                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


                                                          §                    No. 08-16-00156-CR
IN RE:
                                                          §                ORIGINAL PROCEEDING
STATE OF TEXAS,
                                                          §              ON PETITION FOR WRIT OF
RELATOR.
                                                          §                        MANDAMUS


                                                 OPINION

          The State of Texas has filed a mandamus petition against the Honorable Luis Aguilar,

Judge of the 243rd District Court of El Paso County, Texas. The State asks the Court to order

Respondent to set aside his order disqualifying Assistant District Attorney Denise Butterworth

from the prosecution of a capital murder case against Luis Solis Gonzalez.1 We conditionally

grant the relief requested in the State’s petition.

                                           FACTUAL SUMMARY

          Gonzalez is charged with capital murder based on the allegation that he killed three

individuals during the same criminal transaction on or about May 30, 2012. The State is seeking

the death penalty. The day after the offense, Joe Zimmerly conducted a forensic interview of a

four-year-old child who witnessed the offense. Detective Jerome Hinojos and Assistant District

Attorney Denise Butterworth observed the interview. Almost four years later, on May 26, 2016,

1
    The case is styled State of Texas v. Luis Solis Gonzalez (cause number 20120D04103).
Gonzalez filed a motion to disqualify Butterworth on the ground that it is an ethical violation for

an attorney to act as an advocate and a witness in the same proceeding. The motion alleges that

Butterworth is a potential witness because she observed the interview. In its response to the

motion, the State asserted that Butterworth’s presence at the interview did not result in a due

process violation, and therefore, she could not be disqualified.

       At the hearing on the motion, Butterworth testified that she was called out to the child-

advocacy center on May 31, 2012 to observe the forensic interview of a child witness. It was

Butterworth’s practice to speak with the interviewer prior to the interview, and although she

could not recall that she spoke with Zimmerly prior to the interview, she assumed that she had

done so.    At the time of the interview, Butterworth did not have any knowledge of the

investigation because it was unfolding, and she would not have been able to provide any

information to Zimmerly. Butterworth and Detective Hinojos observed the entire interview from

an adjacent room where they could not be seen by the witness. Butterworth, who does not speak

Spanish, noted that the majority of the interview was conducted in Spanish. Nevertheless,

Butterworth had an opportunity to observe the child’s demeanor and she formed an opinion

regarding the child’s credibility. At one point in the interview, Zimmerly took a break and exited

the interview room. During this break, Zimmerly spoke with both Butterworth and Hinojos

before resuming the interview. Butterworth did not go to the crime scene, and she did not recall

being present when the child’s clothes were collected.

       Butterworth also testified that the standard protocol required that a child be interviewed

only once. Under the protocol, a prosecutor and a detective are present to observe the interview

from behind the two-way glass as was done in this case. The prosecutor and detective are

present to ensure that all necessary questions are asked during this single interview. Butterworth



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did not speak to the child, and the child did not see or speak to her. Further, Butterworth was not

communicating with Zimmerly as he was conducting the interview.

         Joe Zimmerly also testified at the hearing. When asked if a prosecutor typically gives the

interviewer background information prior to the interview, Zimmerly stated that the investigating

agencies typically give the interviewer “whatever information they have at that point.”

Zimmerly referred to this exchange of information as “staff[ing] the case.” Defense counsel also

asked Zimmerly if there was a way for him to communicate with the prosecutor who was

observing the interview. Zimmerly replied that he usually took a break when he was about two-

thirds of the way through the interview and he would ask the investigators, and the prosecutor if

one was present, whether he had missed anything.

         Detective Jerome Hinojos testified that he was assigned to observe the forensic interview

of the child witness. Hinojos gave Zimmerly an overview of the case prior to the interview.

Hinojos recalled that Butterworth was present during the interview, but he did not remember

whether she was present when he gave Zimmerly the overview of the case. The interview was

conducted in both Spanish and English, and Hinojos translated pertinent portions of the child’s

statements for Butterworth while they were observing the interview. In Hinojos’ opinion, the

child did not understand the difference between the truth and a lie, and he appeared to “lose

focus” during the interview. Zimmerly took a break during the interview and asked Hinojos and

Butterworth whether he needed to ask any other questions, but nothing else was covered after the

break.

         Officer Martin Martinez photographed the child-witness and collected clothing from him

at the child advocacy center. Martinez collected a buccal swab from the child at the police

station. He was not present during the interview of the child, and Martinez did not recall seeing



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Butterworth when he was collecting the child’s clothing at the child advocacy center.

           At the conclusion of the hearing, Respondent granted the motion to disqualify

Butterworth. Respondent subsequently made written findings of fact and conclusions of law.

Respondent found that Butterworth was present for the staffing of the case and when Zimmerly

took a break to ask those present whether he needed to cover anything else. He also found that

she was “indirectly actively involved in the interview . . . .”              In his conclusions of law,

Respondent stated that Gonzalez’s due process rights would be actually prejudiced by

Butterworth serving as counsel for the State “given her role as an active witness to the interview

. . . .”

                                    THE STANDARD OF REVIEW

           To be entitled to mandamus relief, the relator must make two showings: (1) that he has

no adequate remedy at law; and (2) that what he seeks to compel is a ministerial act. In re State

ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App. 2013); see In re State of Texas, 162 S.W.3d

672, 675 (Tex.App.--El Paso 2005, orig. proceeding).                The ministerial act requirement is

satisfied if the relator can show a clear right to the relief sought. Weeks, 391 S.W.3d at 122. A

clear right to relief is shown when the facts and circumstances dictate but one rational decision

“under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources),

and clearly controlling legal principles.” Id., quoting Bowen v. Carnes, 343 S.W.3d 805, 810

(Tex.Crim.App. 2011).

                          DISQUALIFICATION OF THE PROSECUTOR

           It is well established that a trial court has limited authority to disqualify an elected district

attorney and his staff from the prosecution of a criminal case. Buntion v. State, 482 S.W.3d 58,

76 (Tex.Crim.App. 2016).           The office of a district attorney is constitutionally created and



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protected.     Buntion, 482 S.W.3d at 76; Landers v. State, 256 S.W.3d 295, 303-04

(Tex.Crim.App. 2008); TEX.CONST. art. V, § 21; see also State ex rel. Eidson v. Edwards, 793

S.W.2d 1, 4 (Tex.Crim.App. 1990). Consequently, the district attorney’s authority “cannot be

abridged or taken away.” Buntion, 482 S.W.3d at 76, quoting Landers, 256 S.W.3d at 303-04.

A district attorney and the assistant district attorneys are responsible for recusing themselves in a

particular case to avoid conflicts of interest and the appearance of impropriety. Buntion, 482

S.W.3d at 76; see Coleman v. State, 246 S.W.3d 76, 81 (Tex.Crim.App. 2008); State ex rel.

Eidson, 793 S.W.2d at 5.

         Gonzalez asserted in the trial court that Butterworth should be disqualified on the ground

that it is an ethical violation for an attorney to act as an advocate and a witness in the same

proceeding. In support of this argument, he cited Rule 3.08 of the Texas Disciplinary Rules of

Professional Conduct which generally prohibits a lawyer from being an advocate before a

tribunal if the lawyer knows or believes that the lawyer is or may be a witness necessary to

establish an essential fact on behalf of the lawyer’s client. TEX.DISCIPLINARY R. PROFESSIONAL

CONDUCT 3.08, reprinted in TEX.GOV’T CODE ANN. tit. 2, subtit. G, app. A (West 2013 & Supp.

2016).

         Showing a violation of the disciplinary rules is insufficient in itself to compel the

disqualification of a district attorney or assistant district attorney. Buntion, 482 S.W.3d at 76;

Martinez v. State, No. 08-14-00130-CR, 2016 WL 4447660, at *6 (Tex.App.--El Paso August

24, 2016, pet. ref’d). The defendant must go further and show actual prejudice rising to the level

of a due process violation. See Landers, 256 S.W.3d at 304-05. In this context, actual prejudice

requires that the defendant show that the alleged disciplinary rule violation would deprive him of

a fair trial or otherwise affect his substantial rights. See Martinez, 2016 WL 4447660, at *6,



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citing House v. State, 947 S.W.2d 251, 253 (Tex.Crim.App. 1997). Further, the party seeking

disqualification cannot invent the necessary prejudice by unnecessarily calling the opposing

counsel as a witness. Martinez, 2016 WL 4447660, at *6, citing Gonzalez v. State, 117 S.W.3d

831, 837 (Tex.Crim.App. 2003).

       In his written conclusions of law, Respondent cited the Court of Criminal Appeals’

decision in Gonzalez to support his decision to disqualify Butterworth.        In that case, the

defendant and several co-defendants were charged with engaging in organized criminal activity

based on allegations that the group stole more than $200,000 in an insurance fraud scheme

involving staged automobile accidents. Gonzalez, 117 S.W.3d at 835. The defendant, Alfonzo

Gonzalez (Alfonzo), was a physician who treated persons purported injured in the staged

accidents. Id. The State’s key witness, Percy Gonzalez (Percy), was a participant in the scheme,

and he later took a job at Alfonzo’s clinic generating phony medical narratives and bills under

Ralph’s supervision. Id. Alfonzo discussed with Percy the financial arrangements he had with

another co-defendant. Id. After he and Alfonzo were indicted, Percy had several telephone

conversations and two meetings with Ralph Gonzalez, who is Alfonzo’s attorney. Id. During

these meetings and conversations, it was agreed that Alfonzo would pay Percy $10,000, but the

reason for the payment was disputed. Id. Alfonzo paid $3,000 to Percy, but he refused to pay

the remaining $7,000. Id.

       The State apparently learned of this payment arrangement and it sought to disqualify

Attorney Gonzalez based on Disciplinary Rule 3.08 because counsel had personal knowledge

directly bearing on the guilty or innocence of his client and the credibility of the State’s key

witness. Gonzalez, 117 S.W.3d at 835. The State argued that defense counsel was a potential

witness in the case and the attorney’s dual rules of advocate and witness would confuse the jury.



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Gonzalez, 117 S.W.3d at 835. At the hearing on the motion to disqualify, Percy testified that the

payment was an attempt to buy testimony favorable to Alfonzo. Id. Attorney Gonzalez claimed

that the initial payment was given to Percy out of an effort to help him, but Percy threatened to

testify unfavorably to Alfonzo unless he was paid the additional $7,000. Id. Defense counsel

also testified at the hearing on the motion to disqualify. Id. at 842.

       The trial court disqualified defense counsel, and the Court of Criminal Appeals upheld

that decision because the record showed that defense counsel had personal knowledge of, and

was actually involved in, the potential witness tampering. Gonzalez, 117 S.W.3d at 844-45. The

Court of Criminal Appeals observed that the record showed the State intended to introduce

evidence about which defense counsel had personal knowledge, and defense counsel testified

that he intended to impeach the State’s witness with tape recordings or transcripts of some of the

conversations counsel had with the witness. Id. at 843. The Court concluded it would be

apparent to the jury that the attorney had personal knowledge of the events which conflicted with

the witness’s testimony. Id. at 842-43. Consequently, defense counsel’s credibility would be an

issue in the case and the jury could interpret his questions and arguments related to the issue as

the equivalent of unsworn testimony. Id. at 841-46.

       The facts of this case are not close to Gonzalez. When the record is read in the light most

favorable to the trial court’s ruling, the evidence showed that Butterworth did nothing more than

be present for the staffing of the case prior to the interview, observe the forensic interview of the

child witness from another room, and be present when the interviewer asked whether he needed

to cover anything else with the child. Assuming for the sake of argument that the child witness

testifies at trial inconsistent with his recorded statement, he can be impeached with the video

recording of the interview, and by the testimony of the interviewer and Detective Hinojos.



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Gonzalez failed to show that Butterworth will be a necessary witness to any issue in the case,

including the credibility of the child witness. Butterworth’s presence at the interview and limited

participation do not amount to a violation of Rule 3.08, and it does not result in actual prejudice

rising to the level of a due process violation. Under Gonzalez’s interpretation of Rule 3.08, a

prosecutor could not interview witnesses while preparing for trial without running afoul of this

rule. This has never been the law in Texas. We conclude that Respondent clearly abused his

discretion by granting the motion to disqualify Butterworth. Accordingly, we sustain the issue

presented in the State’s mandamus petition and conditionally grant mandamus relief. The trial

court is directed to withdraw the order disqualifying Butterworth from the prosecution of the

case. The writ will issue only if Respondent fails to comply.




November 30, 2016
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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