Affirmed and Majority and Dissenting Opinions filed May 19, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00559-CR

                         JUAN QUINTERO, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1368190


                DISSENTING OPINION
      Today the court must determine whether appellant Juan Quintero is entitled
to a new trial based on his counsel’s actual conflicts of interest. Convicted of
aggravated sexual assault of a child as part of a plea-bargain agreement with the
State, appellant asserts his retained counsel rendered ineffective assistance because
the conflicts colored counsel’s actions. At the heart of the appeal is appellant’s
contention that counsel advised appellant to plead “guilty” while laboring under
actual conflicts of interest. To decide the issue we must determine the adverse
impact, if any, of the conflicts. The majority concludes that appellant suffered no
adverse impact and that the evidence supports an implied finding that appellant
knowingly, intelligently, and voluntarily entered the plea. I respectfully disagree.

                                 Applicable Legal Standard

       In most cases, ineffective-assistance-of-counsel claims are assessed under
the familiar two-prong test set out in Strickland v. Washington, which requires the
appellant to prove that (1) counsel’s representation fell below an objective standard
of reasonableness; and (2) but for counsel’s unprofessional errors, the result of the
proceeding would have been different.1 But, when one asserts that the ineffective
assistance derived from a conflict of interest, the appellate court assesses the
ineffective-assistance claim under the less-onerous standard articulated in Cuyler v.
Sullivan.2

       To prevail on his conflict-of-interest ineffectiveness claim, appellant must
prove by a preponderance of the evidence that (1) appellant’s counsel had an actual
conflict of interest and (2) the conflict actually colored counsel’s actions while
representing appellant.3        “An ‘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.”4 In the simplest terms, appellant must show counsel actually acted on


       1
           See Acosta v. State, 233 S.W.3d 349, 352 (Tex. Crim. App. 2007).
       2
          See id. at 352–53; Ex parte McCormick, 645 S.W.2d 801, 805 (Tex. Crim. App. 1983)
(holding, in habeas proceeding, that petitioner was entitled to new trial because counsel’s
conflict of interest adversely affected petitioner).
       3
          Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014) (citing Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980)).
       4
        Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). See Lopez v. State, 428
S.W.3d 271, 283 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

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behalf of other interests, and that appellant was adversely impacted as a result.5 To
prove an adverse impact, appellant need not show that the conflict changed the
outcome6 or that but for the adverse impact appellant would not have pled
“guilty.”7 All that is required is a showing that counsel acted (or chose not to act)
to pursue other interests and that appellant thereby suffered some adverse effect.

                           Counsel’s Actual Conflicts of Interest

       Appellant’s young niece made outcry that appellant had sexually assaulted
her. Appellant’s counsel represented both appellant and the complainant’s father,
who is appellant’s brother. The father’s interests in appellant’s case diverged from
appellant’s interest.         While appellant’s interest was to minimize adverse
consequences of potential conviction and punishment for the charged offense, the
undisputed evidence shows that the father’s interests were (1) to seek justice for
the complainant and against the perpetrator of the crime and (2) to avoid any
adverse action from the Texas Department of Family and Protective Services,
including action that might jeopardize his rights to possession of his children. The
objectives of appellant and the objectives of the father were incompatible from the
beginning, but the conflicts became increasingly apparent as the case progressed.

       Appellant’s interests and the father’s interests collided head-on when the
father received a call from the District Attorney’s Office requesting input on
appellant’s prospective punishment. The father, in turn, sought counsel’s advice
regarding the District Attorney’s inquiry. In advising the father, counsel found

       5
           Cuyler, 446 U.S. at 349–50.
       6
         Gonzales v. State, 605 S.W.2d 278, 280–81 (Tex. Crim. App. 1980); Perillo v. Johnson,
79 F.3d 441, 448 (5th Cir. 1996).
       7
          See Gonzales, 605 S.W.2d at 280–81. If appellant establishes an actual conflict,
prejudice is presumed. Maya v. State, 932 S.W.2d 633, 635 (Tex. App.—Houston [14th Dist.]
1996, no pet.); Perillo, 79 F.3d at 448.

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himself between a rock and a hard place—counsel was required to make a choice
between advancing appellant’s interests on one hand and advancing the father’s
interests on the other.8 Whatever choice the lawyer made would promote the
interests of one client while compromising the interests of the other.

       Up to that point, appellant’s counsel had characterized his representation of
the two clients as posing only a “potential” conflict despite the facial
incompatibility of the clients’ respective interests. Counsel was operating under
the belief that his clients’ divergent interests would lead to an actual conflict only
if both cases were tried, and, according to counsel, the outcome was up to him.
Appellant’s counsel advised both appellant and the father of what counsel
described as a “potential” conflict.          Counsel then presented both clients with
written waivers. Both clients signed the waivers.9

       Appellant’s counsel filed appellant’s waiver in the trial court, but the trial
court refused to approve the waiver of the conflict. According to the trial court, the
conflict was unethical.10 Even assuming (for argument’s sake) the accuracy of
counsel’s early assessment of the simultaneous representation of the two clients as
creating only a “potential” conflict, at the point of the District Attorney’s inquiry to

       8
          See Pina v. State, 29 S.W.3d 315, 320 (Tex. App.—El Paso 2000, pet. ref’d) (holding
that counsel’s action were colored by conflict when attorney representing two brothers failed to
call one brother to testify for fear that testimony might incriminate other brother).
       9
          In this written document, appellant sought to waive a potential conflict, not an actual
conflict; the trial court declined to accept the waiver. Even if this waiver were an accepted
waiver of an actual conflict, the waiver was not knowing, intelligent, or voluntary because the
record shows that appellant was not aware of the actual conflict and did not realize the
consequences of continuing with counsel’s representation. See Maya, 932 S.W.3d at 636 (noting
that absent an express, voluntary waiver, an actual conflict of interest that hinders the
effectiveness of counsel will mandate a new trial).
       10
           The trial court, though expressly disapproving of the conflict waiver, did not stop
counsel from continuing to represent appellant.


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the father, the dual representation posed an actual conflict of interest. Likewise,
when appellant’s counsel responded to appellant’s request for advice regarding a
plea-bargain offer from the State, counsel was acting under an actual conflict of
interest. At that point, appellant’s counsel was required to make a choice between
advancing his own economic interests and advancing appellant’s interests. The
former could only come at the cost of the latter.

       Both the economic-self-interest conflict between counsel and appellant and
the divergent-client-interests conflict between appellant and the father required
appellant’s counsel to choose between opposing interests. The record contains
sufficient evidence showing counsel had actual conflicts of interest.11

                         Actions Colored by Conflicts of Interests

       Counsel’s conflicts of interest colored his actions during his representation
of appellant.12      Counsel testified that he concluded he could not take both
appellant’s case and the father’s case to trial. In tacit recognition of the actual
conflict, counsel admitted that he would have to withdraw from one representation
unless at least one of the clients accepted a plea bargain. The evidence shows that
this conflict influenced counsel’s representation of appellant. After the trial court
refused to approve appellant’s waiver of the conflict, counsel chose not to disclose
that information to appellant. Counsel never informed either of the clients that the
trial court had considered the waiver and expressly refused to approve it. Nor did
counsel disclose to appellant the trial court’s conclusion that the dual
representation was unethical or inform appellant that the trial court advised counsel
to discontinue the dual representation. This information was material. Indeed, had
       11
            See Ramirez v. State, 13 S.W.3d 482, 486–87 (Tex. App.—Corpus Christi 2000, pet.
dism’d).
       12
          See id. at 486 (holding that evidence counsel struggled to “serve two masters” shows
that an accused’s defense has been impaired).

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appellant known the trial court did not approve of counsel’s simultaneous
representation of appellant and the father or that the trial court had denounced the
representation as unethical, appellant might well have made a different decision
about waiver and choice of counsel.

       An attorney serving his clients’ interests would have disclosed this
information to the clients so that the clients could make informed decisions
regarding their choice to continue being represented by an attorney with actual
conflicts of interest. The only reasonable interpretation of counsel’s testimony and
the clients’ testimony is that counsel briefly informed the clients that there might
be a potential conflict of interest, but counsel did not explain the ramifications of
any conflict to appellant or advise appellant as to how being represented by an
attorney with conflicts of interest might affect the representation appellant was to
receive. Because the father’s goals and interests were at cross-purposes with what
appellant hoped to achieve, the interests of both could not be served by the same
counsel at the same time.

       The majority emphasizes the trial court’s role as the fact-finder and the
possibility that the trial court may have discredited the clients’ testimony and
believed only the attorney’s testimony. 13              The majority states that the only

       13
         The trial court explained it agreed with appellant’s position “morally” and “ethically”
and lamented the “light this puts our profession in,” but, the trial judge concluded:
                I’ve been on the bench long enough, and as a prosecutor and defense
       lawyer long enough to know that sometimes people plead guilty to things that
       they didn’t do because they believe it’s in their best interest to do so because they
       [sic] rather take six years than fifty. And my understanding of the law is, as long
       as you do that knowingly and intelligently, that’s what it’s going to be.
              And so I don’t know if he did it or not, never will; even if there was a trial,
       I wouldn’t know. Okay. I would just know what the evidence was, what the
       proof was, but I would never know that answer.
                 So, even in light of your very convincing argument, I have to deny the
       motion.

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evidence that showed counsel’s actions were colored by conflicts of interest is
disputed. This assessment is incorrect. Even if the trial court believed counsel’s
testimony and disbelieved the testimony of both appellant and the father, the
undisputed evidence shows the conflicting interests colored counsel’s actions.

                                 Economic Self-Interest Conflict

       Counsel testified that he would have to withdraw, and therefore suffer
adverse financial consequences, unless one of the clients pled “guilty.” Counsel
chose not to advise appellant that the trial court had refused to approve the waiver
of the conflict, an action which suggests counsel was motivated to keep the
business of both clients or, at least, prevent them from learning the trial court’s
view of the matter.        Counsel’s explanation for failing to fully articulate the
implications of the conflicts of interest was that, in his view, the conflicts of
interest would not be an issue as long as at least one client pled “guilty.” Counsel
then refrained from taking any action to investigate the State’s case against
appellant.14 When the State offered appellant a plea bargain, counsel advised
appellant to plead “guilty” even though counsel did not know anything about the
State’s case against appellant, including whether it was a weak case or a strong
case. Appellant accepted counsel’s advice and pled “guilty.” In counsel’s mind,
appellant’s “guilty” plea eliminated any conflict of interest and allowed counsel to
continue representing both appellant and the father. The evidence shows that
counsel’s actions and his choices not to act were colored by a conflict between his
interest in retaining both clients and appellant’s interest in minimizing adverse
consequences of conviction and punishment, an interest served by appellant’s
       14
          Even assuming that the majority is correct that appellant’s failure to preserve error
forecloses this court from considering appellant’s argument that he received ineffective
assistance of counsel because his counsel did not conduct an adequate investigation, under the
Cuyler standard this court still must consider counsel’s inaction to the extent the inaction was
colored by counsel’s conflict of interest. See Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980).

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pleading “guilty” only if the State’s case against appellant was strong.

                             Divergent-Client-Interests Conflict

      Counsel’s representation of appellant also was colored by a conflict of
interest between appellant (the accused) and the father of the accuser.              The
undisputed evidence shows the District Attorney’s Office contacted the father to
discuss the father’s thoughts on an appropriate punishment for appellant. The
father and counsel both testified that the father asked counsel for advice in
responding to this prosecutorial inquiry.       Appellant’s interest was in securing
statements from the father that would convince the District Attorney to minimize
consequences for appellant. In this instance, the father testified that at the time he
believed appellant to be innocent of the charges and that the proper punishment
would be no punishment.

      According to the father, counsel thought the father had an interest in not
disclosing his opinion that appellant was innocent because that opinion might
cause the father to lose custody of his children. The father testified that counsel
advised him to keep silent about his opinion that appellant was innocent, lest
appellant risk losing custody of his children. Counsel disputed this testimony.
Even assuming the trial court discredited the father’s testimony, counsel’s account
of this incident itself is sufficient to show that the actual conflict of interest colored
counsel’s actions.

      Counsel testified that he told the father to tell the District Attorney’s Office
“whatever [father] wanted.”        This advice was not zealous representation of
appellant, who was seeking a lesser sentence than the District Attorney’s Office
was proposing. The majority notes counsel testified that he did not know the father
wanted to make a supportive statement. But, counsel’s unawareness of what the
father would say condemns rather than excuses counsel’s failure to act.
                                            8
       Counsel’s testimony that he did not know what the father would say shows
counsel chose to advise the father without undertaking to investigate what, if
anything, the father could offer that might further appellant’s goals of minimizing
the consequences of potential conviction and punishment. Counsel’s decision not
to make inquiry and not to investigate prompts important questions:

              Would an attorney not laboring under a conflict of interest fail to ask
               the father what he wanted to say?
              Would an attorney zealously representing only appellant’s interests
               squander the opportunity to attempt to secure a supportive statement
               on behalf of appellant?
At this critical point in counsel’s representation of appellant, counsel chose not to
inquire and not to investigate. Doing so would have furthered appellant’s interests
but compromised the father’s interests. Counsel could not serve the interests of
both clients. Counsel chose not to serve appellant’s interests.

       By choosing to do nothing, counsel lost the opportunity to learn what the
father would say and attempt to secure a statement from the father in support of
appellant. 15 The conflict of interest affected counsel’s actions — he failed to make
inquiry and he failed to advocate on appellant’s behalf while interacting with the
father.16

                                      Cuyler Standard Satisfied

       The undisputed evidence shows the conflicts of interest colored counsel’s
actions as well as his advice.17 Accordingly, the Cuyler standard is satisfied.


       15
            See Lopez, 358 S.W.3d at 694–95.
       16
          See Ex Parte Parham, 611 S.W.2d 103, 105 (Tex. Crim. App. 1981) (holding in habeas
proceeding that an attorney’s “divided loyalties” adversely affected his representation when he
advised a client not to testify while his duty to another client was to secure the testimony).
       17
            See id.; Ramirez, 13 S.W.3d at 486; Pina, 29 S.W.3d at 320; Maya, 932 S.W.2d at 635.

                                                9
                                     Conclusion

      Counsel had actual conflicts of interest and that those conflicts colored his
representation of appellant. Therefore, the court should sustain appellant’s first
issue and reverse and remand the case to the trial court for a new trial.




                                        /s/    Kem Thompson Frost
                                               Chief Justice



Panel consists of Chief Justice Frost and Justices Busby and Christopher (Busby, J.
majority).
Publish — TEX. R. APP. P. 47.2(b).




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