Lead Opinion
OPINION
delivered the opinion of the Court
Wе granted appellant’s petition for discretionary review to determine whether the elected district attorney was disqualified from prosecuting appellant for intoxication manslaughter because he had represented her in a prior DWI case. Appellant
I.
In late 2005, appellant was indicted for murder and intoxication manslaughter. She filed a pretrial Motion to Disqualify State’s Prosecutor, alleging that the district attorney had represented her “in a priоr case involving similar facts and issues” in 2002. During a pretrial hearing, appellant testified that Gary Young, the elected County and District Attorney of Lamar County, had represented her in a felony intoxication-assault charge that was reduced to DWI three years earlier. She testified, “He was privileged to my criminal history” and background information. Both on cross-examination of appellant and through Gary Young’s testimony, it was established that appellant’s criminal history was public record and was contained in the current intoxication-manslaughter offense report. Concerning appellant’s “background,” Mr. Young testified, “We will introduce the judgment and sentence as it relates to those cases.” The trial court denied appellant’s motion.
Appellant pled guilty to the second-degree felony of intoxication manslaughter and true to a single felony enhancement paragraph.
Steve Burrows, a long-time friend of appellant, then testified that he and the fifty-year-old appellant were at his mother-in-law’s home drinking beer and cognac on the night of October 8, 2005. Mr. Burrows fell asleep on the couch and when he woke up well after midnight, appellant was loud, abusive, and intoxicated. Around 7:00 a.m., Mr. Burrows decided to drive appellant to her mother’s home, but, once they were in the car, she became violent, hitting Mr. Burrows and grabbing the steering wheel. She pulled the mirror off of the windshield and tried to hit him with it. It was hard to drive, so Mr. Burrows pulled into a parking lot, parked his truck, and walked around for about fifteen minutes. When he returned, appellant had calmed down, so he drove her to her parents’ home and then returned to his own house.
Harold Adams testified that he was stopped at the intersection of Collegiate and Clarksville Streets that morning when “a car came shooting up behind me extremely fast.” The car almost hit him as it passed on the right going 75-85 m.p.h. Mr. Adams saw the car appear to run a red light and then turn left. As Mr. Adams followed, he heard sirens and saw that an accident had occurred.
Erin McDowell testified that she was on her way to church when a car passed her on the left going 85-95 m.p.h. Then she came upon the debris of an accident and saw a man lying in the road. She stopped her car. Appellant came up to her, grabbed her by the shoulders, very upset, and said, “Oh, my God,” numerous times. Appellant appeared remorseful.
Officer Foreman went to the accident scene and found a car with a motorcycle wedged up in front of it. Harley Dale Nelson, the victim, was lying on the road several hundred feet behind the car and his motorcycle. His head was “dislocated” from his spine. Officer Foreman knew Mr. Nelson because they had both worked at the Campbell Soup facility for years.
Officer Whitacker arrived, blocked the traffic with his patrol car, and then talked to appellant. He could tell that she was intoxicated, but she was complaining about glass in her eye, so Officer Whitacker had an ambulance take her to the hospital. He followed and saw her acting very belligerently. “She was using profanities, screaming, yelling, hollering. She would get kind of calm, and she would get out of control.” He ordered a blood sample to be taken, and the test results showed that appellant had a .24 blood-alcohol level, as well as cocaine in her system. She refused all medical treatment, so Officer Whitacker drove her to the police department, although she was still acting “out of control.”
William Hindman, appellant’s former father-in-law, testified for the defense that appellant was “very cordial and very courteous” to him and his wife, who were raising her eleven-year-old son, Tanner. Mr. Hindman explained that he and his wife were raising Tanner because both appellant and her former husband were incarcerated at the time Tanner was born, and he just stayed with them from then on. According to Mr. Hindman, Tanner and Tanner’s brother, Tyler, hаve a good relationship with appellant. Apellant has not contributed any money for Tanner’s clothes, food, schooling, or medical care, but she has bought him things for Christmas. Although Mr. Hindman has seen appellant intoxicated on “several” occasions, he has never seen her intoxicated in front of Tanner.
Appellant’s 80-year-old aunt testified that appellant “was a good sweet girl always to me, kind and sweet to me and all the members of our family.” Ever since high school she has had a problem with alcohol, but “[s]he tried hard to overcome it.”
Nelda Crawford, Appellant’s mother, a retired school teacher, testified that appellant has a drug and alcohol problem. She did not approve of appellant’s lifestyle, but she did and would still try to help her. She visits her every Sunday, and appellant has shown remorse. In 2002, appellant was involved in an accident involving alcohol in which she drove her car through a woman’s house. She was injured very badly and had to stay in the hospital five weeks. Nonetheless, she continued to drink and was on pain pills because of thе injury to her eye and back from the accident. Mrs. Crawford testified that on October 9th, appellant snuck into her home,
Appellant took the stand and testified that she pled guilty to intoxication manslaughter because she wanted to take responsibility for her actions. She admitted that she had been an alcoholic and drug abuser since she was fifteen. She used heroin, heavy opiates, pain killers, cocaine, speed, and tranquilizers. She explained that in the 1993 robbery incident she and her ex-husband were withdrawing from Dilaudids and taking Valium to alleviate the symptoms, and that made them do something really stupid: They went into a drugstore and she gave the druggist a threatening note saying, “Give me your Dilaudid,” while her husband held his finger in his jacket like he had a gun. On direct examination, she explained that she lost her left eye in the 2002 DWI accident in which she hit a house. Appellant knew that she did not have to testify, but she explained,
I wanted an opportunity to tell the family how sorry I am. I wake up every morning and I’m very sorry for what’s happened and I wish I could take it back but I can’t. When Mrs. Nelson [the deceased’s wife] was on the stand yesterday afternoon, she touched my heart. I’m sorry, very sorry to have deprived you and your daughters and your granddaughters of a big part of your life, and I would do anything if I could to change it, but I can’t. I’m sorry. That’s why I wanted to testify. I just wanted an opportunity to tell the family that I’m sorry.
She admitted that she was very intoxicated and had cocaine in her system at the time of the accident. And she said that she was very argumentative because she “was under the influence of sleeping medication, pain killers, extreme amounts of alcohol.” Appellant admitted that when she gets out of jail, she continues drinking.
The jury sentenced appellant to ninety-nine years’ imprisonment and a $10,000 fine. Appellant then filed an amended motion for new trial, alleging that “Gary Young utilized in this trial confidential information, both privileged and unprivileged client information, about the Defendant’s previous drug and alcohol use, and her prior alcohol-related conviction.” She claimed that the use of this information constituted a blatant conflict of interest and a due-process violation.
The trial judge held an evidentiary heаring on the issue. He ordered the district attorney to turn over his original client file from the 2002 DWI case to appellant’s current attorney, and he reviewed the State’s entire case file from this prosecution in camera to see if there was any information relevant to the conflict-of-interest issue in it. The trial judge asked appellant’s attorney if he had found anything in Mr. Young’s 2002 file that he could identify as being confidential information that would have been used against appellant, but counsel never pointed to any specific information in that file.
Before hearing testimony, the trial judge stated, “The thing that I want to hear is — we can speculate from now on about what might have been, but I think it’s your obligation and your client’s obligation to come forward and tell us what it is she thinks [Gary Young] used. It’s not enough just to say he was my lawyer once upon a time. Most of what happened in that case was a matter of public record.”
Appellant called Mr. Young to testify. He stated that he had represented appellant in the 2002 intoxication-assault case, and that he negotiated a plea bargain with the State to reduce the charge to DWI (second offender). Gary Young testified that his client file had been in storage and
Mr. Young spent a total of four hours on the case and did not interview any witnesses. The two cases had a common thread: Both involved driving and intoxication by alcohol and cocaine. Mr. Young agreed that he learned in the 2002 case that appellant had been combative and abusive to her caregivers in that case, just as she was after the present accident. But Mr. Young testified that appellant did not tell him that she had been combative or abusive; that information was in the medical records that the State gave him. During his representation of appellant, she did not discuss anything about her children or tell him that her сhildren’s grandparents took care of them.
Appellant then testified and said that, in the 2002 case, she had told Mr. Young, “I had left my home that morning to go and get more drugs, and that I was under the influence from the night before of crack and marijuana and alcohol.” She said that it came out in this trial that she was not able to take care of her children and that she had told Mr. Young back in 2002 that she lived with her parents and that they took care of her and one of her sons. She told him about the prior robbery by threat: “I told him what I would normally ... tell someone about that is that my ex-husband, my husband at the time, was the one who went in and robbed the drugstore[.] I was with him so by the law of parties in the State of Texas, I was considered to be just as guilty as he was. But in my mind, I didn’t feel like I was guilty.” She agreed that it is no secret that she has a drug and alcohol problem and that her mother even testified to a thirty-year history of such abuse.
The trial court entered extensive findings of fact on the conflict-of-interest issue.
On direct appeal, appellant claimed that the district attorney violated her due-process rights because he had represented her in a “substantially similar case” and “cross-examined her on the underlying facts from the prior case and on criminal history and substance abuse related information he learned as counsel in the prior case.”
The court of appeals noted that, although Mr. Young had asked her about the circumstances surrounding the 1993 robbery and whether she was blaming her entire criminal history on her substance abuse problems, “a state prosecutor would have been entitled to ask Landers about the specific circumstances of any of her prior criminal offenses, as well as how those crimes were committed and how they impacted the victims.”
The court of appeals distinguished its earlier decision in In re Goodman,
II.
A. The Standard of Review
The standard of review for disqualification of the prosecutor by the trial court is whether the court abused its discretion.
B. The Applicable Legal Principles
In Texas, the elected district or county attorney “shall represent the state in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely.”
If a prosecuting attorney has formerly represented the defendant in the “same” criminal matter as that currently being prosecuted, he is statutorily disqualified.
But in the context of a conflict-of-interest claim that does not involve pri- or representation in the same criminal matter, the rule is somewhat different. A district attorney is not automatically disqualified from prosecuting a person whom he had previously represented, even when it is for the same type of offense.
1. The prosecuting attorney has previously personally represented the defendant in “a substantially related matter”;27 and
2. The prosecuting attorney obtained “confidential” information by virtue of that prior representation which was used to the defendant’s disadvantage.28
This rule is like that adopted by the Supreme Court of North Carolina in State v. Camacho:
We hold that a prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that an actual conflict of interests exists. In this context, an “actual conflict of interests” is demonstrated where a District Attorney or a member of his or her staff has previously represented the defendant with regard to the charges to be prosecuted and, as a result of that former attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant’s detriment at trial.30
Although the North Carolina Supreme Court defined an “actual conflict of interest” in a slightly different way — requiring that the former representation concerned the same charges as the current prosecution — the purport is the same: the defendant must show an actual, not theoretical, conflict of interest based on the likely use of confidential communications.
The disqualification rule is somewhat different in civil cases in which private attorneys may be disqualified merely upon a showing that the attorney had previously represented the adverse party in “a substantially related matter.”
1. “Substantially related” matters. The Texas Supreme Court has held that “two matters are ‘substantially related’ within the meaning of Rule 1.09 when a genuine threat exists that a lawyer may divulge in one matter confidential information obtained in the other because thе facts and issues involved in both are so similar.”
Prosecution for the same type of offense does not, by itself, make the two proceedings substantially related.
2. The use of “confidential communications.” The second prong, “confidential communications,” includes
With that general background, we turn to the present case.
III.
Appellant argues in this Court that the court of appeals misinterpreted the term “confidential information” in holding that her due-process rights were not violated by Mr. Young’s prosecuting her in this intoxication manslaughter punishment trial when he had represented her in a prior DWI plea рroceeding. She claims that “[t]he State gained an illicit and tremendous advantage because the prosecutor’s personal knowledge of confidential information allowed him to paint the Appellant in cross-examination in as poor a light as possible.”
She argues that, because Mr. Young first learned of the details contained within the 2002 DWI police offense report and in her medical records (con
the record also shows that Young’s awareness of Landers’ alcohol and cocaine use (as factors contributing to the 2002 accident) were already known by the police, as those items were specifically mentioned in the official report. Any substitute prosecutor for the current case could easily obtain a copy of the 2002 police report and learn of Lan-ders’ prior alcohol and substance abuse problems. As such, Young’s knowlеdge is neither unique nor confidential.47
Appellant apparently assumes that if the client is the first person to tell an attorney about a certain fact, it is necessarily “confidential information,” even though the same facts might be broadcast on television, radio, the newspaper headlines, or a police offense report. This is simply not true. “Confidential information” is, by definition, information that is available only to authorized persons; it is “classified,” “privileged,” “private,” “secret,” “restricted.”
A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.49
If the information conveyed to the attorney is also made known to others or is discovered by a third person through independent means, it is not confidential.
In the present case, it was certainly no secret that appellant had a drug and alcohol problem: Her former father-in-law testified to that fact, as did her aunt, her mother, and she herself. She told the jury that she had been an alcoholic and a drug abuser since she was fifteen. The fact that she may have also revealed that same history to Mr. Young in 2002 did not convert it into a confidential communication.
Appellant’s medical records and the offense report detailing her 2002 DWI accident and injury were also given to Mr. Young by the State in 2002. The fact that appellant might have told Mr. Young about the same information that was given to him by the prosecutor in 2002 did not
Neither at trial nor on appeal has appellant pointed to any information that Mr. Young learned or might have learned during his 2002 representation that was not already in the public domain and testified to by appellant’s own witnesses. The trial court explicitly found that, “At no time was privileged information from the 2002 representation used against Defendant” and “All of the information used to prepare for trial in this matter wаs a matter of public record or public knowledge or available to any prosecutor from law enforcement sources.” The record supports these factual findings.
Appellant’s real complaint is that it simply was not fair that the district attorney, who had represented her in the past, should be allowed to cross-examine her about either that prior offense
Because appellant failed to show that her due-process rights were violated, we affirm the judgment of the сourt of appeals.
Notes
.Appellant’s Ground for Review asks:
Whether the court of appeals wrongly interpreted “confidential information” in deciding that the due-process clause was not violated where the appellant was prosecuted by her former attorney who represented her in a substantially similar prior case and extensively cross-examined her on the underlying facts from the prior case and on other criminal history and substance abuse related information that he first learned as defense counsel in the prior case.
. Landers v. State,
. Although the indictment alleged an enhancement paragraph, that prior conviction was for delivery of a controlled substance in 1994. It was not the prior DWI from 2002.
. Appellant filed written objections to the trial court’s findings of fact, stating that they were made in violation of Tex.R.App. P. 21.8(b) which, at that time, provided, "In ruling on a motion for new trial, the court must not summarize, discuss, or comment on evidence.” That rule had been amended by the time appellant filed his objections. It now reads, "In ruling on a motion for new trial, the court may make oral or written findings of fact.” Tex.R.App. P. 21.8(b). The rationale for the change in the rule is to ensure that appellate courts will not need to speculate as to the possible factual findings supporting a trial judge's ruling if the trial judge will articulate them. ' See State v. Cullen,
1. Mr. Young represented the Defendant in a prior criminal matter in 2002 that was ultimately pled to a misdemeanor DWI;
2. Mr. Young documented 4 hours of work on the 2002 DWI;
3. Mr. Young nеver spoke to the Defendant’s family diming the 2002 DWI representation;
4. The facts of the 2002 DWI are a matter of public record and public knowledge. The facts were detailed extensively in the Paris newspaper at the time;
*302 5. Mr. Young did not cross-examine the Defendant about the details of her stay in the hospital from the 2002 DWI;
6. Mr. Young limited his cross-examination of the Defendant about the 2002 DWI to the most basic information that was generally known, in the Paris News, and that had been brought out in direct examination;
7. Mr. Young limited his cross-examination of the Defendant about her criminal history to what was brought by the Defendant’s witnesses, that was first mentioned by the Defendant on direct, and that was contained in offense reports from other jurisdictions;
8. Mr. Young did not have access to any reports about the Robbery or any other prior crimes committed -by the Defendant from his representation in the 2002 DWI.
The judge's findings went on to state that the Defendant testified on direct examination to the details of the prior robbery, her extensive drug and alcohol problem, and the details of the 2002 DWI incident.
The trial court’s findings continued with the following;
16. At no time was privileged information from the 2002 rеpresentation used against the Defendant;
17. All of the information used to prepare for trial in this matter was a matter of public record or public knowledge or available to any prosecutor from law enforcement sources;
18. The Defendant’s testimony at the motion for new trial lacked credibility and was not believed by this court[.]
. Appellant's Brief in the Texarkana Court of Appeals, p. 8.
. Landers, 229 S.W.3d at 536-40.
. Id. at 540.
. Id.
.
. Landers,
. Id. at 541.
. Id. at 533.
. See Henderson v. Floyd,
.Apolinar v. State,
. Guzman v. State,
. See State v. Moff,
. Tex.Code Crim. Proc. art. 2.01.
. State ex rel. Eidson v. Edwards,
. State ex rel. Hill v. Pirtle,
. Tex.Code Crim. Proc. art. 2.01.
. Id.; see Ex parte Spain,
When a district attorney prosecutes someone whom he previously represented in the same case, the conflict of interest is obvious and the integrity of the prosecutor's office suffers correspondingly. Moreover, there exists the very real danger that the district attorney would be prosecuting the defendant on the basis of facts acquired by him during the existence of his former professional relationship with the defendant. Use of such confidential knowledge would be a violation of the attorney-client relationship and would be clearly prеjudicial to the defendant.
Id.
. Id.
. Id. ("when a prosecutor proceeds against a defendant whom he formerly represented as defense counsel in the same case, no specific prejudice need be shown by the defendant"; such a violation of article 2.01 constitutes a violation of due-process); see also Ex parte Morgan,
. Edward L. Wilkinson, Conflicts of Interest in Texas Criminal Cases, 54 Baylor L.Rev. 171, 177 (2002); see generally, Edward L. Wilkinson, Legal Ethics & Texas Criminal Law 118-42 (2006 ed.).
. See Munguia v. State,
. In re State ex ret Young,
We have held in the context of a violation of another disciplinary rule, for example, that before he can demonstrate a violation of due-process, a defendant must establish "actual prejudice," not just the threat, however genuine (as the court of appeals fashioned its rule here), of prejudice. See House v. State,947 S.W.2d 251 , 253 (Tex. Crim.App. 1997) ("[I]f a defendant cannot show actual prejudice from an alleged disciplinary rule violation by the State, then he will not be entitled to relief ....”); cf. Gonzalez v. State,117 S.W.3d 831 , 837 (Tex.Crim.App.2003) (“Allegations of one or more violations of the disciplinary rules or evidence showing only a possible future violation are not sufficient” to justify attorney disqualification).
Id.
. See Tex Disciplinary R. Prof’l Conduct 1.09(a)(3), reprinted in Tex. Gov’t Code, tit. 2, subtitle G app. A.
. See Tex Disciplinary R. Prof’l Conduct 1.05, reprinted in Tex Gov’t Code, tit. 2, subtitle G app. A.
.
. Id. at 875. Some jurisdictions have held that a prosecutor should be disqualified when "the controversy involved in the pending case is substantially related to a matter in which the lawyer previously represented another client.” State v. Tippecanoe County Court,
. See In re EPIC Holdings,
. Tex. Disciplinary R. Prof’l Conduct 1.09(a), reprinted in Tex Gov’t Code, tit. 2, subtitle G app. A; see In re EPIC Holdings,
. In re State ex rel. Young,
. Tex.Code Crim. Proc. art. 2.01; Tex. Const. art. V, § 21. See State v. Camacho,
. State ex rel. Eidson v. Edwards,
. In re EPIC Holdings,
.See, e.g., Havens v. Indiana,
. People v. Trail,
. Id.; see also United States v. Wheeler,
. Compare Freund v. Butterworth,
. 1 Geofferey C. Hazard & W. William Hodes The Law of Lawyering § 13.5, at 13-13 (Supp 2005).
. See Tex Disciplinary R. Prof’l Conduct 1.05, reprinted in Tex Gоv’t Code, tit. 2, subtitle G app. A. Rule 1.05(a) states:
Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
However, comment 8 to Rule 1.05 notes that an attorney can, consistent with the rules, use information that he may have learned about during his former representation if "the information is generally known."
. See Metro. Life Ins. Co. v. Syntek Fin. Corp.,
. See, e.g., State ex rel. Youngblood v. Sanders,
. Tex. Disciplinary R. Prof’l Conduct 3.09, comment 1, reprinted in Tex. Gov’t Code, tit. 2, subtitle G app. A.
. Appellant’s Brief at 8.
. Landers, 229 S.W.3d at 538. Appellant also complains of the following passages in the court of appeals’s opinion:
Young received copies of Landers’ medical records as part of the State’s discovery disclosures. Young also knew about Landers’ possible use of both alcohol and cocaine — a thread that was common to both the 2002 charge and the charge now on appeal. Young, however, explainеd that this information was public knowledge, as it had been reported in the local newspaper and had been referenced in the police department’s original offense report for the 2002 charge.
Id.
. "Confidential.” Roget’s II: The New Thesaurus (3rd ed.1995).
. Tex.R. Evid. 503(a)(5).
. See, e.g., Johnson v. State,
. See note 42 supra.
. id.
. See Guzman v. State,
. Appellant complains that Mr. Young’s testimony that he did not intend to use anything that appellant told him in 2002, and that he would "introduce the judgments and sentences as they relate to those cases and that’s it” at the pretrial hearing was "blatantly false.” But that is exactly what the State did in its case-in-chief. It was only when appellant’s witnesses and she herself testified to her prior drug problems and the details of her prior robbery and prior DWI offense, that the district attorney cross-examined her about that sworn testimony, not about any "confidential information” from the prior representation.
. See, e.g., State v. Baker,
. State ex rel. Young v. Sixth Judicial Dist.,
The [disciplinary] rules do not grant a defendant standing or some "systemic” right to complain about an opposing party’s alleged disciplinary rule violations that do not result in "actual prejudice” to the defendant.
Id. The disciplinary rules cannot be turned into a tactical weapon to disqualify opposing counsel unless the defendant can show that the alleged rule violations deprived him of a fair trial or otherwise affected his substantial rights. Id.
Concurrence Opinion
filed a concurring opinion.
When the State assures an accused that exercising a certain right will carry no penalty, due process prevents the State from imposing a penalty later on. The constitutional protection at issue in this case is a variant of that due process requirement.
In Doyle v. Ohio, the United States Supreme Court held that a prosecutor could not impeach a defendant with his post-arrest, post-Miranda silence.
At issue here are two of those assurances: (1) that an attorney who chooses to represent a client in one case will not switch sides in that case or represent an adverse party in a substantially related case,
The “same case” includes any subsequent proceedings in that case, such as a revocation proceeding after probation was imposed
That leads me to the second category of assurances. Even when the cases are not the same or substantially related for due process purposes, a defendant may still reasonably expect that his attorney will not use confidential information against him at a later time. A prosecutor who possesses confidential information from a prior case in which he was the defendant’s attorney is barred from using that information against the defendant unless the information has become generally known
The present case is not the same as, or substantially related to, appellant’s prior case in which the prosecutor was her defense attorney, so there was no actual conflict of interest resulting in a presumption of prejudice. And the prosecutor did not improperly use confidential information against appellant. Under these circumstances, I would find no due process violation.
Finally, I would refrain from using any language that refers to the “trial court’s discretion” to disqualify the prosecutor.
With these comments, I concur in the Court’s judgment.
.
. Miranda v. Arizona,
. Doyle,
. Tex. Disc. R. Prof'l Conduct 1.09(a)(3).
. Id., 1.05(b)(1), (3).
. See id., 1.09, comment 4B.
. Ex parte Spain,
. Id.
. Disc. R. 1.05(b)(3).
. Id., 1.05(b)(3), (c)-(f).
. Whether the prejudice requirement is analyzed as a component of the due process violation or as a separate harm analysis and what standard should be used for determining prejudice are issues that we need not decide in this case.
. See Court's op. at 303.
. See State ex rel. Eidson v. Edwards,
. State ex. rel. Young v. Sixth Court of Appeals, 236 S.W.3d 207, 211 n. 15 (Tex.Crim.App.2007).
Dissenting Opinion
filed a dissenting opinion in which HOLCOMB, J., joined.
Even if the prosecution of the Appellant by her former attorney may not constitute a due-process claim, this was clearly a violation of her Fifth Amendment rights. The Fifth Amendment to the United States Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” Because this situation made it necessary for Appellant to testify at the disqualification hearing as to what her former attorney knew about her, she was forced to give up her Fifth Amendment right not to testify in order to attempt to prevent this obvious breach of ethics. There is no question that the district attorney had a former attorney-client relationship with this defendant and no question that he had privileged information about the former crime, which was an offense substantially similar to the current case and was used to increase the sentence in this case. This attorney had firsthand knowledge of details of the former offense and personal information about Appellant and her history. Such firsthand knowledge has a quality that is not shared by information read in a newspaper article, police or hospital report. Although no specific privileged information could be detеrmined to have been directly used against the defendant, the Lamar County District Attorney should have taken measures to avoid the appearance of injustice.
The fact that there is no written rule or policy stating that an attorney may not prosecute someone that he previously defended does not mean that this was not a breach of ethics. While I acknowledge our determination in State ex rel. Hill v. Pir-tie,