ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS
GREEN, Justice.
This case returns to us by remand from the Court of Criminal Appeals.
Albert Monreal was indicted for aggravated sexual assault and indecency with a child. He was tried before the court and found guilty. His punishment was assessed at ninety-nine years imprisonment. Monreal appealed to this court, which affirmed his conviction. Monreal v. State, No. 04-92-00481-CR (Tex.App. — San Antonio, March 9, 1994) (not designated for publication). Mon-real’s petition for discretionary review was granted by the Court of Criminal Appeals. Monreal v. State, No. 457-94 (Tex.Crim.App., March 15, 1995). That court has now remanded the case back to this court for the limited purpose of determining whether Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) or Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) controls Monreal’s claim that he was denied effective assistance of counsel.
Facts
During a pretrial hearing while a jury panel was waiting on call, Monreal’s attorney waived the right to a jury trial and asked the court to go on record “to protect myself.” The record reflects the following exchange took place.
[Court]: You all when you were reading your Motion to the record, the first thing that came to my mind is that’s a question of fact for the trier of fact to decide. The motion will be denied.
You want to waive a jury just to get to the heart of the matter fast? I don’t have any opposition to that.
[Prosecutor]: I’ll waive a jury. I don’t have any problem with that.
[Defense Counsel]: We did the previous time, yeah; but we have a plea bargain on June the 10th, which, of course, I want to go on the record about that also, to 'protect myself.
[63]*63[Court]: Cancel the jury.
(emphasis added).
After the State presented its case, the following exchange took place:
[Defense Counsel]: Your Honor, I forgot to just go on the record as to the plea negotiations that were rejected on June the 10th, 1992. I need to do that.
[Court]: Put it in the record.
[Defense Counsel]: Should I have Mr. Monreal affirm that?
[Court]: Yes. All three of you.
[[Image here]]
[Defense Counsel]: I’m Barbara Slavin. I’m the Court-appointed defense attorney. For purposes of perfecting the record as to my representation and prior plea negotiations, I’m going to ask Mr. Monreal some questions relating to the previous plea bargaining negotiations.
Mr. Monreal, in late May of 1992, do you recall contacting me by phone indicating you were, for lack of better words, fairly stressed out and anxious to get out—
[Monreal]: Yes, I was very anxious.
Q: —out of jail. At that time, did you ask me to try to negotiate a plea bargain in your behalf?
A: Well, we had a misunderstanding, Barbara. We were supposed to have trial already, and I wanted to come to trial as soon as possible.
Q: Right. But in lieu of the fact that there had been two and three month intervals between trial settings, did you not indicate that if I could get it reduced to something like eight years and getting rid of the aggravated and repeater counts, that you might consider the plea agreement?
A: Yes, I did.
Q: Okay. And did you not come to the courtroom of Master Andrew Carruthers, which was in this same building, on June the 10th, 1992? Do you recall that?
* ⅜ * # * ⅜
A: Yes.
Q: And at that time, were you told that an offer had been made by [the State] to reduce the offense to indecency with a child, dropping the aggravated portions and removing the repeater count?
A: Yes, ma’am.
Q: And you did understand that you could have pled that day and gotten that plea bargain?
A: Yes, Ma’am.
Q: And you rejected it?
A: Yes, ma’am.
Q: Okay. And why did you reject it?
A: I’m not guilty, so why should I?
Q: Okay, That’s all, Your Honor.
Monreal says on appeal that this exchange demonstrated ineffective assistance of counsel because it constituted a conflict of interest between the attorney and her client. Specifically, Monreal argues that trial counsel placed on the record the fact that Monre,al had previously considered (although ultimately rejected) a plea bargain agreement in order for trial counsel to protect herself from future allegations that she had failed to comply with the requirement that she inform her client of any plea bargain offers. We are asked to determine whether the Sixth Amendment standard for ineffective assistance of counsel announced in Cuyler or Strickland applies to this situation.
Ineffective Assistance of Counsel
Most claims for ineffective assistance of counsel fall within the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that ease, the court enunciated a two-part test for reviewing ineffective assistance of counsel claims. The defendant must first show that counsel’s performance was so deficient, “that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to meet the second part of the test the defendant must show that counsel’s deficient performance so seriously prejudiced the defense that the defendant cannot be said to have received a fair trial. Id. Strickland governs claims of ineffective assistance of counsel based on attorney error.
[64]*64However, claims of ineffective assistance of counsel involving conflicts of interest are controlled by Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In that case, the Court held, “[i]n order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 346 — 17. Under the Cuyler test, the defendant is required to show that his counsel “actively represented conflicting interests” and, second, that “a conflict of interest actually affected the adequacy of his representation.” Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719.
Free access — add to your briefcase to read the full text and ask questions with AI
ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS
GREEN, Justice.
This case returns to us by remand from the Court of Criminal Appeals.
Albert Monreal was indicted for aggravated sexual assault and indecency with a child. He was tried before the court and found guilty. His punishment was assessed at ninety-nine years imprisonment. Monreal appealed to this court, which affirmed his conviction. Monreal v. State, No. 04-92-00481-CR (Tex.App. — San Antonio, March 9, 1994) (not designated for publication). Mon-real’s petition for discretionary review was granted by the Court of Criminal Appeals. Monreal v. State, No. 457-94 (Tex.Crim.App., March 15, 1995). That court has now remanded the case back to this court for the limited purpose of determining whether Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) or Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) controls Monreal’s claim that he was denied effective assistance of counsel.
Facts
During a pretrial hearing while a jury panel was waiting on call, Monreal’s attorney waived the right to a jury trial and asked the court to go on record “to protect myself.” The record reflects the following exchange took place.
[Court]: You all when you were reading your Motion to the record, the first thing that came to my mind is that’s a question of fact for the trier of fact to decide. The motion will be denied.
You want to waive a jury just to get to the heart of the matter fast? I don’t have any opposition to that.
[Prosecutor]: I’ll waive a jury. I don’t have any problem with that.
[Defense Counsel]: We did the previous time, yeah; but we have a plea bargain on June the 10th, which, of course, I want to go on the record about that also, to 'protect myself.
[63]*63[Court]: Cancel the jury.
(emphasis added).
After the State presented its case, the following exchange took place:
[Defense Counsel]: Your Honor, I forgot to just go on the record as to the plea negotiations that were rejected on June the 10th, 1992. I need to do that.
[Court]: Put it in the record.
[Defense Counsel]: Should I have Mr. Monreal affirm that?
[Court]: Yes. All three of you.
[[Image here]]
[Defense Counsel]: I’m Barbara Slavin. I’m the Court-appointed defense attorney. For purposes of perfecting the record as to my representation and prior plea negotiations, I’m going to ask Mr. Monreal some questions relating to the previous plea bargaining negotiations.
Mr. Monreal, in late May of 1992, do you recall contacting me by phone indicating you were, for lack of better words, fairly stressed out and anxious to get out—
[Monreal]: Yes, I was very anxious.
Q: —out of jail. At that time, did you ask me to try to negotiate a plea bargain in your behalf?
A: Well, we had a misunderstanding, Barbara. We were supposed to have trial already, and I wanted to come to trial as soon as possible.
Q: Right. But in lieu of the fact that there had been two and three month intervals between trial settings, did you not indicate that if I could get it reduced to something like eight years and getting rid of the aggravated and repeater counts, that you might consider the plea agreement?
A: Yes, I did.
Q: Okay. And did you not come to the courtroom of Master Andrew Carruthers, which was in this same building, on June the 10th, 1992? Do you recall that?
* ⅜ * # * ⅜
A: Yes.
Q: And at that time, were you told that an offer had been made by [the State] to reduce the offense to indecency with a child, dropping the aggravated portions and removing the repeater count?
A: Yes, ma’am.
Q: And you did understand that you could have pled that day and gotten that plea bargain?
A: Yes, Ma’am.
Q: And you rejected it?
A: Yes, ma’am.
Q: Okay. And why did you reject it?
A: I’m not guilty, so why should I?
Q: Okay, That’s all, Your Honor.
Monreal says on appeal that this exchange demonstrated ineffective assistance of counsel because it constituted a conflict of interest between the attorney and her client. Specifically, Monreal argues that trial counsel placed on the record the fact that Monre,al had previously considered (although ultimately rejected) a plea bargain agreement in order for trial counsel to protect herself from future allegations that she had failed to comply with the requirement that she inform her client of any plea bargain offers. We are asked to determine whether the Sixth Amendment standard for ineffective assistance of counsel announced in Cuyler or Strickland applies to this situation.
Ineffective Assistance of Counsel
Most claims for ineffective assistance of counsel fall within the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that ease, the court enunciated a two-part test for reviewing ineffective assistance of counsel claims. The defendant must first show that counsel’s performance was so deficient, “that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to meet the second part of the test the defendant must show that counsel’s deficient performance so seriously prejudiced the defense that the defendant cannot be said to have received a fair trial. Id. Strickland governs claims of ineffective assistance of counsel based on attorney error.
[64]*64However, claims of ineffective assistance of counsel involving conflicts of interest are controlled by Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In that case, the Court held, “[i]n order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 346 — 17. Under the Cuyler test, the defendant is required to show that his counsel “actively represented conflicting interests” and, second, that “a conflict of interest actually affected the adequacy of his representation.” Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719.
The main difference between these two tests is that there is a lesser burden of proof when the claim of ineffective assistance of counsel involves a conflict of interest as opposed to a claim based on attorney error.The Supreme Court stressed this point in Strickland:
[P]rejudice is presumed when a counsel is burdened by an actual conflict of interest. In these circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts ..., it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest_ Prejudice is presumed ... if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s •performance."
Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (citation omitted; emphasis added).
Under Strickland, prejudice is not presumed. Instead, the defendant must show that there was error, and the error was “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. at 2064. However, under Cuyler a defendant must only show that his counsel’s performance was “adversely affected” by a conflict of interest.
Monreal alleges that his case falls within the lesser Cuyler standard because he claims his lawyer’s performance was adversely affected by a conflict of interest. Monreal claims that his interest in receiving effective representation and being acquitted of the crime charged was adversely affected by his counsel’s interest in protecting herself from allegations that she did not inform Monreal of the State’s plea bargain offer. We must decide whether Cuyler applies to this type of conflict of interest.
Cuyler involved a claim of conflict of inter'est in the context of an attorney representing multiple defendants in one criminal proceeding. This type of conflict normally involves the adverse interests of two or more defendants during trial. In plain language, the danger is that the lawyer might favor one defendant over another defendant to the latter defendant’s detriment. The instant case involves a different type of conflict of interest. Here, the interests of the lawyer and her client are alleged to be conflicting.
Discussion
We find no Texas cases addressing the issue of which standard to apply in cases involving conflicts between the interests of an attorney and that of his client. That precise question, however, has recently been thoroughly analyzed by the U.S. Court of Appeals for the Fifth Circuit. See Beets v. Scott, 65 F.3d 1258 (5th Cir.1995) (en banc), petition for cert. filed, 64 U.S.L.W. 3707 (U.S. Dec. 18,1995) (No. 95-7279). In Beets, the conflict between the interests of the lawyer and the client related to the lawyer’s status as a material witness and purported beneficiary of a media rights contract concerning the subject matter of his client’s case. An examination of the facts of that case is necessary for an understanding of the nature of the conflict, and how it was alleged to affect the lawyer’s performance.
Beets, represented by attorney Andrews, was convicted in a Texas court of the capital murder of her fifth husband. After state [65]*65appeals went unavailing, Beets sought habe-as relief in the federal courts on the ground that Andrews had a conflict of interest that adversely affected his representation of her, and that she was thus deprived of her Sixth Amendment right to effective assistance of counsel.
Prior to the criminal charges being brought against Beets, Andrews had been hired by Beets to determine whether she was entitled to any insurance or pension benefits arising out of her husband’s death. Initially, Beets entered into a contingent fee agreement with Andrews for these legal services. But before any benefits were realized from Andrews’ efforts, Beets was charged with capital murder for killing her husband and burying him in the front yard of her home. It was charged as a capital crime because the killing had allegedly been committed for the purpose of collecting life insurance benefits. The body of a previous husband was also found buried in the back yard of the home.
Andrews agreed to represent Beets on the capital murder charge; however, he was unable to reach a satisfactory fee agreement with Beets’s family. Therefore, because the case had by this time developed considerable notoriety, it was agreed that in exchange for Andrews’ legal services Beets would assign to Andrews all of the literary and media rights in her case.
In seeking habeas relief, Beets claimed that Andrews was a material witness to .the fact that she was unaware of her husband’s potential death benefits (relevant to pecuniary motive) and that he should have resigned as her lawyer in order to testify to that fact. She additionally asserted that Andrews’ self-interest in the media rights contract deterred him from resigning as her lawyer. Beets claimed that each of these conflicts of interest adversely affected Andrews’ representation of her, thus depriving her of a fair trial.
The Beets court refused to expand Cuyler to the facts of the case, holding instead that the Strickland standard best addressed attorney self-interest conflicts: “... Strickland more appropriately gauges an attorney’s conflict of interest that springs not from multiple client representation but from a conflict between the attorney’s personal interest and that of his client.” Beets, 65 F.3d at 1260, 1271-72. We agree.
When a lawyer undertakes to simultaneously represent multiple criminal defendants, the risks of prejudice to one client or the other are so great that the law imposes an automatic presumption of prejudice. See Cuyler, 446 U.S. at 349, 100 S.Ct. at 1719. It is hard to imagine a circumstance where a lawyer can properly represent the interests of two or more clients in the same criminal proceeding. The duty of loyalty to any single client is so strong that it is in direct and actual conflict with the notion of representing another client in the same matter. The effect of this conflict is best exhibited in the blame-shifting defense — the other guy did it. If a lawyer represents two or more defendants in the same matter, he is legally and ethically deprived of the time-honored defense of blaming the other defendant. Under those circumstances, the automatic presumption of prejudice is quite valid.
But where the conflict is one of self-interest, the conflict does not necessarily result in harm to the client. Insofar as the protections to the client are concerned, it does not follow that a client will be denied a fair trial simply because his lawyer has a self-interest at stake. Granted, in looking out for himself, a lawyer may do or fail to do something that causes damage to his client’s case. But this is not always true. A lawyer’s personal interest conduct may very well have no effect on whether or not his client receives a fair trial. The “consequences [of self-interest conflicts] on the quality of representation range from wholly benign to devastating.” Beets, 65 F.3d at 1271.
No presumption of prejudice arises out of the self-interest conflict — to establish ineffective assistance of counsel, the client must prove prejudice. The client must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Monreal’s lawyer was interested in “protecting” herself from subsequent criticism of her representation of Monreal. Ac[66]*66cordingly, she placed into the record the fact that Monreal had asked her to seek out a plea bargain, and then recorded the fact that she had duly.and properly communicated to her client the plea bargain offered by the State. It is quite understandable why she would want to do this. The realities of criminal appellate practice being what they are, she knew that the failure to document the plea bargain offer would undoubtedly result in an ineffective assistance appeal point. The danger to the client, of course, is that the fact finder might be influenced by the fact that the client had sought a plea bargain. The resulting irony is that by her action the attorney invited the same charge she sought to avoid.
Nevertheless, the self-interest conduct of Monreal’s lawyer was not presumptively harmful. While the method and timing of her actions may be subject to some criticism, her motive in doing what she did does not implicate Cuyler’s “not quite per se” rule of prejudice. Beets, 65 F.3d at 1269. The lawyer’s self-interest was not in direct and actual conflict with her duty to provide adequate representation to her client.
Conclusion
We believe Beets has drawn a valid distinction between multiple defendant conflicts and self-interest conflicts. Accordingly, we hold that claims of ineffective assistance of counsel based upon a conflict of interest between the attorney’s self-interest and his client’s interests are controlled by the standards announced in Strickland v. Washington.
The first time this case came before us, we applied the Strickland test in determining that Monreal did not receive ineffective assistance of counsel.1 Now, having analyzed the conflict of interest involved in this case with respect to the Cuyler standards, we affirm our previous holding. The conviction is affirmed.