Opinion issued November 17, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00013-CR ——————————— EX PARTE YROOJ SHAMIM, Appellant
On Appeal from the County Criminal Court at Law No. 3 Harris County, Texas Trial Court Case No. 1822364-B
MEMORANDUM OPINION
Yrooj Shamim appeals the trial court’s denial of his application for writ of
habeas corpus. In two issues, Shamim argues that the trial court abused its discretion in denying his application because (1) his trial counsel had an actual
conflict of interest and (2) new evidence exonerates him.1 We affirm.
Background
Shamim’s Conviction
Shamim was charged with the misdemeanor offense of assault of a family
member, his wife. Shamim’s father was also charged. Trial counsel represented
both Shamim and his father, but the two men were not tried together. At Shamim’s
trial, the State offered five witnesses: three Houston Police Department (HPD)
officers, the complainant, and a social worker from the Harris County District
Attorney’s Office.
The complainant testified through an interpreter that she is from Pakistan
and came to America in 2001 after her arranged marriage to Shamim. She and
Shamim have two sons. She testified that in April 2012, while she was pregnant
with a third child, Shamim assaulted her. After sleeping on the couch, she woke
up to prepare the children for school. When she returned home, she made
breakfast for Shamim. Shamim was angry because she had called the police the
day before about previous alleged abuse from her husband and in-laws.
1 In a third issue, Shamim claimed the trial court abused its discretion in failing to issue findings of fact and conclusions of law. Because we ordered these filed and the trial court produced them, this issue is moot.
2 According to the complainant, Shamim pulled her by her hair and told her to
get out of the house. He then left for work, but he returned at lunch still angry.
Shamim grabbed her arm, pushed her out of her bedroom, and tried to drag her out
of the house, saying he would send her to a mental asylum. Her in-laws were
cursing her, and her father-in-law grabbed her head and pushed it against a wall.
She locked herself in a bathroom and called 911. Although she called the police
for help, the complainant testified that she was afraid to leave the house because
the family had threatened to send her children to Pakistan. Most of her injuries
depicted in photographs occurred on the day of the assault, but some were caused
by the abuse that had occurred the day before.
The first officer on the scene, Officer P. Robles, testified that when he
arrived at the home on the morning of April 16, 2012, an older man and young
woman answered the door and claimed that another woman in the house was crazy
and causing trouble. Officer Robles spoke to the complainant, who said that
Shamim and her father-in-law had hurt her, called her names, pulled her hair,
pushed her against a wall, and thrown her to the floor.
HPD Sergeant T. Anderson testified that the complainant initially would not
come out of the bathroom. His impression was that the complainant needed help
and had been assaulted. He saw bruises on the complainant’s eye and a large
3 bruise and a golf-ball size knot on her forehead. The complainant asked for a
female officer to view her injuries.
Officer M. Smith took photos of the complainant’s injuries. She testified
that the complainant wore a garment that covered her entire body and, before
asking her to remove the garment to take the photographs, she could only see her
hands, feet, and face. Five photos admitted into evidence depicted her injuries,
including bruises with finger marks on her upper arm and bruises on her eye,
cheekbone, forehead, and leg.
K. Hutchinson, a social worker for the Harris County District Attorney’s
Office, testified that the complainant displayed the characteristics of a battered
woman. Hutchinson concluded that the complainant had been abused.
The defense called three witnesses: Shamim, his sister, and a friend.
Shamim’s sister, Uzma, testified that she had never had any disagreements with the
complainant and that her parents had been upstairs during the entire episode and
had not touched the complainant. Uzma never saw Shamim assault the
complainant, and she saw no visible injuries on the complainant. Uzma believed
any injuries were self-inflicted.
Shamim’s co-worker, Bakht Khattak, who had known Shamim for more
than 10 years, testified that he was with Shamim most of that afternoon traveling to
4 Baytown to fix computers. Khattak testified that Shamim acted normally all
afternoon.
Shamim testified in his own defense, disputing that any assault occurred. He
speculated that his wife slept on the couch because she must have been mad about
something. He claimed that his wife developed anger issues after her parents died
and that she must have called the police because she was angry about something.
On the day in question, he woke up and “had a good chat” with his wife, and she
cooked his breakfast. He asked her to give him the telephone number for the
police officer she had called the night before, but she refused. When he came
home for lunch, his parents were upstairs and remained there. He was surprised
when the police called him later that day, and he maintained that he did not cause
any of the injuries shown in the photographs.
On January 25, 2013, a jury found Shamim guilty of assault, and the trial
court assessed punishment at one year’s confinement in the Harris County Jail,
probated for two years. Shamim filed a motion for new trial, claiming his trial
counsel was ineffective because he failed to investigate, keep Shamim reasonably
informed, and call a material witness at trial. During the hearing on the motion for
new trial, Shamim’s appellate counsel questioned his trial counsel extensively
about the suggested conflict of representing both Shamim and his father, the extent
of his pretrial investigation, and his failure to call as a witness Shamim’s friend,
5 Sarwar Syed, who was interviewed on the scheduled trial date. Shamim’s trial
counsel stated he did not believe there was a conflict because both Shamim and his
father adamantly maintained that no assault had occurred. Trial counsel testified
that he investigated the case by meeting with his clients, reading the offense
reports from the April 16 incident as well as from the incident the day before, and
talking with Shamim’s family. Trial counsel talked to Syed, who said he had heard
the complainant recant her statement that Shamim’s father had assaulted her.
Counsel did not find this helpful to Shamim and decided not to call Syed as a
witness. Further, trial counsel talked to the State and learned that the complainant
never recanted.
Shamim’s motion for new trial was denied. On appeal, this Court affirmed
Shamim’s conviction. See Shamim v. State, 443 S.W.3d 316, 328 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d).
The Habeas Proceeding
Almost three years after his conviction, Shamim filed an application for writ
of habeas corpus, alleging that his trial counsel had a conflict of interest that denied
him his Sixth Amendment right to counsel and that newly discovered evidence
exonerated him. Attached to his application were five affidavits: two from
Shamim’s friends, one from his brother-in-law, and the last two from Shamim and
6 his father. In the first affidavit, his friend Sarwar R. Syed—who was not called as
a witness in his assault trial—stated:
On January 5th 2013 (Saturday) on or about 2:00 am I asked [the complainant] (who shortly before admitted in front of family/friend that her father in law had not beat her and she lied about the whole incident) how can we trust her when she is constantly changing her stories. She asks for forgiveness and told me that her husband is a very loving man and that he had not beaten her once. She admitted that she made false allegations to put the family into trouble for reasons unknown. The second affidavit, with language almost identical to Sarwar Syed’s, was
from another friend, Syed Imran Ahmed. Ahmed recounted overhearing the
complainant’s alleged recantation to Syed. Shamim’s brother-in-law, Muhammad
Inam Khan, stated in his affidavit that, on the evening of the alleged assault, he
saw no bruises on the complainant and saw the complainant run outside with a
duffle bag and get into a car with a stranger. Khan further stated that some of
Shamim’s documents, including identification and immigration paperwork, were
found to be missing, and he believed the complainant planned this incident with
other people. Finally, Shamim and his father stated in their affidavits that their
trial counsel had an undisclosed conflict of interest because he represented them
both and that if he had only represented Shamim the verdict might have been
different.
7 The State filed a response, contending Shamim’s trial counsel did not have
an actual conflict of interest and that Shamim failed to prove actual innocence by
clear and convincing evidence. The State attached to its response an affidavit from
the complainant in which she stated she had never recanted.
The trial court denied the application. At Shamim’s request, we issued an
order directing the trial court to file findings of fact and conclusions of law. The
trial court concluded that Shamin failed to establish a conflict of interest or that
“new evidence” established actual innocence.
Standard of Review
When reviewing a trial court’s grant or denial of habeas relief, we “review
the facts in the light most favorable to the trial judge’s ruling” and “uphold it
absent an abuse of discretion.” Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.
Crim. App. 2006). When the trial court makes written findings and conclusions in
support of its denial, we also review those for abuse of discretion. See Ex parte
Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011). We defer to the trial
court’s findings of fact that are supported by the record. See Ex parte Amezquita,
223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford the same deference to
the trial court’s application of law to the facts if that ruling is based on the
credibility or demeanor of witnesses. See Ex parte Peterson, 117 S.W.3d 804, 819
(Tex. Crim. App. 2003), overruled in part on other grounds, Ex parte Lewis, 219
8 S.W.3d 335, 371 (Tex. Crim. App. 2007). If resolution turns only on application
of legal standards and does not involve evaluation of credibility, we review that
decision de novo. See id.; State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d).
No Actual Conflict of Interest
In his first issue, Shamim claims his trial counsel’s conflict of interest denied
him his Sixth Amendment right to counsel. Shamim further contends that his trial
counsel provided ineffective assistance because there was a conflict of interest in
representing both Shamim and his father. The State responds that Shamim failed
to establish the existence of an actual conflict and thus, has not shown an abuse of
discretion by the trial court in denying the application on this ground.
The purpose of the Sixth Amendment is to ensure that a criminal defendant
receives a fair trial. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,
2065 (1984). The Sixth Amendment guarantee of the right to counsel “includes
the right to ‘conflict-free’ counsel.” Goody v. State, 433 S.W.3d 74, 78 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d) (op. on reh’g). Defense attorneys are
ethically obligated “to avoid conflicting representations and to advise the court
9 promptly when a conflict of interest arises during the course of trial.” Cuyler v.
Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708, 1717 (1980).2
Defense counsel is in the best position both “professionally and ethically to
determine when a conflict of interest exists or will probably develop in the course
of a trial.” See id. Although representation of multiple defendants may constitute
ineffective assistance, representation of multiple defendants is not a per se
violation of the constitutional guarantee of effective assistance. See Holloway v.
Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1178 (1978); James v. State, 763
S.W.2d 776, 778 (Tex. Crim. App. 1989) (en banc). Generally, a trial court may
assume that either that no conflict exists despite multiple representation or the
lawyer and client both knowingly accepted any conflict that may exist. See
Sullivan, 446 U.S. at 346–47, 100 S. Ct. at 1717.
When a defendant asserts ineffective assistance based on an actual conflict
of interest, the defendant must establish that an actual conflict existed and that it
adversely affected the adequacy of counsel’s representation. See Sullivan, 446
U.S. at 349–50, 100 S. Ct. at 1719; Kegler v. State, 16 S.W.3d 908, 912 (Tex.
2 The Disciplinary Rules of Professional Conduct state that a lawyer shall not represent a person if representation involves a matter related to that of another client of the lawyer and the clients’ interests are “materially and directly adverse.” Tex. Rules Disciplinary P. R. 1.06(b)(1), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West 2013). Moreover, a lawyer shall not represent a party if representation of that client may be adversely limited by the lawyer’s representation of another client. See id. at R. 1.06(b)(2).
10 App.—Houston [14th Dist.] 2000, pet. ref’d). Until the defendant shows “counsel
actively represented conflicting interests, he has not established the constitutional
predicate for his claim of ineffective assistance.” See Sullivan, 446 U.S. at 350,
100 S. Ct. at 1719.
The Texas Court of Criminal Appeals has held that an actual conflict of
interest 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.” See James v.
State, 763 S.W.3d 776, 779 (Tex. Crim. App. 1989). Stated another way, an actual
conflict arises if counsel is required to make a choice between advancing one
client’s interests to the detriment of the other client’s interest. Acosta v. State, 233
S.W.3d 349, 355 (Tex. Crim. App. 2007). “[A] potential conflict may become an
actual conflict but we [may not] speculate about a strategy an attorney might have
pursued . . . in the absence of some showing that the potential conflict became an
actual conflict.” Routier v. State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003).
In James v. State, a case somewhat similar to this one, the defendant and co-
defendant were both represented by the same attorney. 763 S.W.2d at 778. Unlike
Shamim’s case, however, the defendant and his co-defendant were tried together.
See id. at 777. The two defendants presented “mutually exclusive alibi defenses”
and did not incriminate each other. Id. Nor did any witness testify in favor of one
11 defendant to the detriment of the other. See id. The trial court found no actual
conflict existed. Id. The Court of Criminal Appeals upheld this ruling, finding that
“potential, speculative conflicts of interest” never rose to the level of “actual,
significant conflicts.” Id. at 781–82. Because the defense strategy had been that
neither defendant could have committed the crime and their testimony never
deviated or incriminated the other defendant, the Court held that the only evidence
of a conflict was the “speculative argument from appellants’ counsel on appeal”
regarding “the ‘likelihood that the defense attorney could have, would have and
should have’ advanced evidence and arguments advantageous to each defendant
but did not do so because of the multiple representation problem.” Id. at 781
(emphasis in original).
The distinction between James and cases holding there was proof of an
actual conflict is that potential conflicts in those cases became actual conflicts “due
to the inculpatory or exculpatory nature of testimony or the strategy adopted by
defense counsel in the particular case.” Id. (citing Ex parte Parham, 611 S.W.2d
103 (Tex. Crim. App. 1981) (trial attorney testified actual conflict arose because he
could have called one brother to testify and exculpate other brother) and Gonzales
v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980) (trial strategy to call one
defendant to rebut State version of events backfired when defendant inculpated
other two defendants)); see Ex parte Acosta, 672 S.W.2d 470 (Tex. Crim. App.
12 1984) (after State rested, defendant advised counsel he was guilty and co-
defendant was not).
There is no proof that Shamim or his father inculpated the other or that a
trial strategy backfired. Shamim claims trial counsel could have offered proof that
his father was the perpetrator. But his argument fails, as it did in James, because it
is based on what could have occurred, viewed with hindsight, without proof that an
actual conflict arose. See James, 763 S.W.2d at 781–82. This presents only
speculation and not proof of an actual conflict. See id.
Shamim contends that he has established the existence of an actual conflict
by showing that trial counsel had to make a choice between advancing his interest
or his father’s interest when counsel spoke to the last-minute potential witness,
Sarwar Syed. Just before trial, counsel spoke with Syed but decided not to call him
as a witness because his testimony may have been viewed as detrimental to
Shamim. According to trial counsel, Syed stated that the complainant had
previously said Shamim’s father was not involved in the assault. Such testimony
may have lessened any doubt in the jury’s minds that Shamim was the one who
caused the complainant’s injuries. After hearing this proposed testimony, trial
counsel decided not to call Syed as a witness in Shamim’s trial.
Shamim and his father were tried separately. This reduced the risk that any
potential conflict would rise to the level of an actual conflict. As the Supreme
13 Court noted in a similar context, “[t]he provision of separate trials [for Shamim
and his father] significantly reduced the potential for a divergence in their
interests.” Sullivan, 446 U.S. at 347, 100 S. Ct. at 1718. Even if Syed’s alleged
potential testimony reflected a possible conflict, it did not adversely affect
counsel’s performance at trial or deny Shamim a fair trial. See Routier, 112
S.W.3d at 585–86 (discussing cases in which actual conflicts were established
through proof either that trial counsel “had to forego an effective strategy or that a
strategy backfired due to an actual conflict that arose during trial.”). Without other
evidence that an actual conflict developed, the “[f]ailure to emphasize the
culpability of one defendant over the other does not create an actual conflict.”
Kegler, 16 S.W.3d at 913.
Shamim finds support for his argument that denial of his writ was an abuse
of discretion in the fact that his father’s writ was granted. But his father’s habeas
application contained several grounds, and the trial court’s order does not state on
which ground it was granted. Thus, the fact that Shamim’s father’s application
was granted does not demonstrate that an actual conflict existed.
Because Shamin has not demonstrated the existence of an actual conflict, we
must apply the Strickland standard to determine if he has shown that his trial
counsel provided ineffective assistance. See Kegler, 16 S.W.3d at 912. Under
Strickland, an appellant must show that his “counsel’s representation fell below an
14 objective standard of reasonableness” and that this deficient performance
prejudiced the appellant. See Strickland, 466 U.S. at 688, 691, 104 S. Ct. at 2064,
2066–67. Trial counsel testified during the new-trial hearing that his investigation
was limited to talking to Shamim, his father, other family members, and reviewing
medical records, telephone records, and the State’s file. He noted that Shamim had
no alibi. Trial counsel testified that his strategy was to attempt to restrict evidence
to events of the day of the assault so that the jury would not receive evidence of
earlier accusations of assault or view this as ongoing behavior. His strategy was to
have the jury focus on the one behavior charged in the indictment—that Shamim
assaulted the complainant by pushing her. Even if we were to determine that trial
counsel’s performance was deficient—a matter we do not address—Shamim has
not shown that he was prejudiced.
To show prejudice resulting from trial counsel’s performance, Shamim
would have to show a reasonable probability that the result of his trial would have
been different. See Hernandez v. State, 726 S.W.2d 53, 59 (Tex. Crim. App. 1986)
(en banc). Shamim contends counsel should have attempted to inculpate
Shamim’s father, but counsel did raise this possibility during closing argument.
Even if counsel had presented evidence inculpating Shamim’s father, this does not
raise a reasonable probability that the result of the trial would have been different.
Ample evidence supported a finding that Shamim assaulted his wife. The
15 complainant testified at length about Shamim assaulting her. The police officers
testified to their observations at the scene and to the complainant’s injuries. And,
the photographic evidence corroborated the complainant’s testimony. We overrule
Shamim’s first issue.
No Newly-Discovered Evidence of Actual Innocence
In his next issue, Shamim argues that the trial court abused its discretion in
denying habeas relief on his claim of newly-discovered evidence of actual
innocence. Shamim presented three affidavits in support of this argument. Two of
these affidavits were from his friends, Sarwar Syed and Syed Imran Ahmed. In
their affidavits, Syed and Ahmed stated that on January 5, 2013, roughly two
weeks before the trial, they heard the complainant admit that she had lied about the
assault. Shamim’s brother-in-law, Muhammad Imran Khan, stated in a third
affidavit that, on the day after the assault, he saw no bruises on the complainant
and he saw her run outside and get in the car with a stranger. Muhammad also
stated that documents were discovered to be missing and, based on what he saw, he
believed the complainant had planned the incident.
No hearing required when evidence is not newly-discovered
Shamim contends the trial court should have held a hearing to make a
finding on witness credibility under Ex parte Harmon, 116 S.W.3d 778 (Tex.
Crim. App. 2002). Although the trial court in Harmon held a hearing and found
16 the complainant’s recantation in that case was credible, Harmon does not hold or
state that a hearing is required in every case in which a witness claims that the
complainant has recanted. See id. at 779. Generally, a trial court is not required to
hold a hearing on a habeas application, particularly if the habeas judge presided
over the applicant’s trial. See Ex parte Gonzalez, 323 S.W.3d 557, 559–60 (Tex.
App.—Waco 2010, pet. ref’d). The trial judge who denied Shamim’s application
for habeas relief also presided over his trial.
But an evidentiary hearing is required if an actual-innocence claim is raised
and is supported by newly-discovered evidence. See Ex parte Franklin, 310
S.W.3d 918, 922 (Tex. App.—Beaumont 2010, no pet.). “Trial judges who are
confronted with contradictory affidavits, each reciting a plausible version of the
events, ought to convene an evidentiary hearing to see and hear the witnesses and
then make a factual decision based on an evaluation of their credibility.” Manzi v.
State, 88 S.W.3d 240, 255 (Tex. Crim. App. 2002) (Cochran, J., concurring). The
Court of Criminal Appeals has held that the credibility of newly-discovered
evidence should be tested at a hearing. See Ex parte Brown, 205 S.W.3d 538, 546
(Tex. Crim. App. 2006) (citing Franklin, 72 S.W.3d at 678).
Although Shamim raises an actual-innocence claim, the evidence supporting
it does not constitute newly-discovered evidence. “Newly discovered evidence” is
evidence that was not known to the applicant at trial and could not have been
17 discovered with the exercise of due diligence. Id. at 545. The applicant “cannot
rely upon evidence or facts that were available at the time of his trial, plea, or post-
trial motions, such as a motion for new trial.” Id.
The trial court could determine, without holding an evidentiary hearing, that
Shamim’s habeas evidence was not newly discovered. The evidence regarding
trial counsel’s representing both Shamim and his father was known by Shamim
before trial. Additionally, the evidence about the complainant’s alleged
recantation in January 2013 was known before trial. Because the habeas judge had
presided over the trial, she had previously heard testimony about the conflict of
interest and the alleged recantation and, therefore, was able to determine without
an evidentiary hearing that Shamim’s habeas proof did not constitute newly-
discovered evidence. Thus, no evidentiary hearing was required.
Proof of innocence not clear and convincing
Additionally, Shamim’s three affidavits did not establish that he is actually
innocent. As the State asserts, a person who has been convicted in a fair trial may
not collaterally attack that conviction “without making an exceedingly persuasive
case that he is actually innocent.” Brown, 205 S.W.3d at 545. The habeas
applicant making an actual-innocence claim must show “by clear and convincing
evidence that, despite the evidence of guilt that supports the conviction, no
reasonable juror could have found the applicant guilty in light of the new
18 evidence.” Id. at 545; see Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim.
App. 1996). To determine whether Shamim met this standard, the habeas court
was required to examine the habeas proof “in light of the evidence presented at
trial.” Ex parte Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005). And the
newly-discovered evidence “must constitute affirmative evidence of the applicant’s
innocence.” Franklin, 72 S.W.3d at 678.
The affidavits Shamim presented do not clearly establish his innocence. The
trial court concluded that Khan’s affidavit concerning the complainant’s lack of
apparent injuries was not credible because it was contradicted by photographic
evidence and the testimony of four trial witnesses. All three affidavits were
contradicted, not only by photographic evidence, but also by the testimony of three
HPD officers who observed at least some of the complainant’s injuries, her
agitated and fearful state, and the statements and demeanor of other members of
the household. Moreover, the complainant testified to the verbal and physical
abuse, and photographic evidence depicted bruises and facial swelling consistent
with her testimony. She has not recanted that testimony. On the contrary, her
affidavit attached to the State’s response to Shamim’s habeas application is
consistent with her trial testimony.
Because a reasonable juror might have convicted Shamim on the basis of the
photographic evidence and the complainant’s testimony, notwithstanding the three
19 affidavits presented in the habeas application, Shamim failed to meet his heavy
burden to establish actual innocence. See Ex parte Navarijo, 433 S.W.3d 558,
570–71 (Tex. Crim. App. 2014) (holding that inculpatory evidence of abuse
distinguished case from those where habeas relief was granted on basis of
recantation partly because in those cases there was no physical or medical evidence
establishing abuse had actually occurred). We overrule Shamim’s second issue.
Conclusion
Shamim had the burden to show the trial court abused its discretion in
denying habeas relief on the basis of an actual conflict of interest that adversely
affected his trial counsel’s performance or that newly discovered evidence
constituted clear and convincing proof that no reasonable juror would have
convicted him in light of that new evidence. We conclude that Shamim did not
meet this burden. Accordingly, we affirm.
Harvey Brown Justice
Panel consists of Justices Keyes, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).