                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00132-CV


IN RE CARLA LORENE COX                                                  RELATOR




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                           ORIGINAL PROCEEDING
                          TRIAL COURT NO. 14-00439

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          DISSENTING OPINION ON REHEARING EN BANC

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      The majority’s decision hinges upon facts that were disputed at best,

thereby substituting its opinion for that of the trial court and infringing upon the

role of the trial court as the finder of fact in this case. For this reason, I must

respectfully dissent.
                                  Timeline

2011–2012:              Assistant District Attorney Cary Piel and law student
                        Eric Erlandson investigated the 2009 “cold case”
                        murder for which Carla Cox was later indicted. (Piel
                        continued to work on the case through 2014.)

January 31, 2013:       Carla Cox discharged Lee Tatum, her attorney, and
                        hired new counsel.

August 2013:            Erlandson graduated from law school and went to
                        work for Tatum as an attorney.

March 26, 2014:         Piel was appointed special prosecutor in the Carla
                        Cox case.

                                    Discussion

      The majority relies upon the following to support its holding:

      Erlandson graduated from law school and began working for Lee Tatum in
      August 2013. Erlandson is currently a partner with Tatum. While working
      for Tatum––who had represented Relator in this exact murder case––
      Erlandson discussed Relator’s murder case “in general” with Piel and until
      February or March 2014, Erlandson expected to try the Carla Cox murder
      case with Piel. In early 2014, Erlandson told a partner with Relator’s
      present counsel that he was working on the case and was going to
      prosecute the case with Piel. [Emphasis added.]

A. The “In general” Discussions

      The majority’s recitation of facts presumes that whatever “in general”

discussions that occurred between Piel and Erlandson regarding the Cox case

were, by some measure, substantive. The record actually supports the contrary.

      When asked if he and Piel ever worked together on the Cox case after he

became employed by Tatum, Erlandson stated “we never did.” Erlandson further

testified as follows:


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            Q. . . . . Mr. Erlandson, as far as discussing the Carla Cox
      case with Mr. Piel, did you ever discuss anything -- anything about
      the -- any substantive information about the Carla Cox case with
      Cary Piel, at any time other than when you were interning at the
      Denton County D.A.’s Office?

             A. No, ma’am.

             Q. Now, I listened to -- carefully to the questions that were
      being asked by Mr. Hunter Smith, and they were very artfully worded
      to make it sound like possibly, you were -- when you were working
      on the Roger Clark case, maybe you-all were comparing what was
      going on in that case with the Carla Cox case. Was there any
      similarity between the Carla Cox case and the Roger Clark case?

             A. No ma’am.

            Q. Did you -- when you were working on the Roger Clark
      case, were you discussing the Carla Cox case?

             A. No, ma’am.

            Q. Since you left -- since Cary Piel left the Denton County
      D.A.’s Office in June of 2012, did you ever discuss substantively the
      Carla Cox case with Cary Piel?

             A. No, ma’am.

            Q. After you came to work with Lee Tatum in August of 2013,
      did you ever discuss the case with Lee Tatum?

            A. No, ma’am, other than just generalities of it being a big
      case in Cooke County and all that. [Emphasis added.]

And Piel testified no differently:

            Q. . . . . [D]id you tell Mr. Erlandson that, no, he could not
      work on the case?

             A. Yes, ma’am.

            Q. And did he ever -- after he went to work for Mr. Tatum, did
      he ever work on the Carla Cox case?

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             A. No, ma’am.

B. Erlandson’s Expectations

      Likewise, the majority’s entire factual recitation relies on two presumptions:

(1) that Erlandson expected to work on the Carla Cox case with Piel, and (2) that

his expectations were based upon something other than his own wishful thinking.

First, Erlandson did not testify that he “expected” to try the Carla Cox murder

case with Piel. He testified that he “wanted” to.1 And even if his desire did rise to

the level of expectation, the trial court actively sought and received clarification

that any such expectation on Erlandson’s part was not reasonable under the

circumstances:

             Q. But during that period of time that you were under the
      understanding that, hey, I’m still going to be working for Mr. Piel on
      this case, right?

             A. Yes, I wanted to work with Mr. Piel on the case.


      1
       The record in this case also included an affidavit by George Roland,
brother of Sarah Roland, Cox’s attorney, who swore,

      Eric and I were having a casual conversation about work in early
      2014. I mentioned that Sarah was working on Carla Cox’s case and
      that I was helping with it. During that conversation Eric informed me
      that he was and had been assisting Cary Piel in the prosecution of
      Carla Cox.

Roland did not testify at the hearing, and the trial court was the exclusive judge of
the weight to be given his affidavit testimony. Viewing the evidence in the light
most favorable to the trial court’s ruling, the trial court gave no weight to George
Roland’s affidavit. See In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 695
n.6 (Tex. 2015) (orig. proceeding).

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               Q. And in your --

              THE COURT: Okay. Was something said to you in 2014 that
         made you think that you were still going to be working on the case?

               THE WITNESS: No. It was just the general --

               THE COURT: Okay.

               THE WITNESS: -- I was wanting to work on the case.

               THE COURT: Okay.

               THE WITNESS: And then when all this came about, I wasn’t
         going to work on the case. [Emphasis added.]

Based upon these presumptions, which are—at best—disputed, the majority then

holds:

               The proscription likewise extends to Piel because, for
         purposes of rule 1.9 of the disciplinary rules, he became
         “associated” with Erlandson as co-counsel in the prosecution of
         Relator’s murder case while Erlandson was employed with Tatum.
         See In re CMH Homes, Inc., No. 04-13-00050-CV, 2013 WL
         2446724, at *5 (Tex. App.—San Antonio June 5, 2013, orig.
         proceeding) (mem. op.) (granting mandamus requiring trial court to
         disqualify co-counsel based on violation of rule 1.09(b) because co-
         counsel “associated” on case with disqualified attorney); see also
         Tex. Disciplinary Rules Prof’l Conduct R. 1.09(b). When Erlandson
         became a member of Tatum’s firm and when Piel “associated” with
         Tatum’s firm by co-counseling with Erlandson in this very case, none
         of them (Tatum, Erlandson, or Piel) could prosecute Relator for
         murder if any of them practicing alone would be prohibited from
         doing so by subsection (a) of rule 1.09, and Tatum is so prohibited.
         See Tex. Disciplinary Rules Prof’l Conduct R. 1.09(a), (b).
         [Emphasis added.]

         The trial court did not find that there were any substantive conversations

about the Cox case between Piel and Erlandson that occurred after Piel and

Erlandson left the employ of the Denton County District Attorney’s Office. The

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trial court did not find that in 2014 Erlandson “expected” to work on the Carla Cox

case with Piel. The trial court did not find that anything was said to Erlandson

that would make him think that he was still working on the Carla Cox case with

Piel.   Finally, the trial court did not find that Piel and Erlandson ever “co-

counseled” on the Cox case.2 To arrive at the conclusion that “when Erlandson

became a member of Tatum’s firm and when Piel ‘associated’ with Tatum’s firm

by co-counseling with Erlandson in this very case, none of them (Tatum,

Erlandson, or Piel) could prosecute Relator for murder if any of them practicing

alone would be prohibited from doing so by subsection (a) of rule 1.09, and

Tatum is so prohibited,” the majority must resolve disputed fact issues contrary to

the trial court’s ruling.   [Emphasis added.] The applicable standard of review

does not permit this.

        The standard of review demands that with respect to the resolution of

factual issues or matters committed to the trial court’s discretion, we may not

substitute our judgment for that of the trial court—even if we would have ruled

differently in the same circumstances—unless the relator establishes that the trial

court could reasonably have reached only one decision and that the trial court’s

decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex.

2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)

        2
      Erlandson was a law student intern when he worked with Piel in the
Denton County District Attorney’s office on the cold case. By the time Tatum
employed Erlandson as an attorney, more than six months had elapsed since
Cox had discharged Tatum as her attorney and hired new counsel.

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(orig. proceeding). In other words, we give deference to a trial court’s factual

determinations that are supported by evidence. In re Labatt Food Serv., L.P.,

279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).

      Upon proper application of the standard of review, this record simply does

not support the majority’s conclusion that Piel and Erlandson “co-counseled in

this very case.” For that reason, I respectfully dissent.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment) joins.

DELIVERED: November 5, 2015




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