
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-11-00170-CR


Robert Tafoya, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 65999, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

 The State charged appellant Robert Tafoya with indecency with a child by contact.
See Tex. Penal Code Ann. § 21.11 (West 2011).  Tafoya pleaded guilty to the offense, and the trial
court imposed a sentence of fifteen years' confinement.  Tafoya subsequently filed a motion for new
trial, claiming that his trial counsel provided ineffective assistance due to a conflict of interest.  The
trial court denied the motion, and Tafoya now appeals.  We affirm the judgment of the trial court.

BACKGROUND
		In 2009, Robert Tafoya lived with his wife, De Lone Tafoya, and their fourteen-year-old granddaughter, E. T.-H., in Killeen, Bell County, Texas. (1)  De Lone was the legal guardian of
E. T.-H. (2)  In November 2009, Child Protective Services (CPS) removed E. T.-H. from the Tafoyas'
home on suspicion of abuse.  In January 2010, an officer with the Killeen Police Department
completed an affidavit for Tafoya's arrest describing the allegations against him.  According to the
affidavit, E. T.-H. had reported that her grandfather touched her breasts on many occasions and
would rub her genitals and his own genitals when they were in the car, the latest instance of which
was a few weeks prior.  The affidavit also stated that when a CPS worker met with Tafoya, he
admitted that he had touched E. T.-H. inappropriately while in his truck driving her home from
school.  Tafoya was arrested in February 2010 and retained the services of Susan Thompson, an
attorney with the Carlson Law Firm in Killeen.  After one day in the Bell County Jail, Tafoya was
released on bond.
		Subsequently, in April 2010, another attorney from the Carlson Law Firm began
representing De Lone in matters concerning her guardianship of E. T.-H.  On De Lone's behalf,
Linda Kaplan submitted to the Bell County Court an annual report on the status of E. T.-H. and
a request to resign as her guardian.  Kaplan listed two reasons why De Lone's powers should be
terminated:  first, De Lone had been diagnosed with advanced Alzheimer's disease and was no
longer capable of acting as guardian, and second, E. T.-H. had been removed from the home by CPS.
		Tafoya appeared before the district court in December 2010.  After being thoroughly
questioned and admonished by the court, he entered a plea of guilty without the benefit of a plea
bargain.  He also signed a judicial confession that on November 1, 2009, he "did then and there, with
the intent to arouse or gratify the sexual desire of said defendant, intentionally and knowingly engage
in sexual contact with [E. T.-H.] by touching the genitals of [E. T.-H.], a child younger than 17 years
and not the spouse of the defendant."  After a hearing, the trial court pronounced Tafoya guilty and
sentenced him to fifteen years' imprisonment.
		Tafoya then retained new counsel and filed a motion for new trial alleging that he had
not received effective assistance of counsel in accordance with his Sixth Amendment right.  Tafoya
argued that because attorneys from the same firm represented him in his criminal matter and De Lone
in her guardianship matter concerning the complaining witness, his trial counsel's performance was
adversely affected by an actual conflict of interest.  After a hearing, the trial court issued an order
denying the motion, which Tafoya now appeals.

STANDARD OF REVIEW		We review a trial court's denial of a motion for new trial for abuse of discretion.
See State v. Herndon, 215 S.W.3d 901, 906-907 (Tex. Crim. App. 2007).  We do not substitute
our judgment for that of the trial court, but rather decide whether its decision was arbitrary or
unreasonable.  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).  We must view the
evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual
findings that could have been made against the losing party were so made.  Id.  Thus, a trial court
abuses its discretion in denying a motion for new trial only when no reasonable view of the record
could support that ruling.  Id.  In addition, we view the legal standards relevant to the trial court's
denial of the motion--in this case the question of ineffective assistance of counsel due to a conflict
of interest--through the prism of the abuse of discretion standard.  Branch v. State, 335 S.W.3d 893,
904 (Tex. App.--Austin 2011, pet. ref'd); see also State v. Kelley, 20 S.W.3d 147, 151 (Tex.
App.--Texarkana 2000, no pet.).
		Ordinarily, to prevail on a claim of ineffective assistance of counsel, an appellant
must show by a preponderance of the evidence that counsel's performance (1) was so deficient that
it fell below an objective standard of reasonableness and (2) prejudiced the defense, meaning there
is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have
been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890,
892-93 (Tex. Crim. App. 2010).  However, when an appellant claims that ineffective assistance
resulted from a conflict of interest, we do not apply the Strickland test.  Acosta v. State, 233 S.W.3d
349, 356 (Tex. Crim. App. 2007).  We instead require the appellant to show that (1) counsel had an
actual, not merely potential, conflict of interest and (2) that conflict adversely affected counsel's
performance at trial.  Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980).

DISCUSSION
		In his sole issue on appeal, Tafoya claims that the trial court erred in denying his
motion for new trial because a conflict of interest on the part of his trial counsel resulted in
ineffective assistance.  Tafoya argues that his representation at trial and his wife's representation as
guardian of E. T.-H. by attorneys from the same firm constituted an actual conflict of interest that
adversely affected his counsel's performance.  We first determine whether Tafoya demonstrated to
the trial court that an actual conflict existed in his case.
		An actual conflict exists when "counsel is required to make a choice between
advancing his client's interest in a fair trial or advancing other interests . . . to the detriment of
his client's interest."  Acosta, 233 S.W.3d at 355.  A showing of a potential conflict of interest is not
sufficient to constitute an actual conflict of interest.  Cuyler, 446 U.S. at 350; Ex Parte McFarland,
163 S.W.3d 743, 759 n.52 (Tex. Crim. App. 2005).  "The petitioner must specifically identify
instances in the record that reflect that his counsel made a choice between possible alternative
courses of action such as eliciting (or failing to elicit) evidence helpful to one client but harmful
to another." Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir. 1996) (quoting United States v. Fox,
613 F.2d 99, 102 (5th Cir. 1980)); Gaston v. State, 136 S.W.3d 315, 318 (Tex. App.--Houston
[1st Dist.] 2004, pet. struck).
		In support of his argument that trial counsel labored under an actual conflict,
Tafoya states that "the well being and safety of the complaining witness is the very essence of the
representation" provided to her guardian, De Lone, by the Carlson Law firm.  "The logical
conclusion," Tafoya urges, "is that the duty of the Carlson Law Firm was to assist in the protection
of [E. T.-H.] and thus the prosecution of the Appellant."  However, Tafoya provides no support for
the proposition that the firm's professional duty to De Lone necessarily included a duty to serve the
interests of her ward.  Nor does he explain how De Lone's interest in the outcome of the criminal
matter was different than his own.  Further, even if these connections were established, the dual
representation would at most present a potential conflict between De Lone's guardianship matters
and Tafoya's criminal case.  See Cuyler, 446 U.S. at 350.
		Even if we assume a potential conflict existed, Tafoya failed to demonstrate that
there was any actual conflict of interest.  Tafoya has identified no instance in the record when his
trial counsel, Susan Thompson, faced a choice between courses of action that would benefit
either De Lone or Tafoya.  At the hearing on his motion for new trial, Tafoya did not call either
Thompson or Kaplan to the stand to address their representation of the Tafoyas or to explain any
options considered in Tafoya's case.  As evidence, he offered copies of paperwork filed in relation
to De Lone's guardianship of E. T.-H.  These documents explained nothing about the courses of
action available to Thompson in representing Tafoya or how her firm's representation of De Lone
affected those options.  See Perillo, 79 F.3d at 447.  On this basis, it would have been reasonable for
the trial court to conclude that Tafoya established no actual conflict on the part of his trial attorney.
See Cuyler, 446 U.S. at 348.
		In addition to showing an actual conflict, an appellant claiming a conflict of interest
must establish that the conflict adversely affected his counsel's performance.  Id.  This requires a
showing "that some plausible defense strategy or tactic might have been pursued but was not,
because of the conflict of interest."  Perillo, 79 F.3d at 449.  In the present case, even if the trial court
found that an actual conflict existed, it could reasonably have found that Tafoya failed to meet
this second requirement.  On multiple occasions, Tafoya confessed to indecent contact with his
granddaughter: he did so when interviewed by CPS, and he did so again, after thorough
admonishment, before the trial court.  He was sentenced after a hearing that included testimony from
a neighbor who praised Tafoya at length and refused to accept that he might be capable of the sort
of abuse E. T.-H. reported.  Tafoya does not contend that these events were the result of some
strategy or tactic foregone by Tafoya's counsel for the benefit of De Lone. (3)  Tafoya presented no
testimony or other evidence to the trial court indicating what counsel would have done differently
but for her alleged conflict of interest.  Thus, the trial court could also have reasonably concluded
that Tafoya failed to establish that any conflict had an adverse effect on his trial counsel.
		Viewing the record in the light most favorable to the judgment, we hold that the trial
court could reasonably have found that Tafoya failed to establish the existence of either a conflict
of interest or an adverse effect on counsel's performance in his case.  Accordingly, we cannot conclude
that the court abused its discretion in denying his motion for new trial.  We overrule his sole issue
on appeal.

CONCLUSION
 Because we conclude that the trial court did not err in denying Tafoya's motion for
new trial, we affirm the judgment.

						__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Affirmed
Filed:   February 29, 2012
Do Not Publish
1.   The facts recited herein are taken from the evidence and testimony presented at Tafoya's
punishment hearing, at the hearing on his motion for new trial, and in the affidavit in support of the
warrant for his arrest.
2.   Because the appellant and his wife, De Lone Tafoya, have the same last name, we will refer
to the wife by her first name in order to avoid confusion.
3.   Indeed, Tafoya has presented no evidence that Kaplan was still serving as De Lone's legal
representative by the time his criminal case proceeded to trial.
