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

                      MAJORITY OPINION


      Appellant Juan Quintero pled guilty to the offense of aggravated sexual
assault of a child as part of a plea-bargain agreement with the State. See Tex.
Penal Code Ann. § 22.021 (West 2011). The trial court found appellant guilty and,
in accordance with the plea bargain, sentenced him to serve six years in prison.
Appellant retained new counsel and filed a motion for new trial alleging that his
trial counsel was ineffective. The trial court denied appellant’s motion.
       Appellant contends in a single issue on appeal that the trial court abused its
discretion when it denied his motion for new trial. Appellant makes three separate
arguments within his single issue.      Appellant initially contends that his trial
counsel was ineffective because he advised appellant to plead guilty when counsel
had an actual conflict of interest. We reject this argument because at least one
reasonable view of the record evidence supports an implied finding by the trial
court that appellant suffered no adverse effect as a result of the actual conflict of
interest.

       Appellant next argues that his guilty plea was not voluntary due to counsel’s
ineffective assistance. We overrule appellant’s second contention because the
evidence introduced during the hearing on the motion for new trial supports an
implied finding by the trial court that appellant knowingly, intelligently, and
voluntarily agreed to accept the State’s plea bargain and plead guilty.

       Finally, appellant argues that the interest of justice entitles him to a new
trial. We overrule this argument because the interest of justice is not an
independent basis for a trial court to grant a criminal defendant a new trial, and the
independent legal ground asserted in support of appellant’s interest-of-justice
argument is identical to one raised, and rejected, in his first two arguments. We
therefore affirm the trial court’s judgment.

                                   BACKGROUND

       In 2012, appellant’s niece made an outcry that appellant had sexually
assaulted her in several ways. Appellant retained attorney Rigoberto Rodriguez as
his trial counsel. Appellant was eventually indicted for the offense. At the first
trial setting after his indictment, the State offered appellant a plea bargain of six
years’ confinement. Appellant accepted the plea bargain. After admonishing
appellant regarding his decision to waive his rights, the trial court accepted his
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plea, found him guilty of the charged offense, and sentenced him to the agreed six-
year prison term.

         Appellant then retained new counsel, who filed a motion for new trial. The
motion asserted that appellant was entitled to a new trial for three reasons: (1)
Rodriguez rendered ineffective assistance because he counseled appellant to accept
the State’s plea bargain when he had an actual conflict of interest; (2) appellant’s
guilty plea was involuntary because Rodriguez was ineffective; and (3) the interest
of justice required that he be granted a new trial.1 The trial court conducted a
hearing on appellant’s motion during which several witnesses testified, including
appellant, appellant’s brother, and Rodriguez.

         A.     Appellant’s testimony during the new trial hearing

         Appellant testified that his parents located Rodriguez and hired him on
appellant’s behalf. Appellant then testified that he did not know what, if any, work
Rodriguez did on his case between the complainant’s outcry and the charge being
filed against him.      Appellant testified he was aware that Rodriguez was also
representing his brother Jose Luis Quintero—the father of the complainant in
appellant’s sexual assault case—in two unrelated criminal matters.                    Appellant
acknowledged that he had signed a waiver of potential conflict of interest, but
explained that he did so because Rodriguez had told him it was a formality for the
judge.       According to appellant, Rodriguez did not discuss what the potential
conflict was and did not tell him that the trial court ultimately denied a motion
Rodriguez filed seeking the court’s approval of the conflict waiver.

         1
          Appellant made clear in the trial court, and has repeated on appeal, that he is not
asserting as the basis for his right to a new trial a broader claim of ineffective assistance of
counsel based on grounds such as his trial counsel’s failure to conduct an adequate investigation
of his case. Appellant has affirmatively limited his claim of ineffective assistance of counsel to
the three grounds mentioned in the text.

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       Appellant testified that at the time he accepted the plea bargain, he was
unaware of the evidence the State possessed against him. He went on to testify
that he is innocent of the sexual assault charge, but he pled guilty because
Rodriguez told him that if he did not accept the State’s offer, he would probably be
convicted at trial and would receive a life sentence. Appellant testified that he
asked Rodriguez for time to consider the State’s offer, but Rodriguez told appellant
he had to decide right away. Appellant went on to testify that he pled guilty
because his only other choice seemed to be to lose at trial and get a life sentence.
The record shows that the visiting judge who accepted appellant’s plea explained
the full punishment range during the plea hearing.2

       B.     Jose Luis’s testimony

       Jose Luis testified that he was very upset and angry when he first learned
about his daughter’s outcry accusing appellant of sexual assault. Jose Luis went on
to admit that he was charged with cruelty to animals and family assault after
appellant was charged with sexual assault. According to Jose Luis, his parents
hired Rodriguez to defend him in those two cases.                   Jose Luis testified that
Rodriguez informed him there could be a big conflict of interest if he represented
both brothers, that he probably should not represent both, but that the brothers
could sign a paper so it would not be a problem.                  According to Jose Luis,
Rodriguez did not specify the nature of the conflict of interest.

       Jose Luis testified he eventually told Rodriguez that he no longer believed
his brother was guilty. Jose Luis also informed Rodriguez that the prosecutor’s
       2
         The visiting judge specifically admonished appellant that: “the full range of punishment
in this matter is by life confinement in the Texas Department of Criminal Justice, or a term of
years not less than five, no more than ninety-nine, with an optional fine in any amount not to
exceed $10,000. That’s the full range of punishment. In addition to that conviction, you will be
required to register under the Texas Sex Offender Registration Act. You understand that?”
Appellant responded that he did.

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office had called him wanting to discuss appellant’s case and his thoughts on the
appropriate punishment for appellant. According to Jose Luis, Rodriguez told him
that it was not in his best interest to tell the prosecutors he now believed appellant
was innocent. Rodriguez explained that it might result in his children being taken
away based on a belief that he was trying to protect his brother rather than his
daughter.    When asked specifically what Rodriguez had told him, Jose Luis
testified that Rodriguez said: “do not talk to the DA’s Office and tell them that you
think he’s innocent because you may lose your kids.” Jose Luis testified that he
called the prosecutor’s office back and told them that he just wanted the “system”
to take care of it.

       C.     Veronica Pina’s testimony

       A sister of appellant and Jose Luis, Veronica Pina, also testified during the
hearing. She explained that she was involved in the hiring of Rodriguez and
discussed his representation of her brothers. She testified that Rodriguez did not
go into detail about potential conflicts of interest when she talked to him.
According to Pina, Rodriguez said that he could represent both brothers.

       D.     Trial counsel’s testimony

       Trial counsel Rodriguez testified that appellant hired him in May 2012 for
an “investigation” concerning the sexual assault outcry. From that point until
appellant was formally charged in November 2012, Rodriguez testified that he did
nothing more than “be on call” in case the police wanted to talk to appellant.
Rodriguez admitted that he did not talk to any witnesses and did not know the
specifics of the outcry.

       When appellant was charged in November 2012, Rodriguez applied the prior
fee paid (for investigation) to a new legal services contract. He testified that after


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this occurred, he agreed to represent Jose Luis in his criminal cases. Rodriguez
testified that he explained the potential for a conflict of interest to the family and
said that the brothers had to sign a waiver of the potential conflict before he would
represent both. Rodriguez testified that he explained the potential conflict to both
brothers. Rodriguez went on to explain that he would never have tried both cases;
if necessary, he would have tried appellant’s case and then withdrawn before Jose
Luis’s cases went to trial. Rodriguez testified that it was his choice whether to take
them to trial.

      Rodriguez explained that he filed a motion to waive potential conflict of
interest. The trial court’s staff called him later that day and told him the judge had
denied the motion. Rodriguez testified that he approached the trial judge the next
day and the judge told him that the motion was denied, but Rodriguez could still
represent both appellant and his brother if he wished. Rodriguez went on to testify
that he did not know whether an actual conflict of interest existed.

      Rodriguez was also asked about his interactions with Jose Luis regarding
appellant’s case. Rodriguez denied that Jose Luis ever told him that he now
believed appellant was innocent. Rodriguez admitted during his testimony that
Jose Luis had contacted him concerning the prosecutor’s attempt to discuss
appellant’s case, but Rodriguez asserted that he told Jose Luis to “tell [the
prosecutor] whatever you want to tell [him].” Rodriguez also denied advising Jose
Luis not to inform the prosecutor about his belief that appellant was innocent
because doing so might endanger Jose Luis’s access to his children.

      Regarding appellant’s guilty plea, Rodriguez testified that he showed up in
court on June 4, 2013, and the prosecutor on appellant’s case told him he was
about to be replaced by a new prosecutor yet to be identified. According to
Rodriguez, the departing prosecutor told him that the new prosecutor could decide

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to file two more charges against appellant and then ask the trial court to stack the
sentences. Rodriguez testified that during his discussions with appellant regarding
the State’s plea-bargain offer, he told appellant that a jury might acquit him, might
find him guilty and sentence him to five years in prison, or might sentence him to
life in prison.    Rodriguez also testified that he informed appellant about his
conversation with the departing prosecutor.        Rodriguez testified that he told
appellant exactly what the prosecutor had told him regarding the possibility of
more charges and the stacking of any resulting prison terms. Rodriguez also
testified he told appellant that if the State brought witnesses who could testify as to
each of the indictment’s allegations, then the State would have a strong case
against him. Rodriguez then conceded that, at the time of the plea deal, he had no
idea whether the State’s case against appellant was actually strong or weak.
Ultimately, Rodriguez testified that appellant wanted a deal with probation but
decided to take the offered plea bargain because the State was not willing to offer
probation. Rodriguez also emphasized repeatedly that appellant was not willing to
go to trial.

       E.      The trial court’s denial of appellant’s motion for new trial

       At the end of the hearing, appellant’s new counsel argued that it was
unethical for Rodriguez to have represented Jose Luis at the same time that he
represented appellant because Jose Luis could have been called as a witness
against appellant. He went on to ask the trial court to grant appellant a new trial.

       The trial court explained that he believed it unethical for a court to approve a
conflict of interest, but that he lacked the authority to remove a lawyer from a case
based on a conflict of interest. The court went on to find that a conflict existed in
this case. The court stated that he agreed with appellant’s arguments both “morally
and ethically.” Nevertheless, the court denied appellant’s motion in its entirety,

                                           7
stating: “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 [would] 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.” This appeal followed.

                                       ANALYSIS

      Appellant contends that the trial court abused its discretion when it denied
his motion for new trial. Within that single issue, appellant makes three separate
arguments, which we address in turn.

I.    Appellant has not shown that the trial court abused its discretion by
      refusing to grant him a new trial based on counsel’s alleged conflict of
      interest.
      Appellant’s first argument is that the trial court abused its discretion when it
denied his motion for new trial because he was denied effective assistance of
counsel due to his trial counsel’s actual conflict of interest.

      A.     Standard of review and applicable law

      We review a trial court’s decision on a motion for new trial for an abuse of
discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007).
Under this standard, an appellate court should reverse the trial court’s ruling only if
it was clearly erroneous and arbitrary, such as when no reasonable view of the
record could support the decision under review. Odelugo v. State, 443 S.W.3d
131, 137 (Tex. Crim. App. 2014). In the absence of express factual findings, we
assume that the trial court made implicit findings of fact that support its ruling.
Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). The record on
appeal must be inspected from every reasonable vantage in the light most favorable
to the trial court’s ruling, and found to be deficient, before it may be overturned as
an abuse of the trial court’s discretion. Odelugo, 443 S.W.3d at 138. If one

                                            8
reasonable view of the record would support the trial court’s denial of a motion for
new trial, the decision must be affirmed on appeal. See id.

      The Constitution guarantees a criminal defendant effective assistance of
counsel. Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013). To
prevail on his conflict-of-interest ineffectiveness claim, appellant must prove by a
preponderance of the evidence that (1) his trial counsel had an actual conflict of
interest, and (2) the conflict actually colored his trial counsel’s actions during his
representation of appellant. Odelugo, 443 S.W.3d at 136. “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.” Monreal v. State, 947 S.W.2d 559, 564
(Tex. Crim. App. 1997). In other words, appellant must show that his trial counsel
actually acted on behalf of those other interests, and he was adversely impacted as
a result. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Appellant’s claim will fail
if (1) no evidence has been presented on the issue, or (2) the evidence relevant to
the issue is in perfect equipoise. Odelugo, 443 S.W.3d at 136–37.

      B.     Appellant did not prove by a preponderance of the evidence that
             he was adversely impacted by any conflict of interest.
      Even if we assume the existence of an actual conflict of interest, appellant
must still establish, by a preponderance of the evidence, that he was adversely
impacted by his trial counsel’s conflict of interest. Appellant contends he met this
burden through: (1) undisputed evidence that Rodriguez represented his brother—
the father of the complainant, and therefore a potential material witness against
him—while continuing to represent appellant; (2) his brother’s testimony that
Rodriguez advised him to not tell the prosecutors his belief that appellant had not
sexually assaulted his daughter; and (3) his own testimony that Rodriguez


                                          9
pressured him into accepting the State’s plea-bargain offer by telling him he would
be convicted if he went to trial and would then receive a life sentence. We
disagree that, under the appropriate standard of review, appellant has established
that the trial court abused its discretion when it denied his motion for new trial
based on an actual conflict of interest.

       Appellant’s first argument consists simply of evidence that the dual
representation created an actual conflict of interest.                 That evidence does not
address the second part of the test: whether trial counsel acted on behalf of other
interests to appellant’s detriment. Our dissenting colleague argues that such an
adverse impact has been shown because Rodriguez failed to “disclose to appellant
the trial court’s conclusion that the dual representation was unethical” and the
court’s advice that Rodriguez “discontinue the dual representation”—information
that would have allowed appellant to make an informed decision about waiver and
choice of counsel. Post, at 5–6. But there is no evidence that the trial court
disclosed any such conclusion or advice to Rodriguez before appellant entered his
guilty plea.      Rather, the trial court simply denied counsel’s motion seeking
approval of the waiver appellant had signed, and Rodriguez testified that the trial
court said he could still represent both appellant and Jose Luis if he wished.3

       Appellant’s second and third arguments likewise do not demonstrate an
       3
           Appellant also asserts within his first argument that he is entitled to a new trial because
the trial court failed to conduct a Greig hearing. See U.S. v. Greig, 967 F.2d 1018, 1022 (5th Cir.
1992) (holding when actual conflict exists, trial court must hold hearing to ensure defendant (1)
is aware of the conflict, (2) realizes the potential hazard to his defense as a result of using the
conflicted attorney, and (3) knows his right to obtain other counsel). While the more commonly
used name for this type of hearing is a Garcia hearing, we use the name suggested by appellant
for purposes of this appeal. See U.S. v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975), abrogated on
other grounds by Flanagan v. U.S., 465 U.S. 259, 263 n.1 (1984). It is undisputed that the trial
court did not conduct a Greig hearing. We conclude that this fact alone does not establish
appellant is entitled to a new trial because appellant must still show he was adversely affected by
the actual conflict. See Greig, 967 F.2d at 1024; Ramirez v. State, 13 S.W.3d 482, 487–90 (Tex.
App.—Corpus Christi 2000, pet. dism’d).

                                                 10
adverse effect because they ignore that the evidence regarding Rodriguez’s
dealings with both Jose Luis and appellant was disputed. Although the brothers
each offered testimony that, if believed, could establish an adverse impact on
appellant, Rodriguez offered directly contrary testimony. For example, Rodriguez
testified that Jose Luis never told him that he now believed appellant was innocent.
Although he agreed that Jose Luis had approached him about what to tell the
prosecutors regarding appellant’s case, he denied advising Jose Luis to remain
quiet about his changed attitude toward his brother in order to advance Jose Luis’s
own interests. Rodriguez testified that he instead advised Jose Luis to “tell [the
prosecutor] whatever you want to tell [him].” Our dissenting colleague faults
Rodriguez for not attempting to secure a statement from Jose Luis in support of
appellant. Post, at 8. But according to Rodriguez, he did not know that Jose Luis
was now willing to make a supportive statement. This testimony undercuts the
dissent’s theory that Rodriguez gave this advice to advance Jose Luis’s interests to
the detriment of appellant.4

       The trial court, as the trier of fact, was entitled to believe Rodriguez’s
testimony and disbelieve the testimony of both appellant and his brother. See
Odelugo, 443 S.W.3d at 138 (stating that trial court can choose to disbelieve even
uncontroverted testimony if its probative value depends on the credibility of the
witness). We conclude the trial judge implicitly did so here. See Johnson, 169
S.W.3d at 239. Given the trial court’s implicit rejection of the brothers’ testimony
       4
          In contending that a new trial is required in the interest of justice (an issue we address in
Part III below), appellant points to record evidence that Rodriguez conducted no investigation
into his case and advised him to accept the State’s plea bargain offer even though Rodriguez had
no information on the strength or weakness of the State’s case against him. Our dissenting
colleague relies on this argument to support her view that appellant was adversely impacted by
his counsel’s conflict of interest. We do not reach this specific argument, however, because
appellant has affirmatively represented that he seeks a new trial only on the basis of an actual
conflict of interest and has expressly disclaimed any attempt to establish a broader claim of
ineffective assistance of counsel such as a failure to investigate.

                                                  11
and acceptance of Rodriguez’s, it was within the court’s discretion to conclude that
appellant failed to show by a preponderance of the evidence that he was adversely
affected by his trial counsel’s conflict of interest. Odelugo, 443 S.W.3d at 138.
Therefore, we hold the trial court did not abuse its discretion when it denied
appellant’s motion for new trial based on an actual conflict of interest. Id.

II.   Appellant has not shown that the trial court abused its discretion by
      refusing to grant him a new trial on the ground that his guilty plea was
      not knowingly, intelligently, and voluntarily entered.
      In his second argument, appellant claims that the trial court erred when it
denied his motion for new trial based on the allegedly involuntary nature of his
guilty plea. According to appellant, his plea was involuntary because his attorney
rendered ineffective assistance by failing to advise him of the existence of an
actual conflict of interest and by pressuring him to take the plea when he told him
he faced two choices: pleading guilty with a six-year sentence, or going to trial and
being found guilty and sentenced to life in prison. In this argument, appellant
makes no reference to the visiting judge’s admonishments regarding his decision to
plead guilty to the aggravated sexual assault charge. He also does not contend that
the admonishments, which are contained in the record, are insufficient.

      Due process required that a guilty plea be entered knowingly, intelligently,
and voluntarily. Kniatt v.State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In
considering the voluntariness of a guilty plea, an appellate court examines the
record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.
1998). Evidence that a defendant was admonished by the trial court creates a
prima facie showing that the guilty plea was made voluntarily and knowingly. Id.
The burden then shifts to the defendant to show that he entered the plea without
understanding the consequences of his action. Arreola v. State, 207 S.W.3d 387,
391 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
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       The record demonstrates that appellant received written admonishments
from the visiting judge.      Appellant signed those admonishments and initialed
several paragraphs specifically acknowledging that he understood the charges
against him and the consequences of a guilty plea, and that he had fully consulted
with his attorney before signing the admonishments and agreeing to the plea. The
record also demonstrates that the visiting judge orally admonished appellant
regarding his decision to plead guilty. Therefore, there is a prima facie showing
that appellant entered his guilty plea knowingly, intelligently, and voluntarily, and
appellant had the burden to show the trial court that his plea was nevertheless
involuntary. See Martinez, 981 S.W.2d at 197.

       Attempting to meet this burden, appellant relies on his testimony that his
attorney had not advised him of the existence of an actual conflict of interest
before he agreed to plead guilty and had pressured him to take the plea. But there
is other evidence in the record that appellant was aware of the conflict. In addition,
we have already determined that the trial court could have disbelieved appellant’s
testimony regarding his trial counsel’s handling of the plea bargain and instead
believed Rodriguez’s testimony that he discussed the State’s plea-bargain offer
with appellant and that he explained appellant’s options prior to appellant’s
decision to accept the plea. We therefore conclude appellant has not met his
burden to demonstrate that his guilty plea was involuntary and, as a result, has not
shown that the trial court abused its discretion when it denied his motion for new
trial based on this ground.

III.   Appellant has not shown that the trial court abused its discretion by
       refusing to grant him a new trial in the interest of justice.
       In his final argument on appeal, appellant contends the trial court abused its
discretion when it refused to grant him a new trial in the interest of justice. The


                                         13
interest of justice is not an independent basis for granting a new trial, however.
State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim. App. 2014). The Court of
Criminal Appeals has held that there must be some legal basis underpinning the
grant of a new trial, even when it is sought in the interest of justice. Id. As a
general rule, a trial court does not abuse its discretion in granting a motion for new
trial in the interest of justice if the defendant (1) articulated a valid legal claim in
his motion, (2) produced evidence or pointed to evidence in the trial record that
substantiated his legal claim, and (3) showed prejudice to his substantial rights
under the rules of appellate procedure. State v. Sanders, 440 S.W.3d 94, 99 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d).

       In an effort to meet these requirements, appellant asserts that the trial court
should have granted his motion in the interest of justice for one of the reasons he
asserted previously: his trial counsel was ineffective because he pressured him into
pleading guilty.5 We have already addressed, and rejected, this contention as a
stand-alone basis for the trial court to grant appellant a new trial. Having done so,
we hold this contention also cannot serve as the legal basis underlying the grant of
a new trial in the interest of justice. See id. at 104 (concluding that one ground did
not support new trial because court had already analyzed essentially the same
argument under another ground and concluded it did not support new trial). We
therefore hold that the trial court did not abuse its discretion when it denied
appellant’s motion for new trial based on this ground.

       5
          As part of his argument that Rodriguez pressured him into pleading guilty, appellant
briefly mentions an allegation that Rodriguez conducted no investigation before telling him that
he would be convicted and sentenced to life in prison if he did not accept the State’s plea
bargain. Because appellant has affirmatively stated that he is not pursuing a broader ineffective
assistance of counsel claim based on an allegation of failure to investigate, we do not construe
this allegation as raising a separate claim that he should be granted a new trial in the interest of
justice because his trial counsel failed to investigate his case, and we render no opinion on that
issue.

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                                 CONCLUSION

      Having addressed each argument raised in appellant’s single issue on appeal
and concluded that none supports reversal, we overrule that issue and affirm the
trial court’s judgment.




                                     /s/    J. Brett Busby
                                            Justice



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




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