*1 “was I, therefore, prosecutor aware its tion of whether the seeds for der contains the risk that disregarded consciously it but demise where stated: own event for which objectionable [s]he it, in a is no wisdom As we see there mistrial require a at responsible would of jeopardy double standard decision appli- those one of request” apply at once difficult which is questions whose reso- fact cation law to promote protected does little to interests evaluation of solely on an lution turns Clause. Jeopardy the Double Ross, 32 credibility demeanor. See I, 921 at 699. See Bander S.W.2d Guzman, 857; at 955 S.W.2d at that, Finally, opinion the Court’s states And, way would the issue this resolving trial reviewing ruling court’s such three for this present ground squarely findings, explicit the one with no fact here Court decide. trial appellate courts cannot defer to a I dissent. findings” appel- respectfully “implicit court’s factual late “are to determine with courts unable
any certainty implied what the trial court’s findings
factual are See from record.”
Peterson, op. at 24-25. The slip applicable this, like how-
standard of review in cases
ever, imply requires appellate court to fact findings support legal trial deter- ruling court’s then GONZALEZ, Appellant, Alfonzo supports mine these whether record v. findings. implied fact See Carmouche 323, (Tex.Cr.App. 10 S.W.3d Texas. The STATE of 2000) re- (appellate standard review No. 561-02. quires court to “that the appellate assume trial made fact implicit findings court Texas. Appeals Court Criminal supported in the record buttress Oct. conclusion”); Guzman, [legal] 955 S.W.2d 89; Ross, see also State v. (Tex.Cr.App.2000) (appellate 855-58 “implicit
court deferred trial court’s finding”
[credibility] though appellate even any “unable determine fac-
certainty implied what trial court’s record”). findings
tual [were] require appel-
This does not standard impossible task perform
late court to certainty what determining any “with findings implied
the trial court’s factual Instead, requires
are from the record.” it “implicit court to defer to appellate supports. record findings”
factual that the case, example, this Court arguably could affirm the
Appeals ques- ruling
court’s on the basis *4 Isbell, Houston, for Appellant.
Allen C. III, Delmore, DA, William J. Asst. Houston, Paul, Attorney, Matthew State’s Austin, for State.
OPINION HOLCOMB, J., the opinion delivered KELLER, Court, P.J., which MEYERS, COCHRAN, JJ„ PRICE, and joined.
The Issue Gonzalez, counsel of Ralph appellant’s disqualified was counsel on the choice posed as auto accidents and argued staged The State pretrial motion. injured passengers. necessary to would be a witness he an essential fact behalf establish indicted, Percy After were appellant roles advo- appellant and that dual conversations Percy telephone had several re- jury, cate would taint the and witness Ralph Gon- meetings and at least two in actual the State. sulting zalez, attorney. During these conviction, claim- appellant appealed, After encounters, was agreed it ing among things, other $10,000. The reason pay Percy attorney vio- ruling dismissing his court’s The transfer payment dispute. was right coun- lated his Sixth Amendment $3,000 complet- was payment of the first sel of his choice. during least Appellant present was ed. Vargas, meetings, and Marco one address under granted We review to friend, during at least Percy’s present prej- possibility
what circumstances involved in the trans- meeting one trumps to the State’s case the defen- udice $8,000. to pay refused Appellant fer of Amendment to retained dant’s Sixth *5 $7,000. remaining counsel of his choice. attorney disqualify moved to The State under dis appellant’s Gonzalez The Facts Relevant 3.081, per had rule because he ciplinary several co-defendants Appellant and directly on the knowledge bearing sonal in organized were indicted for engaging his client and the guilt or innocence of wit, to Tex. activity, criminal theft. See key credibility witness and of State’s (Vernon §Ann. 71.02 1994 & Penal Code potential a witness whose was therefore Supp.2001). credibility regardless would be at issue of whether he took stand. $200,000 more in group stole than disquali- motion hearing an in auto- At the insurance fraud scheme which was an fy, Percy payment were claimed the staged mobile accidents and insur- ap- companies attempt buy ance were for medical favorable billed attorney injured Gonzalez claimed persons purportedly pellant; treatment money initially appellant’s in a out of staged Appellant paid accidents. was help Percy, appellant’s physician purporting obligation licensed to treat moral attorney, but staged employee, pay in acci- claimants involved ear Gonzalez, attempted money to extort the Percy partici- Percy of the then dents. one testify unfa- appellant, threatening pants conspiracy, in the was the State’s appellant vorably appellant key regarding He had against appellant. witness $10,000. up, To this pay after back staged first wreck did participated transcript Per- offered by appellant. which he was attended Gonzalez clinic, telephone of the conversations be- accepted joba at one cy appellant’s later had Percy and that he re- and tween himself generating phony medical narratives some, but not supervision. corded. He had recorded bills under medical he all, Percy telephone of the conversations Appellant had discussed with in-person of the Percy co- and none he had with the with arrangements financial the tran- did not introduce recruiting meetings. He charge defendant who was any of the re- script recording individuals who paying the numerous Disciplinary R. Prof'l Conduct 3.08. Tex. cordings into and had surprise you evidence refused to it I have never met produce them to prosecution. you or Red anybody at Lobster?” Attorney argued, Gonzalez both in his granted The trial mo- court response to the to disqualify motion and at tion to disqualify defense counsel. disqualification hearing, that he should Thereafter, joint trial took place not be disqualified from representing ap- appel- was convicted.2 After First, pellant. he did believe that he denied, lant’s he motion for new trial was would be a necessary witness the case. appealed, among raising points his of error Second, appellant would suffer a substan- violation of Sixth his Amendment tial hardship disqualification. from his He based on pre-trial ruling the trial court’s argument based his first on the existence disqualifying his counsel of choice. the taped ability conversations and his impeach Percy’s testimony The court regarding appel- affirmed untaped through conviction, meetings rigorous lant’s the trial court did cross-examination. At the hearing, he also not in determining abuse its discretion focused on his contentions that his justified.3 testimo- that dismissal was ny would not be or prejudicial adverse to appeals supported concluded record client, that, that whether he existed, would testi- the finding there time fy purely speculative. disqualification, very real probability that attorney Gonzalez would be called
At the hearing on the motion to disquali- upon testify hotly contested, very aon counsel, fy the trial court heard *6 controversial that was of paramount issue Gonzalez, Percy Marco defense, importance to making thus Gonzalez, Vargas, attorney and among oth- Further, credibility an issue. of court ers, and argument from the State and sufficiently found the State had attorney The Gonzalez. witnesses’s testi- attorney demonstrated Gonzalez’s contin- mony mainly detailing focused what representation, light ued of such testi- transpired meetings at the and in the con- mony, prejudice would cause actual to attorney versations Gonzalez had with Per- prosecution. cy what the witnesses believed the
basis was for agreeing pay Percy. The Law cross-examining Gonzalez,
While Percy attorney point Gonzalez one made the The Federal Texas Constitu tions, Percy’s statute, comment to the judge guarantee answer as well a as Texas “absolutely correct.” While cross-ex- defendant in a criminal proceeding amining Vargas, Vargas after right testified he to have of assistance counsel.4 first met attorney right Gonzalez at the contemplates Red assistance Lobster, attorney right Gonzalez asked “Would the to obtain defendant’s assistance 1996, 8, because, relevant, pro- 2.On November over six months after the motion while substantially granted the trial bative value of the evidence was motion to counsel, outweighed by prejudicial co- dismiss defense the trial effect to the court ruled co-defendants, including ap- that a number of defendants. pellant, jointly. would be tried Three months that, State, granted (Tex.App. after the trial court one of v. 63 these S.W.3d 865 Gonzalez 2001). suppress co-defendant’s Houston [14th] motion evidence allegations bribery and extortion Const., Const., Amend.; upon which attorney were the which basis 4. See U.S. 6th Tex. 10; disqualified. Gonzalez granted § The court Art. I Tex.Code Crim. Proc. Art. 1.05.
837
adequately protect
means would
choosing.5
of the defendant’s
serious
from counsel
However,
right
to counsel
government’s
defendant’s
interests.10
A
has
of choice is not absolute.6
defendant
disqualify appellant’s
moving
In
an
who is not a mem-
right
no
advocate
choice,
a
government
bears
counsel of
bar,
attorney he
an
cannot
ber
establishing
disquali
heavy burden of
him, or
represent
afford or who declines to
justified.11
fication is
a
previous
ongoing
who has
or
Ad-
relationship
opposing party.7
with an
un
disqualified
be
may
Counsel
ditionally,
strong presump-
there
while
disciplinary
oppos
rules when
der the
right
in favor
tion
can
actual
ing party
demonstrate
choice, this presumption
retain counsel of
opposing counsel’s service
resulting from
important
other
con-
overridden
Al
role of advocate-witness.12
dual
relating
integrity
siderations
or more violations of
legations
one
judicial
orderly
fair
process and the
only
showing
or evidence
disciplinary rules
However,
justice.8
when
administration
violation are not suffic
possible
future
unreasonably
arbitrarily
a trial court
determining
In
whether counsel
ient.13
interferes with the defendant’s
counsel is a
disqualified
should be
because
counsel, its
the level
choose
actions rise to
witness,
rule
courts use
potential
Texas
Therefore,
of a constitutional violation.9
disciplinary
pro
rules of
3.08 of the Texas
disqualify-
courts must exercise caution in
attorneys,
guideline.14
conduct
ing
especially
less
fessional
S.W,2d 857,
AM.,
731,
parte Prejean,
5. See Ex
S.W.2d
733
the Interest
974
625
1998,
Alabama,
pet.).
(Tex.App.San
(Tex.Crim.App.1981);
864
Antonio
no
v.
287
Powell
53,
45,
55,
U.S.
L.Ed. 158
53 S.Ct.
77
3.08;
Disciplinary
Prof'l Conduct
14. Tex.
R.
(1932)(defendant
op-
fair
should be afforded
252-253;
v.
S.W.2d at
House
947
portunity to
counsel of his own
secure
Co.,
Producing
Oil
929
Anderson
Inc. Koch
3,
choice);
9,
Fretag,
Chandler v.
U.S.
75
416,
1996).
(Tex.
(1954)(same);
L.Ed. 4
S.Ct.
Glosser v.
Disciplinary
Rules
Rule 3.08 of
Texas
States,
60, 70,
United
315 U.S.
Conduct,
part:
provides in
of Professional
*7
(1942)(same).
The following recog- comments the rule nize that 3.08 rule sets out a disciplinary First, appellant contends the court of standard and is not well suited to use appeals applied the abuse of discretion procedural standard for disqualification incorrectly. Appellant argues standard provide guidance but can in those proce- that both allege the State’s failure to or disqualification dural disputes where the show actual prejudice and comments made party seeking disqualification can demon- by judge hearing at the regarding his prejudice strate actual resulting to itself interpretation rule, of the disciplinary from the opposing lawyer’s service in the demonstrate that the trial court did not party seeking dual roles.16 The disqualifi- consider whether the State had shown that cation, however, cannot invite the neces- actual would result from attor- sary prejudice by actual unnecessarily call- ney representation of Gonzalez’s continued ing the opposing counsel as a witness.17 appellant. alleged The State’s motion that the Analysis by jury’s perspective would be tainted at arguments The appellant urges in sup- torney representation Gonzalez’scontinued port grounds of his three for review can be provided in support several reasons broken down into five assertions of error fact, that regarding attorney all Gonzalez’s (1) part of the court of appeals. personal knowledge of a contested matter appeals applied abuse bearing directly on appellant’s guilt that incorrectly, discretion standard because State intended to introduce at trial. the record demonstrates the trial court did motion suggested The State’s also (2) correctly apply the law. The court mistrial taint. would result due of appeals applying erred the same Therefore, sufficiently motion prejudice requirement actual to the State alleged prejudice flowing actual from the applied to as was the defendant in House. alleged of disciplinary violation rules. (3) The basing court of erred in rule,
decision on the unsworn-witness support argument of his (4) yet adopted which not in Texas. correctly the trial court did not analyze court of appeals law, erred apply spe points to one *8 speculation, regarding both whether during coun- cific statement the made the judge stated, necessary sel was a witness and whether disqualification hearing. judge performing rule, a in- I lawyer just such dual role read this “As the a cannot prejudice stance would result in as for lawyer person going actual to act a a he is State, However, support judge the was sufficient to the a to be witness.” the (b) Inc., lawyer A shall Producing not continue as an Anderson 929 421; House, (citing S.W.2d at 252 com- pending pro- a 947 adjudicatory advocate in rule, may rule ment to which states: "this ceeding lawyer if the believes that law- the guidance”). furnish some compelled
yer will be to furnish substantially that will be adverse the to Disciplinary 16. Tex. R. Prof! Conduct 3.08 client, lawyer’s unless the client consents cmt. 9 & 10. after full disclosure. Id. trial court did consider hearing that the during the made other statements first conten- Appellant’s understanding prejudice. of the law. actual regarding his stated, lawyer is tion is overruled. judge also “[T]he lawyer a he is disqualified to act as when Second, that contends be a witness to establish or to appeals failing apply erred in court of lawyer’s an fact on behalf of the essential actual, just of proving the same burden met, and things client unless certain are as to the State speculative, prejudice only fact the Court that’s the issue before in House.20 The applied to the defendant such, today .... the rule is not "written law, appeals, in its statement court of any you that could without restraints a proposition par- cited House for the represent a whatsoever be witness still ty moving disqualify opposing to your attorney client.” After Gonzalez said alleged disciplinary an rule violation for “I interpretation of the rule was that harm,21 and the must actual demonstrate something substantially have have detri- to harm is does not contest that actual State [my to for me to able to client] mental Therefore, appel- crux of required. my element find prove essential argument appeals lant’s is that the court of stated, “I guilty,” judge client do not correctly apply requirement did not to be that way.” understand it prejudice actual in its review of trial Although none of these state ruling. court’s
ments the need discuss for the State It prejudice, party
demonstrate actual
neither do
is well settled that
seek
attorney
they conclusively
ing
disqualify
opponent’s
tri
demonstrate
demon
prejudice.
al court did not consider actual
of an ethical rule must
violation
will result
Although the
court did not make an strate
such violation
party.
prejudice
moving
actual
explicit finding that
State had demon
However,
prejudice
meager
actual
our
law
concern
strated
would occur
case
demon
attorney
ing
continued
what it means for the State to
representa
Gonzalez’s
tion,
arising from a de
implied findings
prejudice
we must defer to the
strate actual
Also,
up
that the record
fense counsel’s violation of Rule 3.08
supports.18
we
ruling
party
hold the trial court’s
if it is correct what it
for a
demonstrate
means
long
pretrial
law
as
actual
when
motion
any theory
only
disqualify
There is
one
ruling
trial court’s
is within the zone
is involved.
Therefore,
body
other case in this state’s
of criminal
disagreement.19
reasonable
scenario
failing
court of
did not err in
to law that addresses
factual
prosecution
find
trial court
moved to have
abused
discretion
where
are
preju
disqualified.22
whether actual
There
failing
consider
dealing
rep
a handful of
dice would result from the continued
less than
cases
disqualify.
pretrial
motions
supports
resentation when
record
22.Harrison,
(finding prose-
facts, alternatives, and such summation would be un- determined that ing several subject not be to cross- sworn disqualification of the defendant’s testify, although If examination. he did a mani required was that there was his statements on the stand would a mistrial. One necessity fest declare able to suggested sworn and the State would be the alternatives counsel him possibly having lawyer who impeach possibility cross-examine another stand, meeting take the when he re- in attendance at the while he was counsel, witness’s testimon argument there stand to rebut the State sumed that even y.28 court determined would still be confusion as whether Id. at 84. 766 F.2d 84-87 Peng, 27. United States v. Cir.1985). (2nd
someone other than counsel testified to the because the sug- issue about which counsel conversation, placed gested personal counsel would still he knowledge had jury merely before the tangential allegations lodged the dual roles both witness, issue, against advocate and unsworn his client if an per only and knowledge disputed sonal minor one because pursue facts.29 The counsel did not theory.34 court concluded that because that This counsel’s dis Court also found that qualification disqualification required, was not would not work such a reason- sub ing although that stantial defense counsel hardship the defendant as to continuation, witness, have made himself a justify potential counsel’s risk of credibility presented matter confusing by the jury regarding counsel’s dual questioning important was not to the case roles as advocate and witness offense, any concerning or issue were to outweighed remain the defendant’s impeach credibility did not of the sixth amendment interest choice of any great degree, State’s witness to if at appeals counsel.30 The court of found the all, aon material issue.35 district jury court’s fear that the would be unacceptably by affected counsel’s double case, In this the record shows that role as advocate and unsworn witness the State intended to introduce evidence understandable, quite disqualification about which personal defense counsel had discretion, an appropriate exercise of and knowledge. The fact that defense counsel proper, mistrial and concluded that the personal ob knowledge become retrial was not jeopard barred double vious through testimony of the State’s y.31 evidence, an allegation witness. This defendant, through attorney, attempted
In overturning the decision of the court testimony, bribe witness for favorable in Harrison retrial tangential was not merely the case or mistrial after was barred jeopar- double guilt, support but would dy, distinguished Peng this Court inference that such conduct demonstrated facts, reject but we reasoning did guilt defendant’s consciousness of for the of the Second Circuit’s unsworn witness charged. crime Harrison, rule.32 In the defendant was
accused hindering apprehension. counsel, at testifying Defense the dis- counsel, case, suggested on qualification hearing that he knew from his police cross-examination that officer personal knowledge allegations wrong who was having subdued was about false, impeach the proposed were black-eye person sustained a from another tape recordings State’s witness with altercation, by in the suggesting counsel all, transcripts several, but not had seen the officer and had not seen a conversations he had with the wit- black-eye.33 This Court found that de- exchange money ness involving fense counsel’s cross-examination of with “forceful cross-examination.” From inject State’s witness did not irreversibly attempt to defense counsel’s cross-examine credibility counsel’s as an disqualification issue the trial State’s witness at Id. at 29. 85. at 33. Id. 20. Id.
30. 34. Id. at 23-24.
31. Id. at 87. Id. at 24. Harrison, 22-23. *12 that it to conclude It is not unreasonable hearing, it is that defense counsel apparent for to necessary the State would have been difficulty in a cross-exami- would face such Be- attorney as witness. call Gonzalez such cross exami- through nation and that that at- it have been evident cause would certainly apparent it become nation would in the con- torney was involved Gonzalez personal knowledge that testified, Percy which versations about which with the witness’s events conflicted suggesting questions by attorney Gonzalez Thus, testimony. testifying, even without Percy’s testimony about to contrary facts jury might interpreted the well have his might the conversations the content of con- questions testimony or summation as to by jury be have been misunderstood the best scenario veying, only possible not testimony as to what attorney Gonzalez’s client, own of the events for his but his meetings. Attorney those occurred and, being not recollection the events only witness the State Gonzalez was im- subject explicit or to cross-examination clarify jury to for the could have called would create more confusion peachment, un- attorney testify would what Gonzalez in jury attempting for the discern the con- during had occurred those der oath appeared truth than if counsel sworn Attorney sworn versations. Gonzalez’s witness. adverse testimony would have either been purpose Because the of Rule 3.08 is to or, as he claimed it would be his client possible can address the confusion that State, during hearing, adverse to the for arise the trier of fact when counsel’s appel- tending establishing on behalf credibility question, own is called into attempt to bribe appellant lant that did not appeals court of did not err in at least attorney If Gonzalez’s State’s witness. alternatively relying that testimony was adverse impeach from defense counsel’s force- result State would have needed the cred- credibility ful cross-examination order to rehabilitate and failure to take Further, be- ibility of the witness. finding State’s stand did compelled have cause the State could not not in finding abuse discretion testify as what occurred at appellant to disqualification justified. was witness, at- meetings with the only witness to torney Gonzalez was appeals recog The court of also could have the conversation State nized that defense counsel’s decision to not witness after at- called to rehabilitate its testify would not de determine whether Percy torney cross-examined Gonzalez testify, fense counsel would because ap- court of about the conversations. The State could call counsel as a witness. This considering peals by erred neither the con- suggests appeals that the court of found by an unsworn witness act- fusion caused supported that the record the conclusion considering the as advocate nor ing it State necessary that would be to call an advo- necessity of the State such attorney call if he Gonzalez as witness did the as a sworn witness. Neither cate did not himself on the stand. When put what it consid- explaining court err the record the court’s conclu supports why fact to or it the essential ered sions, trial court the court neither the nor calling defense considered the State’s any obligation is to ex appeals under necessary. Ap- to be counsel as witness it plain why would be for the pellant’s third contention overruled. to call counsel as a witness what State Fourth, contends fact counsel’s essential that the court of erred would establish. ruling very
trial court’s “a probability reasonable and real existed that arbitrary ruling when impermissi- upon Gonzalez would be called *13 bly on speculation regarding based mere testify concerning alleged bribery the of both whether counsel was a wit- key appellant witness.”38 Both the ness and whether such performing a dual the appeals’ disagree court of dissent with in role this instance would result in actual ruling the trial court’s and the court of prejudice to the State. appeals’ majority analysis probabili- of the ties court appeals’ involved. The dis-
The recognized court of appeals in its probabilities sent concluded that the were legal framework that a court should not such that the issue would arise at trial reject a defendant’s on chosen counsel Percy attorney and therefore neither nor “[Unsupported or speculation.”36 dubious Gonzalez would have been re- testifying However, judge when a a ruling makes on garding bribery/extortion the issue. This disqualification pretrial at a hearing, some conclusion was based both the State’s speculation is involved. The Supreme knowledge that Gonzalez had Court of the recognized United States this tapes with Percy conversations in Wheat in relation to conflicts of interest impeach Percy which to and the dissent’s leading disqualification. The Supreme opinion nothing that to gain that Court held the presumption favor by raising Appellant the issue. es- makes petitioner’s counsel of choice be argument, sentially citing the same the only by overcome not a demonstration of portion of tape transcripts one the that by showing actual conflict but of serious attorney Gonzalez read into the record as potential for conflict.37 While comment 10 illustrating quality and force to Rule 3.08 that provides states the rule tapes’ impeaching Appellant evidence. guidance where the movant can demon- argues object also that the State did not at itself, prejudice strate actual comment 7 the hearing transcript that of the implies approval of pretrial procedural dis- taped conversation was not accurate or motions, qualification suggesting that taped that au- conversation movant should act at the earliest opportu- thentic. nity being subjected to avoid to the actual resulting opponent’s Whether the rea- dissent’s conclusion is acting in prevent the dual roles sonable, based evidence before creating a oppo- situation which the disqualifica- trial court at the time experience nent’s client would substantial hearing, tion is irrelevant. The court of hardship were disqualified. his counsel appeals found that the record supported speculation Some will be inherent in such the trial court’s conclusion that there awas pretrial hearings. The trial specu- court’s possibility real that counsel would
lation, however, cannot be
unsupported
called as a
the implica-
witness. Besides
dubious.
tion, based on the co-defendant’s motion to
that,
later,
of appeals
concluded
eight
exclude the
months
evidence
the time
judge
disqualifica-
made
State did intend to introduce
trial,
ruling,
allegation
bribery
sug-
tion
of witness tam-
evidence at
the State
still
pering
part
gested
admissibility
tapes
a viable
of the
the case
36. Gonzalez,
Wheat,
Wheat,
163-64,
citing
As the basis arti impose permitted sel should not be adequately shown qualification upon government record, expressly disadvantages ficial judge the trial need not by truncating the State’s evidence.41 of less drastic alter- state consideration (fact Harrison, available from that evidence was at 22. 41.Id. not make it less other sources did Cortellesso, counsel when for the State to call defendant’s 663 F.2d United States (1st Cir.1981). best defendant’s counsel’s J., bribery HERVEY, State intended to introduce the a dissenting opinion, filed JOHNSON, evidence as appellant’s JJ., evidence of con- which KEASLER and guilt. joined. sciousness excluding While such evidence did not render the State’s case J., WOMACK, dissented without against appellant impotent, as evidenced opinion. conviction, it may have been the J., HERVEY,
best evidence
dissenting
the State had
in which
to demon-
KEASLER,
JJ.,
joined.
strate
intent. As
JOHNSON
we fail to find
any proper basis on which the trial court
This case is a reminder of what
could have excluded the evidence
based
provision
to counsel
of the Sixth
the information
before
trial court at Amendment
originally designed
to ac-
the time of the hearing, we cannot find
complish. Before the United States Su-
court of
in not
erred
preme Court decided that
the Sixth
finding that
the trial court abused its dis-
*15
right
provision
Amendment’s
to counsel
cretion
not
excluding
evidence of
required the government
to insure that
bribery.
criminal defendants have the effective as-
sistance of counsel under the rationale that
that,
Thus
dowe
not find
on these
lawyers
criminal defense
contribute to a
grounds,
the court of appeals
in
erred
truth,1
search for the
this right to counsel
finding that
the trial court did not abuse
provision
originally
only
understood as
in
discretion
disqualifying
Ap-
counsel.
prohibiting
government
from interfer-
pellant’s final contention is overruled.
ing
a
right
“to employ
a
judgment
We affirm the
of the court of
lawyer to
in
assist
his
See
defense.”
Scott
appeals.
Illinois,
367,
1158,
v.
440 U.S.
99 S.Ct.
evidence and failure to call defendant’s coun-
and absent some effect of counsel's chal-
encourage
sel would
the fact finder to
lenged
reliability
make
conduct on
the trial
improper
regarding
process,
inferences
counsel’s fail-
guarantee
the Sixth Amendment
is
testify.)
ure to
generally
implicated
not
and ineffective assis-
prejudice analysis "focusing
tance of counsel
determination,
362,
Taylor,
solely
1. See
v.
Williams
529 U.S.
on mere outcome
with-
120
1495,
17,
out
S.Ct.
1513 n.
146
attention to whether the result of the
L.Ed.2d 389
(2000) (citing
concurring
proceeding
fundamentally
Justice
unfair or unre-
Powell’s
liable,
Cronic,
defective”);
opinion
v.
in Kimmelman v. Morrison for the
United States
648,
2039, 2045,
proposition
"prejudice” component
that the
466 U.S.
104 S.Ct.
80
(1984) (counsel’s
of the
functioning
constitutional effective
L.Ed.2d 657
assistance
in a
question
counsel
meaningful
pro-
test "focuses on the
role
whether
adversarial
"will best
performance
objective
counsel’s
mote
guilty
deficient
the ultimate
that the
renders the
be
free”);
proceeding
go
result
the trial unreliable or
convicted and the
innocent
Strick-
unfair”);
668,
fundamentally
Washington,
land v.
Kimmelman v.
466 U.S.
104 S.Ct.
Morri-
son,
2052, 2064,
365,
2574, 2593-94,
(1984) (defendant
477 U.S.
106
847 usually results (1979); rule 1160-61, 383 Hernan 59 L.Ed.2d advocate/witness (Tex.Cr. State, opposing 773 not to the dez to the client and harm Beaney, Right The To App.1999); W. a criminal defendant should so party, Courts, 27-33, In American Counsel sword use the rule permitted to be (Sixth (1955) right Amendment’s of his conviction obtain a reversal originally intended as provision violations disciplinary rule party’s other nothing guaranteeing more than id.2 the defendant. See not harm do counsel, “no re to retain before 1938 government decides that Court authority, judicial” scholarly sponsible otherwise). retained case, appellant’s to remove was entitled gov claimed this basic in House be- appellant’s ernment interfered with our decision lawyer under employ lawyer to assist right it would government proved cause the by having appellant’s retained appellant’s prejudice” suffer “actual from the case. counsel of choice removed I Although lawyer testifying at trial.3 of the discus- Court, however, with much agree generally decides government opinion could do this under our deci- dissenting in the Court sion sion in House v. assume that I will nevertheless Appeals, (Tex.Cr.App.1997). We decided in House find that was entitled to the trial court standing to com- that the defendant lacked lawyer retained *16 plain opposing party’s about the violation tampering” “key on the “witness witness” rule at issue same advocate/witness it (although issue which could have been 3.08) (Rule this in case unless the defen- be) important issue turn out to an did not disciplinary rule dant could show that this directly appellant’s guilt.4 bearing prejudice” violation resulted in “actual claim that this would government’s The House, him. at 253. The See 947 S.W.2d prejudice” is in “actual rationale for this that a violation of the have resulted been, government for the 2.Comment 9 to Rule 3.08 states that Rule have disciplinary key 3.08 "sets out a standard and is appellant's lawyer as a witness on a call proce- a not well suited to use as standard for issue in case. princi- disqualification” dural because two (not protect oppos- pal purposes ability the client government's This assumes that 1) ing party). purposes These are: prejudice” government to show "actual compromise lawyer "by the client’s case a appel- appellant's lawyer testifying at from who could be a more effective witness for appellant’s Sixth trumps basic lant’s trial advocate,” serving by not also as an client right employ lawyer a to assist Amendment 2) "to insure that a client is not burdened a in defense. This was not consideration by have counsel who to offer government Sixth has no in House since the substantially adverse to the client’s right it was to counsel and Amendment purpose.” complaining about defendant who to Rule 3.08 states that Rule Comment 10 government’s violation of advocate/wit- "may guidance in 3.08 furnish some those rule. ness disputes procedural disqualification where party seeking disqualification can demon- Ap- dissenting opinion Court 4. The resulting prejudice actual to itself from strate peals that the evidence did determined lawyer's opposing the dual service in appellant's a retained support states that "a roles.” Comment 10 further "key witness” on the "witness lawyer was oppos- lawyer disqualify should not seek State, 63 v. tampering” issue. See Gonzalez ing lawyer by unnecessarily calling that law- (Tex.App.-Houston [14th 884 case, however, the yer a witness.” In this J., 2001) (Amidei, reh'g). dissenting on Dist.] apparently find that was entitled to very possibility that it would there was real government (1991); v. possible “juror boils down to Cain
confusion” that might (Tex.Cr.App.1997). have resulted possibility mistrial. jurors I respectfully dissent. key testimony confused appel- from lawyer lant’s retained bearing directly on however,
appellant’s guilt, is insufficient to trump
itself the Sixth Amendment’s
original protection core prohibiting
government from interfering with a defen-
dant’s right to employ lawyer to assist in And, his defense. consistent with the first TAYLOR, Appellant, Justus Larue (set stated purpose of rule 3.08 out in rule), comment 9 to the it appears that (and appellant government) not the STATE Texas. likely
more prejudice to suffer actual No. 1665-02. juror any confusion over re- lawyer tained testifying appellant on a Texas, Appeals Court of Criminal key issue in the case. En banc. Appellant, course, waived his 8,Oct. complain any about of this either a motion for support mistrial or in
of an ineffective assistance of counsel claim
since insisted on his retained
lawyer representing despite him poten- *17 lawyer’s
tial for the violation of the advo- rule. If appellant wanted to
cate/witness a lawyer
hire who compromise ap-
pellant’s trial, testifying case then choice, appellant’s a choice up by
backed the Sixth Amendment to the
United States Constitution.5
I would government’s decide that
removal of appellant’s lawyer retained vio
lated Sixth Amendment require counsel. This would
judgment of the Court of Appeals be re
versed and the case remanded to the trial
court for a new trial since this is a “struc subject
tural” defect that is not to a harm Fulminante,
analysis. See Arizona v. 1246, 1265, 113
U.S. L.Ed.2d is, course, Harmon, It ing.” well settled that a defendant See Buntion who cannot a lawyer 1992). afford hire does not (Tex.Cr.App. “right have the his own choos-