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Click here for the full text of this decision FACTS:Authorities charged Paul Acosta with aggravated sexual assault of a child, the victim being his own 7-year-old daughter. Paul’s wife Margaret, the victim’s mother, came home one morning and found their daughter sleeping nude in their bed with Paul. Margaret immediately took her daughter aside and asked in various ways if Paul had touched her inappropriately. The victim’s answers were not clear, but Margaret was concerned enough to contact Child Protective Services. Margaret also asked Paul to leave their home. Two CPS investigators came the next day and interviewed the victim. That interview was recorded on audiotape. When the interview was concluded, Virgil East, the lead investigator, had Margaret sign a statement agreeing to keep Paul away from his daughter. East also filed an offense report against Paul with the sex crimes unit of the San Antonio Police Department. Before trial, the state requested that East be allowed to testify as to the statements made to him by the victim during this interview as an outcry witness. The trial court denied the motion and also ruled that the audiotaped interview would be inadmissible at trial, except perhaps for impeachment purposes. Meanwhile, Margaret came to believe that Paul did not assault his daughter and took Paul back into their home. While Paul was in jail awaiting trial, Margaret was assisting defense attorney Joe Stenberg in the preparation of his defense. Nevertheless, Child Protective Services was concerned that Paul might eventually return to live in the same home as the victim. CPS contacted Margaret, who as a result felt that she was in danger of losing custody of her daughter, regardless of the outcome of the trial, if she continued to have Paul live in their home. At some point before trial, Margaret approached Stenberg and asked for his help in resolving her custodial matter with Child Protective Services. At first, Stenberg declined to help Margaret, informing her that he was not her attorney. Margaret persisted, however, and Stenberg eventually sympathized with her plight, because she could not afford her own attorney and because she had expended great time and effort assisting Stenberg in the preparation of Paul’s defense. During his review of all the evidence in Paul’s case, Stenberg concluded that East had exaggerated or even fabricated facts in the summation he prepared of his interview with the victim. According to Stenberg, certain statements damaging to Paul’s defense, and which East in his summation attributed to the victim, were simply not found in the audiotaped interview. Surmising that Child Protective Services would rely upon that interview and summation in any proceedings against Margaret, Stenberg decided that the best way to help Margaret would be to discredit East. During trial, the state called East to testify. Because of the pretrial ruling, East did not testify as to any specific statement made to him by the victim. Rather, East explained his duties as an investigator, said that he interviewed the victim in this case and said that he took certain actions as a result of the interview. On cross-examination, however, Stenberg asked East more specifically about the interview he conducted with the victim. Stenberg then played the audiotape of the interview in its entirety for the jury to hear. Then, in an attempt to impeach East, Stenberg had him read the summation of the interview out loud for the jury. There were some apparent inconsistencies between the statements made on the tape and East’s summation, which Stenberg hit upon repeatedly in an attempt to undermine East’s credibility. Stenberg acknowledged in a later affidavit that he did not explain to Paul the implications of introducing these otherwise inadmissible statements or the potential conflict of interest in attempting to help Margaret during Paul’s trial. During its deliberations, the jury requested the tape and a “boom box” with which to listen to it again. The jury found Paul guilty, and the trial court assessed punishment at 20 years of confinement. Paul filed a motion for a new trial, and the trial court conducted a hearing. Represented by new counsel, Paul called Stenberg to testify. Stenberg testified that he realized during jury argument that he had made a mistake by playing the audiotaped interview for the jury. Stenberg also admitted that the introduction of that evidence was “solely to help Margaret” and “no help whatsoever to [Paul].” Stenberg’s testimony was supported by his affidavit, which was attached to the motion for new trial. The trial court denied the motion. On appeal, Paul claimed he had received ineffective assistance of counsel due to Stenberg’s conflict of interest in attempting to help Margaret during Paul’s trial, as well as Stenberg’s failure to object to the admission of inadmissible hearsay testimony. The 4th Court of Appeals, citing one of its own decisions, held that Paul’s claim should be governed by the standards articulated by the U.S. Supreme Court in its 1984 opinion Strickland v. Washington: “Where the conflict of interest, however, involves the advancement of interests other than a jointly represented codefendant (such as counsel’s self-interest), no presumption of prejudice arises, and the defendant must prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” The 4th Court of Appeals ruled that the objectionable statements were merely cumulative of other admissible testimony. Nor was the court persuaded that the jury’s request to listen to the tape again during deliberations necessarily affected their verdict. Thus, the 4th Court held that prejudice had not been established and affirmed the trial court’s judgment. HOLDING:Reversed and remanded. The proper standard by which to analyze claims of ineffective assistance of counsel due to a conflict of interest is the rule set out in the U.S. Supreme Court’s 1980 opinion Cuyler v. Sullivan. Under Cuyler, Paul must show that his trial counsel had an actual conflict of interest and that the conflict actually colored counsel’s actions during trial. The court remanded the case to the 4th Court for reconsideration under that standard. OPINION: Womack, J., delivered the opinion of the court, in which Meyers, Price, Johnson, Hervey, Holcomb and Cochran, JJ., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion, in which Keasler, J., joined. “We need not decide today whether Cuyler extends beyond the multiple-representation species of”conflicts of interest.’ This case actually involves an instance of multiple representation. Defense counsel undertook to represent appellant’s wife, albeit informally, in the custody matter. It is that representation that resulted in counsel having conflicting objectives during the appellant’s criminal trial. I agree that Cuyler logically extends beyond the representation of co-defendants to other instances of multiple representation. But I would not decide in this case whether it extends to other so-called conflicts, such as a conflict between an attorney’s personal interests and that of his client.”

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