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N T H E C O U R

T O F C R I M I N A L A P P EA L S O F T EX A S
N O . A P - 75, 877

EX PA R TE JO R G E L U I S R O D R I G U EZ , A ppl i c ant

ON AP P LI CAT I ON F OR A W RI T OF HABE AS CORP US CAUS E N O. 9 4 1 7 1 6 0 - A I N T HE 2 0 8 TH DI S TR I CT COURT

FROM HA RRI S CO UNTY

P er cur i am . O P I N I O N Pursuant to the p ro v i s i o n s of Article 11.07 of the Te x as Code of Criminal Proce dure, the cler k of the trial c ourt transmitted to this C ourt this application for writ of habeas cor pus. Ex pa rte Y oung , 418 S.W .2d 8 2 4 , 8 2 6 (Tex. Crim. App. 1967). Applicant wa s convicted of ag g ravated
ro bb e ry and se nte nc e d to 22 y e ars ’ im pri so nme nt. Th e Se ve nth Court of Ap pe a ls d ism iss e d h is d ir ect appeal. Ro dr igu e

z v . S tate , No. 07-00581-CR ( Tex. App.– Amarillo, 2002, no pet.) (not desig nated f

or publication.) Ap pli c ant c on te nd s inter alia thattr ia l c ouns e l r e nd e re d in e ff e c tiv e a ssi ste nc e be c a

us e
c ouns e l f a ile d to dis c los e the e xiste nc e of c o- de fe nd ant Jul io C or

te z’s a ud io t a pe d c on fe ssi on

toRodrigue z -- 2

the Applicant be fore he ente red his guilty plea. Also, Applica

nt alleg es that counse l labored
un de r a c on fl ic t of

int e re st a s h e re pr e se nte d c o- de fe nd ant M ari o A nto nio Cr uz at th e same tim e as he r epre sented Applica nt and this adverse ly

aff ecte d specific instances of counsel’s perf ormanc e. I n its original a

nswer, the State conce ded that Applica nt had alleg ed fa cts which, if true , could entitle him to relief a nd that a fur

ther fa ctual re solution was neede d to resolve Applica nt’s ineffe ctive assist ence of counse l claims. See Strick land v. W ashington , 466 U.S. 668, 686 (1984). On April 2, 2003, the t rial j udg e is sued an Orde r Designating I ssues instructing trial counsel Ga rry Washington to file an a ffidavit addr essing Applicant’s ineffec tive assistance claims. On August 12, 20 03 , th e tr ia l ju dg e e nte re d a sh owc a us e or de r dir e c tin g c ouns e l to a pp e ar in co ur

t withan a ff

ida vit
or to s ho w c a

us e a s to why he ha s fa ile d to pro du c e sa id af fi davit
. Ho we ve r, c ouns e l f a ile d to fi le an af fidavit and fa iled to appea r in court to re spond to Applicant’s alleg ations. On Marc h 15, 2004, the trial judg e held a habea s hear i n g co n cerning the merits of Applicant’s c laims. A t the hear ing, Applicant testified that counse l advised him that the evidenc e showed that he was guilty as a pa rty and that he w ould be convicte d i f h e we nt to trial. Also, Applicant t estified that counse l failed to advise him about the e x istence of Cortez’s audio taped confe ssion before Applicant ente red his guilty plea and that he would not have pleade d g uilty if he had known a

bout the confe ssion. Applicant offere d evidenc e which showed that Cortez confesse d that he committed this offe nse by himself without Applica nt’s knowledg e and conse nt. Applicant also testified that counse l ag ree d to r e p r e s e nt c o - defe ndant Cruz while he was r epre senting Applicant and that he f

ailed to advise A

pplicant about the potential conflict of inter est which c ould arise f rom his repr esentation of t he two co-de fenda nts. Also, Applicant introduce d evidenc e showingthat theRodrigue z -- 3

trial judg e g rante d Cruz’s moti on to dismi ss beca use of insufficient evidence on the same da y that Applicant plea ded guilty
. At the conc lusion of the hear ing, the trial judg e stated that she would rec ommend that habea s
re lie f b e g ra

nte d o n th e ba sis of

ine ff e c tiv e ass is tan ce of

c ouns e l be c a

us e : ( 1) c ouns e l f

a ile d to inform the def

endant a bout the exis tence exculpatory evidenc e before he entered his pl ea; a nd, (2)
counse l failed to a dvise Applicant a bout the potential for c onflict of intere st which arose when counsel a g ree d to repre sent a c o-def endant at the s am e t i me he r epre sented Applica nt. The trial judge ’s finding s are supported by the re cord. While this Court is not bound by the findi ng s of the habea s court, we should follow them when they are supported by

the re cord. Se e Ex

pa rteMi no tt , 972 S.W .2d 760, 761 (Tex. Crim. App. 1998). This application was pe nding in the district c ourt until De cembe r 20, 2007, beca use the trial judge was wa iting for

the State to f

ile proposed finding s of fac t a nd conclusions of law. The district cler k forwa rded the habea s hear ing r ecor d to this C ourt on Fe bruar y 15, 2008. Ba s edo no u r o wn re v i ew o f t h e r ec o rd , as we l l a s t h e f i n d i n gs wh i ch t h e t ri al j u d ge pronounce d in open co u rt , we f ind that Applicant is entitled to habea s relief . We conclude that counsel’s f

ailure to a dvise Applicant about the ex istence of exculpatory evidenc e wa s an omission that fell below the objective standa rd of r easona

bleness and that, but f

or counsel err ors, Applicant would have insisted in g oing to tria l. Ex parte M orrow , 952 S.W .2d 530 (Tex. Crim. App. 1997). Fur ther, we conclude that Applicant has shown that counsel was burdene d by an ac tual conflict of interest and that the conflict had an adverse e ffe ct on spec ific instance s of counse l’s perf ormanc e. Mo nr e al v . S

tate , 947 S.W .2d 559, 564 (Tex. Crim. App. 1997). Relief is g rante d. The judgment i n Cause No. 9417160-A from the 208 J udicial District thRodrigue z -- 4

Court of Ha

rr is County is s e t a sid e , a

nd Ap pli c ant i s r e mand e d to the c us tod y of the She ri ff

of Ha rr is County to a ns we r t he c ha rg e a g a ins t hi m. Copies of this opinion s hall be s e nt t o th e T e xa s D e p a r tm e nt of Criminal J ustice–Corre ctional I nstitut ions Division and Pardons and Paroles Division.

Deliver ed: Marc h 19, 2008 Do No t Pu

bli sh