Hole v. State (Unpublished Memo): When there’s no objection at trial, a party claiming his counsel had a conflict of interest must show that the conflict was “actual” not potential, and must also show that the conflict actually impacted the quality of the representation: Counsel’s prior representation of defendant’s partner-in-crime (now turned State’s witness) was not an actual conflict and did not taint counsel’s representation of defendant.
The chase was on. Mr. Hole was at the wheel. Mr. Wilson was in the passenger seat, using Hole’s rifle to fire at the pursuing officers. Wilson made a plea agreement with the State and testified against Hole. Wilson said this escapade was Hole’s idea. Hole said it was Wilson’s.
To be precise, Hole claimed he’d never have fled but for his fear of the crack-addled Wilson.
Hole’s trial counsel had represented Wilson a year earlier on a drug-related matter, but did not represent Wilson concerning this event. Even so, Hole said the prior representation created an “actual conflict-of-interest” for his counsel, requiring a new trial.
The Tyler court ruled that the prior matter and the current trial were “not connected.” There was no conflict.
In any event, Hole had to do more than show that there was a conflict, he had to show that the alleged conflict tainted the representation.
Hole’s gripe was that his counsel didn’t cross-examine Wilson about his crack habit. But Hole hadn’t told his attorney about Wilson’s drug-of-choice. And the record was clear: Hole’s counsel didn’t cut Wilson any slack. During cross-examination, counsel got Wilson to admit that he was “highly intoxicated” at the time of the event, and that his memory “wasn’t too good.” But the real clincher was that Wilson had more to lose that Hole from being arrested – on account of Wilson being on deferred adjudication for failure to register as a sex offender.