            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

              C OCHRAN, J., delivered the opinion of the Court in which P RICE,
W OMACK, J OHNSON, and K EASLER, JJ., joined. K ELLER, P.J., filed a concurring
opinion. M EYERS, J., filed a dissenting opinion in which H OLCOMB, J., joined.
H ERVEY, J., concurred.

                                       OPINION

       We 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 claims that her

due-process rights were violated because the district attorney used “confidential information”
                                                                             Landers      Page 2

that he had obtained during his prior representation against her in this case.1 Although this

is a close case and we are sensitive to the ethical issues involved, we agree with the court of

appeals that there is “no evidence that the State’s attorney used any confidential information”

in appellant’s prosecution on the current charge.2 Thus we affirm the judgment of the trial

court and of the court of appeals, both of which had denied appellant’s due-process claim.

                                               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 prior 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




       1
         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.
       2
           Landers v. State, 229 S.W.3d 532, 533 (Tex. App.–Texarkana 2007).
                                                                           Landers      Page 3

“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.3 At the jury trial on punishment, the State

introduced a pen packet that showed appellant had prior felony convictions for delivery of

a controlled substance, burglary, and robbery in 1994, as well as credit card abuse in 1995.

She also had misdemeanor convictions for DWI in 2000, DWLS, public intoxication, and

disorderly conduct in 2001, another DWI (second offense) in 2002, and theft by check in

2003.

        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. A little later, appellant returned to Mr. Burrows’s house and yelled at him

        3
         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.
                                                                            Landers     Page 4

before she drove off “pretty fast” down the street.

         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
                                                                          Landers     Page 5

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, have 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
                                                                           Landers       Page 6

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 the injury to

her eye and back from the accident. Mrs. Crawford testified that on October 9 th , appellant

snuck into her home, got her car keys, stole her car, and killed a man with it.

       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 tranquillizers. 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
                                                                           Landers      Page 7

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 hearing 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.”
                                                                           Landers      Page 8

       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 that he did not look at it before the intoxication-manslaughter trial. The

file did contain Mr. Young’s personal notes with some specific details about appellant’s use

of alcohol, cocaine, and marihuana as it related to the 2002 incident, but Mr. Young testified

that all of this information could easily be found in the 2002 police offense report.

       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 children’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
                                                                                Landers       Page 9

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.4

       4
         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, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006) (noting that a trial
court’s refusal to enter findings of fact “leaves appellate courts with nothing to review except a
one-word ruling and forces the courts of appeals to make assumptions about the trial court’s
ruling. The ruling could be based on a mistake of law, on the trial court’s disbelief of the
testimony presented, or even on a clerical error.”). Although the amended rule was not yet
effective at the time the trial judge entered these findings, they are, at worst, harmless because a
reviewing court must defer to any plausible, implied factual findings that are supported by the
record and that would uphold the trial court’s ruling. The trial judge’s factual findings are
supported by the record, and they include the following:
        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 never spoke to the Defendant’s family during 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;
        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;
                                                                            Landers      Page 10

In his conclusions of law, the trial judge stated, inter alia, “No confidential information was

used by Mr. Young in the prosecution of the Defendant in the above and titled case” and “No

Due-process violation occurred.”

       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.”5 The court of appeals set out a

lengthy description of the trial testimony and the testimony developed at both the hearing on

the motion to disqualify and the hearing on the amended motion for new trial.6 Based upon

its thorough review of all the testimony, the court of appeals concluded: “We do not find



       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 representation 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[.]
       5
           Appellant’s Brief in the Texarkana Court of Appeals, p. 8.
       6
           Landers, 229 S.W.3d at 536-40.
                                                                          Landers      Page 11

support for Landers’ claims in the reporter’s record.” 7

       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.” 8 The court of

appeals further noted that appellant had herself testified about these matters–all of which

were of public record–on direct examination.

       The court of appeals distinguished its earlier decision in In re Goodman.9 In that case,

the defendant could point to “unique and confidential information” that Mr. Young had

gained during his former representation of Mr. Goodman that, if used in prosecuting his

former client, would present a “genuine threat” to Goodman’s due-process rights.10 But in

the present case, each item that appellant claimed was the product of confidential information

used by Mr. Young actually came from an entirely separate source–medical records that the

State had already obtained in 2002, public criminal records that the State had obtained both




       7
           Id. at 540.
       8
           Id.
       9
         210 S.W.3d 805 (Tex. App.–Texarkana 2006, orig. proceeding), rev’d sub nom. State ex
rel. Young v. Sixth Judicial Dist., 236 S.W.3d 207 (Tex. Crim. App. 2007). This case, like the
present one, involved a situation in which Mr. Young prosecuted a former client.
       10
            Landers, 229 S.W.3d at 540-41.
                                                                             Landers    Page 12

in 2002 and 2005, appellant’s own testimony, and the testimony of her witnesses.11 The court

of appeals held that “[b]ecause we find no evidence that the State’s attorney used any

confidential information in the prosecution of Landers for this current charge, we affirm the

trial court’s judgment.” 12

                                                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.13 The trial court abuses its discretion only when the

decision lies “outside the zone of reasonable disagreement.” 14 In reviewing the historical

facts upon which the trial court’s ruling on a motion to disqualify is based, an appellate court

“should afford almost total deference to a trial court’s determination of the historical facts

that the record supports especially when the trial court’s fact findings are based on an




       11
            Id. at 541.
       12
            Id. at 533.
       13
          See Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995) (per curiam) (standard of
review for disqualification in civil cases); Rio Hondo Implement Co. v. Euresti, 903 S.W.2d 128,
132 (Tex. App.–Corpus Christi 1995, orig. proceeding) (“We review the trial court’s finding that
confidential information was or was not shared under an abuse of discretion standard.”); In re
Cap Rock Elec. Coop., 35 S.W.3d 222, 231 (Tex. App.–Texarkana 2000, orig. proceeding); see
also State v. Tkacz, 654 N.W.2d 37, 41 (Wis. Ct. App. 2002) (appellate court reviews trial
court’s decision of whether prosecutor’s disqualification is required in a particular case as an
exercise of discretion and “if record shows that discretion was in fact exercised and we can
perceive a reasonable basis for the trial court’s decision” reviewing court will uphold it).
       14
            Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).
                                                                               Landers      Page 13

evaluation of credibility and demeanor.” 15 When the defendant contends that the lower court

erred in applying the law to the trial court’s findings, the review is de novo.16

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.” 17 The office of a district attorney is

constitutionally created and protected; thus, the district attorney’s authority “cannot be

abridged or taken away.” 18 In State ex rel. Hill v. Pirtle, we held that “[a] trial court may not

disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise

to the level of a due-process violation.” 19

       If a prosecuting attorney has formerly represented the defendant in the “same”




       15
          Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also State v. Baker,
934 A.2d 820, 821 (Vt. 2007) (“‘A motion to disqualify [prosecutor] is a matter that rests within
the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of
discretion.’”) (quoting Stowell v. Bennett, 739 A.2d 1210, 1211 (Vt. 1999)); Tkacz, 654 N.W.2d
at 44 (“We will uphold a trial court’s findings of fact [in a hearing to disqualify a prosecutor]
unless they are clearly erroneous”).
       16
          See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (“When the resolution
of a question of law does not turn on an evaluation of the credibility and demeanor of a witness,
then the trial court is not in a better position to make the determination, so appellate courts
should conduct a de novo review of the issue.”); see also Baker, 934 A.2d at 821.
       17
        T    EX . CODE   CRIM . PROC. art. 2.01.
       18
         State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990) (internal
quotation marks omitted).
       19
            State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994).
                                                                                Landers      Page 14

criminal matter as that currently being prosecuted, he is statutorily disqualified. 20 The

Legislature has decreed that this conflict of interest is both obvious and actual, and we have

so held.21 Thus, for example, if a prosecutor has previously represented a defendant in a

burglary guilty-plea proceeding, he is statutorily disqualified from representing the State in

a later probation revocation of that same burglary case. 22 For a prosecuting attorney to

“switch sides” in the same criminal case is an actual conflict of interest and constitutes a due-

process violation, even without a specific showing of prejudice.23 This has been called a

“hard and fast rule of disqualification.” 24


          20
          T     EX . CODE   CRIM . PROC. art. 2.01.
          21
               Id.; see Ex parte Spain, 589 S.W.2d 132, 134 (Tex. Crim. App. 1979). In Spain, we
stated:
          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 prejudicial to the defendant.
Id.
          22
               Id.
          23
           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, 616
S.W.2d 625, 626 (Tex. Crim. App. 1981) (following Spain). Federal courts also find that “‘due-
process is violated when an attorney represents a client and then participates in the prosecution of
that client with respect to the same matter.’” United States v. LaVallee, 439 F.3d 670, 681 (10th
Cir. 2006) (quoting United States v. Schell, 775 F.2d 559, 566 (4th Cir. 1985)).
          24
         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.).
                                                                             Landers       Page 15

       But in the context of a conflict-of-interest claim that does not involve prior

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.25 In that context, a due-process

violation occurs only when the defendant can establish “actual prejudice,” not just the threat

of possible prejudice to his rights by virtue of the district attorney’s prior representation.26

Actual prejudice would occur, for example, if:

       1.      The prosecuting attorney has previously personally represented the defendant
               in “a substantially related matter”;27 and


       25
           See Munguia v. State, 603 S.W.2d 876, 878 (Tex. Crim. App. 1980) (county attorney
who had represented defendant in prior rape charges was not disqualified from prosecuting him
for current aggravated rape charges, noting that “while [defendant] had told him all the details of
that prior offense as well as [defendant’s] prior criminal record, there was absolutely no
discussion of the facts of the instant case”); Reed v. State, 503 S.W.2d 775, 776 (Tex. Crim. App.
1974) (special prosecutor not disqualified although he had previously represented defendant and
had knowledge of his prior criminal record, but he had obtained that knowledge by virtue of his
former position as an assistant county attorney).
       26
          In re State ex rel. Young, 236 S.W.3d 207, 212 n.23 (Tex. Crim. App. 2007). In Young,
this Court noted,
       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.
       27
          See TEX . DISCIPLINARY R. PROF’L CONDUCT 1.09(a)(3), reprinted in TEX . GOV ’T
CODE, tit. 2, subtitle G app. A.
                                                                            Landers      Page 16



       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:29

       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.



       28
           See TEX . DISCIPLINARY R. PROF’L CONDUCT 1.05, reprinted in TEX . GOV ’T CODE, tit.
2, subtitle G app. A.
       29
            406 S.E.2d 868 (N.C. 1991).
       30
          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, 432 N.E.2d
1377, 1378 (Ind. 1982) (attorney who had twice represented defendant in criminal matters was
properly disqualified from prosecuting him when the two earlier convictions were alleged for
enhancement purposes); State v. Hursey, 861 P.2d 615, 618 (Ariz. 1993) (following Tippecanoe
and noting that prosecutor had “gained intimate knowledge of defendant while representing
him.”). Those jurisdictions, however, do not require that the defendant show a due-process
violation before disqualification is required.
                                                                              Landers      Page 17

       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.” 31 This disqualification is

based largely upon “the guidance” given by Rule 1.09(a)(3) of the Texas Disciplinary Rules

of Professional Conduct which states, “Without prior consent, a lawyer who personally has

formerly represented a client in a matter shall not thereafter represent another person in a

matter adverse to the former client . . . if it is the same or a substantially related matter.” 32

But, as we recently noted, “there is no requirement in the civil context that the failure to

disqualify counsel must rise to the level of a due-process violation[.]” 33 And with civil law

firms, there is no constitutional or statutory authority mandating that a particular attorney

represent a particular client as is true for the district attorney, who shall represent the State

in all criminal matters in his jurisdiction “except in cases where he has been, before his

election, employed adversely.”34 Further, in a prior plurality opinion, we have held that a


       31
          See In re EPIC Holdings, 985 S.W.2d 41 (Tex. 1998) (holding that trial court had
clearly abused its discretion in declining to disqualify a civil law firm that had represented the
defendant in a matter whose claims were “substantially related” to those in the pending lawsuit).
       32
         T EX . 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, 985 S.W.2d at 48 (“We have repeatedly observed
that ‘the Texas Disciplinary Rules of Professional Conduct do not determine whether counsel is
disqualified in litigation, but they do provide guidelines and suggest the relevant
considerations’”) (citation omitted).
       33
            In re State ex rel. Young, 236 S.W.3d at 213.
       34
        T EX . CODE CRIM . PROC. art. 2.01; TEX . CONST . art. V, § 21. See State v. Camacho, 406
S.E.2d 868, 874 (N.C. 1991) (citing cases that have noted that “[t]here is, of course, quite a
difference in the relationship between law partners and associates in private law firms and
                                                                               Landers       Page 18

trial court “is without legal authority” to disqualify an elected district attorney solely on the

basis of a violation of the Texas Disciplinary Rules of Professional Conduct.35

       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 the facts and issues involved in both are so similar.” 36 In the context of

criminal matters, a prosecutor cannot be disqualified from prosecuting a former client if the

criminal trials are not closely or substantially related.37


lawyers representing their government,” and stating that “in states such as ours, District
Attorneys are elected officials whose duty to prosecute is expressly mandated by constitutional
provisions. Court orders requiring them to withdraw absent an actual conflict of interests
unnecessarily interfere with their performance of that constitutionally mandated duty. Such
orders unnecessarily disrupt the system established by our Constitution.”).
       35
           Eidson v. Edwards, 793 S.W.2d 1, 6-7 (Tex. Crim. App. 1990); see also In re State ex
rel. Young, 236 S.W.3d at 213 (noting same). Of course, this does not mean that a prosecutor
need not comply with the Texas Disciplinary Rules of Professional Conduct or that he ought not
exercise appropriate discretion to avoid any appearance of impropriety. See, e.g., United States
v. Bolton, 905 F.2d 319, 322 (10th Cir. 1990) (rejecting defendant’s due-process claim when
prosecutor had formerly represented him on an unrelated charge, but stating, “We agree with the
district court that there was an appearance of impropriety. We cannot fathom the obdurate
persistence of the prosecution in keeping [the prosecutor] on this case. The decision, in the face
of objection and the trial court’s apt criticism is, to say the least, aberrant. The exercise of a
modicum of prudence on the part of the prosecutor would have made consideration of this issue
on appeal completely unnecessary.”). The issue before us, however, is one of legal
disqualification of a duly elected public official, not impropriety. Violations of disciplinary rules
may be dealt with by other means–both by the State Bar and at the ballot box.
       36
            In re EPIC Holdings, 985 S.W.2d at 51.
       37
           See, e.g., Havens v. Indiana, 793 F.2d 143, 144-45 (7th Cir. 1986) (attorney who had
formerly represented defendant in possession-of-burglary-tools case was not disqualified from
prosecuting him for attempted burglary; finding that the two cases were not “substantially
related,” the information that the prosecutor used to cross-examine the defendant “was not
                                                                             Landers       Page 19

       Prosecution for the same type of offense does not, by itself, make the two proceedings

substantially related.38 The question is whether the same or inextricably related facts,

circumstances or legal questions are at issue in both proceedings, not whether both charges

are for the same criminal offense,39 or both offenses involve guns, drugs, or other specific




confidential information because it was a matter of public record,” and defendant “failed to prove
that by reason of the former confidential relationship” between him and his former attorney, that
attorney “acquired special knowledge of the facts that were used against” defendant in current
trial); United States v. Bolton, 905 F.2d 319, 321-22 (10th Cir. 1990) (rejecting defendant’s claim
that prosecutor should have been disqualified from prosecuting him as a felon in possession of a
firearm because he had previously represented him in prior case for armed robbery; concluding
that “there was no factual relationship between the two actions in which [prosecutor]
participated. [Prosecutor] represented [defendant] on an armed robbery charge a number of years
earlier and testified to the court that he was aware of no confidential information relating to the
instant case.”); DeShields v. Snyder, 830 F. Supp. 816, 818 (D. Del. 1993) (defendant failed to
prove due-process violation when prosecutor in capital-murder appeal–who had also consulted
with trial prosecutors during trial–had previously represented him in escape conviction, evidence
of which was offered during punishment phase of capital trial; defendant failed to show that
prosecutor used any confidential information against former client; “All the information adduced
at the penalty phase hearing was available in public records.”); see also Corn v. State, 659
N.E.2d 554, 556 (Ind. 1995); People v. Vanderpool, 217 A.D.2d 716, 718 (N.Y. App. Div.
1995); see generally Allan L. Schwartz and Danny R. Veilleux, Annotation, Disqualification of
Prosecuting Attorney in State Criminal Case on Account of Relationship with Accused, 42
A.L.R.5th 581, §§ 3[b] and 4[b] (2001).
       38
          People v. Trail, 555 N.E.2d 68, 74 (Ill. App. Ct. 1990) (prosecutor who had formerly
represented defendant on a charge of attempted sexual assault and delivery of alcohol to minors
was not disqualified from prosecuting him for sexual assault of his stepdaughters because the
specific facts in each case were entirely different even though the offenses were similar).
       39
          Id.; see also United States v. Wheeler, 56 M.J. 919, 925 (A. Ct. Crim. App. 2002) (“We
compare the facts, circumstances, and legal issues of the past and present representations to
determine whether they are related in some substantial way. If the prior representation is
inextricably linked to the current case, including use of confidential information, then the trial
counsel is disqualified.”).
                                                                             Landers      Page 20

facts.40        “The substantial relationship test is not a formalistic inquiry into degrees of

closeness, but is in large measure a judgment as to whether the former client’s confidences

are at risk of being turned against him.” 41

           2.       The use of “confidential communications.” The second prong, “confidential

communications,” includes both privileged and unprivileged client information which the

prosecutor learned by virtue of the former attorney-client relationship, but it excludes

information that is generally known.42 This exclusion of “generally known” information

makes sense. If the client information is a matter of public record or is already generally



           40
          Compare Freund v. Butterworth, 165 F.3d 839, 864 (11th Cir. 1999) (addressing
possible conflict-of-interest by defense law firm, and noting that, although diazepam and guns
were involved in both the former and present prosecutions, “[s]uch vague similarities . . . do not
establish a substantial relationship between a prior and subsequent representation.”), with United
States v. Martinez, 630 F.2d 361, 362 (5th Cir.1980) (substantial relatedness existed because
prior representation by defense attorney of adverse witness concerned the “same [criminal]
transactions” and “same events” that were at issue in defendant’s case).
           41
        1 GEOFFEREY C. HAZARD & W. WILLIAM HODES, THE LAW OF LAWYERING § 13.5, at
13-13 (Supp. 2005).
           42
           See TEX . DISCIPLINARY R. PROF’L CONDUCT 1.05, reprinted in TEX . GOV ’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.”
                                                                               Landers      Page 21

known to other people, then the expectation of harm resulting from the prosecutor’s

subsequent use of the information is small.43 As a policy matter, it is inappropriate to

disqualify an elected public official because he obtained publicly available information from

a client rather than from other public sources. And it elevates form over substance to permit

a former client to restrict a prosecutor’s duty to represent the State if he is privy only to

information from his former client that is “generally known.” 44 Furthermore, “a prosecutor

is obliged to see . . . that any sentence imposed is based on all unprivileged information

known to the prosecutor.” 45

       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


       43
          See Metro Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994)
(concluding that attorney’s representation in divorce case and later adverse representation in
commercial dispute were not “substantially related” when complained-of information was
available in the public domain and had been provided during discovery).
       44
           See, e.g., State ex rel. Youngblood v. Sanders, 575 S.E.2d 864, 869-71 (W. Va. 2002)
(trial court abused its discretion in disqualifying defense attorney on basis of conflict of interest
when attorney’s paralegal had interviewed co-defendant’s wife about possible representation; any
factual information contained in paralegal’s memorandum file was “generally known” because it
was contained in multiple statements given to police; noting that if co-defendant’s wife had
“provided distinct factual information that had not been disclosed to the police previously, then
arguably the issue of a potential conflict” would be raised).
       45
        T EX . DISCIPLINARY R. PROF’L CONDUCT 3.09, comment 1, reprinted in TEX . GOV ’T
CODE, tit. 2, subtitle G app. A.
                                                                          Landers      Page 22

represented her in a prior DWI plea proceeding. 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.” 46

       She argues that, because Mr. Young first learned of the details contained within the

2002 DWI police offense report and in her medical records (contained in the State’s file of

the 2002 DWI proceeding) during his prior representation, that information was

“confidential.” Thus, she asserts that the court of appeals misapplied the law in stating that

       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 Landers’ prior alcohol and substance abuse
       problems. As such, Young’s knowledge 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


       46
            Appellant’s Brief at 8.
       47
          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, explained 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.
                                                                             Landers       Page 23

is simply not true. “Confidential information” is, by definition, information that is available

only to authorized persons; it is “classified,” “privileged,” “private,” “secret,” “restricted.” 48

Rule 503(a)(5) of the Texas Rules of Evidence defines a “confidential communication”:

       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.50

       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.51




       48
            “Confidential.” ROGET ’S II: THE NEW THESAURUS (3rd ed. 1995).
       49
        T    EX . R. EVID .   503(a)(5).
       50
          See, e.g., Johnson v. State, 174 S.W. 1047, 1048 (1915) (it was not error to allow a
third party to testify about statements made by appellant to his attorney during a visit to the
murder scene because the statements were unprivileged remarks made to all persons at the
scene); Hodges, Grant & Kaufmann v. IRS, 768 F.2d 719, 721 (5th Cir. 1985) (“Because the
privilege protects only confidential communications, the presence of a third person while such
communications are made or the disclosure of an otherwise privileged communication to a third
person eliminates the intent for confidentiality on which the privilege rests.”).
       51
            See note 42 supra.
                                                                               Landers      Page 24

       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 convert that public information into a confidential communication.52

       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 was a matter

of public record or public knowledge or available to any prosecutor from law enforcement

sources.” The record supports these factual findings.53

       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




       52
            Id.
       53
           See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also State v.
Medina, 713 N.W.2d 172, 183 (Wis. Ct. App. 2006) (setting out trial court’s factual findings that
prosecutor did not remember any conversation with defendant during prior representation and did
not refer to any information at sentencing from the prior representation that was not a matter of
public record; concluding that defendant had failed to show that prosecutor who had previously
represented defendant in misdemeanor theft case had a “competing loyalty that adversely affected
[defendant’s] interests” in current burglary case); State v. Tkacz, 654 N.W.2d 37, 43-44 (Wis. Ct.
App. 2002) (setting out trial court’s factual findings in hearing to disqualify prosecutor and
stating that it had no reason to disturb them; concluding that trial court’s legal conclusion that no
conflict of interest existed was correct).
                                                                               Landers      Page 25

offense 54 or her background. Indeed, discretion being the better part of valor, an experienced

district attorney might well err on the side of caution and voluntarily disqualify himself from

representing the State in the criminal prosecution of a former client, but neither trial nor

appellate courts can patrol the outskirts of the possible appearance of impropriety by a duly

elected district attorney.55 A district attorney may be disqualified only for a violation of the

defendant’s due-process rights, not for violations of the disciplinary rules of professional

conduct alone.56

       Because appellant failed to show that her due-process rights were violated, we affirm

the judgment of the court of appeals.




       54
          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.
       55
         See, e.g., State v. Baker, 934 A.2d 820, 822 (Vt. 2007) (recognizing that “the
appearance of impropriety alone is simply too slender a reed on which to rest a disqualification
order except in the rarest of cases”).
       56
          State ex rel. Young v. Sixth Judicial Dist., 236 S.W.3d 207, 212 n.23 (Tex. Crim. App.
2007). In House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997), we stated,
        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.
                           Landers   Page 26

Delivered: June 18, 2008

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