Affirmed and Memorandum Opinion filed January 14, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00523-CR

                  KENNETH LYNN SCHROEDER, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 10th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 10CR2872

                  MEMORANDUM OPINION
      Kenneth Lynn Schroeder appeals his felony conviction for driving while
intoxicated, challenging the sufficiency of the evidence to support his conviction
and asserting he received ineffective assistance of counsel at trial. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Schroeder was charged by indictment with an offense of driving while
intoxicated, a felony. As reflected in the indictment, the State alleged two prior
convictions for the same offense for jurisdictional purposes and two more felony
convictions for the same offense for enhancement purposes. Schroeder pleaded
“not guilty” to the charge.

      At trial, a number of witnesses were called by the State, including the officer
who stopped Schroeder’s vehicle and arrested Schroeder.            Schroeder’s blood
sample, taken after he was in custody, indicated the presence of three medications
in Schroeder’s system. Defense counsel called a pharmacist to testify, who stated
that the levels of medications, as reflected in the blood sample, were within or
below therapeutic range.      A mental-health peace officer testified that other
conditions could affect a person so that the person would appear to be intoxicated.
A jury found Schroeder guilty of the charged offense and sentenced him to twenty-
five years’ confinement.

      Schroeder retained new counsel and appealed his conviction to this court.
Upon Schroeder’s motion, this court abated and remanded the case to the trial
court so that Schroeder could file a motion for new trial, request a hearing on that
motion, and develop a claim for ineffective assistance of counsel at trial. In the
trial court, Schroeder filed a motion for new trial, asserting ineffective assistance
of counsel at trial. The trial court conducted a hearing on Schroeder’s motion and
denied the motion.      Now that the appeal has been reinstated, we consider
Schroeder’s two issues challenging the sufficiency of the evidence and asserting
that he received ineffective assistance of counsel.

                               ISSUES AND ANALYSIS

Is the evidence sufficient to support a conviction for driving while intoxicated?

      In his first issue, Schroeder asserts the evidence is insufficient to support his
conviction. In a sufficiency review, we view all the evidence in the light most


                                          2
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime or other matter beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893,
894–95 (Tex. Crim. App. 2010) (plurality op.). The jury is the exclusive judge of
the credibility of the witnesses and the weight of the evidence. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury’s responsibility to
resolve conflicts in the evidence fairly, and we draw all reasonable inferences from
the evidence in favor of the verdict. Id. An appellate court may not re-evaluate the
weight and credibility of the evidence produced at trial because doing so
improperly substitutes the court’s judgment for that of the fact finder. Montgomery
v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

      The indictment alleged Schroeder was intoxicated by reason of introducing a
combination of alcohol, a controlled substance, a drug, or a dangerous drug into
the body, which was a third such offense charged against Schroeder. A person
commits the offense of driving while intoxicated if that person is intoxicated while
operating a motor vehicle in a public place. See Tex. Penal Code § 49.04(a). The
term “intoxicated” means (1) not having the normal use of mental and physical
faculties by reason of the introduction of alcohol, a controlled substance, a drug, a
dangerous drug, a combination of those substances, or any substance into the body,
or (2) having an alcohol concentration of 0.08 or more. Id. § 49.01(2)(A)–(B).
Driving while intoxicated is a third-degree felony if it is shown at trial that a
defendant previously has been convicted “two times of any other offense relating
to the operating of a motor vehicle while intoxicated . . . .” See id. § 49.09(b)(2).
A conviction for the offense of driving while intoxicated may be supported by
direct or circumstantial evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.
Crim. App. 2010).


                                         3
         Schroeder does not contest that he was operating a motor vehicle on a public
roadway.       The State also alleged two prior convictions for driving while
intoxicated for jurisdictional purposes and two more felony convictions for driving
while intoxicated as enhancements. Schroeder does not contest the sufficiency of
the evidence of the prior convictions.

         The record reflects that an officer stopped Schroeder’s vehicle for speeding.
After the officer initiated the traffic stop by activating his emergency lights, the
officer observed Schroeder’s vehicle swerve to the shoulder of the road and weave
within the lane. The officer testified that Schroeder exhibited slurred speech,
difficulty and slowness in answering the officer’s questions, and was slow and
methodical in exiting the vehicle. In his encounter with Schroeder, the officer
observed Schroeder had a blank stare and red, glassy eyes. The officer testified
that he detected the light odor of alcohol on Schroeder’s breath. According to the
officer, Schroeder exhibited signs of intoxication.       Schroeder admitted to the
officer that he had taken a prescribed medication, “Somas,” a muscle relaxer.

         The officer conducted several standard field-sobriety tests and three non-
standard field-sobriety tests.    Schroeder demonstrated signs of intoxication in
performing the horizontal-gaze nystagmus (“HGN”) test. Schroeder demonstrated
signs of intoxication when he performed poorly on a walk-and-turn test, losing his
balance. The officer opined that Schroeder performed well on a one-leg-stand test.
Schroeder also performed several other tests, including a test to recite the alphabet,
in which Schroeder failed to follow the officer’s directions for the test several
times.      Based on the physical signs Schroeder exhibited and Schroeder’s
performance in the field-sobriety tests, the officer believed Schroeder was
intoxicated and placed Schroeder under arrest. A video of the stop recorded from
the officer’s vehicle was admitted into evidence. An officer’s testimony, alone,

                                           4
may provide sufficient evidence to establish the element of intoxication.             See
Cotton v. State, 686 S.W.2d 140, 142–43 (Tex. Crim. App. 1985) (providing that
experienced arresting officer’s testimony that a driver was intoxicated, when based
on observations of slurred speech, bloodshot eyes, unsteady balance or staggered
gait, was sufficient to establish intoxication); Henderson v. State, 29 S.W.3d 616,
622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“The testimony of a police
officer that an individual is intoxicated is probative evidence of intoxication.”).

      Schroeder’s blood was drawn at a local hospital. The results from the blood
sample indicated concentrations of three medications: 26 milligrams of a muscle
relaxer, meprobamate, per Liter; 8.5 milligrams of an anti-anxiety medication,
carisoprodol, per Liter; and .03 milligrams of a painkiller, hydrocodone, per Liter.
The blood sample did not reflect the presence of alcohol in Schroeder’s system.
According to expert testimony presented by the State, the levels of medications
were at or higher than recommended therapeutic dosages. The expert opined that
the medications, at the levels reflected in Schroeder’s blood sample, are consistent
with literature from the National Highway Traffic Safety Administration showing
intoxication. The expert testified that a combination of the same medications
increases the effects of those medications on a person’s body.

      Contrary to evidence presented by the State, a pharmacist called by the
defense testified that the levels of two medications in Schroeder’s blood sample
were either low or below therapeutic range. The pharmacist testified that the level
for a third medication was at the high end of maximum therapeutic range.
Nevertheless, the State’s expert testified that the three medications in Schroeder’s
system, when combined even at lower levels of therapeutic dosages, could cause
impairment. See Paschall v. State, 285 S.W.3d 166, 177–78 (Tex. App.—Fort
Worth 2009, pet. ref’d) (involving circumstantial evidence that a combination of

                                           5
medications could cause signs of intoxication such as slurred speech, affected
balance, abnormal gait, and constricted pupils, and the evidence was sufficient to
support “intoxication” by reason of introduction of controlled substances into an
accused’s body). The evidence is not insufficient when a finder of fact resolves
conflicting evidence in favor of the prevailing party.1 See Kiffe v. State, 361
S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

       Additionally, the pharmacist testified that one of the medications is usually
accompanied by written warning to avoid operating a motor vehicle while taking
the medication. Although Schroeder presented evidence that other conditions,
such as dehydration, could have caused physical signs and symptoms that could
appear to be signs of intoxication, the State presented evidence that on the night
Schroeder was booked in the county jail, Schroeder presented no medical signs of
dehydration. See id. at 109 (concluding that jury reasonably could have placed
greater weight in the testimony of State’s witnesses when considering whether
other conditions could have explained the physical signs observed by arresting
officer). The record also reflects that dehydration is not an ongoing condition, but,
rather, it can be easily and quickly remedied by consuming fluids. The jury was
entitled to place greater weight on the testimony of those who encountered
Schroeder on the night of the offense. See id.

       Given the officer’s description of Schroeder’s demeanor, physical signs, and
performance on the field sobriety tests, along with evidence that Schroeder had
taken medication and expert testimony that a combination of the same medications
could affect a person’s use of mental and physical faculties, the jury had both

       1
          Schroeder relies on a case, Redwine v. State, 305 S.W.3d 360 (Tex. App.—Houston
[14th Dist.] 2010, pet ref’d), in which a key witness testified to a greater than reasonable doubt
as to the essential facts. Schroeder’s reliance on Redwine is misplaced because no witness in the
case at hand expressed any equivocation.

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direct and circumstantial evidence that Schroeder did not have the normal use of
his mental and physical faculties by introduction of one or more substances into his
body. See Tex. Penal Code Ann. § 49.01(2)(A); Paschall, 285 S.W.3d at 177–78
(concluding that evidence was sufficient to support a conviction for driving while
intoxicated based on evidence that accused had consumed two medications,
officer’s testimony of accused’s performance on field-sobriety tests, and
pharmacist’s testimony that the combination of medications could cause a person
intoxicated by use of the drugs to exhibit symptoms consistent with intoxication).
Viewing the evidence in the light most favorable to the trial court’s judgment, we
conclude a factfinder reasonably could have found the essential elements of a
third-time offense for driving while intoxicated.      See Tex. Penal Code Ann.
§ 49.04; Paschall, 285 S.W.3d at 177–78. We overrule Schroeder’s first issue.

Did Schroeder receive ineffective assistance of counsel?

      In his second issue, Schroeder asserts he received ineffective assistance of
counsel at trial, warranting a new trial. Schroeder raised his ineffective assistance
claim in his motion for new trial on abatement, and the trial court denied the
motion. We review a trial court’s ruling on a motion for new trial under an abuse-
of-discretion standard. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.
App. 2004, superseded by rule on other grounds). When, as in this case, the
motion for new trial alleges ineffective assistance of counsel, we must determine
whether the trial court’s determination of the ineffective-assistance claim and
denial of the motion for new trial were clearly wrong and outside the zone of
reasonable disagreement. Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d).

      To be entitled to a new trial based on a claim for ineffective assistance of
counsel, Schroeder must show that (1) counsel’s performance was so deficient that

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he was not functioning as acceptable counsel under the Sixth Amendment, and (2)
there is a reasonable probability that, but for counsel’s error or omission, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S.
668, 687–96 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). A defendant is not entitled to perfect or errorless counsel, however. Bridge
v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).                There is a strong
presumption that an attorney’s conduct fell within the wide range of reasonable
professional assistance and was motivated by sound trial strategy. Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The defendant must prove
ineffective assistance of counsel by a preponderance of the evidence to overcome
this presumption.      Thompson, 9 S.W.3d at 813.          A showing of deficient
performance must affirmatively appear in the record. Id.

      In his motion for new trial, Schroeder asserted the following as grounds for
ineffective assistance of counsel at trial:

             Counsel failed to timely file a motion for new trial;
             Counsel failed to follow a previously agreed trial strategy by
             hiring an appropriate expert;
             Counsel misrepresented to Schroeder that an appropriate expert
             had been hired;
             The pharmacist who was called by counsel to testify was an
             inappropriate and under-qualified expert, and counsel failed to
             inform Schroeder that the pharmacist was a client of counsel’s
             in a pending civil matter;
             Counsel’s advice about an offer for a plea agreement with the
             State induced Schroeder to reject the offer because Schroeder
             relied on counsel’s false assurances that a pharmacologist had
             been employed;
             Counsel engaged in a financial conflict of interest by charging
             trial preparation fees and charging a fee for $9,500 for an expert
             who had not been hired; and
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             Counsel delayed in withdrawing as counsel of record, which
             prevented Schroeder from timely filing a motion for new trial.
                    Alleged failure to call appropriate experts
      At the hearing on Schroeder’s motion for new trial, a pharmacist Robert Kay
testified that he had been designated as an expert in the case and had received a
subpoena to testify. Ultimately, he did not testify in the case and never discussed
the case, or any fees, with trial counsel. According to trial counsel, it is not
uncommon to list witnesses as experts and not call them to testify. Trial counsel
testified that Kay shared the same credentials as the pharmacist who testified at
trial and that Kay’s testimony, likewise, would have been the same or similar. A
trial counsel does not render ineffective assistance of counsel if an expert’s
testimony would be cumulative of testimony already offered. Ex parte Jimenez,
364 S.W.3d 866, 888 (Tex. Crim. App. 2012).

      The pharmacist who testified at trial stated he had been a pharmacist for
twenty-five years. According to the pharmacist, at the time of his testimony, he
was a client represented by trial counsel in a pending civil matter involving a ring.
He did not receive a fee in exchange for his expert testimony in Schroeder’s case
and did not received any reduction in fees for counsel’s representation in the civil
matter. He had not testified in other prior matters for trial counsel. In preparation
for his testimony in Schroeder’s case, he conducted what he characterized as
minimal preparation, met several times with trial counsel, reviewed Schroeder’s
toxicology report, researched several hours, and discussed his testimony with trial
counsel. In his testimony about therapeutic dosage levels, he relied on his training
and experience as a pharmacist.        Overall, the expert’s testimony generally
supported Schroeder’s case. The pharmacist was competent to testify to the levels
of medications found in a person’s body and how those medications could affect a


                                         9
person or make a person appear to be intoxicated. See id. at 885 (concluding that
calling an expert to testify whose opinion was grounded in scientific and medical
bases and generally supported an accused’s case was not ineffective assistance of
counsel). To the extent that Schroeder characterizes the pharmacist’s one answer,
“not always,” in response to a question whether he would expect somebody to
appear intoxicated on the levels that are shown in Schroeder’s blood test as
unhelpful to his defense, trial counsel’s conduct in calling that witness to testify
would not amount to ineffective assistance. See id. (declining to conclude trial
counsel rendered ineffective assistance when an expert unexpectedly made a
profane outburst). In light of the pharmacist’s testimony, grounded in his training
and experience, trial counsel was not ineffective for calling the pharmacist to
testify. See id.

       Trial counsel testified that he did not investigate a pharmacologist.
According to trial counsel, a pharmacologist would have added nothing to the case
when the procedures for drawing Schroeder’s blood were not problematic.
Counsel testified that when the undisputed evidence showed the presence and
amount of medications in Schroeder’s body, the only question in trial counsel’s
mind was the physiological effect of those medications on the human body and a
pharmacist could have described the effect of the exact medications relevant in this
case. Although Schroeder believed that trial counsel would hire a “scientist” or a
“Ph.D.” as an expert, trial counsel stated that he had discussed with Schroeder
calling a mental-health law enforcement officer and a pharmacist, both of whom
testified at trial.

       Although Schroeder argued that a pharmacologist would have been an
appropriate expert and that trial counsel failed to investigate whether a
pharmacologist could help the defense, the record does not demonstrate what such

                                        10
an investigation would have revealed or how the testimony would have differed
from the pharmacist’s testimony or how such an expert would have aided counsel’s
cross-examination of the State’s witnesses, his trial preparation, or his presentation
of Schroeder’s defense. See id. Therefore, Schroeder has not shown that there is a
reasonable probability that the result of the proceeding would have been different
but for trial counsel’s alleged failure to investigate the testimony of a
pharmacologist. See id. (providing that accused failed to show that the failure to
have additional experts created a high risk of an inaccurate verdict). Likewise, to
the extent Schroeder asserts that he relied on trial counsel’s assurances of
“appropriate” expert testimony when he rejected the State’s plea-agreement offer,
and that that the result of the proceedings would have differed if a different expert
had testified, Schroeder has failed to affirmatively show in the appellate record
how the outcome of the proceedings would have differed when he has not shown
how a different expert would have testified. See id.

                            Unsuccessful Trial Strategy

      In considering Schroeder’s assertions in his motion for new trial that trial
counsel (1) failed to timely withdraw as counsel of record to allow Schroeder to
file a motion for new trial and (2) failed to file a motion for new trial, the record at
the hearing on the motion reflects the parties’ agreement and the trial court’s ruling
that the two issues were moot and not necessary to address. Because the record
does not contain any evidence of trial counsel’s reasons for not timely withdrawing
or filing a motion for new trial, we would be required to speculate to assume this
conduct was not a strategic decision. See Landers v. State, 110 S.W.3d 617, 624
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Accordingly, Schroeder had
not satisfied either requirement of Strickland to prevail on his claim of ineffective
assistance of counsel. See id.

                                          11
          Schroeder also asserts he rejected an offer for a plea agreement with the
State and relied on trial counsel’s assurances of an expert’s testimony in support of
the merits of a defensive trial strategy of dehydration. An error in trial strategy
will be considered inadequate representation only if counsel’s actions are without
any plausible basis. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980);
Wright v. State, 223 S.W.3d 36, 43 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d).

          According to the record, the defensive strategy of dehydration was a novel
approach, and trial counsel found no case law suggesting it was a successful
defensive strategy. Trial counsel explained that trial strategy will vary for each
driving-while-intoxicated case.      Trial counsel stated that dehydration was a
medical condition that affected a person’s normal use of mental and physical
faculties, which was essential to proving an intoxication charge. He prepared for
the defense by reading to understand and develop the defense.          Trial counsel
sought to enter into evidence Schroeder’s medical records reflecting that Schroeder
had been medically diagnosed as dehydrated a short time before the charged
offense occurred. He also called a mental health peace officer to testify that
physical signs and behavior that would appear to be intoxication to most law
enforcement officers could be caused by other conditions familiar only to those
officers with training and experience in mental health. The mental health peace
officer’s testimony was intended by trial counsel to support the dehydration
defense. According to trial counsel, finding a peace officer to testify for a defense
team is difficult. See Ex parte Jimenez, 364 S.W.3d at 884. Trial counsel believed
that the pharmacist’s testimony was helpful to show that the amount of
medications in Schroeder’s system were considered low therapeutic dosages. Trial
counsel had objected to the admission of Schroeder’s pharmacy records into


                                          12
evidence, but withdrew the objection at Schroeder’s request; trial counsel believed
the sheer volume and frequency of Schroeder’s refills for medications hurt
Schroeder’s case.

       Although he could not guarantee any trial results, trial counsel explained to
Schroeder that a theory of dehydration could be successful with a jury. The
defense of dehydration was the only defense he discussed with Schroeder and the
only defense he believed to be available to Schroeder. The record indicates trial
counsel, through the defensive theory of dehydration and expert testimony, was
trying to negate an essential element of the State’s case—the loss of normal use of
mental and physical faculties—a common and effective strategy in criminal cases.
See, e.g., Juarez v. State, 308 S.W.3d 398, 403 (Tex. Crim. App. 2010); Scott v.
State, 235 S.W.3d 255, 260–61 (Tex. Crim. App. 2007). Trial counsel was not
ineffective for focusing upon the primary contested issue, intoxication. See Ex
parte Jimenez, 364 S.W.3d at 884.

       Finally, Schroeder complains that trial counsel improperly prolonged the
case in the interest of garnering additional fees.           Trial counsel testified that
Schroeder asked to delay the case.                Trial counsel acknowledged he had
successfully implemented that strategy in the past and believed that it helped
Schroeder in this case when a second charge2 relating to the case at hand was
dismissed by the State. An error in trial strategy will be deemed inadequate
representation only if counsel’s actions lacked any plausible basis. See Ex parte
Burns, 601 S.W.2d at 372. Given counsel’s reasons and the success of his strategy
in Schroeder’s case, we cannot conclude the trial strategy lacked plausible

       2
         The record is unclear, but it suggests that Schroeder had two pending charges for
driving while intoxicated in Galveston County, both stemming from the same incident, and that
Schroeder was facing 25 to 99 years for each charge. The record suggests that one of these
charges was tried in the underlying trial and that the State did not pursue the other charge.

                                             13
basis. See id.

                            Alleged conflicts of interest

       The crux of Schroeder’s ineffective-assistance claim and his appellate
contentions is grounded in an assertion that trial counsel engaged in a conflict of
interest by representing Schroeder. For support, he points to evidence that trial
counsel received a check in the amount of $9,500 from an individual Schroeder
designated as attorney-in-fact in a power of attorney, which was apparently
intended by Schroeder and his attorney-in-fact to be used for hiring an expert.
Schroeder also points to another check written from Schroeder’s account to a
person named Jimmy Roberts.         Schroeder refers to both the pharmacist and
Roberts, who had been clients of trial counsel’s, as supporting trial counsel’s
conflict of interest.

       The record reflects that trial counsel introduced Schroeder to Roberts, who
loaned Schroeder money for paying trial counsel’s attorney’s fees in Schroeder’s
case. The check written to Roberts, who was also a client of trial counsel’s in civil
matters, was intended by Schroeder and his attorney-in-fact to prevent Roberts
from foreclosing on Schroeder’s home.

       Trial counsel asserted that the check for $9,500 was intended by him to be a
fee for trial preparation. Even though Schroeder had written on the memo line of
the check the word “expert,” trial counsel did not intend for the money to be spent
on experts; the record reflects that no experts were paid for their testimony.
Contrary to Schroeder’s testimony and Schroeder’s attorney-in-fact’s testimony,
trial counsel asserted that he did not tell Schroeder or the attorney-in-fact that he
planned to employ an expert.

       Regarding his connection with Roberts, trial counsel testified that he


                                         14
informed Schroeder that he could not get involved in any dispute Schroeder might
have with Roberts. Trial counsel did not advise Roberts about collecting the debt
from Schroeder. Additionally, contrary to Schroeder’s testimony, trial counsel
testified that Schroeder knew the pharmacist who testified at trial and Roberts were
clients of counsel’s in civil matters.

      Although Strickland governs claims of ineffective assistance of counsel
based on attorney error, certain claims of ineffective assistance of counsel
involving conflicts of interest are controlled by Cuyler v. Sullivan. See Cuyler v.
Sullivan, 446 U.S. 335 (1980). Under Cuyler, an accused demonstrates a violation
of his right to reasonably effective assistance of counsel based on a conflict of
interest if he can show that (1) his counsel was burdened by an actual conflict of
interest; and (2) the conflict had an adverse effect on specific instances of
counsel’s performance. Cuyler, 446 U.S. at 348–50. Until a defendant shows his
counsel actively represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance. Id. at 350. A
showing of the “possibility of a conflict of interest” is not sufficient to overturn a
criminal conviction. See id. But, if Schroeder shows an actual conflict, prejudice is
presumed. Id. An actual conflict of interest exists if counsel is required to make a
choice between advancing a client’s interest in a fair trial or advancing other
interests to the detriment of a client’s interests. See Monreal v. State, 947 S.W.2d
559, 564 (Tex. Crim. App. 1997). The conflict, however, must be more than
merely speculative. James v. State, 763 S.W.2d 776, 778–79 (Tex. Crim. App.
1989).

      Evidence that trial counsel demanded more money for trial does not show an
actual conflict of interest. Additionally, whether trial counsel represented Roberts
or the pharmacist, the record reflects those matters were civil matters completely

                                         15
unrelated to Schroeder’s case. There is no evidence that his representation of those
clients in unrelated civil matters impaired his representation of Schroeder in a
criminal proceeding. See Charleston v. State, 33 S.W.3d 96, 101 (Tex. App.—
Texarkana 2000, pet ref’d) (involving an alleged conflict in interest when
appointed trial counsel had previously represented a State’s witness’s husband in
unrelated matters several years before). Consequently, Schroeder has not shown
an actual conflict of interest. See id.

      Even if we were to indulge Schroeder’s arguments and presume, without
deciding, that these complaints satisfied a showing of an actual conflict of interest
in that trial counsel made a choice to advance his own interests over advancing
Schroeder’s interest in a fair trial, Schroeder has not satisfied the second
requirement that the conflicts had an adverse effect on specific instances of
counsel’s performance. No testimony was developed at the new-trial hearing to
show that accepting the money or trial counsel’s past client representations had
anything to do with his trial strategy of Schroeder’s case or that these matters
affected trial counsel’s pecuniary interest in the outcome of the case. See Costilla
v. State, 84 S.W.3d 361,365–66 (Tex. App.—Beaumont 2002), aff’d, 146 S.W.3d
213 (Tex. Crim. App. 2004); Fulgium v. State, 4 S.W.3d 107, 115 (Tex. App.—
Waco 1999, pet. ref’d) (declining to imply conflict to support an ineffective
assistance claim based on prior representation).

      Schroeder has failed to prove by a preponderance of the evidence that his
trial counsel rendered ineffective assistance at trial, and the trial court did not err in
denying his motion for new trial, which was based solely on Schroeder’s
ineffective-assistance claims. See Strickland, 466 U.S. at 669, 104 S. Ct. 2055.
Accordingly, we overrule Schroeder’s second issue.



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         The trial court’s judgment is affirmed.




                                             /s/    Rebecca Simmons
                                                    Justice


Panel consists of Justices McCally, Busby, and Simmons.*
Do Not Publish — TEX. R. APP. P. 47.2(b).




*
    Senior Justice Rebecca Simmons sitting by assignment.

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