









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1908-02


RAMIRO FLORES, JR., Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS

KERR COUNTY



 Holcomb, J., delivered the opinion of the Court, in which Keller, P.J.,
and Meyers, Womack, Hervey, and Cochran, JJ., joined.  Johnson,
J., filed a concurring opinion, in which Price, J., joined.  Keasler, J.,
concurred in the result.  
OPINION

	The issue we decide today is whether, absent a compelling need for the testimony, it
is error to order defense counsel to testify over objection when called by the State as a fact
witness.  We conclude it is and reverse the judgment of the appellate court.  
I.  The Relevant Facts
	A jury convicted appellant of aggravated assault, and the trial court, after finding the
enhancement paragraphs true, sentenced him to fifteen years in prison.  The victim was
stabbed several times during a knife fight in a nightclub restroom.  However, the issue of
who actually stabbed him was hotly contested at trial.  In support of its theory, defense
counsel elicited testimony that the victim had been unable to identify the defendant during
an earlier pre-trial hearing and had to ask the court interpreter who the defendant was. 
Although defense counsel never got a straight answer from the victim, the State requested
permission to call defense counsel as a witness in an attempt to rebut this "false impression." 
Defense counsel objected, but was ordered to testify as to his recollection of the incident
between the victim and the interpreter.  Defense counsel testified that he did not hear the
victim ask the interpreter to identify the defendant. 
II.  The Appellate Issues
	The exact issue upon which we granted review is "whether the court of appeals was
correct in holding there is no reversible error when the State calls defense counsel as a
witness to testify on behalf of the State during the guilt/innocence phase of appellant's jury
trial."  Appellant complains that (1) he was denied a "fair trial," (1) and (2) he received
ineffective assistance of counsel under the Sixth Amendment. 
	In addressing these arguments, the court of appeals concluded that appellant's reliance
on our decision in Ford v. State was misplaced; defense counsel's credibility was not
undermined by the ordered testimony; and the ineffective assistance complaint involved a
"self-interest conflict," therefore, harm was not presumed and, moreover, none was shown. (2) 
As to appellant's fair-trial complaint, the court of appeals does not expressly hold whether
the trial court erred by ordering defense counsel to testify over objection.  The opinion
suggests that the appellate court found no error, but even if it was error, it was harmless.  As
to appellant's Sixth Amendment argument, the appellate court applied our holding in
Monreal to find that trial counsel was burdened with a conflict of interest, but found no
harm.  We find the underpinnings and rationale of the court of appeals's implicit and express
holdings unreasonable for a number of reasons.  However, that is not to say that the court of
appeals did not take great pains to reach a sound result, or that its reasoning is entirely
illogical or lacking in thought.  Indeed, the most daunting task before this court, and
presumably the lower court too, was fashioning a workable rule that is fair to both the State
and the defense bar when there is little Texas precedent and while bearing in mind the
primacy of the rights of the accused.  Thus, we find that the appellate court's judgment
cannot be affirmed because it failed to consider fully the implications of the practice of
calling defense counsel as a fact witness for the State in a criminal proceeding. (3) 
Accordingly, based on our analysis below, we hold that the court of appeals erred.
III.  Analysis 
	As noted, appellant's complaint is based on two grounds: (1) his right to a fair trial
in violation of Texas and federal law, and (2) a violation of the right to effective assistance
of counsel.  We find appellant's argument under the first ground compelling, and therefore
do not address his second argument.  	
	It is not surprising that our decisional law is sparse when it concerns defense counsel
being called to testify against his own client during the client's criminal prosecution.  In fact,
over forty-five years have passed since we have addressed such a complaint.  In Ford v.
State, (4)  the State called trial counsel to the stand and elicited testimony in the presence of the
jury designed to show that trial counsel had, in some fashion, acted improperly during jury
selection.  We reversed, holding that "[t]he questions propounded were clearly improper, and
the trial court fell into error when he overruled the timely objection made thereto." (5)  Our
decision in Ford is the likely reason that prosecutors across the state have since refrained
from requesting testimony from defense counsel during a criminal prosecution.  This is not
a mere supposition, because the practice has been tolerated in varying degrees in other
jurisdictions by applying a "compelling need" test. (6)  Nevertheless, since Ford, the rule in
Texas has been that calling defense counsel as a fact witness for the State is error.  However
clear our edict was, we did not espouse a test for harm.  (7)  In fashioning our test today, we
considered the policy behind the lawyer-witness rule, (8) authority from other jurisdictions, and
federal law.
	Those state and federal courts that have addressed the issue of calling defense counsel
as a witness in a criminal trial have been very reluctant to permit such an action . (9)  Permitting
a prosecutor to call the defendant's attorney as a witness "inevitably confuses the distinctions
between advocate and witness, argument and testimony, [and] is acceptable only if required
by compelling and legitimate need." (10)  Under the compelling need test, which we adopt
today, the State  must show that: (1) there is no feasible alternative for obtaining and
presenting the information to the jury except through defense counsel's  testimony; (11) and (2)
the testimony is essential, not merely relevant, to the State's  case.  It is error to order defense
counsel  to testify as a witness in the trial unless the trial court determines, outside the
presence of the jury, that there is a compelling need for defense counsel's testimony under
this two-pronged test.  
	In Venable v. State, (12) the Court of Special Appeals of Maryland ordered a new trial
under circumstances similar to those here.  The prosecutor called Venable's lawyer to the
stand to impeach the testimony of a non-party witness.  The State argued to the jury that
securing defense counsel's testimony "was the only way I had of showing you at that time
that [the non-party witness] was lying."  (13)  After concluding that "putting defense counsel in
the position of a prosecution witness is something that 'should be avoided whenever
possible,'" (14) the Maryland court found that, as a practical matter, the situation prevented the
attorney from performing his duties and consulting with his client; that there was no way to
assure that the attorney's credibility would not be adversely affected; and moreover, the
record did not reflect the right to introduce impeachment testimony. (15)
	On the record before us, we conclude that the State did not demonstrate a compelling
need for defense counsel's testimony because there was no showing that the interpreter was
unavailable. (16)  Moreover, the testimony was not essential to the State's case.  The State
argued that the testimony was necessary to repair a "false impression" by defense counsel. (17) 
But, in our view, defense counsel did not necessarily leave a "false impression" by
questioning the victim about his need to ask the identity of his attacker.  The record does not
reflect whether someone else told defense counsel that the victim asked about the identity of
his attacker. (18)  Regardless, these facts do not present an appropriate situation where the
testimony could be properly admitted under this exception; therefore, it cannot be fairly said
that defense counsel's testimony was essential to the State's case under the second prong of
our compelling need test.  That is, defense counsel did not necessarily leave a false
impression-he merely elicited probative testimony.  Accordingly, we hold that the trial court
erred under both prongs of our compelling need test in ordering the testimony over objection. 
And, as explained below, we hold that the error was harmful.
	The court of appeals reasoned that the substance of the testimony bore only on a trivial
matter and therefore could not have affected the jury's decision.  Examining the harm as
resulting from just the substance of the testimony is not the proper focus.  The court of
appeals concluded that the "testimony neither strengthened the State's case nor weakened
Flores's case," and it was unlikely that, in view of the overwhelming evidence of guilt, "the
average juror would have found the State's case less persuasive had the State never called
defense counsel to testify."  Flores, 90 S.W.3d at 880.  This is beside the point. (19)  The harm
flows, in part, from placing the lawyer in a dual role and the impressions created thereby,
which is the primary concern of the lawyer-witness rule cited to us by appellant.  Tex.
Disciplinary R. Prof. Conduct 3.08.  
	The facts of Venable illustrate the problem with looking to just the substance of the
testimony in determining whether a defendant is harmed by this type of error.  In Venable,
the facts to which the attorney testified were merely collateral-i.e., whether the witness was
notified by defense counsel about the criminal trial.  The harm, as perceived by the Maryland
court, had nothing to do with the substance of the testimony.  Instead, the court addressed its
concern to the overall effect of such a practice.  
	We believe a standard harm analysis would be inadequate to address the error which
is brought to bear on the proceeding itself. (20)  Framing the harm in this fashion demonstrates
why a Strickland  (21)analysis, as adopted by the court of appeals, is inadequate to address this
type of error.  If the focus is on the substance of the testimony, it obscures the greater
consideration of the continuing credibility of defense counsel as an advocate after testifying
as a witness.  These policy considerations, at the very heart of the lawyer-witness rule, should
be the focus of the harm analysis --not whether, upon the entire record, the substance of the
testimony elicited prejudiced appellant's case. (22) 
	We hold that, when there is a compelling need to call defense attorney as a witness
in the case, the trial court must take all appropriate ameliorative measures to prevent harm. 
Appropriate ameliorative measures include, but are not limited to: (1) substitution of another
attorney to replace defense counsel once it becomes apparent that the testimony is required; (23)
and (2) appointment of an additional attorney to represent the defendant during the
questioning of defense counsel if there is a compelling need for counsel to testify.  The
failure to take such measures affects the analysis.  The trial court must also be confident that
defense counsel's credibility before the jury will not be impugned, tarnished, or discredited
in any way; the jury will not be confused by the testimony, the subsequent argument relating
to the testimony, or the break in the proceedings; and the testimony will not involve, relate
to or touch upon any privileged communication.
	A lawyer acting as witness against his client cannot properly perform his duties to his
client.  With the lawyer on the stand and the client at counsel table, "it is impossible for the
defendant to consult with his attorney."  (24)  And, a lawyer who is testifying for the State
cannot adequately protect the record.  (25)  With our preservation rules, it would be a super-human accomplishment to lodge proper and specific objections to the questions while
testifying for the State.  (26)  Additionally, one would have to avoid divulging any privileged
information (27) and inadvertent admissions and anticipate the effect of one's answers, while
keeping in mind the issues upon which cross-examination of oneself would be required.  (28) 
And, after being burdened with this impossible task, the lawyer would then be faced with
cross-examining himself and arguing the client's case to the jury. (29)  Putting a defense
attorney in the position of arguing his own credibility to the jury is akin to striking the
defendant over the shoulder of his attorney. (30)  Our overall concerns were succinctly stated
by the Ohio Court of Appeals in State v. Livingston: (31)

The adversary system of justice is predicated upon the proposition that
justice will most surely prevail when adversaries are pitted one against
the other.  Under that system, it is the sworn duty of defense counsel
to use all honorable and legal means to defend a client charged with a
crime.  It is inconceivable that a lawyer, seeking to convince a jury of
the innocence of his client, or that the accused has not been proven
guilty, can perform that high duty when he assumes the dual role of
defense counsel and witness for the prosecution.  Such a procedure
sullies the entire legal profession.  More particularly, it is manifestly
unfair to the honorable trial counsel in this case, who was forced,
against his will, to testify against the very client he was sworn to
defend; his credibility as a lawyer immediately becomes suspect in the
eyes of the jury.  Above all, it was unfair to the defendant, who was
convicted with the help of his own lawyer's testimony.

Thus, in accordance with our holding today, the State may indeed call defense counsel to the
stand, and the court may require the lawyer testify, but the State will do so at its own peril. 

III.  Conclusion
	Because the trial court did not undertake any ameliorative measures, the concerns
brought about by calling a defense counsel as a witness against his own client have not been
assuaged here.  Therefore, we reverse the court of appeals and remand for a new trial. 

DELIVERED DECEMBER 15, 2004.
PUBLISH
 


1.  Appellant argued that he was denied a fair trial based on Ford v. State, 314 S.W.2d 101
(Tex. Crim. App. 1958), Texas Disciplinary Rule of Professional Conduct 3.08 (the lawyer-witness rule), and his right to a fair trial under the Fourteenth Amendment of the United States
Constitution.
2.  Flores v. State, 90 S.W.3d 875, 880, 883 (Tex. App.-San Antonio 2002). 
3.   Appellant argues that permitting the State to call defense counsel as a witness in a
criminal trial "undermines the adversarial process that is the cornerstone of the principle of Due
Process guaranteed by the 14th Amendment to the United States Constitution."  We agree.  One
can envision the "great mischief" that may result when defense counsel is called as a prosecution
witness.  Hanks v. United States, 420 F.2d 412, 413 (10th Cir. 1970).
4.   314 S.W.2d at 102. 
5.   Id. 
6.   Ullmann v. State, 230 Conn. 698, 717-18, 647 A.2d 324, 334 (1994) (adopting
compelling need test to be applied when either side in a criminal case seeks to call a prosecutor
or defense attorney, who is or has been professionally involved in the case, to testify); see also
United States v. Freeman, 519 F.2d 67, 68 (9th Cir. 1975); United States v. Hall, 346 F.2d 875,
882 (2d Cir. 1965) ("Defense counsel served merely as a conduit for transmission of a
message.").
7.   See generally LaFave & Israel, Criminal Procedure § 27.6(a) (2d ed. 1999) (origins
of harmless error review).  Texas's former harmless error rule was promulgated in 1986; Tex. R.
App. P. 81(b)(2). 
8.   Comment 4 to the lawyer-witness rule provides in its entirety as follows: "In all other
circumstances, the principal concern over allowing a lawyer to serve as both an advocate and
witness for a client is the possible confusion that those dual roles could create for the finder of
fact.  Normally those dual roles are unlikely to create exceptional difficulties when the lawyer's
testimony is limited to the areas set out in sub-paragraphs (a)(1)-(4) of this Rule.  If, however, the
lawyer's testimony concerns a controversial or contested matter, combining the roles of advocate
and witness can unfairly prejudice the opposing party.  A witness is required to testify on the
basis of personal knowledge, while an advocate is expected to explain and comment on evidence
given by others.  It may not be clear whether a statement by an advocate-witness should be taken
as proof or as an analysis of the proof."  Tex. Disciplinary R. Prof. Conduct 3.08 (1994).
9.  C.f. United States v. Prantil, 764 F.2d 548, 551-54 (9th Cir. 1985) (discussing advocate-witness rule and concluding that, while there is no absolute bar to calling a prosecutor as a
witness, sponsoring party must show "a 'compelling need" before a participating prosecutor will
be permitted to testify"); Ullman v. State, 647 A.2d at 333-37 (adopting "compelling need" test
when either party in a criminal case seeks testimony from an opposing advocate).
10.   United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975).
11.   C.f. Prantil, 764 F.2d at 551; United States v. Torres, 503 F.2d 1120, 1126 (2d Cir.
1974) ("[t]here was no showing that any of the other people who were in the courtroom at the
time Ortiz and Torres allegedly conversed, such as marshals, court clerks, court reporters or
interpreters, were unavailable to testify").
12.   672 A.2d 123 (Md. Ct. Spec. App. 1996).  Venable was charged with distribution of
cocaine.
13.   Id. at 128. 
14.   Id. (citing Kaeser v. State, 620 P.2d 872, 874 (Nev. 1980)). 
15.   Id. at 128-29. 
16.   As noted by the court of appeals, "[t]he interpreter's availability to testify was never
explored at trial."  Flores, 90 S.W.3d at 880 n.2.  
17.  An exception to the general rule that a party is not entitled to impeach a witness on a
collateral matter exists where a witness has left a false impression concerning a matter relating to
his or her credibility.  Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984).  In such a
case, the opposing party is allowed to correct that false impression.  
18.   It is clear to us that the situation here did not trigger the exception to the general rule
preventing cross-examination on a collateral matter.  See Flannery v. State, 676 S.W.2d at 370. 
19.   We find appellant's additional argument on this point persuasive.  In his brief on the
merits, he states that "[t]o permit this practice breaches the integrity of the constitutional process
leading to a defendant's conviction.  If we are to maintain the integrity of the process, it is not
enough to simply say 'the evidence against the defendant was overwhelming, or the testimony of
the defendant's attorney did not harm defendant, therefore, the conviction stands despite the
impropriety of calling the defense attorney as a witness.'" 
20.   State v. Livingston, 30 Ohio App. 2d 232, 285 N.E.2d 75, 77 (1972) ("the fact that
defendant's counsel was called as a witness for the state taints this entire trial so that the
defendant was denied the fair trial to which he is entitled.").
21.   Strickland v. Washington, 466 U.S. 668, 686 (1984).
22.   Moreover, our examination of the record reveals that the evidence of guilt was not
"overwhelming" as the court of appeals found.  Flores, 90 S.W.3d at 880.  For example, during
the investigation, the complaining witness first identified appellant's brother as the perpetrator,
who, when called to testify at appellant's trial, refused to testify, asserting his Fifth Amendment
right against self-incrimination.  
23.   The trial court must inquire of the defendant-not defense counsel-whether a new
attorney is desired.  See Venable, 672 A.2d at 129.
24.   Kaeser v. State, 620 P.2d at 873-74 (finding that right to appear and defend in person
under Nev. Const. art 1, § 8, and an accused's "sixth-amendment right" to counsel, offended by
calling defense counsel as rebuttal witness).  
25.   Id.  
26.   See id.; Tex. R. App. P. 33.1.
27.   We note that the most likely source of the information concerning the complaining
witness's inability to name his attacker was appellant, who was seated next to his attorney. 
28.   Attempts to cross-examine oneself may take on a ludicrous appearance.  State v.
Thomas, 631 P.2d 1387, 1390 (1981). 
29.   Id. (whether an attorney is able to retain a truly adversary posture, when it may appear
to a jury that he is playing on both teams, is at least problematical.).  
30.   Bray v. State, 478 S.W2d 89, 90 (Tex. Crim. App. 1972); Summers v. State, 147 Tex.
Crim. 519, 182 S.W.2d 720, 721-22 (1944). 
31.   285 N.E.2d at 77.

