Court of Appeals of Texas,
Dallas.
Elvis PEDRAZA, Appellant
v.
The STATE of Texas, Appellee.
No. 05–11–00396–CR.
June 19, 2012.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 429–80819–10.
Robert Udashen, for Elvis Pedraza.
Gregory Alan Willis, District Attorney, for The State of Texas.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
Opinion by Justice LANG.
Appellant Elvis Pedraza pleaded not guilty to theft of property valued at $1,500 or more, but less than $20,000. Following a bench trial, the trial court convicted appellant and assessed punishment at 180 days’ confinement, probated for two years. In two issues on appeal, appellant contends (1) the evidence is insufficient to support his conviction and (2) the trial court committed reversible error when it failed to prevent appellant’s trial counsel from jointly representing appellant and appellant’s co-defendant. We affirm the trial court’s judgment. Because all dispositive issues are settled in law, we issue this memorandum opinion. See TEX.R.APP. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record shows appellant was tried jointly with a co-defendant, Geovanni Delpino, and the two were represented by the same attorney. At the start of trial, the following exchange occurred:
[THE STATE]: Your Honor, the State would ask Your Honor to go ahead and warn the Defendants on record about any potential conflict going forward being represented by one attorney. We just want to make them aware that there could be potential conflicts and we want them to waive this on the record and that they have no objection to this.
THE COURT: All right. Mr. Delpino and Mr. Pedraza, would you please stand up so I can see you? Gentlemen, as the Court, I want to warn you, the Court notices that you have the same counsel providing you a defense in each of your cases. Do y’all understand that?
[APPELLANT]: Yes.
[DELPINO]: Yes.
The record shows Delpino spoke through an interpreter at trial.
THE COURT: And you understand that that could create some sort of conflict for [defense counsel], meaning that in order to defend one of you, it may be at the cost of the other?
[APPELLANT]: Yes.
[DELPINO]: Yes.
THE COURT: And that—and [defense counsel] wouldn’t do that on purpose; but, in essence, that’s what could happen in your case and you are warned that that potential conflict of interest does exist. Do you understand?
[APPELLANT]: Yes.
[DELPINO]: Yes.
THE COURT: And do you waive that conflict of interest to the degree one exists?
[APPELLANT]: Yes.
[DELPINO]: Yes.
THE COURT: Are you satisfied, [counsel for State]?
[THE STATE]: Yes, Your Honor. Thank you very much.
THE COURT: Are you satisfied, [defense counsel]?
[DEFENSE COUNSEL]: Yes, sir.
Officer Cary M. Philley testified at trial that he is a police officer with the City of Plano. He stated he was on patrol between 6 a.m. and 2 p.m. on July 3, 2009, when he observed an “18–wheeler tractor” backed into a parking space in an isolated area near the back of a Kroger store. There was no trailer attached to the tractor. Philley testified a black Suburban vehicle was parked next to the tractor and three individuals were removing boxes from the tractor and placing them into the back of the Suburban. Philley described the boxes as similar to ones “containing something like a laptop computer.” Philley watched the individuals for a moment, then began to drive closer to them. Philley stated, “As soon as they recognized me, they immediately closed the back of the Suburban and the doors to the truck.” Philley stopped his vehicle directly in front of the tractor. At that point, one of the individuals, identified by Philley at trial as appellant, was on the ground standing at the back of the Suburban and the other two individuals, identified as Delpino and “a Mr. Garcia” were in the passenger compartment of the tractor. Philley stated “[t]he entire sleeper area of the truck was full of boxes” that appeared to be identical to the ones the individuals had been transferring to the Suburban.
Philley asked appellant what they were doing. According to Philley’s testimony, appellant told him that he was there to pick up his friend to come and stay with him. Appellant stated to Philley that he did not know where the boxes had come from and that Delpino had told him they needed to move the boxes out of the truck. Additionally, appellant stated to Philley that Delpino told him to stop what they were doing and close the doors to the vehicles when Philley started to approach them. Philley testified Delpino told him that he found the boxes on the ground near a baseball field in Dallas and that the boxes had been there for a couple of days before he picked them up.
The boxes were collected and photographed by police. Seventeen boxes were located in the Suburban and eighty more were found in the tractor. Each box contained a computer monitor valued at $136. Philley testified appellant originally told him that he did not have his wallet or identification with him, but a wallet found in the Suburban contained appellant’s valid identification. In addition, the wallet contained two credit cards in the name of someone other than appellant. Philley testified the Suburban was registered to “Enterprise Rent–A–Car” and had been rented by appellant’s wife. Neither appellant nor Delpino was the owner of the tractor.
Officer Rick Mills of the Plano Police Department testified he was dispatched to assist Officer Philley at the scene of the events described above. Mills stated Delpino told him he had found the computer monitors abandoned at a baseball field and was going to sell them. According to Mills, the boxes were very clean and did not appear to have been left outside for any period of time. On cross-examination, Mills testified Delpino told him he did not take all the boxes he found, but rather left some at the baseball field. Delpino offered to take police to the location where he claimed he found the boxes. Mills testified he did not investigate that location and was not sure if other officers did so.
Detective Steven Boyd of the Plano Police Department testified he was dispatched to assist Philley and interviewed appellant and Delpino at the scene described above. Boyd stated Delpino told him that he was the driver of the tractor and had found the monitors at or near a park in Dallas. According to Boyd, Delpino stated he and the two other men were transferring the monitors from one vehicle to the other because they were going to appellant’s house nearby and did not want to leave the monitors in the tractor, which could not be parked on a residential street. Boyd testified that the fact the tractor was parked in a secluded portion of the parking lot seemed contradictory to Delpino’s expressed concern about protecting the monitors. Boyd stated the boxes were not damaged in any way and did not appear to him to have been kept or placed outside. Boyd testified he was later able to determine that the monitors were part of the contents of a trailer owned by Celadon Trucking Company that had been stolen in Royce City on approximately June 27, 2009. That trailer contained 2,160 monitors.
Xavier Badillo testified he is employed by the City of Plano police department and investigates thefts. He accompanied Boyd to the scene described above. Badillo testified all of the boxes collected there contained the same model of computer monitor. He stated that Delpino told him that he had seen the monitors at a baseball field two days in a row and picked them up the second day. According to Badillo, the boxes “seemed pretty pristine” and “there was nothing on the exterior of the boxes that indicated any type of exposure to elements or any type of damage.” Photographs of the boxes were admitted into evidence. On cross-examination, Badillo testified he did not know whether the remainder of the 2,160 monitors from the trailer stolen in Royce City were ever located. He stated he did not visit or investigate the area where Delpino claimed to have found the monitors.
Delpino testified through an interpreter that he found the monitors behind a field in Oak Cliff where he goes regularly for baseball practice. He stated he returned home to Frisco to get a truck and then went back to the field and picked up the monitors on the same day he first found them. Appellant was not with him at that time. According to Delpino, some of the boxes he found were in good condition, but others were damaged. He stated he picked up only boxes that were in good condition. He testified it is not unusual for people to dump trash in the location where he found the boxes and he thought the boxes had been thrown out.
Delpino testified that after picking up the boxes, he headed home. On his way home, he planned to stop and eat at appellant’s house, which was near the Kroger store. He testified appellant agreed to meet him at the Kroger store. Delpino stated he did not park in front of the Kroger store because that parking area is reserved for customers of the store and he thought his vehicle could be ticketed or towed if he parked there. Delpino could not recall the exact time he arrived at the Kroger store, but stated it was “the middle of the day.” Delpino testified that when appellant arrived, he gave appellant some of the computer monitors he had found so appellant could send them to Cuba.
On cross-examination, Delpino testified he did not notify police about the monitors he found because he thought the monitors were trash. He intended to give some to friends and send some to his family in Cuba. He stated he had no intention to hide or have a secret meeting with appellant at the Kroger store. Further, Delpino testified he and appellant did not shut the doors to their vehicles when they saw a police officer approaching.
Appellant testified he lives near the Kroger store where the events described above took place. According to appellant, Delpino called him that morning and told him that he was driving by. Appellant had not seen Delpino in awhile and invited Delpino to stop by for breakfast. Delpino told appellant they could meet at the Kroger store, and appellant went there to pick him up. Appellant testified Delpino did not mention the monitors during their phone conversation.
Appellant testified that as soon as he parked next to Delpino at the Kroger store, Delpino told him he was going to “put something in the car that he was giving me to send to Cuba.” Appellant testified he did not have time to ask Delpino about the boxes. According to appellant, after loading the boxes into his vehicle, which took approximately ten minutes, he shut the door of his vehicle. Appellant testified he and the two other men stopped loading boxes not because a police officer approached, but rather because Delpino “had gave me whatever he was going to give me already.” Appellant stated they were not situated so as to prevent anyone from seeing what they were doing. Appellant testified that when police asked him where the monitors came from, he told them he had no idea.
On cross examination, appellant testified Delpino had never before given him items to load into his vehicle. He stated the monitors appeared to be brand new.
Additional witnesses at trial included (1) Keith MacMillan, a truck driver formerly employed by Celadon Trucking Company, who testified in relevant part that on June 28, 2009, he discovered that a trailer he had been transporting had been stolen and (2) Jesse Guzman, a terminal manager for Celadon Trucking Company, who testified that the monitors recovered at the scene described above were part of the contents of a trailer stolen from Celadon Trucking Company on approximately June 27, 2009, and Celedon Trucking Company was considered the owner of the monitors at that time.
During closing argument, defense counsel argued that both defendants should be acquitted. Defense counsel contended Delpino’s account of finding the monitors abandoned near a baseball filed was credible. Additionally, defense counsel argued that both defendants testified appellant was not present when Delpino found the monitors and did not know where they came from, and thus there was even less evidence in appellant’s case than in Delpino’s.
The trial court found both appellant and Delpino guilty. Following the punishment phase of trial, the trial court sentenced appellant to 180 days’ confinement in state jail, probated for two years, and ordered appellant to attend an anti-theft class, pay court costs, and have no contact with Delpino. Delpino’s punishment was assessed by the trial court at two years’ confinement in state jail, probated for four years, a fine of $500, and 100 hours of community service. Additionally, Delpino was ordered to pay court costs and have no contact with appellant.
Appellant filed a timely motion for new trial, which was denied by the trial court. This appeal timely followed.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
In determining whether the evidence is sufficient, a reviewing court views all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). When the record supports conflicting inferences, a reviewing court must presume that the fact-finder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326. The fact-finder exclusively determines the weight and credibility of evidence. Id. at 319; Wirth v. State, 361 S.W.3d 694, 698 (Tex.Crim.App.2012). The sufficiency standard of review is the same for both direct and circumstantial evidence. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).
B. Applicable Law
A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. See TEX. PENAL CODE ANN. § 31.03(a) (West Supp.2011); see also id. § 31.03(e)(4)(A) (theft is state jail felony when value of property stolen is $1,500 or more, but less than $20,000). “Appropriate” means to acquire or otherwise exercise control over property other than real property. See id. § 31.01(4)(B). Section 31.03(b) provides in relevant part that appropriation of property is unlawful if (1) it is without the owner’s effective consent or (2) the property is stolen and the actor appropriates the property knowing it was stolen by another. See id. § 31.03(b).
Proof of a culpable mental state almost invariably depends upon circumstantial evidence. Uyamadu v. State, 359 S.W.3d 753, 760 (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d). A fact-finder can infer knowledge from all the circumstances, including the acts, conduct, and remarks of the accused and the surrounding circumstances. Id. Knowledge that property was stolen can be shown by circumstantial evidence. Id. (citing Chudleigh v. State, 540 S.W.2d 314, 317 (Tex.Crim.App.1976)).
Recent, unexplained possession of stolen property can give rise to an inference of guilt sufficient to support a conviction for theft of the property. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.Crim.App.1984); see Chavez v. State, 843 S.W.2d 586, 588–89 (Tex.Crim.App.1992); Jackson v. State, 12 S.W.3d 836, 839 (Tex.App.-Waco 2000, pet. ref’d). However, before such an inference may be drawn, the State must establish the defendant’s possession was personal, recent, unexplained, and involved a distinct and conscious assertion of right to the property by the defendant. See Sutherlin, 682 S.W.2d at 549.
“If a defendant offers an explanation as to his possession of recently stolen property, the record must demonstrate that the defendant’s explanation at the time his possession is called into question is either false or unreasonable before the evidence will support the conviction of theft.” Jackson, 12 S.W.3d at 839 (citing Adams v. State, 552 S.W.2d 812, 815 (Tex.Crim.App.1977)); see Hardesty v. State, 656 S.W.2d 73, 76–77 (Tex.Crim.App.1983). Whether the defendant’s explanation is reasonable is a question of fact, and the fact-finder is not bound to accept a defendant’s explanation. Garza v. State, 841 S.W.2d 19, 22 (Tex.App.-Dallas 1992, no pet.); see also Adams, 552 S.W.2d at 815.
C. Analysis
In his first issue, appellant contends the evidence is insufficient to support his conviction for theft. Appellant asserts he does not dispute that the property in question was stolen. However, appellant argues that while “[t]he State’s theory at trial was that [appellant] appropriated the computer monitors knowing they were stolen by another,” the State failed to prove appellant “exercised control over the property knowing it was stolen.” Appellant contends the inference of guilt described above is inapplicable because the State failed to establish (1) appellant had personal possession of or exercised a “conscious assertion of a right” to the property, (2) appellant’s possession of the property was “recent,” and (3) appellant had “unexplained possession” of the property or offered a false or unreasonable explanation for his possession of the property.
The State responds
The evidence was sufficient to support Appellant’s conviction. Appellant had possession of computer monitors that were stolen five days earlier and had no explanation at the time police questioned him. His recent, unexplained possession of stolen property was sufficient to support his theft conviction. Even if his statement that he knew nothing about the monitors was considered to be an explanation, it was not reasonable in light of the fact that he and two other men were caught in a secluded area loading monitors in the original shipping boxes into Appellant’s car and acted suspiciously when an officer approached. Moreover, the record contained sufficient evidence to prove all of the elements of theft beyond a reasonable doubt.
We begin with appellant’s argument that the evidence does not show he had personal possession of the monitors or exercised “control over or a right to” them. Appellant asserts he was at the Kroger store to pick up Delpino and was helping Delpino move the monitors so the monitors would not be left unattended. Additionally, in his appellate reply brief, appellant argues he did not exercise “sole control” over the property because (1) there is no indication that he limited Delpino’s access to the monitors or claimed to own the monitors and (2) both he and Delpino planned to enter the vehicle appellant was driving, thus permitting equal access to the monitors.
For the inference described above to be applicable, a defendant’s possession of the stolen property must be personal, but need not be exclusive. See Ross v. State, 463 S.W.2d 190, 191 (Tex.Crim.App.1971) (concluding evidence was sufficient to support conviction for theft where defendant and another exercised joint control over stolen property); Beard v. State, 458 S.W.2d 85, 87–88 (Tex.Crim.App.1970) (possession sufficiently established where defendant and another person were working together and exercising joint control and possession of stolen property and were in juxtaposition to property when it was discovered); Robinson v. State, 658 S.W.2d 779, 781 (Tex.App.-Beaumont 1983, no pet.) (“The requirement of possession may be satisfied even though joint.”). Further, the record shows appellant assisted Delpino in loading seventeen of the monitors from a tractor driven by Delpino into a vehicle that was rented by appellant’s wife and contained appellant’s wallet and identification. Each monitor was valued at $136. Appellant testified Delpino was giving him the seventeen monitors to send to Cuba. Appellant stated he shut the door to his vehicle because Delpino “had gave me whatever he was going to give me already.” On this record, we conclude a reasonable fact-finder could have found that appellant had personal possession of at least seventeen monitors and that he asserted a right to those monitors. See Sutherlin, 682 S.W.2d at 549; Todd v. State, 601 S.W.2d 718, 720 (Tex.Crim.App.1980) (defendant asserted right to stolen welder by towing it behind his pickup truck).
Next, we consider appellant’s assertion that his possession was not “recent.” Appellant contends that in light of the “five-day lapse of time between when the trailer was reported stolen and when [appellant] was discovered with the monitors,” these circumstances should not be considered as “recent” possession because “[c]omputer monitors are easily transferable and do not require a lengthy period of time to establish personal ownership.”
The State responds that Texas courts have found periods much longer than five days to be sufficiently recent. Further, the State argues, “[w]hile it might be easy to sell a single computer monitor in five days to one individual, such is not the case with a group of 97 identical monitors.”
Ordinarily, whether stolen property is “recently” possessed by the defendant is a question of fact. Sutherlin, 682 S.W.2d at 549; see also Naranjo v. State, 217 S.W.3d 560, 571 (Tex.App.-San Antonio 2006, no pet.) (whether possession was recent is determined case by case based on facts and ease of transferability). The parties cite no cases, and we have found none, involving computer equipment in a quantity similar to that in question. However, the court in Uyamadu concluded that a defendant’s possession of seven laptop computers more than a month after the computers were reported stolen gave rise to an inference of guilt. See Uyamadu, 359 S.W.3d at 760. On this record, we cannot conclude appellant’s possession of the stolen property in question was not “recent.” See id.
Finally, we address appellant’s assertion that the State did not show his possession of the property in question was “unexplained” or that he offered a false or unreasonable explanation for his possession of the property. According to appellant,
When asked where the monitors came from [appellant] explained that he did not know where Delpino acquired the monitors, but that Delpino asked for assistance with moving them out of his tractor when [appellant] arrived so they would not be left unattended. There is no indication that [appellant] hesitated to provide an explanation for how he became involved with moving the monitors into his Suburban. In essence, [appellant] showed up to pick up his friend who asked to move the monitors into [appellant’s] SUV for safekeeping. The State offered no evidence that Pedraza did anything more than temporarily hold the monitors at the request of his friend Delpino.
(citations to record omitted). Appellant argues (1) it was unreasonable for the trial court to conclude that appellant’s explanation for moving the computer monitors from the tractor to appellant’s vehicle was false and (2) the State failed to present any evidence contradicting appellant’s explanation. Additionally, in his appellate reply brief, appellant asserts (1) “[t]he explanation given at the scene was consistent with the testimony at trial and with Delpino’s explanation that confirmed that [appellant] had nothing to do with acquiring the computer monitors” and (2) the State “failed to exclude every other reasonable hypothesis except [appellant’s] guilt.”
The State responds that “[appellant’s] claim that he was there to pick up his friend and did not know anything about the boxes is tantamount to no explanation at all.” Further, the State asserts that if appellant’s statement amounted to an explanation, it was not reasonable in light of the record.
As to appellant’s argument that the State failed to produce evidence to exclude every other reasonable hypothesis except that of appellant’s guilt, the former standard of review requiring reversal of circumstantial evidence cases unless the defendant’s guilt is the only reasonable hypothesis has been overruled. See Manivanh v. State, 334 S.W.3d 23, 28 (Tex.App.-Dallas 2008, pet. ref’d) (citing Geesa v. State, 820 S.W.2d 154, 160–61 (Tex.Crim.App.1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000)). As to appellant’s other arguments, the record shows that the explanation appellant contends he provided when police first confronted him about the stolen monitors at the scene, i.e. that Delpino did not want to leave the monitors unattended in the tractor, was inconsistent with putting only seventeen of the ninety-seven monitors in appellant’s vehicle and leaving the remainder in the tractor in a secluded area. Further, at trial, appellant testified (1) Delpino gave him the seventeen monitors to send to Cuba and (2) he closed the door of his vehicle because he was done loading the monitors Delpino had given him. On this record, we conclude the trial judge, as fact-finder, had sufficient evidence to conclude appellant’s explanation for possession of the stolen property was false or unreasonable. See Garza, 841 S.W.2d at 22 (fact-finder was not bound to accept defendant’s explanation for possessing stolen property where record showed contradictory evidence); cf. Robinson, 658 S.W.2d at 781–82 (defendant’s hypothesis that he was moving property to innocently assist companion who had stolen the property was not reasonable in light of cumulative effect of evidence).
In light of our conclusions above, we decide against appellant on his first issue.
III. JOINT REPRESENTATION
In his second issue, appellant contends the trial court “committed reversible error when it failed to prevent trial counsel from jointly representing [appellant] and [appellant’s] co-defendant.” According to appellant, “a review of the record quickly reveals that these two defendants had competing interests and that [appellant] did not knowingly and intelligently waive his right to separate counsel.” Appellant asserts the trial court failed to address “these special circumstances” and improperly permitted the dual representation.
The State responds
The trial court did not err. Appellant has not shown that an actual conflict of interest arose that adversely affected his attorney’s performance. No actual conflict of interest existed when Appellant and his co-defendant consistently advanced a joint defense of innocence at trial and did not attempt to implicate each other. And Appellant has not shown that his attorney actively represented his co-defendant’s interest to his detriment. Because there was no actual conflict of interest, the trial court was not required to admonish Appellant or obtain a waiver.
A. Standard of Review and Applicable Law
An attorney’s representation of multiple defendants is not a per se violation of a defendant’s right to adequate legal assistance. Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In order to establish a violation of such right, a defendant who raised no objection at trial must demonstrate (1) his counsel had an actual conflict of interest and (2) that conflict of interest adversely affected his counsel’s performance at trial. Id. at 348. Once a defendant has shown that a conflict of interest actually affected the adequacy of his representation, he need not demonstrate prejudice in order to obtain relief. Id. at 349.
An “actual conflict of interest” exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests to the detriment of his client’s interest. Acosta v. State, 233 S.W.3d 349, 355 (Tex.Crim.App.2007). An appellant must identify specific instances in the record that reflect a choice that counsel made between possible alternative courses of action, such as eliciting or failing to elicit evidence helpful to one interest but harmful to the other. Perez v. State, 352 S.W.3d 751, 755 (Tex.App.-San Antonio 2011, no pet.). “ ‘[A] potential conflict may become an actual conflict, but [an appellate court need not] speculate about a strategy an attorney might have pursued … in the absence of some showing that the potential conflict became an actual conflict.’ ” Id. (quoting Routier v. State, 112 S.W.3d 554, 585 (Tex.Crim.App.2003)); see Ex parte McFarland, 163 S.W.3d 743, 759 n. 52 (Tex.Crim.App.2005) (“The showing of a potential conflict of interest does not constitute an actual conflict of interest.”); James v. State, 763 S.W.2d 776, 782 (Tex.Crim.App.1989) ( “potential” conflict based on speculative hindsight never became “actual” conflict). “ ‘[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.’ ” Acosta, 233 S.W.3d at 355 (quoting Cuyler, 446 U.S. at 349–50).
“To show that an actual conflict of interest adversely affected counsel’s performance, the appellant must show ‘that trial counsel actually acted on behalf of those other interests during the trial.’ ” Perez, 352 S.W.3d at 755 (quoting Acosta, 233 S.W.3d at 355). “The appellant must show that his trial counsel ‘had to forego a strategy in the appellant’s trial that he would have otherwise pursued if he had not represented [a conflicting interest].’ ” Id. (quoting Routier, 112 S.W.3d at 586).
“Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of a trial.” Cuyler, 446 U.S. at 346. “Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” Id. at 346–47.
When a court is alerted to or aware of an actual conflict, it must conduct a hearing to ensure that a defendant is knowingly, intelligently, and voluntarily waiving his right to conflict-free counsel. See Perez, 352 S.W.3d at 756; see also Cuyler, 446 U.S. at 347. The court is required to conduct such a hearing only if the court knows or should reasonably know of an actual conflict. Cuyler, 446 U.S. at 347; Perez, 352 S.W.3d at 756; Esparza v. State, 725 S.W.2d 422, 426 (Tex.App.-Houston [1st Dist.] 1987, no pet.).
B. Analysis
As to an “actual conflict of interest,” appellant argues defense counsel was (1) “likely limited in his exploration of possible plea negotiations and [appellant] was not afforded the ability to negotiate with the State in exchange for testimony against his co-defendant” and (2) “limited in the decision to challenge the evidence presented by the State.” Further, according to appellant,
[F]ollowing the presentation of evidence, the trial court had every reason to believe that a conflict existed. One defendant is clearly more culpable than the other. As previously argued, the evidence was insufficient to convict [appellant] of theft; information that could be used to shift the court’s focus to Delpino. Furthermore, defense counsel was restricted from arguing that [appellant] should be found not guilty in light of Delpino’s culpability. Therefore, there was no question that a conflict could and did arise.
Additionally, in his appellate reply brief, appellant asserts that “[w]hile [appellant] had no reason to know that the monitors were stolen, Delpino did.” Therefore, appellant contends, “there existed an undeniable conflict that could have been avoided had [appellant] had separate counsel to advance his defense instead of simply making him the lesser of two evils.”
We cannot agree with appellant that an actual conflict of interest has been shown in this case. First, nothing in the record demonstrates prosecutors or appellant had any desire to negotiate a plea. Further, the record shows appellant testified he knew nothing about how Delpino obtained the monitors and thus had no information to offer the prosecution in that regard. Second, while appellant contends his defense counsel was “limited in the decision to challenge the evidence presented by the State,” he does not explain what evidence he is referring to or cite to the record to support his argument. Therefore, no actual conflict has been shown as to such evidence. See McFarland, 163 S.W.3d at 759 n. 52; James, 763 S.W.2d at 782; Perez, 352 S.W.3d at 755. Third, the Texas Court of Criminal Appeals has rejected the argument that an actual conflict of interest automatically arises when a jointly represented defendant is hampered in his ability to shift blame. See Taylor v. State, 674 S.W.2d 323, 330 (Tex.Crim.App.1983). Appellant does not explain, and the record does not show, how this case constitutes an exception. Finally, the explanations of appellant and Delpino were not inconsistent with each other and the record does not show appellant sought to advance an inconsistent defensive theory. See, e.g., Castillo v. State, 186 S.W.3d 21, 29 (Tex.App.-Corpus Christi 2005, pet. ref’d) (concluding no actual conflict existed where record showed no divergence in defensive theories). On this record, we conclude appellant has not shown an actual conflict of interest to satisfy the first prong of Cuyler. See 446 U.S. at 348–49.
Next, we address appellant’s contention that “[t]he trial court failed to provide a proper admonishment to [appellant] regarding dual representation.” According to appellant, “[a]lthough the trial court was not required to conduct an inquiry in order to assure that [appellant] knowingly and intelligently waived the conflict, the court was prompted by the State to conduct an inquiry” and therefore “the court was placed on notice that special circumstances existed which required the court to inquire as to [appellant’s] waiver of the conflict of interest.”
The record shows the State did not indicate to the trial court that any particular conflict existed, but rather merely asked the trial court to warn the defendants that “there could be potential conflicts” as a consequence of joint representation and obtain a waiver on the record. There was no objection to the joint representation and neither appellant nor his defense counsel expressed any reservations about continuing with that representation. Appellant cites no authority, and we have found none, to support his position that such facts placed the trial court on notice as to “special circumstances.” Moreover, we concluded above that no actual conflict existed in this case. We conclude the record does not show the trial court knew or reasonably should have known of an actual conflict of interest in this case and therefore the trial court was not required to conduct a hearing or make any further inquiry respecting appellant’s waiver of his right to conflict-free counsel. See Cuyler, 446 U.S. at 347; Perez, 352 S.W.3d at 756; Esparza, 725 S.W.2d at 426.
In light of our conclusions above, we decide against appellant on his second issue.
IV. CONCLUSION
We decide appellant’s two issues against him. The trial court’s judgment is affirmed.
