           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD–1065–07



                        BETH SUZANNE LANDERS, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE SIXTH COURT OF APPEALS
                         LAMAR COUNTY

              M EYERS, J., filed a dissenting opinion in which H OLCOMB, J., joined.

                                        OPINION

       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
                                                                        Landers dissent–Page 2

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 determined 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. Pirtle, 887 S.W.

2d 921 (Tex. Crim. App. 1994), that a trial court can disqualify a district attorney only

when the conflict of interest rises to the level of a due-process violation, a district attorney

should have enough integrity to take it upon himself to remedy such a situation long

before it reaches the point of disqualification by the trial court. Because this district

attorney did not take such measures, Appellant was forced to give up her constitutional

rights and testify at the hearing to have him disqualified from prosecuting her case.

Under Rule of Appellate Procedure 44.2(a), such a constitutional error is presumed to be
                                                                     Landers dissent–Page 3

harmful unless it is determined beyond a reasonable doubt that the error did not contribute

to the conviction or punishment. I would find that this violation of Appellant’s Fifth

Amendment right was harmful, and I therefore respectfully dissent.




                                                        Meyers, J.




Filed: June 18, 2008

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