### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00534- CR NO. 03-10-00535- CR

Raouf IshakMalek, Appellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 3 O F TRAVIS CO UNTY

NOS . C-1 -CR- 09- 2134 28 & C-1 -CR- 09- 2134 29 THE HO NORAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Raouf I shak Malek enter ed pleas of no contest to the offe nses of g ambling promotion and keeping a g ambling place , both Class A misdemeanors, and opted for the court to assess punishment. See Tex. Penal Code Ann. §§ 47.03, 47.07 (West 2011). At the conclusion of the punishment hear ing, the trial court assessed Malek’s punishment for eac h offe nse at confine ment for 225 day s in the county

jail. See id . § 12.21 (West 2011). On appea l, Malek raises two points of err or, both c omplaining that his trial counsel provided ineffe ctive assistance during the sentenc ing proce eding

. Be cause Malek fails to meet his burden of demonstrating ineffe ctive assistance of counsel in either point of err or, we af fi rm the judgme nts of the trial cour t.I. Background Raouf I shak Malek left his eng ineer ing job an d car eer to establish a full-time illega l g ambling enter

prise, the Fun P o k er Club, which he operated out of his home. Neig hbors repe atedly complained about the impact of the ong oing g ambling activities o n the neig hborhood—first to the homeowner s association an d t h en, ultimately , to law enfor ceme nt. L aw enfor ceme nt officers conducte d an underc over investigation, eventua lly obtaining a sear ch

war rant for the gambling house. When office rs ex ecute d the s ear ch warra nt, they found evidence of an extensive, sophisticat ed , and well-org anized g ambling operation: multipl e poker tables and associate d pok er equipment, an employ ee manual, an operating and secur ity manual, documentation of a fina

ncing partne r, a business plan, a marke ting plan, a

schedule of operations, and re venue pr ojections.

After the raid of the g ambling house, Malek was arr ested and subsequently char g ed by information with g ambling promotion and keeping a g ambling place

. He reta ined J esus Gabr iel Her nandez, a defe nse attorney and former patron of the Fun Poker Club, to repr esent him on these char g es. Evidence in the rec ord indicates that during the course of his repr esenta tion, Her nandez obtained discovery from the State, provided copies of the discovery to Malek for his revie w, eng ag ed in plea neg otiations wi t h the State, discussed trial options with Malek, filed pretria l motions, and prepa red f or trial. The rec ord als o contains evidenc e that, throug hout his repr esenta tion, Her nandez advised Malek that he thought his punishment would most likely be community supervision, from either a jury or the judge , but that he could not g uara ntee such a result. He informed Malek that jail time was a possibili ty , though he did not think it likely

. Malek repeatedly reje cted an offe r of
2leng thy community supervision until the wee kend just befor e the case was set for jury trial, when he

informed Her

nandez that he would acc ept the probation offe r. Both Malek and Her nandez thought that the communit y supervision offe r would still be available on the day of trial; howeve r, the prosec utor informed H erna ndez that the State had withdra wn the off

er. On the day o f trial, Malek enter ed pleas of no contest to both offe nses and waived

a jury trial, opting for the court to assess his punishment. At the punishme n t h ear ing, the State prese nted evidenc e that demonstrated the extensive nature of Malek’s illega l gambling enter prise as well as t he fact t hat m inors routinely smoked marijuana an d drank alcohol while t hey g ambled at the club. The State’s evidenc e also showed that Malek continued running the illega l operation

even afte r an incident in which his club patrons wer e robbed at g unpoint while they wer e g ambling in hi s h ome. Malek testified on his own behalf , primarily about his educational and employ ment backg round and lack of criminal hi story

. Acc ording to his testi m o n y , he has a master’s degr ee in chemica l eng ineer ing and worke d briefly for I BM an d AR C O, but quit his job and g ave up his profe ssion to become a profe ssional g ambler. He admitted that he ran his illega l g ambling operation for approximately five or six y ear s—knowing it to be illega l—out of the house his pa rents owned. Citi ng the extensive nature of the g ambling operation, Malek’s knowledg e of the illega lity of the b u s i n ess, and the neg ative impact of the poker club on the community , the trial judge senten ce d Malek to ser

ve 225 day s in jail for ea ch off ense. Af t er s entencing, Malek reta ined new counsel who filed a motion for new trial , alleg in g t hat Malek was denied eff ective assistance of counsel at the punishment hear ing. The trial court c onducted a

hear ing on the m otion, but made no ruling

. Consequently , the m otion was

3denied by operation of law. See Tex. R. App. P. 21.8(c)

. On appea l, Malek complains of ineffe ctive

assistance of counse l.

II. Discussion

I n t wo p o i nts of err or, Malek asser ts that his trial counsel provided ineffe ctive assistance during the sentenc ing proce eding

. First, Malek argues that his counsel was ineffe ctive beca use he failed to adequa

tely prepa

re for the punishment hear ing and, further , fai l ed t o call char acte r witnesses to te s ti f y on Malek’s behalf

. Second, Malek contends that he suffe red ineffe ctive assistance of counsel beca use his attorney had a conflict of interest that adver sely impacted counsel’s perf ormanc e. A. Ineffec tive Assistan ce of Coun sel I n his first point of err or, Malek complains initiall y t h at he suffe red ineffe ctive assistance of counsel beca use his trial counsel failed to prepa re for the punishment hear ing. He then

asser ts that his trial counsel was inef fec tive for f

ailing to c all mitigating char acte r witnesses at the punishment hear ing. Howeve r, Malek fails to demonstrate that counsel’s overa ll perf ormanc e was defic ient or that any alleg ed defic iency prejudice d him. Acc ording ly , Malek did not meet his burden under the two-prong Strickland v. W ashington standard. 1. The Standard of Review To preva il on a claim of ineffe ctive assistance of counsel, an appel l an t m ust show by a pre pondera

nce of the evidenc e that: (1) the perf ormanc e of trial counsel was defic ient in that counsel’s repr esenta

tio n fell below an objective standard of rea sonablene ss under preva iling

4profes s i o n al n o rms; and (2) the deficient perf ormanc e of counsel prejudiced the defe nse—that i s, there is a rea sonable probability , one sufficie nt to undermine confide nce in the outcome, that but for counsel’s unprofe ssional e rror s the result of the proce eding would have been differ ent. Strickland

v. W ashington , 466 U.S. 668, 687 (1984); Perez v. State , 310 S

. W

. 3 d 8 9 0 , 892-93 (Tex. Crim. App. 2010); Branch v. State , 335 S.W .3d 893, 904-05 (Tex. App.—Austin 2011, pet. ref ’d). Fa ilure to make the require d showing of eit her defic ient perf ormanc e or sufficie nt prejudice defe ats the ineffe ctiveness claim. Strickland , 466 U.S. at 700; see Perez , 310 S.W .3d at 893; Thompson v. State , 9 S

. W

. 3 d 808, 813 (Tex. Crim. App. 1999). Any alleg ation of ineffe ctiveness must be firmly founded in the rec ord, and the rec ord must aff irmatively demonstrate the purported ineffe ctiveness. Salinas v. State , 163 S.W .3d 734, 740 (Tex. Crim. App. 2005) (citing Thompson , 9 S.W .3d at 813); see Ex parte Martinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011). I n revie wing a claim of ineffe ctive assistance , we must evaluate the quality of the repr esenta tion from t h e t o t al i ty of counsel’s repr esenta tion rathe r than counsel’s isolated acts or omissions

. Strickland , 466 U.S. at 689; Perez , 310 S.W .3d at 893; see Branch , 335 S.W .3d at 905. Our decision must be based on the fac ts of the par t i cu l ar ca s e viewed at the time of counsel’s conduct so as to avoid the distorti n g ef fe ct s o f hindsight. Strickland , 466 U.S. at 690; Martinez , 330 S.W .3d at 901; Thompson , 9 S

. W

. 3d at 813. We must indulge a strong presumption that counsel’s repr esenta tion falls within the wide rang e of rea sonable profe ssional a ssistance—that is,

we must presume that trial counsel’s actions or inactions and decisions wer e rea sonably profe ssional and motivated by sound trial strateg y . Strickland , 466 U.S. at 686; Sali n a s , 1 63 S.W .3d at 740;

see W illiams v. State , 301 S.W .3d 675, 687 (Te x . C ri m. App. 2009) (citing Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001). The fac t that another attorney may h ave pursued a 5differ ent tactic at trial is insufficient to prove a claim of ineffe ctive assistance

. Scheane tte v. State ,

144 S.W .3d 503, 509 (Tex. Crim. App. 2004); see Sessums v. State , 129 S.W .3d 242, 246 (Tex. App.—Texarkana

2004, pet. re f’d)

. I n addition, the burden is on the appella n t to a f f ir ma ti v e ly d e mo n strate “that counsel’s

err ors wer e so serious as to deprive the def endant of a fair trial, a trial whose result is reliable .” Strickland , 466 U.S. at 687; Perez , 3 1 0 S .W.3d at 893 (quoting Strickland , 466 U.S. at 687). To

overc ome th e p resumpti on that counsel rende red adequate assistance , the appellant must identify t h e specific acts or omissions of counsel that alleg edly constitute ineffe ctive assistance an d then aff irmatively prove that they fall below the profe ssional norm for rea sonablene ss. Strickland , 466 U.S. at 690; Bone v . State , 77 S.W .3d 828, 835 (Tex. Crim. App. 2002). Even if an appellant shows t h at p ar ticular err ors of counsel wer e unrea sonable, the appellant must further show that they actua lly had an adver se eff ect on the defe nse. Strickland , 466 U.S. at 693-95; Cochran v. State , 78 S.W .3d 20, 24 (Tex. App.—Ty ler 2002, no pet.)

. M er el y showing that the err ors had some

conce ivable eff

ect on the proce eding s will not s u ff i ce . S trickland , 466 U.S. at 693; Martinez , 3 3 0 S.W .3d at 901. The appellant must prove that counsel’s err ors, judge d by the totality of t h e repr esenta tion, not by isolated instances of err or or by a portion of the trial, de nied him a fair trial. Strickland , 466 U.S. at 695. 2. Represe ntation by Hernandez I n asser ting that his trial counsel failed to prepa re for the punishment hear ing, Malek contends that Her

nandez’s repr esenta tion was non-existent. The rec ord, howeve r, does not support such a conclus i o n . The rec ord contains evidenc e that, during the course of his repr esentation,

6Her

nandez met with the State’s attorney , eng ag ed in plea neg otiations, communicated plea offe rs to Malek and made counter offe rs to the State, revie wed trial options with Malek discussing the pros and cons of a trial to a jury or to the judge , revie wed the punishment rang e with Malek, filed rele vant pretria l motions, discussed trial strateg ies with defe nse counsel repr esenting Malek’s co-de fenda nts, obtained discove ry

and supplementa l discovery well in advanc e of tria l, pr ovided the discove ry to Malek for revie w, and prepa red for trial by revie wing the voluminous discovery , thinkin g ab o ut differ ent trial strateg ies, considering way s to attack the State’s arguments, thinking about differ ent defe nses, prepa

ring question s t o as k wi tnesses, prepa ring Malek to testify at trial, and discussing char acte r evide nce w ith Malek. 1

Although Her

nandez testified at the hear ing on the motion for new trial that he was not prepa red for a punishment hear ing, the context of his testimony mere ly indicates that Her nandez did not anticipate a punishment hear ing be cause he thoug ht Malek would be acce pting the State’s plea bargai n o ff

er . At the time of the punishment hear ing, when asked by the trial court if both sides wer e “a hundred perc ent rea dy ,” Her nandez aff

irmatively indicated that he was rea dy

. Whil e He rn an d ez may have sug g ested that he had not done any thing to prepa

re specific ally for a punishment he aring following a plea, the rec ord ref lects that he was in f

act prepa red for a full trial based upon all that he had done throughout t he course of his represe ntation of Malek. The rec ord demonstrates that Her

nandez was thoroug hly familiar with the fac ts of the case and provi d ed satisfac tory repr esenta tion to his client. He had a cl ear trial strateg y that, althoug h ultimately

unsucce ssful in obtaining c ommunity supervision for Ma lek, we c annot say was unre asonable

.

I t was during Her

nandez’s final trial prepa

rations the wee kend befor e trial was schedule d 1 that Malek indica ted that he wa nted to acc ept the community supervision offe r. 7Also in his first point of err or, Malek asser ts that his trial counsel was ineffe ctive for failing to call mitigating char acte r witnesses at the punishment hear ing. At the hear ing on the motion for new trial, five witnesses testified about Malek’s g ood char acte r: a longtime friend, his g irlfriend, both of his pare nts, and his y oung er brother. Malek arg ues on ap p ea l t h at these witnesses wer e available to testify at t h e p u nishment hear ing about his family , educa tional, and relig ious backg round, his acts of kindness and g ener osity , and his positive influence on the lives of others. There fore , he maintains, his trial counsel was i n ef fective for failing to call them to testify as mitigating witnesses.

First, we note that the rec ord ref lects that Malek did no t wa n t h is friends or family members involved in the trial

. According ly , he is not in a position to complain about counsel’s failure to involve them. See Dowth i t t v. Jo h n s o n , 230 F.3d 733, 748 (5th Cir. 2000) (counse l wi l l n ot be deeme d ineffe ctive for following client’s wishes, so long as client made an in fo rm ed decision). Second, the rec ord is silent as to counsel’s rea sons for not calling these witnes s es . T h e d ecision whether to prese nt witnesses is larg ely a matter of trial strateg y . Lair

v. State , 265 S.W .3d 580, 594 (Tex. A pp.—Houston [1st Dist.] 2008, pet. ref ’d). “[A]n attorney ’s decision not to prese nt particula r wit n es s es at the punishment stag e may be a strateg ically sound decision if the attorney bases it on a deter mination that the testimo n y o f t he witnesses may b e h ar m ful , rathe r than helpful, to the defe ndant.” Shanklin v. State , 190 S.W .3d 154, 1 6 4 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvident l y g ranted , 211 S.W .3d 315 (Tex. Crim. App. 2007) (citing W eisinger v. State , 775 S.W .2d 424, 427 (Tex. App.—Houston [14t h Dist.] 1989, pet. ref ’d))

. Counsel was never di re ct l y asked about his decision not to call Malek’s friends and family to t es tify at t he punis hment hear ing. During questioning by the S tate, 8Her

nandez indicated possible conce rn s about calling Malek’s pare nts to testify

. Other than 2 that, howeve r, the re cord is silent as to H erna ndez’s rea soning. When the rec ord is silent as to the motivations underlying counsel’s decisions, the defe ndant usually cannot overc o me the strong presumption that counsel’s conduct was rea sonable. Mallett v. State , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001); Jayne

s v. State , 216 S.W .3d 839, 851 (T ex . App.—C orpus Christi 2006, no pet.). Her nandez may well have conclude d that the testimony of Malek’s family and fr i en ds could have been harmful. Not one of these five witnesses was awa re of the nature of the offe nses Malek committed or the extent of his ong oing illega l g ambling enter prise. This reve als that Malek dece ived those whom he was closest to for an extended period of time. Counsel could hav e decide d that exposi ng the extremely

dece itful nature of

Malek’s c onduct would not have be en helpf ul. Moreove r, the “fa ilure to call witnesses at the g uilt-innocence and punishment stag es is irrele vant absent a showing that such witnesses wer e available and appellant would benef it from their testimony .” Perez , 310 S.W .3d at 894 (quoting King v. State , 649 S.W .2d 42, 44 (Tex. Crim. App. 1983)). Whil e it is true that these witnesses g ener ally testified about Malek’s g ood char acte r, their testimony could just as easily have harme d Malek beca use the evidenc e they offe red reve aled that Malek had no need to resor t to cri m i n al activity

. Rather, their testimony demonstrated that Malek made a conscious choice to abandon a promising car eer , ignor e the benef its of his education, reje ct his relig ious teac hings, and dece ive his friends and family in order to purposef ully eng ag e in ong oing c riminal activity

.

These conce rns appea

r to have been rela ted to the fac t that their unemploy ed son was using 2 the proce eds from his illega l g ambling enter prise to pay them for the home mortg ag e pay ments they , as the home owne rs, wer e making as we ll as from the fa ct that he wa s using their house for illega l purposes a

nd had bee n doing so f

or y ear s without their knowledg e.

9The rec ord reve als that counsel’s trial strateg y was to focus more on the nature of the

offe nses rathe r than the char acte r of the offe nder. Her nandez attempted to minimi ze the seriousness of the offe nses instead of emphasizing Malek’s char acte r. The fac t that this strateg y ultimately proved unsuc cessf

ul does not rende r counse l’s assistance ineffe ctive. Mitigating char acte r evidenc e may be helpful to show that a defe ndant’ s criminal conduct was an isolated aber ration of otherwise g ood char acte r. Her e, howeve r, Malek eng ag ed in ong oing criminal activity for a period of five to six y ear s. Counsel ma y well have deter

mined that mitigation evidenc e of the ty pe offe re d at t h e m o t ion for new trial hear ing would not have convincin gl y s h own that Malek’s offe nses wer e an aber ration. I ndeed, the ong oing nature of the offe nses sug g ests that Malek’s crimi n al co n d u ct was not an aber ration but rathe r the norm and behavior that was entirely consistent with his char acte r. Malek’s own testimony reve aled that his char acte r was such that he was willing to knowing ly and repe atedly eng ag e in criminal conduct for

an extended period of time. I n addition, mitigating evidenc e ordinarily offe rs a rea son or explanation for why a defe ndant eng ag ed in criminal conduct, perha ps lesseni n g t he individual’s moral

cu l p ab i l ity

. Her e, the testimony of these char acte r witnesses fails to offe r any explanation fo r Malek’s behavior

. I n fac t, their testimony emphasizes the fac t that Malek had no rea son to eng ag e in c riminal conduct but simply chose a life of crime. Thus, Her nandez could have conclude d that, rathe r than lesse ning Ma lek’s culpa bility , this testim ony

could serve to increa se his culpability

. W e are not convince d that Malek nece ssarily would have benef itted from t h e testimony of the five witnesses prese nted at the motion for new trial hear ing. Fur ther, we do not see

a rea sonable probability that their testimony would have chang ed the result of Malek’s punishment

10hear ing. Malek has failed to demonstrate defic ient perf ormanc e on the part of his defe nse counsel, 3 and, moreove r, has failed to show any prejudice to his defe nse. Acc ording ly , he has failed to meet the two-prong Strickland

standard. We ove rrule his fir st point of error

. B. Ineffec tive Assistan ce D ue to Con flict of Interest I n his se cond point of err or, Malek asser ts tha t his counsel had an actua l c onflict of interest because sever al y ear s ear lier Hernande z had g ambled at his house. Howeve r, Malek fails to demonstrate that an actua l conflict of interest adver sely aff ecte d his counsel’s perf

ormanc e. The

rec ord does not show that Her nandez advanc ed his own interest to Malek’s detriment. Thus, Malek did not meet his burden under Cuyler v. Sullivan , 446 U.S. 335 (1980). 1. The Standard of Review When an appellant asser

ts that the ineffe ctive assistance of his counsel derive d from

a conflict of interest, we do not apply the two-par t standard of Strickland v. W ashington but instead

use a separ ate standard to analy ze the claim. A co s t a v. State , 233 S.W .3d 349, 356 (Tex. Crim. App. 2007); see Strickland , 466 U.S. at 692; Cuyler , 446 U.S. at 349-50 (1980). Under the Cuyler standard, an appellant must show that: (1) counsel had an actua l conflict of int er est, and (2) that conflict adver sely aff

ecte d counsel’s perf

ormanc e at trial. Cuyler , 446 U.S. at 350; Acosta , 233 S.W .3d at 355. I f an appellant shows both e lements, prejudice is presumed. Cuyler , 446 U.S. at 349-50; Routier v. State , 112 S.W .3d 554, 582 (Tex. Crim. App. 2003).

We note that the trial cour t judge who conduc ted the hea ringon the motion for new tr ial 3 was the same judge who hear d the evidenc e i n the punishment hear ing and assessed the jail time sentenc es. Yet, afte r hear ing the mitigating char acte r evidenc e prese nted at the motion for new trial hear ing, he did not opt to gra nt the motion for new tria l.

11An actua l conflict of interest exis ts if counsel “‘is require d to make a choice betwee n

advanc ing his client’s interest in a fair trial or advanc ing other interests (perh ap s counsel’s own) to the detriment of his client’s interest.’” Acosta , 2 33 S.W .3d at 355 (quoting Monreal v. State , 947 S.W .2d 559, 564 (Tex. Crim. App. 1997)); see also Mick ens v. Taylor , 535 U.S. 162, 171 (2002) (cla rifying the phrase “ac tual conflict of interest” in the Court’s rema nd instruction in a previous case by stating “we think ‘an actua l conflict of interest’ meant prec isely a conflict that aff ecte d counsel’s perf ormanc e— as opposed to a mere theore tical division of loy alties”). A showing of a potential conflict of interest is not sufficie nt to constitute an actua l conflict of interest. Ex parte McFarland , 163 S.W .3d 743, 75 9 n . 5 2 (Tex. Crim. App. 2005); Jame s v. State , 763 S.W .2d 776, 780 (Tex. Crim. App. 1989) (“pote ntial, specula tive conflicts of interest” may not be “ele vated to the position of actual, sig nificant c onflicts”).

“[A] potential conflict may become an actual conflict, but [an appellate court need not] specula te about a strateg y an attorney might have pursued

. . . in the absenc e of some showing t h at the potential conflict beca me an actua l conflict.” Routier , 112 S.W .3d at 585 (re fer encing t h e analy sis in Jame

s , 763 S.W .2d at 781). “‘[U]nti l a defe ndant shows that his counsel acti ve l y represe nted conflicting interests , he has not established the constitutional predic ate for his claim of ineffe ctive assistance .’” Acosta , 233 S.W .3d at 355 (quoting Cuyler , 446 U.S. at 349-50) (empha sis in orig inal). An appellant cannot obtain a reve rsal on appea l unless he shows that his attorney was operating under an actua l conflict of interest that adver sely aff ecte d counsel’s perf

ormanc e. Cuyler , 446 U.S. at 348; Routier , 112 S.W .3d at 581-82.

To show that an actua l conflict of interest adver sely aff ecte d counsel’s perf

ormanc e, the appellant must show “that trial counsel a ctually acte d on behalf of t hose ot her interests during
12the trial.” Acosta , 233 S.W .3d 355-56. “An appellant must identify specific instances in the rec ord

that ref lect a choice that counsel made betwee n possible alternati v e courses of action, such as ‘eliciting (or failing to elicit) evidence helpful to one [ interest] but harmful to the ot her.’ ” Lopez

v. State , No. 04-10-00562- CR, 2011 WL 3847241, at *2 (Tex. App.—San Antonio Aug

. 31, 2011,

no pet.) (citing Gaston v. State , 136 S.W .3d 315, 318 (Tex App.—Houston [1st Dist.] 2004, pet. s truck) (en banc)) ; see State v. Hart , 342 S.W .3d 659, 6 6 5 (Tex. App.—Houston [14t h Dist.] 2011, no pet.); Ramirez v. State , 13 S.W .3d 482, 488 (Tex. App.—Corpus Christi 2000), pet. dism’d, improvidently granted , 67 S.W .3d 177 (Tex. Crim. App. 2001). The appellant must show that his t ri al co unsel “had to fore g o a strateg y in the appellant’ s trial that counsel would have otherwise pursued if he had not re prese nted [a conflicting interest].” See R outier , 112 S.W .3d at 586. 2. Cuyler Standard Not Met Malek claims that his defe nse counsel had an actua l conf lict beca use sever al y ear s ear lier Her

nandez h ad gam b l ed at his house at the Fun Poker Club. But the mere fac t that Her nandez had prior g ambling connec tions with Malek does not prove an actua l confl ict. See Routier , 112 S.W .3d at 581. An ac t u al co n flict of interest means a conflict that did in fac t aff ect counsel’s perf

ormance, n o t mere ly a theore tical division of loy alties. Malek must show that Her nandez advanc ed his interest to the detriment of Malek’s interest. See Acosta , 233 S.W .3d at 355. Malek theorizes that Her nandez had an actua l conflict beca use counsel fea

red exposure of his previous criminal g ambling conduct. He maintains that his c ounsel provided false information beca

use of his desire to avoid a trial that would expose his prior g ambling offe nses.

13Malek c hara cter izes Hernande z’s professional opinion that Malek would probably g et community supervision as false information and further asser ts that Her

nandez lied to him about the plea offe r made by the State. First, the rec ord ref

lects that Her

nandez communicated his profe ssional opinion about the probability of Malek’s rec eivi n g co m m u n ity supervision but made no g uara ntees. J ust beca use his opinion ultimately proved to be incorre ct does not mean that Her nandez provided false information to his client. Second, while there is some confusion as to wh en an d b y wh om a p l ea barg ain offe r was made, the rec ord contains evidenc e that Her nandez did in fac t eng age i n plea neg otiations wit h the State. During the hear ing on the motion for new trial, the State questioned Her

nandez about counter offe rs Malek made that wer e reje cted by the State. L og ically , if counter offe rs wer e made by the defe nse, an orig inal offe r had initially been extended by the State. Her nandez’s advice to wait and see if the plea barg ain offe r improved was based u p o n his experience that, as the prosec utor acknow ledg ed, offe rs will often improve during the course of plea neg otiations and as the trial date approa ches. Contrary to Malek’s asser tion, the rec ord does not ref lect any attempt by Her

nandez to dupe Malek or to pr event a trial to a void exposure of his pr ior criminal g ambling.

I n fac t, the rec ord ref

lects that Her

nandez did not fear t h at h is g ambling conduct would be ex posed. During the puni shment hear ing counsel ac tually questioned one of t he S tate’s witnesses, Malek’s co-de fenda nt, about the witness’s prior acqua intance with Her nandez when that acqua intanceship was based upon their g ambling association. Whil e not specific ally mentioning the fac t that they

knew e ach other from the Fun Poker Club, Hernande z asked this witness about their long- time acqua intance prior to Malek’s arr est—afte r the State had established that this witness
14knew M al ek b ec au s e he play ed at poker g ames run by Malek and then beg an dealing for Malek.

Counsel’s questions of this witness could have e asily exposed his prior ga

mbling. Fur ther, Her nandez testified at the hear ing on the motion for new trial that his prior g ambling connec tion with Malek did not hinder his repr esentat i o n of Malek beca use he “neve r considere d that.” Additionally , the rec ord ref lects that Her

nandez had no fea

r of prosec ution for his prior g ambling conduct beca use he knew, based upon his e x perie nce, that Travis County normally prosec uted only the “runne rs and deale r,” not the individual g amblers. Malek only specula tes that Her nandez had an interest in preve nting the exposure of h i s p ri o r g ambling conduct. The rec ord itself does not ref

lect that Her

nandez actua lly had such an interest. Nor does the rec ord ref lect that Her nandez adva

nced this purpor

ted intere st over Male k’s intere st. Malek’s interest in these case s was to rec eive community supervision as punishment for his cr i m i n al co nduct. Malek conce ded at the hear ing on the motion for new trial that he had

no defe ns e t o t h e charg es themselves. Thus, the only g enuine issue in this case was the issue of punishment. Malek’s primary conce rn was avoiding jail

. T he rec ord ref lects that Her

nandez zealously advanc ed this interest at the punishment hea ring

. H e r n a n d e z’s trial strateg y was to demonstrate that these offe nses wer e not jail-wor th y

cr imes by emphasizing the social aspec t of the poker g ames and the safe atmosphere of the cl u b

. Her nandez also attempted to demonstrate that Malek was not a jail-worthy individual by producing evidenc e of his g ood char acte r, particula rly his education and employ ment backg round and lack of criminal history

. Thoug h this strateg y was ultimately not succe ssful, the rec ord does not show that following this trial strateg y in any way advanc ed any purported interest of Her nandez’s over that of Malek. Malek fails to ide ntify , and the rec ord does not show , how Her nandez adva

nced a ny other
15interest to Malek’s detriment. See Gaston , 136 S.W .3d at 318. There fore , we hold that Her nandez’s prior g ambling connec tion to Malek did not become an actua l conflict of interest. S ee A co s ta , 233 S.W .3d at 355; Routier , 112 S.W .3d at 582.

Fur thermore , even assuming arguendo that an actua l conflict of interest ex i s t ed, Malek also fails to show that the actua l conflict had an adver se eff ect on Her

nandez’s perf

ormanc e. See Mitchell , 989 S.W .2d at 748. Malek argues that Her nandez’s cross-e x amination of the State’s witnesses may h av e b ee n chilled beca use he fea

red exposure of his prior g ambling conduct. Howeve r, the rec ord does not support this conclusion. The rec ord ref lects that Her

nandez never had

conce rns about such exposure or even a conce rn about being prosec uted for his g ambling conduct. Fur thermore , Malek fails to indicate how the cross-e x amination of the State’s witnesses should have been conducte d, nor does he identify what are as, topics, or questions wer e left unexplored. Malek has not shown any adver se eff ect on defe nse counsel’s perf ormanc e, and thus we do not presume prejudice

. See M

itchell , 989 S.W .2d at 748. Mal ek fails to show that his defe nse counsel had an actua l conflict of interest or that his defe nse suffe red an adver se eff ect. There fore , he has failed to meet the ‘ac tual conflict’ and ‘adve rse eff

ect’ standard of Cuyler an d fa i l s to establish ineffe ctive assistance of counsel due to a conf lict of interest. We over

rule his sec ond point of err or.

III. Conclusi on Malek has failed to demonstrate that he suffe red ineffe ctive assistance o f counsel during the sentenc ing proce eding

. Acc ording ly , we overr ule his two points of err or and aff irm the judgme nts of the trial cour t.

16__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: De cembe r 22, 2011 Do Not Publish

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