                                 NO. 12-08-00072-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
ROBERT JESTER,                                    '           APPEAL FROM THE 7TH
APPELLANT

V.                                                '           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          '           SMITH COUNTY, TEXAS



                                    MEMORANDUM OPINION
       Robert Jester appeals his conviction for criminal nonsupport. In two issues, Appellant
asserts that his trial counsel was unconstitutionally ineffective and challenges the evidentiary
basis of the trial court‟s assessment of restitution. We affirm in part and reverse in part.


                                           BACKGROUND
       Appellant was charged by indictment with criminal nonsupport. Appellant pleaded guilty
and was placed on deferred adjudication community supervision.             The State later filed an
application to proceed to final adjudication, alleging that Appellant had violated the terms of his
community supervision. Appellant pleaded true to these allegations. The trial court found the
allegations to be true, revoked Appellant‟s community supervision, found him guilty of criminal
nonsupport, and sentenced him to confinement for two years. The court also ordered that
Appellant pay $11,528.16 in restitution. This appeal followed.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       In his first issue, Appellant asserts that his trial counsel was unconstitutionally
ineffective. Appellant bases his claim of ineffectiveness upon the fact that his appointed trial
counsel initially acted as an assistant district attorney aiding in the prosecution of this case, and
later was appointed as defense counsel in the case. According to Appellant, this change of
representation during the course of Appellant‟s case created a conflict of interest rendering trial
counsel ineffective.
Standard of Review
        There is a potential for a conflict of interest when an attorney represents a defendant in a
criminal case in which that attorney was formerly associated as a prosecutor. See Perry v. State,
No. 04-05-00506-CR, 2006 WL 2616442, at *1 (Tex. App.–San Antonio Sept. 13, 2006, no pet.)
(mem. op., not designated for publication). Such a conflict may arise based upon defense
counsel‟s “subliminal reluctance” to “attack pleadings or other actions and decisions by the
prosecution that he may have been personally involved with or responsible for.” See id. When it
is asserted that counsel was ineffective because of a conflict of interest, the proper standard of
review is that which the United States Supreme Court articulated in Cuyler v. Sullivan.
Acosta v. State, 233 S.W.3d 349, 352-53 (Tex. Crim. App. 2007); see Cuyler v. Sullivan, 446
U.S. 335, 348-50, 100 S. Ct. 1708, 1718-19, 64 L. Ed. 2d 333 (1980).
        Under Cuyler, “the possibility of conflict is insufficient to impugn a criminal conviction.”
Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719. Instead, “a defendant must establish that an actual
conflict of interest adversely affected his lawyer‟s performance.”1 Id. “In other words, the
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.” Acosta, 233 S.W.3d at 355. An “actual
conflict of interest” exists if counsel is required to make a choice between advancing his client‟s
interests in a fair trial or advancing “other interests” to the detriment of his client‟s interests. Id.
Such “other interests” can include counsel‟s personal interests. Id.
Discussion
        Appellant states that trial counsel was initially associated with the prosecution of his case.
Appellant argues that this fact, combined with trial counsel‟s actions in the revocation
proceedings, provides evidence requiring reversal under Cuyler. Specifically, Appellant alleges
that trial counsel “allowed [Appellant] to plead true to the [revocation] allegations without any
sort of agreement,” “presented no mitigating evidence other than a letter written by Appellant,”
and “questioned Appellant when he took the stand, but admitted that she had advised him not to
testify.”
        The record in this case demonstrates that Appellant‟s trial counsel initially represented
the State, on behalf of the district attorney‟s office, in Appellant‟s case. In that capacity, she
signed four motions as part of the proceedings leading up to Appellant‟s initial guilty plea.
These motions were filed on March 20, 2006. However, we cannot discern from the record the

        1
          “[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation
need not demonstrate prejudice in order to obtain relief.” Id., 446 U.S. at 349-50, 100 S. Ct. at 1719.

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degree of trial counsel‟s involvement as a prosecutor in the case. Cf. People v. Lawson, 644
N.E.2d 1172, 1184-85 (Ill. 1994) (attempting to determine counsel‟s level of involvement on
behalf of the State from the appellate record).
        On May 19, 2006, the trial court appointed trial counsel to serve as Appellant‟s attorney. 2
The record does not show whether trial counsel was aware of her previous involvement in
Appellant‟s case. See Hole v. State, No. 12-06-00207-CR, 2008 WL 726185, at *3 (Tex. App.–
Tyler Mar. 19, 2008, pet. ref‟d) (mem. op., not designated for publication) (“[C]ounsel‟s actions
at trial could not have been affected or colored by his earlier representation of Wilson absent any
awareness on [counsel‟s] part of his prior representation of Wilson.”). Moreover, the record
does not reveal whether Appellant was ever aware that trial counsel initially represented the State
in his case.
        After assuming her role as counsel for Appellant, trial counsel actively sought to discover
evidence from the State. However, from the record before us, we cannot determine what
evidence was discovered by trial counsel. Three months later, Appellant pleaded guilty and was
placed on deferred adjudication community supervision. On December 29, 2006, the State filed
an application to revoke Appellant‟s deferred adjudication community supervision and to
proceed to a final adjudication of Appellant‟s case. The State alleged that Appellant had violated
two terms of his community supervision by illegally consuming a controlled substance and by
failing to report to his probation officer. The trial court appointed the same trial counsel to
represent Appellant in the revocation proceeding.
        The record before us does not reveal that an “actual conflict of interest existed and that
trial counsel actually acted on behalf of those other interests during the trial.” See Acosta, 233
S.W.3d at 355. Instead, it simply shows a routine disposition that frequently occurs in criminal
proceedings before trial courts: a decision to plead guilty. The fact that trial counsel “allowed
[Appellant] to plead true to the [revocation] allegations without any sort of agreement” is not
remarkable absent some other evidence to indicate that a plea was ill advised. As to the issue of
mitigating evidence, trial counsel did present mitigating evidence at the revocation hearing in the
form of Appellant‟s testimony. Absent more, her failure to present other mitigating evidence
shows nothing. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (“Counsel‟s
failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a
showing that such witnesses were available and appellant would benefit from their testimony.”).
Finally, the record reflects that Appellant chose to testify against the advice of his counsel. Trial

        2
            The record does not reflect that trial counsel continued to represent the State after her appointment.
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counsel‟s admission that she advised Appellant not to testify was in response to the trial court
during its inquiry into Appellant‟s decision to testify. Trial counsel subsequently conducted a
competent examination of Appellant despite his decision to ignore her advice and testify.
         We conclude that Appellant has not shown an “actual conflict of interest existed and that
trial counsel actually acted on behalf of those other interests during the trial.” See Acosta, 233
S.W.3d at 355. Therefore, he has not shown that trial counsel was unconstitutionally ineffective.
See id. Accordingly, we overrule Appellant‟s first issue.



                                                     RESTITUTION
         In his second issue, “Appellant argues that the amount of restitution ordered by the trial
court had no factual basis in the record.” Thus, Appellant argues that the trial court committed
an abuse of discretion in assessing restitution in the amount of $11,528.16.3
Standard of Review
         We review a trial court‟s restitution assessment under the abuse of discretion standard of
review. See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). A trial court does
not abuse its discretion when its decision is within the zone of reasonable disagreement.
Ingram v. State, 261 S.W.3d 749, 752 (Tex. App.–Tyler 2008, no pet.) (citing Casey v. State,
215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). Further, the trial court‟s decision will be upheld
on appeal if it is correct under any theory of law applicable to the case. Ingram, 261 S.W.3d at
752 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). This principle holds
true even where the trial court has given an erroneous legal reason for its decision. Ingram, 261
S.W.3d at 752 (citing Romero, 800 S.W.2d at 543).
         A trial court commits an abuse of discretion where the amount of restitution assessed is
unjust. Campbell, 5 S.W.3d at 696. Further, the amount “must have a factual basis within the
loss of the victim.” Id. The record must include evidence showing that the assessed amount has
a factual basis, and that the injuries of the victim justify the restitution amount. See id. A trial
court may not assess restitution for an offense for which the defendant is not criminally
responsible.4 Id. at 697. Further, a trial court may not assess restitution to any but the victim or
victims of the offense with which the offender is charged. Id. Finally, a trial court may not,


         3
             Appellant does not challenge the trial court‟s authority to assess restitution. Instead, Appellant asserts that
the trial court lacked the proper evidence to support its assessment.
           4
             “One is never „criminally responsible‟ for an amount of restitution.” Id. at 698. Instead, criminal
responsibility is assessed for the conduct that forms the basis for the trial court‟s discretionary award of restitution.
Id.
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without the agreement of the defendant, assess restitution to other victims unless their losses
have been adjudicated. Id.
Discussion
       The trial court‟s judgment includes an assessment of $11,528.16 in restitution, the
amount originally assessed by the trial court as part of Appellant‟s deferred adjudication
community supervision.       The presentence investigation report showed that Appellant owed
$11,528.16 as a result of his failure to pay child support. See Perry v. State, 957 S.W.2d 894,
898-900 (Tex. App.–Texarkana 1997, pet. ref‟d) (discussing admissibility of child support
records); see also TEX. R. EVID. 803(8)(B) (setting forth exception to hearsay rule for public
records, reports, statements, or data compilations). This report, however, failed to show the
amount of child support owed by Appellant before his indictment for criminal nonsupport on
February 2, 2006. Instead, the presentence report contains a financial activity report showing
that, as of January 31, 2006, Appellant owed $10,216.51, which is $1,311.65 less than the trial
court ordered. Of that $1,311.65, the undisputed evidence showed that at least $761.49 of the
$11,528.16 was incurred after the indictment. We cannot determine the origin of the remaining
$550.16. Finally, undisputed evidence was presented at the revocation hearing demonstrating
that Appellant had made $643.33 in payments during the course of his community supervision.
As such, restitution in the amount of $11,528.16 was without adequate evidentiary support in
relation to matters for which Appellant has been adjudged criminally responsible. See Campbell,
5 S.W.3d at 697 (trial court may not assess restitution for offense for which defendant not
criminally responsible).     See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(a) (Vernon 2006)
(“The judge shall enter the amount of restitution or reparation owed by the defendant on the date
of revocation in the judgment in the case.”).
       We note that the trial court orally pronounced restitution of “$11,528.16, less any
payments that have been made since August of 2006, that would have entitled the defendant
credit on that number . . . .” See Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 2009).
We have already explained that at least $761.49 of the $1,528.16 was incurred after the
indictment and that we cannot determine the origin of another $550.16. Therefore, deducting the
payments Appellant made during his community supervision ($643.33) does not cure the
insufficiency of the evidence. Accordingly, we hold that the trial court abused its discretion in
assessing $11,528.16 as restitution. See Campbell, 5 S.W.3d at 696-97. We sustain Appellant‟s
second issue.



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                                                   CONCLUSION
         We have sustained Appellant‟s second issue. We reverse the judgment of the trial court,
as it relates to restitution, and remand the case to that court for determination of the proper
amount of restitution. See id. at 702 (applying a similar remedy). Having overruled Appellant‟s
first issue, we affirm the judgment of the trial court in all other respects. All pending motions
are overruled as moot.


                                                                SAM GRIFFITH
                                                                    Justice


Opinion delivered January 20, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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