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EDUARDO GALLEGOS

THE STATE OF TEXAS

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Opinion

Appellant was tried jointly with co-defendants Adrian Gonzalez and Rodolfo Melendez for assaulting James Garcia. Melendez was acquitted, but both appellant and Gonzalez were convicted. Appellant complains that his retained counsel was ineffective, principally because he represented both appellant and his co-defendant Gonzalez at their trial, thus creating a conflict of interest. No complaint was made below until the motion for new trial.

To prove ineffective assistance of counsel an accused must show that (1) counsel's performance fell below the standards of reasonable competency, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Multiple representation is not per se violative of constitutional guarantees of effective assistance of counsel. James v. State, 763 S.W.2d 776, 778 (Tex. Crim. App. 1989). However, in such a situation a defendant can show a violation if he can show (1) that his counsel was burdened by an actual conflict of interest and (2) that the conflict had an adverse effect on specific instances of counsel's performance. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). An actual and significant conflict of interest of the degree requiring reversal exists when "one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing." Foster v. State, 693 S.W.2d 412, 413 (Tex. Crim. App. 1985). In other words when counsel is so placed upon the "horns of a dilemma" about services for one client over another an actual and significant conflict exists and each client must be made aware of such conflict before the attorney may ethically proceed with the case. James, 763 S.W.2d at 779. If a defendant shows an actual conflict the second prong of Strickland is met because prejudice is presumed. Nethery v. State, 29 S.W.3d 178, 188 (Tex. App.--Dallas 2000, no pet.).

The evidence is that appellant and Adrian Gonzalez fought with the victim, James Garcia, in Matamoros, Mexico, over a woman. A short time later Garcia drove to appellant's house in Brownsville where appellant, Gonzalez, and Rodolfo Melendez fought him again. Both appellant's and Gonzalez's defense was that Garcia was the aggressor. The testimony of appellant and Gonzalez was consistent that Garcia drove to appellant's house and tried to start a fight with appellant and that Gonzalez defended appellant by fighting with Garcia. There was no conflict between their testimony. Both defendants had a common strategy and story. There was no conflict of interest because one defendant did not stand to gain significantly by counsel adducing probative evidence or advancing plausible arguments damaging to the cause of the co-defendant whom counsel also represented. See Foster, 693 S.W.2d at 413. The mere showing of a possible conflict of interest is not sufficient to prevail on a claim of ineffective assistance of counsel. Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981).

By this same issue appellant complains that his counsel did not file motions in limine to prevent the jury from hearing about Garcia's civil suit and the assault in Matamoros. Appellant has not shown how the result of the proceeding would have been different had counsel filed these motions. We overrule the issue.

We affirm the judgment.

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J. BONNER DORSEY,

Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 1st day of March, 2001.

1. Senior Justice Robert J. Seerden assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).