Quintero, Juan

PD-0746-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/17/2015 1:31:42 PM Accepted 7/17/2015 4:31:56 PM ABEL ACOSTA CLERK No. PD-0746-15 In the Court of Criminal Appeals of Texas ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ No. 14-13-00559-CR In the Fourteenth District Court of Appeals (Houston, Texas) ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ No. 1368190 In the 228th District Court, Harris County, Texas ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ JUAN QUINTERO, Petitioner v. THE STATE OF TEXAS, Respondent ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ PETITION FOR DISCRETIONARY REVIEW ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

PEYTON Z. PEEBLES, III SHELLIST, PEEBLES & MCALISTER, LLP 405 Main Street, Suite 200 Houston, Texas 77002 July 17, 2015 Tel.: (713) 715-4500 Fax: (713) 715-4505 Email: peebles@texaslegalteam.net SBOT: 24013307 Counsel for Petitioner

ORAL ARGUMENT REQUESTED

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

Comes now Petitioner, Juan Quintero, by and through his un- dersigned counsel, and presents this Petition for Discretionary Re- view (“PDR”) pursuant to TEX. R. APP. P. § 68.

PARTY IDENTIFICATION Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all interested parties is provided below: Counsel for Petitioner:

Peyton Z. Peebles, III ⎯ Motion for new trial, appeal & PDR Steven D. Shellist ⎯ Motion for new trial Shellist, Peebles & McAlister, LLP 405 Main Street, Suite 200 Houston, Texas 77002

Rigoberto Rodriguez ⎯ Plea bargain 2120 S Wayside Dr., Ste J Houston, TX 77023

Appellant (Criminal Defendant):

Juan Quintero Counsel for the State:

Devon Anderson ⎯ District Attorney Mike Anderson— Former District Attorney Patricia Lykos— Former District Attorney Clinton A. Morgan ⎯ Assistant District Attorney

Greg Houlton ⎯ Assistant District Attorney Harris County, Texas 1201 Franklin Street, Ste. 600 Houston, Texas 77002

Trial Judge: Hon. Marc Carter ⎯ Presiding Judge 228th District Court Harris County, Texas Criminal Justice Center 1201 Franklin, 16th Floor Houston, Texas 77002

TABLE OF CONTENTS

PARTY IDENTIFICATION ............................................................... 2

TABLE OF CONTENTS .................................................................... 4

INDEX OF AUTHORITIES ............................................................... 6

STATEMENT REGARDING ORAL ARGUMENT .............................. 8

STATEMENT OF THE CASE ............................................................ 8

STATEMENT OF PROCEDURAL HISTORY .................................... 8

GROUND FOR REVIEW ..................................................................10

The panel majority erred in holding that the trial court reasonably denied petitioner’s motion for new trial despite a record clearly showing: (1) his lawyer had an actual conflict of interest; and (2) his lawyer acted contrary to petitioner’s interests in at least four instances. .............................................. 10

ARGUMENT .................................................................................... 11

I. FACTS LEADING TO MOTION FOR NEW TRIAL ................................ 11

II. FACTS FROM HEARING ON PETITIONER’S MOTION FOR NEW TRIAL....13

III. GROUND FOR REVIEW — THE PANEL MAJORITY ERRED IN HOLDING THAT THE TRIAL COURT REASONABLY DENIED PETITIONER’S MOTION FOR NEW TRIAL DESPITE A RECORD CLEARLY SHOWING: (1) HIS LAWYER HAD AN ACTUAL CONFLICT OF INTEREST; AND (2) HIS LAWYER ACTED CONTRARY TO PETITIONER’S INTERESTS IN AT LEAST FOUR INSTANCES. ................. 22

PRAYER FOR RELIEF .................................................................... 27

APPENDIX ..................................................................................... 30

INDEX OF AUTHORITIES

Cases Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) .................. 21 Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980) ................... 22 Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982) ....................................23 Monreal v. State, 947 S.W.2d 559 (Tex. Crim. App. 1997) ................ 21

Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex. App.—Houston [14th Dist.] May 19, 2015) .......... 7, 20, 24

Ramirez v. State, 13 S.W.3d 482 (Tex. App.—Corpus Christi 2000, pet. dism’d) ....................................................... 21

Strickland v. Washington, 466 U.S. 668 (1984) ............................... 20

United States ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003) ....................................................23

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)......................... 21 United States v. Greig, 967 F.2d 1018 (5th Cir. 1992) .................. 21, 22 Statutes TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv) (Vernon 2011) ............... 6 TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (Vernon 2011) ..................... 6 *7 Rules TEX. R. APP. P. 38.2(a)(1)(A) .............................................................. 2 TEX. R. APP. P. 39.1 ............................................................................ 6 TEX. R. APP. P. 9.4(g) ......................................................................... 6

STATEMENT REGARDING ORAL ARGUMENT Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, Peti- tioner requests oral argument to expand the legal theories stated herein and to assist the Judges of this Court. ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯ STATEMENT OF THE CASE The State charged appellant by indictment with aggravated sex- ual assault of a child in violation of TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(iv) & (2)(B) (Vernon 2011). Appellant pled guilty to the charge. The judge accepted his plea, found him guilty, and sen- tenced him pursuant to the plea bargain to confinement for six years in the Texas Department of Criminal Justice, Institutional Di- vision. Petitioner lodged an unsuccessful motion for new trial, followed by an unsuccessful appeal. This PDR follows. ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯ STATEMENT OF PROCEDURAL HISTORY The State charged appellant by indictment with aggravated sex- ual assault of a child in violation of TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(iv) & (2)(B) (Vernon 2011). Appellant pled guilty to the charge on June 4, 2013. The judge accepted his plea, found him guilty, and sentenced him pursuant to the plea bargain to confine-

ment for six years in the Texas Department of Criminal Justice, In- stitutional Division, on that date. Appellant filed a timely and written motion for new trial and no- tice of appeal. The trial court held a hearing on appellant’s motion for new trial on August 12, 2013, and denied the motion on the same date. The trial court certified his right to appeal. On May 19, 2015, a divided panel from the Fourteenth District Court of Appeals affirmed petitioner’s judgment and sentence. Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex. App.—Houston [14th Dist.] May 19, 2015). Petitioner did not file a motion for rehearing or motion for en banc reconsideration, opting to come to this Court directly. This Court granted petitioner until July 20, 2015, to file his peti- tion for discretionary review. This petition is either filed by that date, or is filed within 15 days afterward and accompanied by a mo- tion requesting a slight time extension.

GROUND FOR REVIEW The panel majority erred in holding that the trial court reasonably denied petitioner’s motion for new trial despite a record clearly showing: (1) his lawyer had an actual con- flict of interest; and (2) his lawyer acted con- trary to petitioner’s interests in at least four instances.

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ARGUMENT The panel majority erred in a manner compelling discretion- ary review followed by a new trial. This case presents an egregious situation where petitioner’s counsel represented him for over a year, contemporaneously represented the complainant’s father in other criminal actions, failed to fully advise appellant about the na- ture of the potential conflict, and then counseled appellant to plead guilty despite admittedly performing no investigation into the facts of this case. Petitioner’s plea was involuntary due to his counsel’s conduct, warranting a new trial.

I. FACTS LEADING TO MOTION FOR NEW TRIAL

In early May, 2012, petitioner’s niece made outcry to her mother that petitioner sexually molested her (RR1 at 35-36). On the same day as the outcry, petitioner’s brother (the complainant’s father), Jose Luis Quintero, called their mutual sister Veronica Pina and told her that if petitioner returned to the house he would kill peti- tioner (RR1 at 32-33, 35-36). Petitioner hired defense lawyer Rigoberto Rodriguez to repre- sent him (CR at 102-04; RR1 at 13-15, 33; RR2 at Defense Exhibits 1, 2). Rodriguez did no investigation (RR1 at 48-51).

On November 16, 2012, the State charged petitioner with aggra- vated sexual assault of a child, namely, his brother Jose Luis’s daughter (CR at 5). On January 21, 2013, the State charged petitioner’s brother Jose Luis with the felony crime of cruelty to animals (CR at 56-58). On February 1, 2013, the State charged Jose Luis with committing the felony crime of assault against his wife (the complainant’s mother) Myrma Quintero (CR at 59-61). On February 7, 2013, defense counsel Rodriguez went to court and announced that he would defend Jose Luis against the cruelty to animals and family assault charges (CR at 62-69). On February 15, 2013, Rodriguez went to court and announced that he would defend petitioner against the aggravated sexual as- sault charge (CR at 12).1 On April 15, 2013, Rodriguez had petitioner and his brother Jose Luis sign a “Waiver of Potential Conflict of Interest,” and then pre- sented the motion to the court (CR at 14-15, 70-74). Petitioner’s trial judge denied the waiver (CR at 14-15, 70-74). A grand jury indicted petitioner on May 3, 2013, and indicted Jose Luis on both charges on May 31, 2013 (CR at 19, 83-91).

1 The contract petitioner signed for “pre-trial services,” however, appears to be dated February 25, 2013 (CR at 105-08).

Petitioner next appeared in court on June 4, 2013 (CR at 18). A visiting judge was presiding, and petitioner waived his right to a ju- ry and pled guilty to a negotiated six-year prison sentence (CR at 21- 36).

II. FACTS FROM HEARING ON PETITIONER’S MOTION FOR NEW TRIAL

Petitioner filed a motion for new trial alleging, inter alia, that Rodriguez counseled him to plead guilty when he had an actual con- flict of interest and had acted contrary to petitioner’s interests. Petitioner’s Testimony Petitioner testified that he was unaware if Rodriguez did any work on his case between the outcry and the charge being filed (RR1 at 13-14). He was aware that Rodriguez was representing both him and his brother and he signed a waiver of potential conflict of inter- est—but did so because Rodriguez told him it was merely a “formali- ty” for the judge (RR1 at 15). Rodriguez did not discuss what the po- tential conflict was and did not tell petitioner that the judge denied the motion (RR1 at 15-16). Regarding his knowledge of the case at the time he pled guilty, petitioner testified that he was not aware that: • The complainant had given many different inter- views;

• • The complainant initially could not describe how the ultimate allegation happened; • The complainant first said petitioner did not penetrate her anus, but later said he did; • At one point the complainant said petitioner placed his penis on her through her clothing; • The complainant gave inconsistent statements about whether she had seen appellant’s penis; • At one point the complainant said she never saw petitioner’s penis; and • The complainant said petitioner held her arms behind her back while tickling her.

(RR1 at 16-19). Petitioner testified that he is innocent of this charge, but that he pled guilty because Rodriguez said he would probably be convicted at trial and get a life sentence…or he could accept the State’s six- year offer (RR1 at 19-20). Rodriguez told petitioner he had to decide right away (RR1 at 19-20). Fearing a life sentence, petitioner pled guilty despite the visiting judge admonishing him over the full pun- ishment range (RR1 at 20, 25-26). Jose Luis Quintero’s Testimony The complainant’s father testified that he was at work one after- noon when his wife, Myrma, called and said that their daughter ac- cused petitioner of doing something [sexual] to her (RR1 at 35-36).

Jose Luis was furious and called his sister, Veronica Pina, to tell her that if petitioner returned to his house then he would kill petitioner (RR1 at 36).2 The State later charged Jose Luis with cruelty to animals and family assault and he hired Rodriguez to defend him (RR1 at 36-37). Rodriguez told him there could be a big conflict of interest and he probably should not represent them both, but that the brothers could sign a paper so it would not be a problem (RR1 at 37-38). Ro- driguez did not go specify the nature of the conflict (RR1 at 37-38).3 At some point Jose Luis told Rodriguez that he no longer thought petitioner was guilty (RR1 at 38-39). He also told Rodriguez that the District Attorney’s Office had called wanting to talk to him about petitioner’s case—but Rodriguez told Jose Luis that it was not in his best interests to tell the District Attorney’s Office that peti- tioner was innocent because CPS might try and take his children away [for seeming to protect someone that they thought abused his child] (RR1 at 39-40). When asked specifically what Rodriguez said, Jose Luis testified that Rodriguez told him, “Do not talk to the DA’s Office and tell them that you think he’s innocent because you may

2 Pina also testified to this effect (RR1 at 32-33). 3 Pina also testified that Rodriguez did not go into detail about potential con- flicts of interest when she talked to him; he merely said he could represent both brothers (RR1 at 31, 33-34).

lose your kids” (RR1 at 40). Jose Luis called the District Attorney’s Office and told them that he just wanted the “system” to take care of it (RR1 at 41).4 Rigoberto Rodriguez’s Testimony Defense counsel Rigoberto Rodriguez testified that petitioner hired him on May 3, 2012, for an “investigation” concerning the sexual assault outcry (RR1 at 47). From May, 2012, until petitioner was formally charged in November, 2012, Rodriguez did nothing more than “be on call” in case the police wanted to talk to petitioner (RR1 at 48). He testified that he discussed a polygraph with petition- er but that petitioner did not want to take one (RR1 at 48-49). Ro- driguez did not talk to any witnesses and did not know the specifics of the outcry (RR1 at 50-51). When petitioner was charged in November, 2012, Rodriguez ap- plied the prior fee paid (for investigation) to a new legal services contract (RR1 at 51). He then accepted representation for petition- er’s brother Jose Luis (RR1 at 52-53). Rodriguez testified that he ex- plained the potential for a conflict of interest to the family and said that both brothers had to sign a waiver of that potential conflict (RR1 at 52-55). Rodriguez explained that he would never have tried both cases—if necessary he would have tried petitioner’s and then

4 Jose Luis testified that he still felt petitioner was innocent of this allegation (RR1 at 44-45).

withdrawn from Jose Luis’s before Jose Luis’s cases went to trial (RR1 at 53, 59-60). Rodriguez explained, “It’s my choice to take it to trial or not” (RR1 at 53). Rodriguez explained that he filed the motion to waive potential conflict of interest with the court but did not secure a ruling on it (RR1 at 58). The court’s staff called him later that day and explained that the judge denied it (RR1 at 58). Rodriguez approached the judge the next day and the judge told him that the motion was denied, but Rodriguez could still represent petitioner if he wanted to (RR1 at 58). Rodriguez testified that he filed a grand jury packet containing: (1) records related to petitioner’s military service and the honorable discharge therefrom; and (2) a “proffer” of evidence in the form of a letter from Rodriguez stating that petitioner maintained his inno- cence and would testify in the grand jury (RR1 at 56). Rodriguez stated that this was a lie to the grand jury—it was merely a “proffer” from Rodriguez and that petitioner never really maintained his in- nocence (RR1 at 78-79). Nonetheless, the grand jury chose not to hear from petitioner (RR1 at 56). Regarding his work defending petitioner, Rodriguez testified that he did not do any work because his duty to investigate or pre- pare a defense does not arise until: (1) the case is indicted; and (2)

the client rejects a plea bargain and demands a trial (RR1 at 60). Rodriguez stated, “[Investigating the case] would have been the next phase after the indictment,” and, “[i]t didn’t develop to that stage where I could have done that because he took the plea” (RR1 at 60). Although he represented petitioner for over a year, Rodriguez stated, “What happened here is he took the plea prior to me doing that. That was the next phase when his case is set for trial” (RR1 at 60). As a result, Rodriguez had never: • Gone to the District Attorney’s Office to review their file; • Reviewed the complainant’s outcry statement; • Reviewed any of the multiple interviews that law enforcement did with the complainant; • Reviewed any interviews by the complainant’s parents; • Talked to any of the witnesses about the case against petitioner 5; or • Talked to Jose Luis about a statement he made to investigators that he was previously a victim of sexual assault.

5 Those witnesses included the complainant, the complainant’s mother Myrma, the complainant’s grandmother Armadina Quintero, the complainant’s father Juan Quintero, Sr., petitioner’s brother-in-law Jesus Pina, or family friend Johnny Villarreal (RR1 at 69). Most gave affidavits in support of petitioner’s motion for new trial (RR2 at Defense Exhibit 1).

(RR1 at 56, 60, 65-67, 70-71). Rodriguez was unaware whether he had reviewed any medical records in this case (RR1 at 67). When asked, “So, as you sit here today, you don’t know whether or not she said on one of those tapes, he didn’t do it?” Rodriguez re- sponded, “It doesn’t matter. He’s indicted. The next thing is trial. He didn’t want to go to trial. He’s not trying the case to me. It’s whether he wants to go to trial or not. That’s the next step” (RR1 at 65). When asked whether the complainant gave statements that are inconsistent with the probable cause affidavit used by the officer to secure petitioner’s arrest, Rodriguez replied, “[it] doesn’t matter. He’s got to be willing to go to trial. I mean, what difference—I’m not the jury. He has to want to go to trial” (RR1 at 67). Rodriguez was unaware that Jose Luis initially threatened to kill petitioner and denied that Jose Luis ever told him that he felt peti- tioner was innocent (RR1 at 56, 78-79). He admitted Jose Luis called him concerning the District Attorney’s attempt to discuss petition- er’s case, but stated that he just told Jose Luis to “tell them whatever you want” (RR1 at 68-69). Regarding petitioner’s guilty plea, Rodriguez testified that he showed up in court on June 4th and the prosecutor on petitioner’s case was about to be replaced by a new, as yet unidentified, prosecu- tor (RR1 at 73-75). The prosecutor also told Rodriguez that they

could file two more cases against petitioner and then ask the Court to stack them6 (RR1 at 74). Rodriguez told appellant that a jury might acquit him, might give him 5 years in prison, or might give him life in prison (RR1 at 73-74). He told petitioner that the District Attorney could file more charges and then ask the judge to stack the sentences (RR1 at 74). He also told petitioner 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 him7 (RR1 at 78). Rodriguez conceded that he had no idea whether the State’s case was actually strong or weak—stating, “I’ll never know because he pled” (RR1 at 78). Ultimately, Rodriguez testified that pe- titioner wanted probation but took the six-year plea bargain deal because probation was not an option8 (RR1 at 75). The Trial Court’s Ruling Presiding Judge Marc Carter denied Rodriguez’s motion to waive the “potential” conflict of interest in this case. He was absent for pe-

6 Given Rodriguez’s unfamiliarity with the facts, he must have taken the prose- cutor’s statements at face value. 7 Nonetheless, Rodriguez testified that in his opinion it did not matter whether the State’s case was strong or weak because petitioner chose not to go to trial (RR1 at 76-77). 8 Rodriguez testified that the prosecutor refused to waive her right to a jury trial if petitioner intended to plead guilty without an agreed punishment recom- mendation and request deferred adjudication community supervision from the judge (RR1 at 75).

titioner guilty plea and sentencing, but presided over his hearing on the motion for new trial. At the close of evidence on this hearing, Judge Carter stated that he felt it unethical for a trial court to approve a conflict of interest, but stated that he lacked the authority to remove a lawyer from a case on that bases (admonishing that it’s the lawyer’s “bar card on the line”) (RR1 at 81-82). Judge Carter also agreed that a conflict existed in this case9 (RR1 at 83). Judge Carter agreed with the defense’s arguments both “morally and ethically” (RR1 at 87). Nonetheless, Judge Carter denied the motion in its entirety be- cause “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 rather take six years than fifty” (RR1 at 87). Thus, the judge found that despite an actual conflict of interest, petitioner’s motion was ill- taken because an innocent person can waive their right to a jury and plead guilty in order to minimize their risk at a larger sentence for a crime they did not commit—“as long as you do that knowingly and intelligently” (RR1 at 87).

9 Judge Carter stated that it was a conflict for Rodriguez to also represent a wit- ness who could testify against petitioner, but did not elaborate on whether he felt a conflict existed on other grounds as well (RR1 at 84).

III. GROUND FOR REVIEW — THE PANEL MAJORITY ERRED IN HOLDING THAT THE TRIAL COURT REASONABLY DENIED PETITIONER’S MOTION FOR NEW TRIAL DESPITE A RECORD CLEARLY SHOWING: (1) HIS LAWYER HAD AN ACTUAL CONFLICT OF INTEREST; AND (2) HIS LAWYER ACTED CONTRARY TO PETITIONER’S INTERESTS IN AT LEAST FOUR INSTANCES.

The panel majority upheld the trial court’s decision to deny peti- tioner a new trial, rationing that, although an actual conflict of in- terest might exist: (1) Rodriguez testified that Jose Luis never told him he thought petitioner was innocent; (2) Rodriguez testified that he did not dissuade Jose Luis from talking with the prosecutor about petitioner’s case; and (3) Rodriguez had no duty to advance Jose Luis as a helpful witness since he testified that he had no idea Jose Luis was helpful. Quintero, No. 14-13-00559-CR, at 8-12, 2015 WL 2405549. The Court also noted that petitioner was aware that Rodriguez was representing Jose Luis, and that the plea admonish- ments established a prima facie case that he pled guilty knowingly and voluntarily. Quintero, No. 14-13-00559-CR, at 8-13, 2015 WL 2405549.

A. The right to unburdened counsel.

The right to counsel guarantees a criminally accused an attorney unburdened by an actual conflict of interest. See Strickland v. Wash- ington, 466 U.S. 668, 692 (1984). An actual conflict 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.’” Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997)). Actual conflicts of interest can occur in different ways. For example, when an attorney repre- sents two clients whose interests in the outcome of a matter are dif- ferent, an actual conflict of interest exists for the attorney. See Ramirez v. State, 13 S.W.3d 482, 486–87 (Tex. App.—Corpus Christi 2000, pet. dism’d). Another is when the lawyer is required to make a choice between advancing his own interests and those of the client. Acosta, 233 S.W.3d at 355. When there is an actual conflict, the trial court must hold a hearing to ensure that the defendant: (1) is aware of the conflict; (2) realizes the potential hazard to his defense from using the conflicted attorney; and (3) knows his right to obtain other counsel. United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (synthesizing the rule from United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975)). A defendant is entitled to a new trial if he can demonstrate that an actual conflict of interest existed and “trial counsel actually acted on behalf of those other interests during the trial.” Acosta, 233 S.W.3d at 355 (citing Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100

S.Ct. 1708 (1980)). Such a showing indicates that the actual conflict adversely affected the judgment, which mandates a new trial. See Greig, 967 F.2d at 1024.

B. The only reasonable view of this record shows that counsel labored under a conflict and acted adversely to petitioner’s interest, as shown by the dissent.

The trial court expressly found that an actual conflict of interest existed. Scant evidence exists showing petitioner was aware of the actual conflict (only that he signed a waiver of any potential con- flicts) and no evidence shows that petitioner: (1) realized the poten- tial hazard to his defense from using the conflicted attorney; and (2) knew his right to obtain other counsel. Greig, 967 F.2d at 1022. Thus, the trial court’s decision to deny petitioner’s motion for new trial for a different reason10 was so clearly wrong as to fall outside the zone within which reasonable persons might disagree. Smith, 286 S.W.3d at 339; Herndon, 215 S.W.3d at 906. Moreover, even considering the evidence in the light most fa- vorable to the trial court’s ruling (thereby effectively ignoring Jose Luis’s compelling testimony), Rodriguez acted based on the conflict and contrary to petitioner’s interests in at least four concrete re-

10 That innocent people can plead guilty to avoid great risk, so long as their de- cision is free and voluntary.

spects. First, Rodriguez testified that he admitted he could not rep- resent both brothers at a trial and, thus, one of them would have to accept a plea bargain. Thus, Rodriguez acted to pressure petitioner into a plea bargain rather than jeopardize his continued representa- tion. Second, Rodriguez testified that he never told petitioner that the trial court denied his motion to waive the conflict. Thus, Rodriguez acted pursuant to his own business interests rather than petitioner’s interest in knowing about the conflict, which would in turn have in- formed petitioner’s plea bargain considerations. Third, Rodriguez testified that, when he learned the prosecutor wanted to talk to Jose Luis about petitioner’s case, he simply told Jose Luis to “tell them whatever you want” without further advice. This violated Rodriguez’s obligation to investigate the State’s case, ferret out exculpatory and/or mitigating evidence, and advance that evidence to petitioner’s benefit.11 Finally, Rodriguez testified that he performed no investigation into the State’s case, yet advised petitioner to plead guilty despite knowing nothing about his case. This clearly violates an attorney’s duty to his client, and the only logical motive would be for Rodri-

11 The duty to investigate includes the duty to locate exculpatory witnesses. Gray v. Lucas, 677 F.2d 1086, 1093 n.5 (5th Cir. 1982); United States ex rel. Hampton v. Leibach, 347 F.3d 219, 236 (7th Cir. 2003).

guez to end the case quickly, eliminating any conflict issue and al- lowing him to continue representing both defendants. Based on the above, “[e]ven 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 col- ored counsel’s actions.” Quintero, No. 14-13-00559-CR, at 7, 2015 WL 2405549 (Frost, C.J., dissenting). The panel majority erred, and petitioner should receive a new trial.

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PRAYER FOR RELIEF

For the reasons described above, this Court should grant discre- tionary review, sustain petitioner’s grounds for review, reverse the Court of Appeals’ judgment, and remand the case to the trial court for a new trial.

Respectfully submitted, SHELLIST, PEEBLES & MCALISTER, L.L.P. By: /s/ Peyton Z. Peebles III ____________________________________________________

PEYTON Z. PEEBLES III

405 Main Street, Suite 200 Houston, TX. 77002 Tel: 713-715-4500 Fax: 713-715-4505 Email: peebles@texaslegalteam.net SBOT: 24013307 SPN: 01759419 Counsel for Petitioner

⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯

CERTIFICATE OF COMPLIANCE (a) This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i) because it was produced on a computer and con- tains 3,465 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1). (b) This brief complies with the typeface requirements of TEX. R. APP. P. 9.4(e) because it has been prepared in a proportionately spaced typeface using Ingeborg 14-point font in text and Inge- borg 12-point font in footnotes.

/s/ Peyton Z. Peebles III ____________________________________________________

PEYTON Z. PEEBLES III

⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing in- strument was served upon the parties designated below by e-filing on July 15, 2015.

Clinton A. Morgan Harris County Assistant District Attorney 1201 Franklin Street, Suite 600 Houston, Texas 77002 (service by e-file to morgan_clinton@dao.hctx.net)

Lisa C. McMinn Texas State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, Texas 78711 (service by e-file to information@spa.texas.gov)

/s/ Peyton Z. Peebles III ____________________________________________________

PEYTON Z. PEEBLES III

Appendix

Quintero v. State, No. 14-13-00559-CR, 2015 WL 2405549 (Tex. App.—Houston [14th Dist.] May 19, 2015)

Quintero v. State, --- S.W.3d ---- (2015)

assault of child and new trial based on claim of 2015 WL 2405549 ineffective assistance of counsel due to actual Only the Westlaw citation is currently available. conflict of interest arising out of counsel’s Court of Appeals of Texas, simultaneous representation of defendant’s Houston (14th Dist.). brother, who was complainant’s father, in unrelated matter, despite evidence that trial court Juan Quintero, Appellant had not approved defendant’s conflict waiver, v. and brother’s testimony that he told counsel that The State of Texas, Appellee he did not believe defendant was guilty and that counsel advised him not to tell trial court NO. 14–13–00559–CR | Majority and Dissenting because brother could lose his children; counsel Opinions filed May 19, 2015. testified that brother never told him that he believed defendant was innocent, that, although brother had approached him about what to tell Synopsis prosecutors regarding defendant’s case, he Background: Defendant was convicted on guilty plea in denied advising brother to remain quiet about the 228th District Court, Harris County, of aggravated his changed attitude toward defendant in order sexual assault of child, and his motion for new trial was to advance brother’s own interests, and that he denied. Defendant appealed. instead advised brother to tell prosecutor whatever brother wanted to tell him. U.S. Const. Amend. 6.

Holdings: The Court of Appeals, J. Brett Busby, J., held that: Cases that cite this headnote

[1] defendant was not entitled to new trial based on claim of ineffective assistance of counsel due to actual conflict of interest; [2] Criminal Law [2] guilty plea was knowing, voluntary, and intelligent, Adequacy of Representation despite conflict of interest; and The Constitution guarantees a criminal [3] interests of justice was not independent basis for defendant effective assistance of counsel. U.S. withdrawal of guilty plea based on defendant’s claim that Const. Amend. 6. he was denied effective assistance of conflict-free counsel. Cases that cite this headnote

Affirmed.

Kem Thompson Frost, C.J., filed dissenting opinion. [3] Criminal Law Prejudice and harm in general

To prevail on a claim of ineffective assistance of counsel based on a conflict of interest, the West Headnotes (10) appellant must prove by a preponderance of the evidence that (1) his trial counsel had an actual [1] conflict of interest, and (2) the conflict actually Criminal Law colored his trial counsel’s actions during his Incompetency or neglect of counsel for representation of appellant. U.S. Const. Amend. defense 6. Defendant was not entitled to vacatur of conviction on guilty plea to aggravated sexual © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Quintero v. State, --- S.W.3d ---- (2015)

that he understood charge against him and Cases that cite this headnote consequences of guilty plea, and that he had fully consulted with his attorney before signing admonishments and agreeing to plea, and defendant was aware of conflict of interest. U.S. [4] Const. Amend. 6. Criminal Law Prejudice and harm in general Cases that cite this headnote An “actual conflict of interest” exists, as required to support a claim of ineffective assistance of counsel based on a conflict of interest, if counsel is required to make a choice [7] between advancing his client’s interest in a fair Constitutional Law trial or advancing other interests, including, Guilty pleas perhaps, his own, to the detriment of his client’s interest; in other words, appellant must show Due process requires that a guilty plea be that his trial counsel actually acted on behalf of entered knowingly, intelligently, and those other interests, and that he was adversely voluntarily. U.S. Const. Amend. 14. impacted as a result. U.S. Const. Amend. 6. Cases that cite this headnote Cases that cite this headnote

[8] Criminal Law [5] Arraignment and plea Criminal Law Presumptions and burden of proof In considering the voluntariness of a guilty plea, A claim of ineffective assistance of counsel an appellate court examines the record as a based on an actual conflict of interest will fail if whole. (1) no evidence has been presented on the issue, or (2) the evidence relevant to the issue is in perfect equipoise. U.S. Const. Amend. 6. Cases that cite this headnote

Cases that cite this headnote [9] Criminal Law Evidence as to voluntariness

[6] In considering a challenge to the validity of a Criminal Law Voluntary Character guilty plea, evidence that a defendant was admonished by the trial court creates a prima Guilty plea to aggravated sexual assault of child facie showing that the guilty plea was made was knowing, voluntary, and intelligent, despite voluntarily and knowingly, and the burden then conflict of interest arising out of counsel’s dual shifts to the defendant to show that he entered representation of defendant’s brother, who was the plea without understanding the consequences complainant’s father, and counsel’s alleged of his action. pressure for defendant to plead guilty to avoid potential life sentence if he went to trial; trial court gave defendant all requisite Cases that cite this headnote admonishments orally and in writing, defendant signed written admonishments and initialed several paragraphs specifically acknowledging © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Quintero v. State, --- S.W.3d ---- (2015)

conflict of interest. We reject this argument because at [10] Criminal Law least one reasonable view of the record evidence supports Grounds for Allowance an implied finding by the trial court that appellant suffered no adverse effect as a result of the actual conflict Interests of justice was not independent basis for of interest. withdrawal of guilty plea and new trial on charge for aggravated sexual assault of child Appellant next argues that his guilty plea was not based on defendant’s claim that he was denied voluntary due to counsel’s ineffective assistance. We effective assistance of conflict-free counsel, overrule appellant’s second contention because the after trial court denied motion for new trial on evidence introduced during the hearing on the motion for claim that he was denied effective assistance of new trial supports an implied finding by the trial court counsel. U.S. Const. Amend. 6. that appellant knowingly, intelligently, and voluntarily agreed to accept the State’s plea bargain and plead guilty.

Cases that cite this headnote 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 On Appeal from the 228th District Court, Harris County, raised, and rejected, in his first two arguments. We Texas, Trial Court Cause No. 1368190 therefore affirm the trial court’s judgment. Attorneys and Law Firms

Peyton Peebles III, Houston, TX, for Appellant.

Clinton Morgan, Houston, TX, for The State of Texas. BACKGROUND Panel consists of Chief Justice Frost and Justices In 2012, appellant’s niece made an outcry that appellant Christopher and Busby 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. OPINION Appellant accepted the plea bargain. After admonishing appellant regarding his decision to waive his rights, the trial court accepted his plea, found him guilty of the J. Brett Busby, Justice charged offense, and sentenced him to the agreed six-year prison term. *1 Appellant Juan Quintero pled guilty to the offense of aggravated sexual assault of a child as part of a plea- Appellant then retained new counsel, who filed a motion bargain agreement with the State. See Tex. Penal Code for new trial. The motion asserted that appellant was Ann. § 22.021 (West 2011). The trial court found entitled to a new trial for three reasons: (1) Rodriguez appellant guilty and, in accordance with the plea bargain, rendered ineffective assistance because he counseled sentenced him to serve six years in prison. Appellant appellant to accept the State’s plea bargain when he had retained new counsel and filed a motion for new trial an actual conflict of interest; (2) appellant’s guilty plea alleging that his trial counsel was ineffective. The trial was involuntary because Rodriguez was ineffective; and court denied appellant’s motion. (3) the interest of justice required that he be granted a new trial.1 The trial court conducted a hearing on appellant’s Appellant contends in a single issue on appeal that the motion during which several witnesses testified, including trial court abused its discretion when it denied his motion appellant, appellant’s brother, and Rodriguez. 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 A. Appellant’s testimony during the new trial hearing

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*2 Appellant testified that his parents located Rodriguez not in his best interest to tell the prosecutors he now and hired him on appellant’s behalf. Appellant then believed appellant was innocent. Rodriguez explained that testified that he did not know what, if any, work it might result in his children being taken away based on a Rodriguez did on his case between the complainant’s belief that he was trying to protect his brother rather than outcry and the charge being filed against him. Appellant his daughter. When asked specifically what Rodriguez testified he was aware that Rodriguez was also had told him, Jose Luis testified that Rodriguez said: “do representing his brother Jose Luis Quintero—the father of not talk to the DA’s Office and tell them that you think the complainant in appellant’s sexual assault case—in two he’s innocent because you may lose your kids.” Jose Luis unrelated criminal matters. Appellant acknowledged that testified that he called the prosecutor’s office back and he had signed a waiver of potential conflict of interest, but told them that he just wanted the “system” to take care of explained that he did so because Rodriguez had told him it. 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 C. Veronica Pina’s testimony the conflict waiver. A sister of appellant and Jose Luis, Veronica Pina, also testified during the hearing. She explained that she was Appellant testified that at the time he accepted the plea involved in the hiring of Rodriguez and discussed his bargain, he was unaware of the evidence the State representation of her brothers. She testified that possessed against him. He went on to testify that he is Rodriguez did not go into detail about potential conflicts innocent of the sexual assault charge, but he pled guilty of interest when she talked to him. According to Pina, because Rodriguez told him that if he did not accept the Rodriguez said that he could represent both brothers. 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. D. Trial counsel’s testimony Appellant went on to testify that he pled guilty because *3 Trial counsel Rodriguez testified that appellant hired his only other choice seemed to be to lose at trial and get him in May 2012 for an “investigation” concerning the a life sentence. The record shows that the visiting judge sexual assault outcry. From that point until appellant was who accepted appellant’s plea explained the full formally charged in November 2012, Rodriguez testified punishment range during the plea hearing.2 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. B. Jose Luis’s testimony Jose Luis testified that he was very upset and angry when When appellant was charged in November 2012, he first learned about his daughter’s outcry accusing Rodriguez applied the prior fee paid (for investigation) to appellant of sexual assault. Jose Luis went on to admit a new legal services contract. He testified that after this that he was charged with cruelty to animals and family occurred, he agreed to represent Jose Luis in his criminal assault after appellant was charged with sexual assault. cases. Rodriguez testified that he explained the potential According to Jose Luis, his parents hired Rodriguez to for a conflict of interest to the family and said that the defend him in those two cases. Jose Luis testified that brothers had to sign a waiver of the potential conflict Rodriguez informed him there could be a big conflict of before he would represent both. Rodriguez testified that interest if he represented both brothers, that he probably he explained the potential conflict to both brothers. should not represent both, but that the brothers could sign Rodriguez went on to explain that he would never have a paper so it would not be a problem. According to Jose tried both cases; if necessary, he would have tried Luis, Rodriguez did not specify the nature of the conflict appellant’s case and then withdrawn before Jose Luis’s of interest. cases went to trial. Rodriguez testified that it was his choice whether to take them to trial. Jose Luis testified he eventually told Rodriguez that he no longer believed his brother was guilty. Jose Luis also Rodriguez explained that he filed a motion to waive informed Rodriguez that the prosecutor’s office had potential conflict of interest. The trial court’s staff called called him wanting to discuss appellant’s case and his him later that day and told him the judge had denied the thoughts on the appropriate punishment for appellant. motion. Rodriguez testified that he approached the trial According to Jose Luis, Rodriguez told him that it was judge the next day and the judge told him that the motion © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Quintero v. State, --- S.W.3d ---- (2015)

was denied, but Rodriguez could still represent both witness against appellant. He went on to ask the trial court appellant and his brother if he wished. Rodriguez went on to grant appellant a new trial. to testify that he did not know whether an actual conflict of interest existed. The trial court explained that he believed it unethical for a court to approve a conflict of interest, but that he lacked Rodriguez was also asked about his interactions with Jose the authority to remove a lawyer from a case based on a Luis regarding appellant’s case. Rodriguez denied that conflict of interest. The court went on to find that a Jose Luis ever told him that he now believed appellant conflict existed in this case. The court stated that he was innocent. Rodriguez admitted during his testimony agreed with appellant’s arguments both “morally and that Jose Luis had contacted him concerning the ethically.” Nevertheless, the court denied appellant’s prosecutor’s attempt to discuss appellant’s case, but motion in its entirety, stating: “sometimes people plead Rodriguez asserted that he told Jose Luis to “tell [the guilty to things that they didn’t do because they believe prosecutor] whatever you want to tell [him].” Rodriguez it’s in their best interest to do so because they [would] also denied advising Jose Luis not to inform the rather take six years than fifty. And my understanding of prosecutor about his belief that appellant was innocent the law is, as long as you do that knowingly and because doing so might endanger Jose Luis’s access to his intelligently, that’s what it’s going to be.” This appeal children. followed.

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 ANALYSIS Rodriguez, the departing prosecutor told him that the new prosecutor could decide to file two more charges against Appellant contends that the trial court abused its appellant and then ask the trial court to stack the discretion when it denied his motion for new trial. Within sentences. Rodriguez testified that during his discussions that single issue, appellant makes three separate with appellant regarding the State’s plea-bargain offer, he arguments, which we address in turn. 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 I. Appellant has not shown that the trial court abused he informed appellant about his conversation with the its discretion by refusing to grant him a new trial departing prosecutor. Rodriguez testified that he told based on counsel’s alleged conflict of interest. appellant exactly what the prosecutor had told him [1] Appellant’s first argument is that the trial court abused regarding the possibility of more charges and the stacking its discretion when it denied his motion for new trial of any resulting prison terms. Rodriguez also testified he because he was denied effective assistance of counsel due told appellant that if the State brought witnesses who to his trial counsel’s actual conflict of interest. could testily 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 A. Standard of review and applicable law was actually strong or weak. Ultimately, Rodriguez We review a trial court’s decision on a motion for new testified that appellant wanted a deal with probation but trial for an abuse of discretion. State v. Herndon, 215 decided to take the offered plea bargain because the State S.W.3d 901, 906 (Tex.Crim.App.2007). Under this was not willing to offer probation. Rodriguez also standard, an appellate court should reverse the trial emphasized repeatedly that appellant was not willing to court’s ruling only if it was clearly erroneous and go to trial. 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 E. The trial court’s denial of appellant’s motion for trial court made implicit findings of fact that support its new trial ruling. Johnson v. State, 169 S.W.3d 223, 239 *4 At the end of the hearing, appellant’s new counsel (Tex.Crim.App.2005). The record on appeal must be argued that it was unethical for Rodriguez to have inspected from every reasonable vantage in the light most represented Jose Luis at the same time that he represented favorable to the trial court’s ruling, and found to be appellant because Jose Luis could have been called as a © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Quintero v. State, --- S.W.3d ---- (2015)

deficient, before it may be overturned as an abuse of the interest. That evidence does not address the second part of trial court’s discretion. Odelugo, 443 S.W.3d at 138. If the test: whether trial counsel acted on behalf of other one reasonable view of the record would support the trial interests to appellant’s detriment. Our dissenting court’s denial of a motion for new trial, the decision must colleague argues that such an adverse impact has been be affirmed on appeal. See id. shown because Rodriguez failed to “disclose to appellant the trial court’s conclusion that the dual representation [2] [3] [4] [5] The Constitution guarantees a criminal was unethical” and the court’s advice that Rodriguez defendant effective assistance of counsel. Ex parte “discontinue the dual representation”—information that Moore, 395 S.W.3d 152, 157 (Tex.Crim.App.2013). To would have allowed appellant to make an informed prevail on his conflict-of-interest ineffectiveness claim, decision about waiver and choice of counsel. Post, at 5–6. appellant must prove by a preponderance of the evidence But there is no evidence that the trial court disclosed any that (1) his trial counsel had an actual conflict of interest, such conclusion or advice to Rodriguez before appellant and (2) the conflict actually colored his trial counsel’s entered his guilty plea. Rather, the trial court simply actions during his representation of appellant. Odelugo, denied counsel’s motion seeking approval of the waiver 443 S.W.3d at 136. “An ‘actual conflict of interest’ exists appellant had signed, and Rodriguez testified that the trial if counsel is required to make a choice between advancing court said he could still represent both appellant and Jose his client’s interest in a fair trial or advancing other Luis if he wished.3 interests (perhaps counsel’s own) to the detriment of his client’s interest.” Monreal v. State, 947 S.W.2d 559, 564 Appellant’s second and third arguments likewise do not (Tex.Crim.App.1997). In other words, appellant must demonstrate an adverse effect because they ignore that the show that his trial counsel actually acted on behalf of evidence regarding Rodriguez’s dealings with both Jose those other interests, and he was adversely impacted as a Luis and appellant was disputed. Although the brothers result. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. each offered testimony that, if believed, could establish an 1708, 64 L.Ed.2d 333 (1980). Appellant’s claim will fail adverse impact on appellant, Rodriguez offered directly if (1) no evidence has been presented on the issue, or (2) contrary testimony. For example, Rodriguez testified that the evidence relevant to the issue is in perfect equipoise. Jose Luis never told him that he now believed appellant Odelugo, 443 S.W.3d at 136–37. 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 B. Appellant did not prove by a preponderance of the brother in order to advance Jose Luis’s own interests. evidence that he was adversely impacted by any Rodriguez testified that he instead advised Jose Luis to conflict of interest. “tell [the prosecutor] whatever you want to tell [him].” *5 Even if we assume the existence of an actual conflict Our dissenting colleague faults Rodriguez for not of interest, appellant must still establish, by a attempting to secure a statement from Jose Luis in support preponderance of the evidence, that he was adversely of appellant. Post, at 8. But according to Rodriguez, he impacted by his trial counsel’s conflict of interest. did not know that Jose Luis was now willing to make a Appellant contends he met this burden through: (1) supportive statement. This testimony undercuts the undisputed evidence that Rodriguez represented his dissent’s theory that Rodriguez gave this advice to brother—the father of the complainant, and therefore a advance Jose Luis’s interests to the detriment of potential material witness against him—while continuing appellant.4 to represent appellant; (2) his brother’s testimony that Rodriguez advised him to not tell the prosecutors his *6 The trial court, as the trier of fact, was entitled to belief that appellant had not sexually assaulted his believe Rodriguez’s testimony and disbelieve the daughter; and (3) his own testimony that Rodriguez testimony of both appellant and his brother. See Odelugo, pressured him into accepting the State’s plea-bargain 443 S.W.3d at 138 (stating that trial court can choose to offer by telling him he would be convicted if he went to disbelieve even uncontroverted testimony if its probative trial and would then receive a life sentence. We disagree value depends on the credibility of the witness). We that, under the appropriate standard of review, appellant conclude the trial judge implicitly did so here. See has established that the trial court abused its discretion Johnson, 169 S.W.3d at 239. Given the trial court’s when it denied his motion for new trial based on an actual implicit rejection of the brothers’ testimony and conflict of interest. acceptance of Rodriguez’s, it was within the court’s discretion to conclude that appellant failed to show by a Appellant’s first argument consists simply of evidence preponderance of the evidence that he was adversely that the dual representation created an actual conflict of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

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affected by his trial counsel’s conflict of interest. Martinez, 981 S.W.2d at 197. Odelugo, 443 S.W.3d at 138. Therefore, we hold the trial court did not abuse its discretion when it denied Attempting to meet this burden, appellant relies on his appellant’s motion for new trial based on an actual testimony that his attorney had not advised him of the conflict of interest. Id. 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 II. Appellant has not shown that the trial court abused determined that the trial court could have disbelieved its discretion by refusing to grant him a new trial on appellant’s testimony regarding his trial counsel’s the ground that his guilty plea was not knowingly, handling of the plea bargain and instead believed intelligently, and voluntarily entered. Rodriguez’s testimony that he discussed the State’s plea- [6] In his second argument, appellant claims that the trial bargain offer with appellant and that he explained court erred when it denied his motion for new trial based appellant’s options prior to appellant’s decision to accept on the allegedly involuntary nature of his guilty plea. the plea. We therefore conclude appellant has not met his According to appellant, his plea was involuntary because burden to demonstrate that his guilty plea was involuntary his attorney rendered ineffective assistance by failing to and, as a result, has not shown that the trial court abused advise him of the existence of an actual conflict of interest its discretion when it denied his motion for new trial and by pressuring him to take the plea when he told him based on this ground. 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 III. Appellant has not shown that the trial court regarding his decision to plead guilty to the aggravated abused its discretion by refusing to grant him a new sexual assault charge. He also does not contend that the trial in the interest of justice. admonishments, which are contained in the record, are *7 [10]In his final argument on appeal, appellant contends insufficient. the trial court abused its discretion when it refused to grant him a new trial in the interest of justice. The interest [7] [8] [9] Due process required that a guilty plea be entered of justice is not an independent basis for granting a new knowingly, intelligently, and voluntarily. Kniatt v. State, trial, however. State v. Thomas, 428 S.W.3d 99, 105 206 S.W.3d 657, 664 (Tex.Crim.App.2006). In (Tex.Crim.App.2014). The Court of Criminal Appeals has considering the voluntariness of a guilty plea, an appellate held that there must be some legal basis underpinning the court examines the record as a whole. Martinez v. State, grant of a new trial, even when it is sought in the interest 981 S.W.2d 195, 197 (Tex.Crim.App.1998). Evidence of justice. Id. As a general rule, a trial court does not that a defendant was admonished by the trial court creates abuse its discretion in granting a motion for new trial in a prima facie showing that the guilty plea was made the interest of justice if the defendant (1) articulated a voluntarily and knowingly. Id. The burden then shifts to valid legal claim in his motion, (2) produced evidence or the defendant to show that he entered the plea without pointed to evidence in the trial record that substantiated understanding the consequences of his action. Arreola v. his legal claim, and (3) showed prejudice to his State, 207 S.W.3d 387, 391 (Tex.App.—Houston [1st substantial rights under the rules of appellate procedure. Dist.] 2006, no pet.). State v. Sanders, 440 S.W.3d 94, 99 (Tex.App.—Houston [14th Dist.] 2013, pet. ref’d). The record demonstrates that appellant received written admonishments from the visiting judge. Appellant signed In an effort to meet these requirements, appellant asserts those admonishments and initialed several paragraphs that the trial court should have granted his motion in the specifically acknowledging that he understood the charges interest of justice for one of the reasons he asserted against him and the consequences of a guilty plea, and previously: his trial counsel was ineffective because he that he had fully consulted with his attorney before pressured him into pleading guilty.5 We have already signing the admonishments and agreeing to the plea. The addressed, and rejected, this contention as a stand-alone record also demonstrates that the visiting judge orally basis for the trial court to grant appellant a new trial. admonished appellant regarding his decision to plead Having done so, we hold this contention also cannot serve guilty. Therefore, there is a prima facie showing that as the legal basis underlying the grant of a new trial in the appellant entered his guilty plea knowingly, intelligently, interest of justice. See id. at 104 (concluding that one and voluntarily, and appellant had the burden to show the ground did not support new trial because court had trial court that his plea was nevertheless involuntary. See already analyzed essentially the same argument under © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

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another ground and concluded it did not support new standard articulated in Cuyler v. Sullivan.2 trial). We therefore hold that the trial court did not abuse its discretion when it denied appellant’s motion for new *8 To prevail on his conflict-of-interest ineffectiveness trial based on this ground. 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 CONCLUSION make a choice between advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s Having addressed each argument raised in appellant’s own) to the detriment of his client’s interest.”4 In the single issue on appeal and concluded that none supports simplest terms, appellant must show counsel actually reversal, we overrule that issue and affirm the trial court’s acted on behalf of other interests, and that appellant was judgment. 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 (Frost, C.J., dissenting). showing that counsel acted (or chose not to act) to pursue other interests and that appellant thereby suffered some adverse effect.

Kem Thompson Frost, Chief Justice, dissenting

Today the court must determine whether appellant Juan Counsel’s Actual Conflicts of Interest Quintero is entitled to a new trial based on his counsel’s actual conflicts of interest. Convicted of aggravated Appellant’s young niece made outcry that appellant had sexual assault of a child as part of a plea-bargain sexually assaulted her. Appellant’s counsel represented agreement with the State, appellant asserts his retained both appellant and the complainant’s father, who is counsel rendered ineffective assistance because the appellant’s brother. The father’s interests in appellant’s conflicts colored counsel’s actions. At the heart of the case diverged from appellant’s interest. While appellant’s appeal is appellant’s contention that counsel advised interest was to minimize adverse consequences of appellant to plead “guilty” while laboring under actual potential conviction and punishment for the charged conflicts of interest. To decide the issue we must offense, the undisputed evidence shows that the father’s determine the adverse impact, if any, of the conflicts. The interests were (1) to seek justice for the complainant and majority concludes that appellant suffered no adverse against the perpetrator of the crime and (2) to avoid any impact and that the evidence supports an implied finding adverse action from the Texas Department of Family and that appellant knowingly, intelligently, and voluntarily Protective Services, including action that might entered the plea. I respectfully disagree. 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.

Applicable Legal Standard Appellant’s interests and the father’s interests collided head-on when the father received a call from the District In most cases, ineffective-assistance-of-counsel claims are Attorney’s Office requesting input on appellant’s assessed under the familiar two-prong test set out in prospective punishment. The father, in turn, sought Strickland v. Washington, which requires the appellant to counsel’s advice regarding the District Attorney’s inquiry. prove that (1) counsel’s representation fell below an In advising the father, counsel found himself between a objective standard of reasonableness; and (2) but for rock and a hard place—counsel was required to make a counsel’s unprofessional errors, the result of the choice between advancing appellant’s interests on one proceeding would have been different.1 But, when one hand and advancing the father’s interests on the other.8 asserts that the ineffective assistance derived from a Whatever choice the lawyer made would promote the conflict of interest, the appellate court assesses the interests of one client while compromising the interests of ineffective-assistance claim under the less-onerous the other.

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disclose to appellant the trial court’s conclusion that the Up to that point, appellant’s counsel had characterized his dual representation was unethical or inform appellant that representation of the two clients as posing only a the trial court advised counsel to discontinue the dual “potential” conflict despite the facial incompatibility of representation. This information was material. Indeed, the clients’ respective interests. Counsel was operating had appellant known the trial court did not approve of under the belief that his clients’ divergent interests would counsel’s simultaneous representation of appellant and the lead to an actual conflict only if both cases were tried, father or that the trial court had denounced the and, according to counsel, the outcome was up to him. representation as unethical, appellant might well have Appellant’s counsel advised both appellant and the father made a different decision about waiver and choice of of what counsel described as a “potential” conflict. counsel. Counsel then presented both clients with written waivers. Both clients signed the waivers.9 An attorney serving his clients’ interests would have disclosed this information to the clients so that the clients *9 Appellant’s counsel filed appellant’s waiver in the trial could make informed decisions regarding their choice to court, but the trial court refused to approve the waiver of continue being represented by an attorney with actual the conflict. According to the trial court, the conflict was conflicts of interest. The only reasonable interpretation of unethical.10 Even assuming (for argument’s sake) the counsel’s testimony and the clients’ testimony is that accuracy of counsel’s early assessment of the counsel briefly informed the clients that there might be a simultaneous representation of the two clients as creating potential conflict of interest, but counsel did not explain only a “potential” conflict, at the point of the District the ramifications of any conflict to appellant or advise Attorney’s inquiry to the father, the dual representation appellant as to how being represented by an attorney with posed an actual conflict of interest. Likewise, when conflicts of interest might affect the representation appellant’s counsel responded to appellant’s request for appellant was to receive. Because the father’s goals and advice regarding a plea-bargain offer from the State, interests were at cross-purposes with what appellant counsel was acting under an actual conflict of interest. At hoped to achieve, the interests of both could not be served that point, appellant’s counsel was required to make a by the same counsel at the same time. choice between advancing his own economic interests and advancing appellant’s interests. The former could only The majority emphasizes the trial court’s role as the fact- come at the cost of the latter. finder and the possibility that the trial court may have discredited the clients’ testimony and believed only the Both the economic-self-interest conflict between counsel attorney’s testimony.13 The majority states that the only and appellant and the divergent-client-interests conflict evidence that showed counsel’s actions were colored by between appellant and the father required appellant’s conflicts of interest is disputed. This assessment is counsel to choose between opposing interests. The record incorrect. Even if the trial court believed counsel’s contains sufficient evidence showing counsel had actual testimony and disbelieved the testimony of both appellant conflicts of interest.11 and the father, the undisputed evidence shows the conflicting interests colored counsel’s actions.

Actions Colored by Conflicts of Interests Economic Self–Interest Conflict Counsel’s conflicts of interest colored his actions during his representation of appellant.12 Counsel testified that he *10 Counsel testified that he would have to withdraw, and concluded he could not take both appellant’s case and the therefore suffer adverse financial consequences, unless father’s case to trial. In tacit recognition of the actual one of the clients pled “guilty.” Counsel chose not to conflict, counsel admitted that he would have to withdraw advise appellant that the trial court had refused to approve from one representation unless at least one of the clients the waiver of the conflict, an action which suggests accepted a plea bargain. The evidence shows that this counsel was motivated to keep the business of both clients conflict influenced counsel’s representation of appellant. or, at least, prevent them from learning the trial court’s After the trial court refused to approve appellant’s waiver view of the matter. Counsel’s explanation for failing to of the conflict, counsel chose not to disclose that fully articulate the implications of the conflicts of interest information to appellant. Counsel never informed either was that, in his view, the conflicts of interest would not be of the clients that the trial court had considered the waiver an issue as long as at least one client pled “guilty.” and expressly refused to approve it. Nor did counsel Counsel then refrained from taking any action to

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investigate the State’s case against appellant.14 When the supportive statement. But, counsel’s unawareness of what State offered appellant a plea bargain, counsel advised the father would say condemns rather than excuses appellant to plead “guilty” even though counsel did not counsel’s failure to act. know anything about the State’s case against appellant, including whether it was a weak case or a strong case. Counsel’s testimony that he did not know what the father Appellant accepted counsel’s advice and pled “guilty.” In would say shows counsel chose to advise the father counsel’s mind, appellant’s “guilty” plea eliminated any without undertaking to investigate what, if anything, the conflict of interest and allowed counsel to continue father could offer that might further appellant’s goals of representing both appellant and the father. The evidence minimizing the consequences of potential conviction and shows that counsel’s actions and his choices not to act punishment. Counsel’s decision not to make inquiry and were colored by a conflict between his interest in not to investigate prompts important questions: retaining both clients and appellant’s interest in minimizing adverse consequences of conviction and • Would an attorney not laboring under a conflict of punishment, an interest served by appellant’s pleading interest fail to ask the father what he wanted to say? “guilty” only if the State’s case against appellant was strong. • Would an attorney zealously representing only appellant’s interests squander the opportunity to attempt to secure a supportive statement on behalf of appellant?

Divergent–Client–Interests Conflict At this critical point in counsel’s representation of appellant, counsel chose not to inquire and not to Counsel’s representation of appellant also was colored by investigate. Doing so would have furthered appellant’s a conflict of interest between appellant (the accused) and interests but compromised the father’s interests. Counsel the father of the accuser. The undisputed evidence shows could not serve the interests of both clients. Counsel the District Attorney’s Office contacted the father to chose not to serve appellant’s interests. discuss the father’s thoughts on an appropriate punishment for appellant. The father and counsel both *11 By choosing to do nothing, counsel lost the testified that the father asked counsel for advice in opportunity to learn what the father would say and responding to this prosecutorial inquiry. Appellant’s attempt to secure a statement from the father in support of interest was in securing statements from the father that appellant.15 The conflict of interest affected counsel’s would convince the District Attorney to minimize actions—he failed to make inquiry and he failed to consequences for appellant. In this instance, the father advocate on appellant’s behalf while interacting with the testified that at the time he believed appellant to be father.16 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 Cuyler Standard Satisfied innocent because that opinion might cause the father to lose custody of his children. The father testified that The undisputed evidence shows the conflicts of interest counsel advised him to keep silent about his opinion that colored counsel’s actions as well as his advice.17 appellant was innocent, lest appellant risk losing custody Accordingly, the Cuyler standard is satisfied. 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 Conclusion actions. Counsel had actual conflicts of interest and that those Counsel testified that he told the father to tell the District conflicts colored his representation of appellant. Attorney’s Office “whatever [father] wanted.” This Therefore, the court should sustain appellant’s first issue advice was not zealous representation of appellant, who and reverse and remand the case to the trial court for a was seeking a lesser sentence than the District Attorney’s new trial Office was proposing. The majority notes counsel testified that he did not know the father wanted to make a

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All Citations --- S.W.3d ----, 2015 WL 2405549

Footnotes

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.

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.

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, 104 S.Ct. 1051, 79 L.Ed.2d 288 (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).

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.

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.

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, 100 S.Ct. 1708, 64 L.Ed.2d 333 (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).

5   Cuyler,  446  U.S.  at  349–50,  100  S.Ct.  1708. 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).

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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.

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.2d 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.

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).

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.

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, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

15   See  Lopez  v.  State,  358  S.W.3d  691,  694–95  (Tex.App.—San  Antonio  2011).

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.

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