Strickland. See Wiggins, 539 U.S.

at 535–36, 123 S. Ct. at 2542–43; Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      Given Hecker’s advice to Lopez regarding the advisability of waiving a jury,

the unavailability of self-defense or defense of a third person under the facts, the

inadvisability of pleading sudden passion or manslaughter, and Hecker’s failure to

advise Lopez of the necessity of the State’s proving the element of intent to secure

a conviction for murder, together with the favorable evidence Hecker failed to

introduce at trial and the adverse evidence he elicited and failed to rebut, I would

also hold that, had Hecker properly advised Lopez of his rights and the law, there

is a reasonable probability that the result of the proceedings against him would

have been different. See Riley, 378 S.W.3d at 460. Therefore, I would hold that

Lopez satisfied the second prong of Strickland for this reason as well. See 466

U.S. at 694, 104 S. Ct. at 2068.

      Furthermore, as I stated above, based on Cuyler and Acosta, I would

conclude that the adverse impact of Hecker’s conflict of interest in having

represented an adverse party, Johnson, in multiple representations on criminal

matters clearly manifested itself in the record, satisfying the standard of proof

required by those cases for Lopez to be granted a new trial. See Cuyler, 446 U.S.

at 349–50, 100 S. Ct. at 1719; Acosta, 233 S.W.3d at 356. Thus, when this

evidence is considered with the evidence of Hecker’s failure to investigate, I would

                                        36
conclude that Lopez was entitled to a new trial, even if he were not so entitled

under either theory alone.

      I would conclude that Lopez was harmed by entering his involuntary guilty

plea, and that, when evidence of Hecker’s unprofessional errors and their

prejudicial effect on the outcome of Lopez’s case was presented to the trial court at

the hearing on the motion for new trial, that court clearly erred in failing to grant

Lopez a new trial as to guilt or innocence.

      I would sustain Lopez’s first and second issues.

                                    Conclusion

      I would reverse the judgment of the trial court and remand for a new trial.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Keyes, J., dissenting.

Publish. TEX. R. APP. P. 47.2(a).




                                         37
