TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00453-CR
Juan Gerardo Moreno, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 91-034-K368, HONORABLE BURT CARNES, JUDGE PRESIDING
PER CURIAM
The district court found appellant guilty of possessing more than fifty pounds of marihuana. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.121, 1989 Tex. Gen. Laws 2230, 2939 (Tex. Health & Safety Code Ann. § 481.121, since amended). The court assessed punishment at imprisonment for fifty years and a $5000 fine.
On December 11, 1990, Department of Public Safety trooper Rudy Aleman stopped an automobile travelling north on Interstate 35 when he saw that the two occupants were not wearing seat belts. Appellant was the driver of the car. Appellant's codefendant, Jose Balemar Fernandez, was the passenger. When Aleman approached the car, he noticed a strong odor of marihuana. Appellant and Fernandez told Aleman they were driving to Dallas from the Rio Grande Valley. Fernandez, who said the car belonged to him, gave Aleman permission to search the vehicle and appellant opened the trunk for the officer. In the trunk were bundles of marihuana weighing 126 pounds.
Appellant and Fernandez testified for the limited purpose of supporting their motions to suppress. They said there was no detectible odor of marihuana and denied giving Aleman permission to search the car. The district court overruled the motions to suppress and found each defendant guilty.
In point of error one, appellant contends the district court erred by permitting the same attorney to represent both appellant and his codefendant without taking adequate steps to determine whether a conflict of interest existed. In point two, appellant urges that trial counsel was ineffective because he continued to represent both defendants despite the existence of a conflict of interest.
The Sixth Amendment does not require trial courts to initiate inquiries into the propriety of multiple representation in every case. Cuyler v. Sullivan, 446 U.S. 335, 346 (1980). Nevertheless, the district court, in an abundance of caution, raised the issue of joint representation before hearing evidence and asked appellant and Fernandez if they had discussed the possibility of a conflict of interest with their attorney. Each defendant said he had. In response to further questioning by the court, the defendants indicated that they wished to be represented by the same attorney and understood that they were possibly waiving their right to later complain of such joint representation. On this record, the district court had neither the duty nor the authority to force appellant or his codefendant to accept different counsel. Point of error one is overruled.
By insisting on joint representation, appellant assumed the risk of a conflict of interest and is in no position to complain on appeal that a conflict existed. James v. State, 763 S.W.2d 776, 782 (Tex. Crim. App. 1989). In any event, no actual conflict of interest is shown. As in many drug cases, the only significant issue in this cause was the propriety of the search and seizure. The interests of the two defendants were identical in that regard and appellant does not argue otherwise.
Appellant suggests that after the motion to suppress was overruled, counsel could have raised the defense that appellant was unaware of the presence of the contraband. Such an argument would hardly have been plausible in light of the evidence, and such second-guessing does not prove an actual conflict of interest. Id. at 780-82. Appellant also asserts a conflict of interest at the punishment stage. He points out that he received a harsher punishment because the presentence report indicated that he had not been truthful during the interview. Appellant does not explain, however, how appellant's unfavorable presentence report created a conflict of interest with Fernandez or why defense counsel could not "argu[e] for one client [at the punishment phase] without jeopardizing the position of the other." Point of error two is overruled.
In his remaining points of error, appellant contends the district court should not have considered the presentence report because appellant did not have the assistance of an interpreter during the interview, and that trial counsel was ineffective because he did not object to the use of the presentence report on this ground. Each of these points is premised on the assumption that appellant cannot speak English, a fact that is not shown by the record. Even if appellant does not speak English, there is no evidence that an interpreter was not present at the interview or that appellant was unable to communicate effectively with the probation officer. Points of error three and four are overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: September 13, 1995
Do Not Publish
en he saw that the two occupants were not wearing seat belts. Appellant was the driver of the car. Appellant's codefendant, Jose Balemar Fernandez, was the passenger. When Aleman approached the car, he noticed a strong odor of marihuana. Appellant and Fernandez told Aleman they were driving to Dallas from the Rio Grande Valley. Fernandez, who said the car belonged to him, gave Aleman permission to search the vehicle and appellant opened the trunk for the officer. In the trunk were bundles of marihuana weighing 126 pounds.
Appellant and Fernandez testified for the limited purpose of supporting their motions to suppress. They said there was no detectible odor of marihuana and denied giving Aleman permission to search the car. The district court overruled the motions to suppress and found each defendant guilty.
In point of error one, appellant contends the district court erred by permitting the same attorney to represent both appellant and his codefendant without taking adequate steps to determine whether a conflict of interest existed. In point two, appellant urges that trial counsel was ineffective because he continued to represent both defendants despite the existence of a conflict of interest.
The Sixth Amendment does not require trial courts to initiate inquiries into the propriety of multiple representation in every case. Cuyler v. Sullivan, 446 U.S. 335, 346 (1980). Nevertheless, the district court, in an abundance of caution, raised the issue of joint representation before hearing evidence and asked appellant and Fernandez if they had discussed the possibility of a conflict of interest with their attorney. Each defendant said he had. In response to further questioning by the court, the defendants indicated that they wished to be represented by the same attorney and understood that they were possibly waiving their right to later complain of such joint representation. On this record, the district court had neither the duty nor the authority to force appellant or his codefendant to accept different counsel. Point of error one is overruled.
By insisting on joint representation, appellant assumed the risk of a conflict of interest and is in no position to complain on appeal that a conflict existed. James v. State, 763 S.W.2d 776, 782 (Tex. Crim. App. 1989). In any event, no actual conflict of interest is shown. As in many drug cases, the only significant issue in this cause was the propriety of the search and seizure. The interests of the two defendants were identical in that regard and appell