In Hernandez v. Johnson, 108 F.3d 554 (5th Cir. 1997), Hernandez received the death penalty for capital murder. See Hernandez, 108 F.3d at 558-60. Nine years prior to the capital murder trial, one of Hernandez's appointed attorneys, Charles Borchers had been the elected District Attorney in Webb County. See id. While Borchers was the district attorney, Hernandez was convicted of aggravated assault with a deadly weapon and of murder. See id. In connection with the murder charge, Borchers requested a psychiatric evaluation of Hernandez. See id. Borchers signed a motion to dismiss a related indictment after Hernandez pled guilty to aggravated assault and Borchers "probably approved" the plea bargain. See id. Borchers signed two applications for subpoenas and moved to dismiss related charges after appellant pled guilty. See id. Hernandez's prior convictions were admitted in evidence in his capital murder trial. Id. In the federal habeas corpus proceeding, Hernandez contended that Borchers's service as district attorney during the time he was convicted of the prior offenses created an actual conflict of interest adversely affecting Borchers performance under Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980) and Texas Code of Criminal Procedure Article 2.08. See Hernandez, 108 F.3d at 558- 60. The Fifth Circuit Court found that Borchers's involvement was not personal or substantial enough to give rise to an actual conflict under Cuyler. See id. In these circumstances, where Borchers was "only tenuously and nominally connected to the prior cases against Hernandez" it could not be said he "actively" represented conflicting interests as contemplated by Cuyler. See id.