*2 ROBERTS, Vasquez companions Before TOM and because his G. DAVIS and DAVIS, got JJ. would not her. Davila W.C. bother Just as brother, bar, Vasquez’
to the door the Johnny, came out. Davila turned around OPINION back the ran van. The ver- State’s ROBERTS, Judge. sion happened appel- of what next and the appellants, brothers, These who markedly. are were lants’ version differed charged a single indictment with the evidence, According to the State's Pablo They offense of murder. represented Vasquez appellant’s had seen the van by joint the same at their trial. parked outside La Hacienda. When he saw jury guilty found each of the lesser his brother start toward the door of the bar involuntary included offense manslaugh- yelled stop Johnny, he and tried to but ter punishment and assessed each a of con- Johnny continued outside. followed Pablo finement ten years. moving him very and saw that van was grounds error, his first and slowly. second He then saw the van’s side door Guadalupe challenges open gun sticking sufficien- of a and saw the barrel cy Guadalupe evidence. been through opening. had As he ran behind a working brother, Salustrio, car, tripped with his and fell. As he fell he Katy several other men in on March heard two shots. The door of the van then they Late that afternoon back drove closed and the van drove off. Pablo then they way to Richmond where On lived. saw that his brother had been shot once. they dropped Johnny off Johnny Vasquez single Garcia and the died from the shot- in Rosenberg. gun other men Garcia wound. dropped off near a bar known as Pat’s According appellants’ to the version of appellant
Place. He asked the to return facts, pursued Davila was back pick up. about two hours to him by Johnny Vasquez van and several other
Guadalupe van, just got and Salustrio continued to men. fell She as she they picked up get Richmond where Beatrice but was able to in. The men were Davila, van, Guadalupe. trying get a friend of three inside the but Davila and beer, awhile, bought some drove around had their doors locked. Salus- van, trio, stopped country sitting then shoot who was the back of shotgun They Salustrio. then to lock door. tried owned failed his off, quez promote drive but could not men did so because the intent to Meanwhile, had surrounded the van. Sa- or assist the commission of that reckless shotgun lustrio had loaded which he act. kept on a gun rack back van. Guadalupe’s testimony showed Since own him to into told shoot the air to told into the air that he shoot away they scare men so could away, jury the men could scare *3 off. drive When one of the men outside rationally appellant guilty find that the was door, opened the van the Salustrio side is to party. as a The evidence sufficient fired one shot into the air. of men One the support the conviction. grabbed
outside of then the barrel the shot- error, ground In third of his gun attempted and to take it out Salus- failing the gun discharged The a contends that trial court erred in trio’s hands. second point time. At to separate the men outside scat- continue the case so that coun- tered. The three the van then drove sel each Lerma could be obtained for away. They did not until their know arrest pointed alleges brothers. He that he out to later several hours that someone had been potential the the shot. present in this and that the court’s point either duty at that was to determine theory The State’s of the case was that whether the risk of conflict of interest was guilty party. as a V.T. separate too to or remote warrant counsel C.A., Code, 7.01, provides: Penal Section sepa- the allow co-defendants obtain
“(a) person A criminally responsible is rate counsel. party a to an offense if the offense is conduct, by committed his by own the 475, In 435 U.S. conduct of he is another for which crimi- 1173, (1978), 98 L.Ed.2d the S.Ct. 55 426 nally responsible, byor both. explored the Supreme United States Court "(b) party Each to an offense representation inherent the of co- risks charged with commission of the of- re- forth standards for defendants set fense.” known to those risks were made view when V.T.C.A., Code, 7.02, pro- Penal Section held that when trial court. Court vides: of inconsistent interests be- "(a) A person responsible criminally is brought home tween co-defendants for an by offense court, committed conduct has an the court affirmative of another if: are that the co-defendants duty to assure right effective deprived of their n n n n He sfc duty of counsel. Once assistance (2) acting promote with intent to or arises, obligation has the trial court an offense, assist the commission he are see that the co-defendants either to solicits, aids, directs, encourages, at- or to “take represented by separate counsel or tempts to person aid the other to commit steps to ascertain whether adequate the offense....” separate warrant too remote to risk was The jury guilty found Salustrio Lerma at 1178. Id. at 98 S.Ct. counsel.” the offense of involuntary manslaughter. Furthermore, held that a defend- the Court charge required jury find objection joint has made an ant who recklessly Salustrio caused the death of specific harm representation not show need Johnny Yasquez by shooting him awith automatic Reversal prejudice. shotgun. V.T.C.A., Under the terms of requires improperly a trial court whenever Code, 7.02, Penal Sections 7.01 and Guadal- timely objection. over joint representation upe could guilty be found of the offense of Su later the United States years manslaughter party Two involuntary as a if the again problem preme took solicited, Court jury encouraged, found that Sullivan, In of interest! directed to commit the reckless Salustrio 335, 100 L.Ed.2d 333 S.Ct. Johnny act which caused death of Vas- U.S. (1980), “WHEREFORE, spe- two the Court resolved issues PREMISES CON- First, SIDERED, cifically Holloway. reserved his Defendant and timely held Court that without a record, pray Con- that his Motion for joint representation, trial courts have no granted tinuance be for the rea- above duty inquire affirmative whether con- sons.” it, put flict of interest exists. theAs Court following place: That same took “Unless the trial court knows or reason- 10,- “THE COURT: Cause Number ably particular should know 958-A, The State of vs. Texas exists, the court need an in- not initiate Lerma, quiry.” Id. at 1717. Sec- presented with a been Motion ond, Court held that without a trial Continuance as filed the Defendant objection, Holloway’s presumption harm date, morning. A.M. in the 10:30 applied. will “In order to establish then, specifically “Now the Court finds Amendment, a violation of the Sixth a de- *4 20th, 1978, that June on the Defendants fendant who raised no at trial appeared, sheet, as stated on docket must demonstrate that an actual conflict of DeLeon, adversely lawyer’s lawyer, interest with their Luis is affected his who performance.” employee Id. at an of law S.Ct. at offices of Robert duly Nino and Defendants ar- raigned then, and their bond set. Now mind, With these standards in we turn to time, inquiry that the Court made as July 31, of case. record this On any to or whether not there was selected, the jury was to be expressed of and interest there was none attorney for both the appellant and his lawyer repre- that time and one was to brother, co-defendants in this filed a sent both Defendants. for “Motion Continuance.” The motion stated: “The Court further that on finds June 8th, appeared Defendants with- THE “TO HONORABLE OF JUDGE lawyers given out their and were a notice
SAID COURT: setting abundantly of to it and make COMES, JR., LERMA, “NOW SAL clear to Defendants that the case LERMA, herein, AND LUPE Defendants trial, for was set the Court not through attorney record, their of appropriate part checked the of the no- NINO, ROBERT and files this their MO- it setting, tice of but circled and the CONTINUANCE, FOR TION and would lawyer again Defendants’ informed Court, show unto this Honorable the fol- setting of notice June lowing, to-wit: 20th, they appeared when I. arraigned. lawyer with their to be “Therefore, time will Defendant, LERMA, at this the Court “That LUPE does for overrule Motion Continuance represented by to not wish be the attor- record, submitted. ney NINO, ROBERT and the not fact that cause NINO, wish in that the will Defendant, jeopardize represented by Defendant, LUPE LERMA LUPE ROBERT LER- does “MR. [*] ruling, please. NINO: Note our [*] [*] [*] exception [*] n to MA, testify Defendant, might against “MR. NINO: As far as Defendant LERMA, SAL JR. Lerma, my who does not wish representation, does want for me “This Motion Continuance is not represent regard, him I purposes pro- for the don’t delay made crastination, responsible is want whatever Mr. but made the interest for on, seeing might being justice that full and is decide to do later essential go done in this cause. is that he forced forward with Yes, despite my objections object LERMA: ease and we “GUADALUPE sir. Defendant, Guadalupe as to the Lerma. Well, the has “THE COURT: Court Well, you “THE heard what I COURT: your overruled Motion Continuance dictated into the record about what all you cooperate the Court advises indicted, you happened since have been your lawyer totally. is ad- Lerma; you, haven’t journed until 1:30.” you that, you? heard didn’t argues The State Yes, LERMA: sir. “GUADALUPE necessary predicate failed show the true, “THE This all isn’t COURT: State, Holloway. According to the it? pen scratch of a record contains “not a Yes, LERMA: sir. “GUADALUPE Although about of interest.” “THE COURT: Sir? does con- the “motion for continuance” you Do him to ex- “MR. NINO: want interest”, phrase tain the “conflict of plain you? specifically does refer Well, I LERMA: testify
“GUADALUPE
might
against
that one co-defendant
explain.
him to
like for
would
other
There
hard-
co-defendant.1
could
Well, you
ly
remember
be a
obvious form
“THE COURT:
more
up
repre-
here on
9th—
one
you came
June
than to have
when
8th,
you
you?
here June
didn’t
senting
came
in such a situation.
both defendants
Yes,
LERMA:
sir.
“GUADALUPE
Furthermore,
the record indicates that
gave
I
you piece
And
“THE COURT:
motion,
at least
court treated
*5
settings
the
told
paper
of
here on
and
part,
of
raising
as
the
conflict
you—and
you that
set
I told
the case was
judge specifically pointed
of interest. The
31st,
July
didn’t I?
for trial on
inquired
possible
about the
out that he had
Yes,
LERMA:
sir.
“GUADALUPE
present
in the
conflict of interest
case
you
“THE
And
told me that
COURT:
the
arraignment
the
some six weeks before
represent-
and his offices were
Mr. Nino
Thus,
argument
the State’s
trial date.2
ing you?
that a conflict of
that no one
claimed
ever
But
I
LERMA:
simply
“GUADALUPE
case is
not
interest existed
this
mind, I don’t
him to.
changed my
want
Certainly,
the
supported by the record.
developed
could have
you
appellants’
I asked
if there
“THE COURT:
you
fully
pressed
said
or
more
any
of interest and
his claim more
was
conflict
it was
trial on
do so
you
and I told
set for
failure to
does not
vigorously,
‘No’
but his
you signed
piece
obligation
this
of
July 31st and
its
un-
trial court of
relieve the
true,
that is
isn’t it?
paper.
amply
All
Holloway.
record
shows
der
This
Yes,
knew or should have
sir.
that
the
court
LERMA:
“GUADALUPE
conflict of interest
potential
a
that
known
you
up here
And
come
“THE COURT:
attorney representing these
for the
existed
saying you
don’t
the
of
point
At that
the court
two defendants.
you
paid him
lawyer and
have
want this
hearing
a
duty to hold
had an affirmative
you?
money, haven’t
Indeed,
transcription
that the trial court ex-
Guadalupe
a
showed
he was
testified that
at trial
tensively
appellants
questioned
was
about the
van and that his brother
these
the driver
present
of the van. He also
person
possible
the back
the
conflict of interest
out the
had shot twice
his brother
appellants
testified that
indicated that no
and even if both
Although
consist-
time,
this was
the van.
side door of
our
of
at that
view
such conflict existed
testimony, at the time
Salustrio's
ent with
change. Conflicts of interest
the case
not
would
he,
Guadalupe
had
that
said
arrest
of their
Salustrio,
question
we must
time.
can arise at
Obviously, sepa-
trigger man.
was
was
that
the trial court
aware
decide is whether
vigorously attacked
would have
rate counsel
at the time the mo-
potential
existed
conflict
a
inconsistency.
filed,
potential
a
such
not whether
tion was
before.
conflict
six weeks
existed
transcription
no
of what
contains
2. The record
However,
if such
time.
even
place at that
took
C.P.,
40.09(13)
recognizes,
determine whether the risks inherent
we
Article
in corepresentation in this
too
justice.”
case were
“in the interest of
It
review error
separate
remote to
warrant
counsel
system justice”
“in
interest of the
of
is
appellants
represented by
see that the
now,
this issue
than invite
to review
rather
separate counsel. Since the
further,
litigation.
inevitable
Adams v.
either,
Holloway
failed to do
under
we
State,
(Tex.Cr.App.
S.W.2d
presume
alleged
must
1981).
appellant,
existed
question
we must de-
initial
Lerma,
judg-
was harmed. The
is
cide is whether Salustrio Lerma
entitled
ment of
is
conviction
reversed as
presumption
harm as is
same
appellant Guadalupe
light
Lerma.
“objec-
Lerma.
Although
disposition,
we need not consider the
pre-trial hearing
tion” at
was made on
remaining grounds
of error that
Guadalupe Lerma,
behalf of
and the trial
Lerma has raised.
judge’s questioning
entirely
was directed
single
has
raised a
Guadalupe,
Holloway
we do not read
v.
ground of error which
contends that
supra,
requiring
as
formal
charge
jury improperly
court’s
failed
objection
trigger
applica-
or motion to
charge
ag-
to include a
on the
offense
Rather,
presumption.
tion of the
we read
gravated
ground
assault. This
no mer-
requiring only
that the trial
it.
repeatedly
This court has
held
possibil-
court’s attention be directed to the
resulted,
when death has
is
defendant
ity that a conflict of interest exists. Once
charge
aggravated
entitled to a
on
assault
done,
that has
affirm-
been
trial court’s
when there
evidence of
a lack
inquire
ative
existence
duty
into the
weapon
intent to kill
used
such a
arises.
deadly per
deadly
se or
in the
of its
manner
Sullivan,
Nothing
supra,
State,
use.
Simpkins
See
590 S.W.2d
persuades
us that a formal
State,
129 (Tex.Cr.App.1979);
Ruiz v.
necessary.
behalf of each defendant
In-
(Tex.Cr.App.1975);
S.W.2d 691
Matheson v.
deed,
Court’s
discussion indicates that
State,
tled to an instruction on the lesser offense
“Holloway requires
courts to
state trial
of aggravated assault.
investigate timely objections multiple
nothing
representation. But
in our
not raised the con-
precedents
suggests
Sixth
flict of
in
interest issue raised
his brother’s
requires
Amendment
state courts them-
However,
appeal.
this issue
could
inquiries
propri-
to initiate
into the
selves
post-conviction
raised for the
time in
first
a
multiple
ety
representation
every
of
Parham,
collateral
parte
attack. See Ex
case,
Defense coun-
611
(Tex.Cr.App.1981);
[footnote omitted]
S.W.2d 103
Ex
obligation
an ethical
sel have
avoid
parte Alaniz,
(Tex.Cr.App.
494 (1978), Supreme the trial court or the United States Court
Unless
knows
reason-
explored
repre-
inherent in
particular
the risks
that a
con-
ably should know
sentation of co-defendants and set forth
exists,
flict
the court need not initiate an
standards for review when those risks
inquiry.13
to the trial court. The
made known
13
Medel,
Cf. United States v.
592 F.2d
Court held that when
(CA5 1979);
1312-1313
v. Wain-
Foxworth
inconsistent interests between co-defend-
wright,
(CA5 1975).”
F.2d
1076-1077
court,
brought
ants is
home to the trial
346-347,
U.S.
S.Ct. at 1717.
duty
court has an affirmative
to as-
added).
(emphasis
sure
co-defendants
de-
that the
are not
portion
That
cited
Medel
Court
prived
right
their
as-
effective
states,
...
“Defense counsel
never indi-
duty
sistance of counsel. Once arises,
might
obligation
a
has an
cated to the trial court that
conflict
the trial court
either to see that the co-defendants are
exist.
find anything
Nor do we
in the
represented by separate
or to
counsel
record that should have alerted the Court
steps
adequate
‘take
to ascertain wheth-
possibility.”
to such
cita-
a
Foxworth
er the
too remote
risk was
to warrant
following:
tion contains the
“The trial
separate counsel.’ Id. at 484
S.Ct.
[98
however,
judge
obligation,
has an
to antici-
Furthermore, the Court held that
1178].
pate
reasonably
at the
conflicts
foreseeable
objection
a
made an
defendant who has
appoint-
outset of the
when counsel is
joint representation
need not show
ed.”
specific
prejudice.
harm and
Reversal
itself,
Thus, Cuyler
and the cases cited
improp-
automatic whenever a
13, recognize
that the
court’s
note
erly
joint representation
requires
over
inquire
duty
potential
affirmative
a
into
timely objection.
in the
conflict can arise even
of a
absence
years later the United
Su
“Two
States
objection.
formal
preme
again
problem
took
Court
We
that the trial
made
hold
court was
interest.
v. Sul
livan,
potential
sufficiently
The docket sheet reflects that the trial informed there was would be no far Defendant “MR. NINO: As as problem 31,1978, On July in that area. Lerma, my who does not wish begin, trial was defense counsel representation, he me does not want filed a motion for continuance at 10:30 a.m. represent regard, I him in that don’t following language: contained the responsible want to be for whatever Mr. on, Defendant, LERMA, might being decide to do later
“That LUPE does go that he is forced to forward with represented by not wish to attor- despite my object objections case and we record, ney NINO, ROBERT and the Defendant, Guadalupe Lerma. as Defendant, fact that LUPE LERMA does Well, you “THE what I COURT: heard represented by not wish to be ROBERT dictated into the record about what all NINO, jeopardize will happened you indicted, since have been Defendant, cause in that the LUPE LER- you, Lerma; haven’t which is MA, might testify against Defendant, that, you? you didn’t heard LERMA, SAL JR.” Yes, “GUADALUPE LERMA: sir. a.m., jury At 11:55 before the was selected true, “THE COURT: That is all isn’t impaneled, trial court held hear- it? ing on pertinent the above motion. The Yes, LERMA: “GUADALUPE sir. hearing portion of that be- transcribed “THE COURT: Sir? low: you “MR. NINO: Do want him ex- then, “THE COURT: ... Now you? plain to specifically Court finds that on June Well, LERMA: I “GUADALUPE 20th, 1978, appeared, the Defendants explain. him would like for sheet, stated on the docket with their Well, you “THE COURT: remember lawyer, DeLeon, Luis employee who is an you up when came here on June 9th— of the law offices of Robert Nino and the 8th, you? you came here didn’t June duly arraigned Defendants were Yes, “GUADALUPE LERMA: sir. then, time, their bond set. Now at that gave you piece I inquiry Court made as to whether “THE And COURT: settings any paper not there was here on the and told conflict of interest and you—and you I case set expressed there was none told that the was that time July 31st, trial on didn’t I? lawyer represent and one for was both Defendants. Yes, “GUADALUPE LERMA: sir. you And told me “THE COURT:
“The Court further finds that on June represent- his offices 8th, Mr. Nino and appeared 1978 the Defendants with- ing you? lawyers given out their and were a notice setting
aof and to make it abun- LERMA: But I “GUADALUPE mind, my dantly changed clear to the Defendants that the I don’t want him to. trial, case was set. for I if you “THE COURT: asked there appropriate part checked the of the no- you of interest and said setting, tice of but circled it and the you ‘No’ I and told it was set trial on *8 lawyer again was informed Defendants’ July you signed piece 31st and setting true, notice of trial on June paper. All is it? that isn’t 20th, they appeared when in court 1978 Yes, “GUADALUPE LERMA: sir. lawyer arraigned. be their to with you “THE COURT: And come here
“Therefore, at day saying you this time the Court will don’t the trial want you lawyer paid the Motion for Continuance as have him mon- overrule you? ey, haven’t submitted.
496 Yes, Appeals that Circuit Court of determined LERMA: sir.
“GUADALUPE
entirely
federal district
had
the
relied
Well,
“THE COURT:
the Court has
upon
the
judge’s
the trial
evaluation of
your Motion for Continuance
overruled
the
and reversed and remanded
motion
you
cooperate
and the Court advises
hearing.
dis-
evidentiary
for an
In
case
Court is ad-
your lawyer totally.
motion,
cussing the
Ballard’s
timeliness of
journed until 1:30.”
they wrote:
prop-
judge
was
found that
panel
The
as
“We decline
view this motion
appellant
was
erly put on notice that
untimely. Although
defense counsel
arguing a
form or fashion
some
obligation
objections
the ethical
raise
argues
because
The
that
interest.
State
joint representation
early
possi-
as
as
nothing
motion con-
specific
there is
trial, ble-before the commencement of
judge
the trial
conflict of interest
cerning a
entirely
is
conceivable that
conflict
conducting
inquiry
an
into
did not err
apparent
shortly
not become
until
disagree with
State
conflict. We
begin.
is
To
before trial
scheduled
holding
panel was correct
find that the
hold that
file such motion a
counsel must
a
put
notice of
was
trial court
that the
set number of
trial is to
weeks before
panel
As the
of interest.
potential conflict
only
undermine not
the sixth amend-
this when
noted,
recognized
judge
the trial
guarantee,
ment’s
but also counsel’s ethi-
he
in-
that
had
the defense
he reminded
obligation
a
imme-
cal
to disclose conflict
possible conflict of interest
a
quired into
diately upon
discovery.
its
earlier.
several weeks
in
judge’s
“Because a trial
failure to
question
The
which remains is whether
into
al
quire
the circumstances of an
appellant's objection
timely in
was
that it
leged
upon timely
is
day
was voiced on the
trial. As
justified only
prospect
when the
of dilato
correctly
in its
State
noted
brief on rehear-
present,
Ar
ry practices
is
ing,
Supreme
Court has noted
un-
kansas,
at
435 U.S.
at
timely
dilatory purposes
motions made for
finding
practices
a
of such
must
scru
by
should not be tolerated
the trial
carefully.
present
tinized
In the
courts.
at
Holloway v.
U.S.
judge’s
trial
basis for his conclusion
However,
98 S.Ct.
1180.
there has
pretrial
motion
filed for
guidance
Supreme
been no
from the
dilatory purposes
Although
is unknown.
untimely
as to what constitutes an
motion.
had
date
been reset several
times, the
delays
reasons for these
ex
United States
rel. Ballard v.
by
not articulated
trial judge
at the
(7th Cir.1983),
Bengston,
497
viction remedial vehicles are the
inquiry
potential
forum an
into
Arkansas,
conflict claims. See generally,
Holloway
interest.
v.
supra.
Unit
Mari,
117,
ed States v.
526 F.2d
120-21
The
rehearing
State’s motion for
in
(2d Cir.1975)(Oakes, J., concurring), cert.
62,537
Cause No.
is overruled.
denied,
941,
359,
429 U.S.
97 S.Ct.
50
(1976). Furthermore,
L.Ed.2d 311
the fo
62,981
Salustrio Lerma—Cause No.
cus of the criminal trial
single
as the
panel opinion correctly pointed
The
important stage
most
in
pro
the criminal
out that
ground
raised one
cess is also
by relying upon
retained
appeal
ground
of error on
and this
of error
pretrial
representations
counsel’s
but
dealt
jury charge.
with the
Salustrio did
imposing
searching
a more
examination
not raise the conflict of interest issue ei
once the trial has concluded without the
appeal
ther on
or in the trial court. Yet
having
(footnote
been raised.”
panel
found that such issue had to be
omitted)
467. In that required showing prejudice; finding none, it BOOTH, Appellant, Thomas Joe affirmed the convictions of the codefend- v. including ants Kretske.” v.
Arkansas,
489,
Cir.1979).
We hold now that because Salustrio
did not voice an poten as to the interest,
tial conflict of he is not entitled to ' rely upon his objection. co-defendant’s
Thus he is not entitled to the presumption conflict under Holloway v.
supra, but he must show some actual con pursuant Sullivan,
flict supra, v.
before he is entitled to reversal of his con State,
viction. Pollan v. 612 S.W.2d
596 (Tex.Cr.App.1981); parte Parham, Ex
611 S.W.2d
(Tex.Cr.App.1981);
Hurley
State,
(Tex.Cr.App.1980).
As noted Salustrio did not even ar
gue appeal this issue on so he has made no
attempt to show actual conflict. The
Supreme very Court made Cuyl clear in Sullivan, supra,
er that the burden of
showing upon this conflict is the defendant. go fishing
We will not expedition
because the defendant has not at even
tempted carry that burden. Should Sa-
lustrio feel at a later date that he successfully burden,
able to shoulder that may certainly bring the issue in an
application for corpus. writ of habeas Un grant
til then we must the State’s motion
for rehearing and affirm Salustrio’s convic 62,981.1
tion Cause No.
CLINTON, J., concurs the result in 62,981.
Cause No. appeal single ground ground 1. On Salustrio raised a el reviewed error and found no relating charge. holding. error to the court’s Before agree error. We issue, looking pan- at the conflict of interest