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No. PD-0746-15

In the Court of Criminal Appeals of Texas

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No. 14-13-00559-CR

In the Fourteenth District Court of Appeals (Houston, Texas)

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No. 1368190

In the 228th District Court, Harris County, Texas

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JUAN QUINTERO,

Petitioner

v.

THE STATE OF TEXAS,

Respondent

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PETITION FOR DISCRETIONARY REVIEW

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PEYTON Z. PEEBLES, III

SHELLIST, PEEBLES & MCALISTER, LLP

405 Main Street, Suite 200

Houston, Texas 77002

Tel.: (713) 715-4500

Fax: (713) 715-4505

Email: peebles@texaslegalteam.net

SBOT: 24013307

Counsel for Petitioner

ORAL ARGUMENT REQUESTED

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
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TO THE HONORABLE COURT OF CRIMINAL APPEALS 

OF TEXAS:

Comes now Petitioner, Juan Quintero, by and through his undersigned counsel, and presents this Petition for Discretionary Review (“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
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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
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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
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APPENDIX ..................................................................................... 30
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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
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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
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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, Petitioner requests oral argument to expand the legal theories stated 

herein and to assist the Judges of this Court.

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STATEMENT OF THE CASE

The State charged appellant by indictment with aggravated sexual 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 sentenced him pursuant to the plea bargain to confinement for six 

years in the Texas Department of Criminal Justice, Institutional Division. 

Petitioner lodged an unsuccessful motion for new trial, followed 

by an unsuccessful appeal. This PDR follows.

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STATEMENT OF PROCEDURAL HISTORY

The State charged appellant by indictment with aggravated sexual 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-
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ment for six years in the Texas Department of Criminal Justice, Institutional Division, on that date. 

Appellant filed a timely and written motion for new trial and notice 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 petition for discretionary review. This petition is either filed by that 

date, or is filed within 15 days afterward and accompanied by a motion requesting a slight time extension.
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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.

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ARGUMENT

The panel majority erred in a manner compelling discretionary 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 nature 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 petitioner (RR1 at 32-33, 35-36). 

Petitioner hired defense lawyer Rigoberto Rodriguez to represent him (CR at 102-04; RR1 at 13-15, 33; RR2 at Defense Exhibits 1, 

2). Rodriguez did no investigation (RR1 at 48-51). 
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On November 16, 2012, the State charged petitioner with aggravated 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 assault 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 presented 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). 
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Petitioner next appeared in court on June 4, 2013 (CR at 18). A 

visiting judge was presiding, and petitioner waived his right to a jury 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 conflict 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 interest—but did so because Rodriguez told him it was merely a “formality” for the judge (RR1 at 15). Rodriguez did not discuss what the potential 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 interviews;
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• 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 sixyear 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 punishment range (RR1 at 20, 25-26). 

Jose Luis Quintero’s Testimony

The complainant’s father testified that he was at work one afternoon when his wife, Myrma, called and said that their daughter accused petitioner of doing something [sexual] to her (RR1 at 35-36). 
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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). Rodriguez 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 petitioner 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 conflicts of interest when she talked to him; he merely said he could represent both 

brothers (RR1 at 31, 33-34).
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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 petitioner but that petitioner did not want to take one (RR1 at 48-49). Rodriguez 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 applied the prior fee paid (for investigation) to a new legal services 

contract (RR1 at 51). He then accepted representation for petitioner’s brother Jose Luis (RR1 at 52-53). Rodriguez testified that he explained 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). 
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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 innocence 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 innocence (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 prepare a defense does not arise until: (1) the case is indicted; and (2) 
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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). 
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(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 responded, “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 petitioner was innocent (RR1 at 56, 78-79). He admitted Jose Luis called 

him concerning the District Attorney’s attempt to discuss petitioner’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, prosecutor (RR1 at 73-75). The prosecutor also told Rodriguez that they 
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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 petitioner 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 prosecutor’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 recommendation and request deferred adjudication community supervision from the 

judge (RR1 at 75).
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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 because “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 illtaken 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 witness who could testify against petitioner, but did not elaborate on whether he 

felt a conflict existed on other grounds as well (RR1 at 84).
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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 petitioner a new trial, rationing that, although an actual conflict of interest 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 admonishments 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. Washington, 466 U.S. 668, 692 (1984). An actual conflict exists if counsel 
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“‘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 represents two clients whose interests in the outcome of a matter are different, 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 
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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 conflicts) and no evidence shows that petitioner: (1) realized the potential 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 favorable 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 decision is free and voluntary.
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spects. First, Rodriguez testified that he admitted he could not represent 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 representation.

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 informed 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).
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guez to end the case quickly, eliminating any conflict issue and allowing 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 colored 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 discretionary 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
28

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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 contains 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 Ingeborg 12-point font in footnotes.

/s/ Peyton Z. Peebles III

____________________________________________________

PEYTON Z. PEEBLES III
29

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument 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
30

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)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 2405549

Only the Westlaw citation is currently available.

Court of Appeals of Texas,

Houston (14th Dist.).

Juan Quintero, Appellant

v.

The State of Texas, Appellee

NO. 14–13–00559–CR | Majority and Dissenting 

Opinions filed May 19, 2015.

Synopsis

Background: Defendant was convicted on guilty plea in 

the 228th District Court, Harris County, of aggravated 

sexual assault of child, and his motion for new trial was 

denied. Defendant appealed.

Holdings: The Court of Appeals, J. Brett Busby, J., held 

that:

[1] defendant was not entitled to new trial based on claim 

of ineffective assistance of counsel due to actual conflict 

of interest;

[2] guilty plea was knowing, voluntary, and intelligent, 

despite conflict of interest; and

[3] interests of justice was not independent basis for 

withdrawal of guilty plea based on defendant’s claim that 

he was denied effective assistance of conflict-free 

counsel.

Affirmed.

Kem Thompson Frost, C.J., filed dissenting opinion.

West Headnotes (10)

[1] Criminal Law

Incompetency or neglect of counsel for 

defense

Defendant was not entitled to vacatur of 

conviction on guilty plea to aggravated sexual 

assault of child and new trial based on claim of 

ineffective assistance of counsel due to actual 

conflict of interest arising out of counsel’s 

simultaneous representation of defendant’s 

brother, who was complainant’s father, in 

unrelated matter, despite evidence that trial court 

had not approved defendant’s conflict waiver, 

and brother’s testimony that he told counsel that 

he did not believe defendant was guilty and that 

counsel advised him not to tell trial court 

because brother could lose his children; counsel 

testified that brother never told him that he 

believed defendant was innocent, that, although 

brother had approached him about what to tell 

prosecutors regarding defendant’s case, he 

denied advising brother to remain quiet about 

his changed attitude toward defendant in order 

to advance brother’s own interests, and that he 

instead advised brother to tell prosecutor 

whatever brother wanted to tell him. U.S. Const. 

Amend. 6.

Cases that cite this headnote

[2] Criminal Law

Adequacy of Representation

The Constitution guarantees a criminal 

defendant effective assistance of counsel. U.S. 

Const. Amend. 6.

Cases that cite this headnote

[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 

appellant must prove by a preponderance of the 

evidence that (1) his trial counsel had an actual 

conflict of interest, and (2) the conflict actually 

colored his trial counsel’s actions during his 

representation of appellant. U.S. Const. Amend. 

6.
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Cases that cite this headnote

[4] Criminal Law

Prejudice and harm in general

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 

between advancing his client’s interest in a fair 

trial or advancing other interests, including, 

perhaps, his own, to the detriment of his client’s 

interest; in other words, appellant must show 

that his trial counsel actually acted on behalf of 

those other interests, and that he was adversely 

impacted as a result. U.S. Const. Amend. 6.

Cases that cite this headnote

[5] Criminal Law

Presumptions and burden of proof

A claim of ineffective assistance of counsel 

based on an actual conflict of interest will fail if 

(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

[6] Criminal Law

Voluntary Character

Guilty plea to aggravated sexual assault of child 

was knowing, voluntary, and intelligent, despite 

conflict of interest arising out of counsel’s dual 

representation of defendant’s brother, who was 

complainant’s father, and counsel’s alleged 

pressure for defendant to plead guilty to avoid 

potential life sentence if he went to trial; trial 

court gave defendant all requisite 

admonishments orally and in writing, defendant 

signed written admonishments and initialed 

several paragraphs specifically acknowledging 

that he understood charge against him and 

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. 

Const. Amend. 6.

Cases that cite this headnote

[7] Constitutional Law

Guilty pleas

Due process requires that a guilty plea be 

entered knowingly, intelligently, and 

voluntarily. U.S. Const. Amend. 14.

Cases that cite this headnote

[8] Criminal Law

Arraignment and plea

In considering the voluntariness of a guilty plea, 

an appellate court examines the record as a 

whole.

Cases that cite this headnote

[9] Criminal Law

Evidence as to voluntariness

In considering a challenge to the validity of a 

guilty plea, evidence that a defendant was 

admonished by the trial court creates a prima 

facie showing that the guilty plea was made 

voluntarily and knowingly, and the burden then 

shifts to the defendant to show that he entered 

the plea without understanding the consequences 

of his action.

Cases that cite this headnote
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

[10] Criminal Law

Grounds for Allowance

Interests of justice was not independent basis for 

withdrawal of guilty plea and new trial on 

charge for aggravated sexual assault of child 

based on defendant’s claim that he was denied 

effective assistance of conflict-free counsel, 

after trial court denied motion for new trial on 

claim that he was denied effective assistance of 

counsel. U.S. Const. Amend. 6.

Cases that cite this headnote

On Appeal from the 228th District Court, Harris County, 

Texas, Trial Court Cause No. 1368190

Attorneys and Law Firms

Peyton Peebles III, Houston, TX, for Appellant.

Clinton Morgan, Houston, TX, for The State of Texas.

Panel consists of Chief Justice Frost and Justices 

Christopher and Busby

OPINION

J. Brett Busby, Justice

*1 Appellant Juan Quintero pled guilty to the offense of 

aggravated sexual assault of a child as part of a pleabargain agreement with the State. See Tex. Penal Code 

Ann. § 22.021 (West 2011). The trial court found 

appellant guilty and, in accordance with the plea bargain, 

sentenced him to serve six years in prison. Appellant 

retained new counsel and filed a motion for new trial 

alleging that his trial counsel was ineffective. The trial 

court denied appellant’s motion.

Appellant contends in a single issue on appeal that the 

trial court abused its discretion when it denied his motion 

for new trial. Appellant makes three separate arguments 

within his single issue. Appellant initially contends that 

his trial counsel was ineffective because he advised 

appellant to plead guilty when counsel had an actual 

conflict of interest. We reject this argument because at 

least one reasonable view of the record evidence supports 

an implied finding by the trial court that appellant 

suffered no adverse effect as a result of the actual conflict 

of interest.

Appellant next argues that his guilty plea was not 

voluntary due to counsel’s ineffective assistance. We 

overrule appellant’s second contention because the 

evidence introduced during the hearing on the motion for 

new trial supports an implied finding by the trial court 

that appellant knowingly, intelligently, and voluntarily 

agreed to accept the State’s plea bargain and plead guilty.

Finally, appellant argues that the interest of justice entitles 

him to a new trial. We overrule this argument because the 

interest of justice is not an independent basis for a trial 

court to grant a criminal defendant a new trial, and the 

independent legal ground asserted in support of 

appellant’s interest-of-justice argument is identical to one 

raised, and rejected, in his first two arguments. We 

therefore affirm the trial court’s judgment.

BACKGROUND

In 2012, appellant’s niece made an outcry that appellant 

had sexually assaulted her in several ways. Appellant 

retained attorney Rigoberto Rodriguez as his trial counsel. 

Appellant was eventually indicted for the offense. At the 

first trial setting after his indictment, the State offered 

appellant a plea bargain of six years’ confinement. 

Appellant accepted the plea bargain. After admonishing 

appellant regarding his decision to waive his rights, the 

trial court accepted his plea, found him guilty of the 

charged offense, and sentenced him to the agreed six-year 

prison term.

Appellant then retained new counsel, who filed a motion 

for new trial. The motion asserted that appellant was 

entitled to a new trial for three reasons: (1) Rodriguez 

rendered ineffective assistance because he counseled 

appellant to accept the State’s plea bargain when he had 

an actual conflict of interest; (2) appellant’s guilty plea 

was involuntary because Rodriguez was ineffective; and 

(3) the interest of justice required that he be granted a new 

trial.1 The trial court conducted a hearing on appellant’s 

motion during which several witnesses testified, including 

appellant, appellant’s brother, and Rodriguez.

A. Appellant’s testimony during the new trial hearing
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

*2 Appellant testified that his parents located Rodriguez 

and hired him on appellant’s behalf. Appellant then 

testified that he did not know what, if any, work 

Rodriguez did on his case between the complainant’s 

outcry and the charge being filed against him. Appellant 

testified he was aware that Rodriguez was also 

representing his brother Jose Luis Quintero—the father of 

the complainant in appellant’s sexual assault case—in two 

unrelated criminal matters. Appellant acknowledged that 

he had signed a waiver of potential conflict of interest, but 

explained that he did so because Rodriguez had told him 

it was a formality for the judge. According to appellant, 

Rodriguez did not discuss what the potential conflict was 

and did not tell him that the trial court ultimately denied a 

motion Rodriguez filed seeking the court’s approval of 

the conflict waiver.

Appellant testified that at the time he accepted the plea 

bargain, he was unaware of the evidence the State 

possessed against him. He went on to testify that he is 

innocent of the sexual assault charge, but he pled guilty 

because Rodriguez told him that if he did not accept the 

State’s offer, he would probably be convicted at trial and 

would receive a life sentence. Appellant testified that he 

asked Rodriguez for time to consider the State’s offer, but 

Rodriguez told appellant he had to decide right away. 

Appellant went on to testify that he pled guilty because 

his only other choice seemed to be to lose at trial and get 

a life sentence. The record shows that the visiting judge 

who accepted appellant’s plea explained the full 

punishment range during the plea hearing.2

B. Jose Luis’s testimony

Jose Luis testified that he was very upset and angry when 

he first learned about his daughter’s outcry accusing 

appellant of sexual assault. Jose Luis went on to admit 

that he was charged with cruelty to animals and family 

assault after appellant was charged with sexual assault. 

According to Jose Luis, his parents hired Rodriguez to 

defend him in those two cases. Jose Luis testified that 

Rodriguez informed him there could be a big conflict of 

interest if he represented both brothers, that he probably 

should not represent both, but that the brothers could sign 

a paper so it would not be a problem. According to Jose 

Luis, Rodriguez did not specify the nature of the conflict 

of interest.

Jose Luis testified he eventually told Rodriguez that he no 

longer believed his brother was guilty. Jose Luis also 

informed Rodriguez that the prosecutor’s office had 

called him wanting to discuss appellant’s case and his 

thoughts on the appropriate punishment for appellant. 

According to Jose Luis, Rodriguez told him that it was 

not in his best interest to tell the prosecutors he now 

believed appellant was innocent. Rodriguez explained that 

it might result in his children being taken away based on a 

belief that he was trying to protect his brother rather than 

his daughter. When asked specifically what Rodriguez 

had told him, Jose Luis testified that Rodriguez said: “do 

not talk to the DA’s Office and tell them that you think 

he’s innocent because you may lose your kids.” Jose Luis 

testified that he called the prosecutor’s office back and 

told them that he just wanted the “system” to take care of 

it.

C. Veronica Pina’s testimony

A sister of appellant and Jose Luis, Veronica Pina, also 

testified during the hearing. She explained that she was 

involved in the hiring of Rodriguez and discussed his 

representation of her brothers. She testified that 

Rodriguez did not go into detail about potential conflicts 

of interest when she talked to him. According to Pina, 

Rodriguez said that he could represent both brothers.

D. Trial counsel’s testimony

*3 Trial counsel Rodriguez testified that appellant hired 

him in May 2012 for an “investigation” concerning the 

sexual assault outcry. From that point until appellant was 

formally charged in November 2012, Rodriguez testified 

that he did nothing more than “be on call” in case the 

police wanted to talk to appellant. Rodriguez admitted 

that he did not talk to any witnesses and did not know the 

specifics of the outcry.

When appellant was charged in November 2012, 

Rodriguez applied the prior fee paid (for investigation) to 

a new legal services contract. He testified that after this 

occurred, he agreed to represent Jose Luis in his criminal 

cases. Rodriguez testified that he explained the potential 

for a conflict of interest to the family and said that the 

brothers had to sign a waiver of the potential conflict 

before he would represent both. Rodriguez testified that 

he explained the potential conflict to both brothers. 

Rodriguez went on to explain that he would never have 

tried both cases; if necessary, he would have tried 

appellant’s case and then withdrawn before Jose Luis’s 

cases went to trial. Rodriguez testified that it was his 

choice whether to take them to trial.

Rodriguez explained that he filed a motion to waive 

potential conflict of interest. The trial court’s staff called 

him later that day and told him the judge had denied the 

motion. Rodriguez testified that he approached the trial 

judge the next day and the judge told him that the motion 
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

was denied, but Rodriguez could still represent both 

appellant and his brother if he wished. Rodriguez went on 

to testify that he did not know whether an actual conflict 

of interest existed.

Rodriguez was also asked about his interactions with Jose 

Luis regarding appellant’s case. Rodriguez denied that 

Jose Luis ever told him that he now believed appellant 

was innocent. Rodriguez admitted during his testimony 

that Jose Luis had contacted him concerning the 

prosecutor’s attempt to discuss appellant’s case, but 

Rodriguez asserted that he told Jose Luis to “tell [the 

prosecutor] whatever you want to tell [him].” Rodriguez 

also denied advising Jose Luis not to inform the 

prosecutor about his belief that appellant was innocent 

because doing so might endanger Jose Luis’s access to his 

children.

Regarding appellant’s guilty plea, Rodriguez testified that 

he showed up in court on June 4, 2013, and the prosecutor 

on appellant’s case told him he was about to be replaced 

by a new prosecutor yet to be identified. According to 

Rodriguez, the departing prosecutor told him that the new 

prosecutor could decide to file two more charges against 

appellant and then ask the trial court to stack the 

sentences. Rodriguez testified that during his discussions 

with appellant regarding the State’s plea-bargain offer, he 

told appellant that a jury might acquit him, might find him 

guilty and sentence him to five years in prison, or might 

sentence him to life in prison. Rodriguez also testified that 

he informed appellant about his conversation with the 

departing prosecutor. Rodriguez testified that he told 

appellant exactly what the prosecutor had told him 

regarding the possibility of more charges and the stacking 

of any resulting prison terms. Rodriguez also testified he 

told appellant that if the State brought witnesses who 

could 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 

was actually strong or weak. Ultimately, Rodriguez 

testified that appellant wanted a deal with probation but 

decided to take the offered plea bargain because the State 

was not willing to offer probation. Rodriguez also 

emphasized repeatedly that appellant was not willing to 

go to trial.

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

new trial

*4 At the end of the hearing, appellant’s new counsel 

argued that it was unethical for Rodriguez to have 

represented Jose Luis at the same time that he represented 

appellant because Jose Luis could have been called as a 

witness against appellant. He went on to ask the trial court 

to grant appellant a new trial.

The trial court explained that he believed it unethical for a 

court to approve a conflict of interest, but that he lacked 

the authority to remove a lawyer from a case based on a 

conflict of interest. The court went on to find that a 

conflict existed in this case. The court stated that he 

agreed with appellant’s arguments both “morally and 

ethically.” Nevertheless, the court denied appellant’s 

motion in its entirety, stating: “sometimes people plead 

guilty to things that they didn’t do because they believe 

it’s in their best interest to do so because they [would] 

rather take six years than fifty. And my understanding of 

the law is, as long as you do that knowingly and 

intelligently, that’s what it’s going to be.” This appeal 

followed.

ANALYSIS

Appellant contends that the trial court abused its 

discretion when it denied his motion for new trial. Within 

that single issue, appellant makes three separate 

arguments, which we address in turn.

I. Appellant has not shown that the trial court abused 

its discretion by refusing to grant him a new trial 

based on counsel’s alleged conflict of interest.

[1]Appellant’s first argument is that the trial court abused 

its discretion when it denied his motion for new trial 

because he was denied effective assistance of counsel due 

to his trial counsel’s actual conflict of interest.

A. Standard of review and applicable law

We review a trial court’s decision on a motion for new 

trial for an abuse of discretion. State v. Herndon, 215 

S.W.3d 901, 906 (Tex.Crim.App.2007). Under this 

standard, an appellate court should reverse the trial 

court’s ruling only if it was clearly erroneous and 

arbitrary, such as when no reasonable view of the record 

could support the decision under review. Odelugo v. 

State, 443 S.W.3d 131, 137 (Tex.Crim.App.2014). In the 

absence of express factual findings, we assume that the 

trial court made implicit findings of fact that support its 

ruling. Johnson v. State, 169 S.W.3d 223, 239 

(Tex.Crim.App.2005). The record on appeal must be 

inspected from every reasonable vantage in the light most 

favorable to the trial court’s ruling, and found to be 
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

deficient, before it may be overturned as an abuse of the 

trial court’s discretion. Odelugo, 443 S.W.3d at 138. If

one reasonable view of the record would support the trial 

court’s denial of a motion for new trial, the decision must 

be affirmed on appeal. See id.

[2] [3] [4] [5]The Constitution guarantees a criminal 

defendant effective assistance of counsel. Ex parte 

Moore, 395 S.W.3d 152, 157 (Tex.Crim.App.2013). To 

prevail on his conflict-of-interest ineffectiveness claim, 

appellant must prove by a preponderance of the evidence 

that (1) his trial counsel had an actual conflict of interest, 

and (2) the conflict actually colored his trial counsel’s 

actions during his representation of appellant. Odelugo,

443 S.W.3d at 136. “An ‘actual conflict of interest’ exists 

if counsel is required to make a choice between advancing 

his client’s interest in a fair trial or advancing other 

interests (perhaps counsel’s own) to the detriment of his 

client’s interest.” Monreal v. State, 947 S.W.2d 559, 564 

(Tex.Crim.App.1997). In other words, appellant must 

show that his trial counsel actually acted on behalf of 

those other interests, and he was adversely impacted as a 

result. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 

1708, 64 L.Ed.2d 333 (1980). Appellant’s claim will fail 

if (1) no evidence has been presented on the issue, or (2) 

the evidence relevant to the issue is in perfect equipoise. 

Odelugo, 443 S.W.3d at 136–37.

B. Appellant did not prove by a preponderance of the 

evidence that he was adversely impacted by any 

conflict of interest.

*5 Even if we assume the existence of an actual conflict 

of interest, appellant must still establish, by a 

preponderance of the evidence, that he was adversely 

impacted by his trial counsel’s conflict of interest. 

Appellant contends he met this burden through: (1) 

undisputed evidence that Rodriguez represented his 

brother—the father of the complainant, and therefore a 

potential material witness against him—while continuing 

to represent appellant; (2) his brother’s testimony that 

Rodriguez advised him to not tell the prosecutors his 

belief that appellant had not sexually assaulted his 

daughter; and (3) his own testimony that Rodriguez 

pressured him into accepting the State’s plea-bargain 

offer by telling him he would be convicted if he went to 

trial and would then receive a life sentence. We disagree 

that, under the appropriate standard of review, appellant 

has established that the trial court abused its discretion 

when it denied his motion for new trial based on an actual 

conflict of interest.

Appellant’s first argument consists simply of evidence 

that the dual representation created an actual conflict of 

interest. That evidence does not address the second part of 

the test: whether trial counsel acted on behalf of other 

interests to appellant’s detriment. Our dissenting 

colleague argues that such an adverse impact has been 

shown because Rodriguez failed to “disclose to appellant 

the trial court’s conclusion that the dual representation 

was unethical” and the court’s advice that Rodriguez 

“discontinue the dual representation”—information that 

would have allowed appellant to make an informed 

decision about waiver and choice of counsel. Post, at 5–6. 

But there is no evidence that the trial court disclosed any 

such conclusion or advice to Rodriguez before appellant 

entered his guilty plea. Rather, the trial court simply 

denied counsel’s motion seeking approval of the waiver 

appellant had signed, and Rodriguez testified that the trial 

court said he could still represent both appellant and Jose 

Luis if he wished.3

Appellant’s second and third arguments likewise do not 

demonstrate an adverse effect because they ignore that the 

evidence regarding Rodriguez’s dealings with both Jose 

Luis and appellant was disputed. Although the brothers 

each offered testimony that, if believed, could establish an 

adverse impact on appellant, Rodriguez offered directly 

contrary testimony. For example, Rodriguez testified that 

Jose Luis never told him that he now believed appellant 

was innocent. Although he agreed that Jose Luis had 

approached him about what to tell the prosecutors 

regarding appellant’s case, he denied advising Jose Luis 

to remain quiet about his changed attitude toward his 

brother in order to advance Jose Luis’s own interests. 

Rodriguez testified that he instead advised Jose Luis to 

“tell [the prosecutor] whatever you want to tell [him].”

Our dissenting colleague faults Rodriguez for not 

attempting to secure a statement from Jose Luis in support 

of appellant. Post, at 8. But according to Rodriguez, he 

did not know that Jose Luis was now willing to make a 

supportive statement. This testimony undercuts the 

dissent’s theory that Rodriguez gave this advice to 

advance Jose Luis’s interests to the detriment of 

appellant.4

*6 The trial court, as the trier of fact, was entitled to 

believe Rodriguez’s testimony and disbelieve the 

testimony of both appellant and his brother. See Odelugo,

443 S.W.3d at 138 (stating that trial court can choose to

disbelieve even uncontroverted testimony if its probative 

value depends on the credibility of the witness). We 

conclude the trial judge implicitly did so here. See

Johnson, 169 S.W.3d at 239. Given the trial court’s 

implicit rejection of the brothers’ testimony and 

acceptance of Rodriguez’s, it was within the court’s 

discretion to conclude that appellant failed to show by a 

preponderance of the evidence that he was adversely 
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

affected by his trial counsel’s conflict of interest. 

Odelugo, 443 S.W.3d at 138. Therefore, we hold the trial 

court did not abuse its discretion when it denied 

appellant’s motion for new trial based on an actual 

conflict of interest. Id.

II. Appellant has not shown that the trial court abused 

its discretion by refusing to grant him a new trial on 

the ground that his guilty plea was not knowingly, 

intelligently, and voluntarily entered.

[6]In his second argument, appellant claims that the trial 

court erred when it denied his motion for new trial based 

on the allegedly involuntary nature of his guilty plea. 

According to appellant, his plea was involuntary because 

his attorney rendered ineffective assistance by failing to 

advise him of the existence of an actual conflict of interest 

and by pressuring him to take the plea when he told him 

he faced two choices: pleading guilty with a six-year 

sentence, or going to trial and being found guilty and 

sentenced to life in prison. In this argument, appellant 

makes no reference to the visiting judge’s admonishments 

regarding his decision to plead guilty to the aggravated 

sexual assault charge. He also does not contend that the 

admonishments, which are contained in the record, are 

insufficient.

[7] [8] [9]Due process required that a guilty plea be entered 

knowingly, intelligently, and voluntarily. Kniatt v. State,

206 S.W.3d 657, 664 (Tex.Crim.App.2006). In 

considering the voluntariness of a guilty plea, an appellate 

court examines the record as a whole. Martinez v. State,

981 S.W.2d 195, 197 (Tex.Crim.App.1998). Evidence 

that a defendant was admonished by the trial court creates 

a prima facie showing that the guilty plea was made 

voluntarily and knowingly. Id. The burden then shifts to 

the defendant to show that he entered the plea without 

understanding the consequences of his action. Arreola v. 

State, 207 S.W.3d 387, 391 (Tex.App.—Houston [1st 

Dist.] 2006, no pet.).

The record demonstrates that appellant received written 

admonishments from the visiting judge. Appellant signed 

those admonishments and initialed several paragraphs 

specifically acknowledging that he understood the charges 

against him and the consequences of a guilty plea, and 

that he had fully consulted with his attorney before 

signing the admonishments and agreeing to the plea. The 

record also demonstrates that the visiting judge orally 

admonished appellant regarding his decision to plead 

guilty. Therefore, there is a prima facie showing that 

appellant entered his guilty plea knowingly, intelligently, 

and voluntarily, and appellant had the burden to show the 

trial court that his plea was nevertheless involuntary. See

Martinez, 981 S.W.2d at 197.

Attempting to meet this burden, appellant relies on his 

testimony that his attorney had not advised him of the 

existence of an actual conflict of interest before he agreed 

to plead guilty and had pressured him to take the plea. But 

there is other evidence in the record that appellant was 

aware of the conflict. In addition, we have already 

determined that the trial court could have disbelieved 

appellant’s testimony regarding his trial counsel’s 

handling of the plea bargain and instead believed 

Rodriguez’s testimony that he discussed the State’s pleabargain offer with appellant and that he explained 

appellant’s options prior to appellant’s decision to accept 

the plea. We therefore conclude appellant has not met his 

burden to demonstrate that his guilty plea was involuntary 

and, as a result, has not shown that the trial court abused 

its discretion when it denied his motion for new trial 

based on this ground.

III. Appellant has not shown that the trial court 

abused its discretion by refusing to grant him a new 

trial in the interest of justice.

*7 [10]In his final argument on appeal, appellant contends 

the trial court abused its discretion when it refused to 

grant him a new trial in the interest of justice. The interest 

of justice is not an independent basis for granting a new 

trial, however. State v. Thomas, 428 S.W.3d 99, 105 

(Tex.Crim.App.2014). The Court of Criminal Appeals has 

held that there must be some legal basis underpinning the 

grant of a new trial, even when it is sought in the interest 

of justice. Id. As a general rule, a trial court does not 

abuse its discretion in granting a motion for new trial in 

the interest of justice if the defendant (1) articulated a 

valid legal claim in his motion, (2) produced evidence or 

pointed to evidence in the trial record that substantiated 

his legal claim, and (3) showed prejudice to his 

substantial rights under the rules of appellate procedure. 

State v. Sanders, 440 S.W.3d 94, 99 (Tex.App.—Houston 

[14th Dist.] 2013, pet. ref’d).

In an effort to meet these requirements, appellant asserts 

that the trial court should have granted his motion in the 

interest of justice for one of the reasons he asserted 

previously: his trial counsel was ineffective because he 

pressured him into pleading guilty.5 We have already 

addressed, and rejected, this contention as a stand-alone 

basis for the trial court to grant appellant a new trial. 

Having done so, we hold this contention also cannot serve 

as the legal basis underlying the grant of a new trial in the 

interest of justice. See id. at 104 (concluding that one 

ground did not support new trial because court had 

already analyzed essentially the same argument under 
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

another ground and concluded it did not support new 

trial). We therefore hold that the trial court did not abuse 

its discretion when it denied appellant’s motion for new 

trial based on this ground.

CONCLUSION

Having addressed each argument raised in appellant’s 

single issue on appeal and concluded that none supports 

reversal, we overrule that issue and affirm the trial court’s 

judgment.

(Frost, C.J., dissenting).

Kem Thompson Frost, Chief Justice, dissenting

Today the court must determine whether appellant Juan 

Quintero is entitled to a new trial based on his counsel’s 

actual conflicts of interest. Convicted of aggravated 

sexual assault of a child as part of a plea-bargain 

agreement with the State, appellant asserts his retained 

counsel rendered ineffective assistance because the 

conflicts colored counsel’s actions. At the heart of the 

appeal is appellant’s contention that counsel advised 

appellant to plead “guilty” while laboring under actual 

conflicts of interest. To decide the issue we must 

determine the adverse impact, if any, of the conflicts. The 

majority concludes that appellant suffered no adverse 

impact and that the evidence supports an implied finding 

that appellant knowingly, intelligently, and voluntarily 

entered the plea. I respectfully disagree.

Applicable Legal Standard

In most cases, ineffective-assistance-of-counsel claims are 

assessed under the familiar two-prong test set out in 

Strickland v. Washington, which requires the appellant to 

prove that (1) counsel’s representation fell below an 

objective standard of reasonableness; and (2) but for 

counsel’s unprofessional errors, the result of the 

proceeding would have been different.1 But, when one 

asserts that the ineffective assistance derived from a 

conflict of interest, the appellate court assesses the 

ineffective-assistance claim under the less-onerous 

standard articulated in Cuyler v. Sullivan.2

*8 To prevail on his conflict-of-interest ineffectiveness 

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 

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.”4 In the 

simplest terms, appellant must show counsel actually 

acted on behalf of other interests, and that appellant was 

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 

showing that counsel acted (or chose not to act) to pursue 

other interests and that appellant thereby suffered some 

adverse effect.

Counsel’s Actual Conflicts of Interest

Appellant’s young niece made outcry that appellant had 

sexually assaulted her. Appellant’s counsel represented 

both appellant and the complainant’s father, who is 

appellant’s brother. The father’s interests in appellant’s 

case diverged from appellant’s interest. While appellant’s 

interest was to minimize adverse consequences of 

potential conviction and punishment for the charged 

offense, the undisputed evidence shows that the father’s 

interests were (1) to seek justice for the complainant and 

against the perpetrator of the crime and (2) to avoid any 

adverse action from the Texas Department of Family and 

Protective Services, including action that might 

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.

Appellant’s interests and the father’s interests collided 

head-on when the father received a call from the District 

Attorney’s Office requesting input on appellant’s 

prospective punishment. The father, in turn, sought 

counsel’s advice regarding the District Attorney’s inquiry. 

In advising the father, counsel found himself between a 

rock and a hard place—counsel was required to make a 

choice between advancing appellant’s interests on one 

hand and advancing the father’s interests on the other.8

Whatever choice the lawyer made would promote the 

interests of one client while compromising the interests of 

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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Up to that point, appellant’s counsel had characterized his 

representation of the two clients as posing only a 

“potential” conflict despite the facial incompatibility of 

the clients’ respective interests. Counsel was operating 

under the belief that his clients’ divergent interests would 

lead to an actual conflict only if both cases were tried, 

and, according to counsel, the outcome was up to him. 

Appellant’s counsel advised both appellant and the father 

of what counsel described as a “potential” conflict. 

Counsel then presented both clients with written waivers. 

Both clients signed the waivers.9

*9 Appellant’s counsel filed appellant’s waiver in the trial 

court, but the trial court refused to approve the waiver of 

the conflict. According to the trial court, the conflict was 

unethical.10 Even assuming (for argument’s sake) the 

accuracy of counsel’s early assessment of the 

simultaneous representation of the two clients as creating 

only a “potential” conflict, at the point of the District 

Attorney’s inquiry to the father, the dual representation

posed an actual conflict of interest. Likewise, when 

appellant’s counsel responded to appellant’s request for 

advice regarding a plea-bargain offer from the State, 

counsel was acting under an actual conflict of interest. At 

that point, appellant’s counsel was required to make a 

choice between advancing his own economic interests and 

advancing appellant’s interests. The former could only 

come at the cost of the latter.

Both the economic-self-interest conflict between counsel 

and appellant and the divergent-client-interests conflict 

between appellant and the father required appellant’s 

counsel to choose between opposing interests. The record 

contains sufficient evidence showing counsel had actual 

conflicts of interest.11

Actions Colored by Conflicts of Interests

Counsel’s conflicts of interest colored his actions during 

his representation of appellant.12 Counsel testified that he 

concluded he could not take both appellant’s case and the 

father’s case to trial. In tacit recognition of the actual 

conflict, counsel admitted that he would have to withdraw 

from one representation unless at least one of the clients 

accepted a plea bargain. The evidence shows that this 

conflict influenced counsel’s representation of appellant. 

After the trial court refused to approve appellant’s waiver 

of the conflict, counsel chose not to disclose that 

information to appellant. Counsel never informed either 

of the clients that the trial court had considered the waiver 

and expressly refused to approve it. Nor did counsel 

disclose to appellant the trial court’s conclusion that the 

dual representation was unethical or inform appellant that 

the trial court advised counsel to discontinue the dual 

representation. This information was material. Indeed, 

had appellant known the trial court did not approve of 

counsel’s simultaneous representation of appellant and the 

father or that the trial court had denounced the 

representation as unethical, appellant might well have 

made a different decision about waiver and choice of 

counsel.

An attorney serving his clients’ interests would have 

disclosed this information to the clients so that the clients 

could make informed decisions regarding their choice to

continue being represented by an attorney with actual 

conflicts of interest. The only reasonable interpretation of 

counsel’s testimony and the clients’ testimony is that 

counsel briefly informed the clients that there might be a 

potential conflict of interest, but counsel did not explain 

the ramifications of any conflict to appellant or advise 

appellant as to how being represented by an attorney with 

conflicts of interest might affect the representation 

appellant was to receive. Because the father’s goals and 

interests were at cross-purposes with what appellant 

hoped to achieve, the interests of both could not be served 

by the same counsel at the same time.

The majority emphasizes the trial court’s role as the factfinder and the possibility that the trial court may have 

discredited the clients’ testimony and believed only the 

attorney’s testimony.13 The majority states that the only 

evidence that showed counsel’s actions were colored by 

conflicts of interest is disputed. This assessment is 

incorrect. Even 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 colored counsel’s actions.

Economic Self–Interest Conflict

*10 Counsel testified that he would have to withdraw, and 

therefore suffer adverse financial consequences, unless 

one of the clients pled “guilty.” Counsel chose not to 

advise appellant that the trial court had refused to approve 

the waiver of the conflict, an action which suggests 

counsel was motivated to keep the business of both clients 

or, at least, prevent them from learning the trial court’s 

view of the matter. Counsel’s explanation for failing to 

fully articulate the implications of the conflicts of interest 

was that, in his view, the conflicts of interest would not be 

an issue as long as at least one client pled “guilty.”

Counsel then refrained from taking any action to 
Quintero v. State, --- S.W.3d ---- (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

investigate the State’s case against appellant.14 When the 

State offered appellant a plea bargain, counsel advised 

appellant to plead “guilty” even though counsel did not 

know anything about the State’s case against appellant, 

including whether it was a weak case or a strong case. 

Appellant accepted counsel’s advice and pled “guilty.” In 

counsel’s mind, appellant’s “guilty” plea eliminated any 

conflict of interest and allowed counsel to continue 

representing both appellant and the father. The evidence 

shows that counsel’s actions and his choices not to act 

were colored by a conflict between his interest in 

retaining both clients and appellant’s interest in 

minimizing adverse consequences of conviction and 

punishment, an interest served by appellant’s pleading 

“guilty” only if the State’s case against appellant was 

strong.

Divergent–Client–Interests Conflict

Counsel’s representation of appellant also was colored by 

a conflict of interest between appellant (the accused) and 

the father of the accuser. The undisputed evidence shows 

the District Attorney’s Office contacted the father to 

discuss the father’s thoughts on an appropriate 

punishment for appellant. The father and counsel both 

testified that the father asked counsel for advice in 

responding to this prosecutorial inquiry. Appellant’s 

interest was in securing statements from the father that 

would convince the District Attorney to minimize 

consequences for appellant. In this instance, the father 

testified that at the time he believed appellant to be 

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 

innocent because that opinion might cause the father to 

lose custody of his children. The father testified that 

counsel advised him to keep silent about his opinion that 

appellant was innocent, lest appellant risk losing custody 

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 

actions.

Counsel testified that he told the father to tell the District 

Attorney’s Office “whatever [father] wanted.” This 

advice was not zealous representation of appellant, who 

was seeking a lesser sentence than the District Attorney’s 

Office was proposing. The majority notes counsel 

testified that he did not know the father wanted to make a 

supportive statement. But, counsel’s unawareness of what 

the father would say condemns rather than excuses 

counsel’s failure to act.

Counsel’s testimony that he did not know what the father 

would say shows counsel chose to advise the father 

without undertaking to investigate what, if anything, the 

father could offer that might further appellant’s goals of 

minimizing the consequences of potential conviction and 

punishment. Counsel’s decision not to make inquiry and 

not to investigate prompts important questions:

• Would an attorney not laboring under a conflict of 

interest fail to ask the father what he wanted to say?

• Would an attorney zealously representing only 

appellant’s interests squander the opportunity to 

attempt to secure a supportive statement on behalf of 

appellant?

At this critical point in counsel’s representation of 

appellant, counsel chose not to inquire and not to 

investigate. Doing so would have furthered appellant’s 

interests but compromised the father’s interests. Counsel 

could not serve the interests of both clients. Counsel 

chose not to serve appellant’s interests.

*11 By choosing to do nothing, counsel lost the 

opportunity to learn what the father would say and 

attempt to secure a statement from the father in support of 

appellant.15 The conflict of interest affected counsel’s 

actions—he failed to make inquiry and he failed to 

advocate on appellant’s behalf while interacting with the 

father.16

Cuyler Standard Satisfied

The undisputed evidence shows the conflicts of interest 

colored counsel’s actions as well as his advice.17

Accordingly, the Cuyler standard is satisfied.

Conclusion

Counsel had actual conflicts of interest and that those 

conflicts colored his representation of appellant. 

Therefore, the court should sustain appellant’s first issue 

and reverse and remand the case to the trial court for a 

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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

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.

End	of	Document © 2015	Thomson	Reuters.	No	claim	to	original	U.S.	Government	Works.