                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00149-CR
         ______________________________


        LESLIE GENE GOODMAN, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the Sixth Judicial District Court
                 Lamar County, Texas
                Trial Court No. 21313




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
        Concurring Opinion by Justice Carter
                                            OPINION

       Unfortunately, Leslie1 Gene Goodman has a history of driving while intoxicated (DWI). In

fact, he had previously been defended on an earlier DWI charge by Gary Young, the current county

attorney of Lamar County, whose office prosecuted Goodman on this DWI charge.

       This DWI charge arose from a single-vehicle accident in which Goodman's pickup truck was

seen running a stop sign, crossing a street, and colliding with a utility pole.2 The trial resulted in a

jury verdict finding Goodman guilty of a third-offense DWI and the trial court's sentence of thirty

years' imprisonment.

       On appeal, Goodman claims error in the trial court's failure to disqualify the prosecutor and

in admitting into evidence blood test results and a statement from a nontestifying witness. We affirm

the trial court's judgment because (1) no prejudice has been shown from Young's prior representation

of Goodman, (2) the trial court did not abuse its discretion in finding that Goodman's blood was

tested for medical purposes, and (3) admitting Stewart's statement to police was not harmful error.


       1
         We recognize that appellant is identified both as "Lesily" and "Leslie" at different locations
in the record. For consistency, we identify appellant as "Leslie" in this opinion.
       2
         Two citizens saw the wreck and observed a man walking away from the accident site. One
citizen attempted to stop him, or perhaps to help him, but the man left on foot with the citizen
following. Officers arrived shortly, and the citizen directed them to a man, who turned out to be
Goodman. One officer drove up behind Goodman, who was walking down the side of the street in
a residential area, and yelled at Goodman to "get down, man." Goodman ignored the officer and
continued to amble away at a leisurely pace. The officer bailed out of his squad car, ran up behind
Goodman, and tackled him from behind. Goodman went down like a sack of potatoes on the side
of the road. Afterward, Goodman had several broken ribs, a collapsed lung, and a head injury where
his head had contacted the curb.

                                                   2
(1)        No Prejudice Has Been Shown from Young's Prior Representation of Goodman

           The struggle arising due to Young's prior representation of Goodman has an extensive

history.

           Young represented Goodman as defense counsel in a DWI case in 2000. Thereafter, in 2004,

Young was elected county attorney of Lamar County, an office that involves the duties of a

prosecutor. In 2006, Goodman was prosecuted for another DWI. At that time, Goodman sought to

have Young disqualified to act as prosecutor3 because Young had previously represented him as

defense counsel in the 2000 prosecution.4 Goodman argued that he had provided Young confidential

information about his ongoing drinking problems during the course of the representation. Young

contested the request, and the trial court refused to disqualify him.

           Goodman sought mandamus relief from this Court. We found that confidential information

had been given to Young by Goodman and that the present DWI prosecution involved matters that

were substantially related to the prior DWI prosecution. We concluded that, therefore, Young should

have been disqualified. We granted the mandamus petition. Young then took the matter before the


           3
         At Goodman's trial, assistant county attorneys Jill Drake and William Harris represented the
State. If the prosecuting attorney is disqualified because of an actual conflict of interest, all of his
or her assistant prosecuting attorneys are also disqualified. Scarborough v. State, 54 S.W.3d 419,
424 (Tex. App.—Waco 2001, pet. ref'd).
       4
         In the pretrial hearing that resulted in the Goodman mandamus, in support of his position
that the prosecutor should be disqualified in this case, Goodman presented affidavits stating (a) that
Young had represented Goodman in a previous DWI case, (b) that Goodman had confidentially
discussed his drinking habits at length with Young, and (c) that Goodman's drinking habits were an
integral part of the prosecution of his current case.

                                                   3
Texas Court of Criminal Appeals, which concluded that the rules requiring Young to disqualify did

not have the "indubitable provenance" to justify rendering a mandamus against the trial court.

        Thereafter, in a direct appeal of another case involving Young, the Texas Court of Criminal

Appeals again addressed the issue of prosecutor disqualification. See Landers v. State, 256 S.W.3d

295 (Tex. Crim. App. 2008) (including standard of review and proof needed to disqualify state's

attorney in criminal case).

        Levels of required proof differ between mandamus cases and direct appeals. Compare id.

(disqualification issues on direct appeal); State ex rel. Young v. Sixth Judicial Dist. Court of Appeals,

236 S.W.3d 207 (Tex. Crim. App. 2007) (disqualification issues on mandamus). On a direct appeal,

such as this case, the standard of review for disqualification of the prosecutor by the trial court is

whether the court abused its discretion. Landers, 256 S.W.3d at 303. Under that analysis, the trial

court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement."

Id. As in all reviews of a discretionary ruling, when reviewing the historical facts on which the trial

court's ruling on a motion to disqualify is based, we are to 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 evaluation of credibility and demeanor." Id. When the defendant

contends that the lower court erred in applying the law to the trial court's findings, our

review is de novo.




                                                   4
        Our substantive frame of reference in this case starts with Rule 1.09(a)(3) of the Texas

Disciplinary Rules of Professional Conduct. That rule 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 same5 or a substantially related matter." TEX .

DISCIPLINARY R. PROF'L CONDUCT § 1.09(a)(3).               A prosecuting attorney is not, however,

automatically disqualified from prosecuting a person whom he or she had previously represented,

even when it is for an offense that is substantially related to that for which he or she defended the

individual in a prior representation. Landers, 256 S.W.3d at 304.

        If a prosecutor refuses to step down, the trial court may disqualify the prosecutor only on the

basis of a conflict of interest that rises to the level of a due-process violation. State ex rel. Hill v.

Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994). In attempting to apply the law to this type of

situation, the Texas Court of Criminal Appeals—recognizing the need to consider the elected nature

of the prosecutor's office, not just his or her personal ethical obligations—has stated that a

prosecuting 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



        5
        Both the Texas Legislature and the Texas courts have held that a prosecuting attorney who
has formerly represented the defendant in the "same" criminal matter as that currently being
prosecuted is statutorily disqualified. When a prosecuting attorney switches sides in the same
criminal case, an actual conflict of interest is apparent that constitutes a due-process violation, even
without a specific showing of prejudice. This is described as a "hard and fast rule of
disqualification." Landers, 256 S.W.3d at 304. This appeal is clearly not from the same case.

                                                    5
       nor appellate courts can patrol the outskirts of the possible appearance of impropriety
       by a duly elected district attorney.

That court concluded that a prosecutor could be disqualified only for a violation of the defendant's

due-process rights, not for violations of the Disciplinary Rules of Professional Conduct alone.

Landers, 256 S.W.3d at 310 (no abuse of discretion in denying defense's motion to disqualify

prosecutor who had represented defendant in prior alcohol-related offense that was similar to, but

not same, as pending charge); 1 TEXAS CRIMINAL PRACTICE GUIDE § 1.05 (Matthew Bender & Co.

ed. July 2009).

       Landers explained that 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. Actual prejudice, for example, would occur if the prosecuting

attorney previously personally represented the defendant in "a substantially related matter" and in

that representation obtained "confidential" information and used it to the defendant's disadvantage.6

The information provided to the attorney must actually be confidential. Landers, 256 S.W.3d at 308.




       6
          Thus, the disqualification rule as announced by the Texas Court of Criminal Appeals is less
strict than that in civil cases—where a private attorney may be disqualified merely on a showing that
the attorney had previously represented the adverse party in "a substantially related matter."

                                                 6
       (a)     The Cases Are Substantially Similar, and Confidential Communications Passed
               Between Goodman and Young in the Earlier Representation

       In our 2006 Goodman opinion, we reviewed in great detail the evidence that would be

presented at trial and the nature of the confidential information revealed to Young during his prior

representation. In that opinion, we made a number of observations from the evidence:

C      The conviction in which Young represented Goodman would be used as an enhancement in
       this case.

C      Young had submitted a bill for 8.49 hours of work in the earlier case, listing five separate
       conferences between the two.

C      At the hearing on the motion to disqualify, Goodman testified he was represented by Young
       in one of the DWI cases being used as a jurisdictional enhancement.

C      Goodman also testified that he had disclosed confidential information about himself and the
       facts of that case, including telling Young of his "alcohol issue." When questioned by the
       State about the "public record" aspect of his drinking, Goodman pointed out that the number
       of beers he drank a day was not on public record.

C      Goodman also expressed his fear that Young would use those confidential
       communications—especially those concerning how much he drank on a daily basis—against
       Goodman during the trial on these charges.

In re Goodman, 210 S.W.3d 805, 809 (Tex. App.—Texarkana 2006, no pet.). That evidence is

undisputed. Based on that evidence, we previously concluded that the two cases were substantially

related and that confidential information7 had passed between Goodman and Young.



       7
        The court defined confidential communications as one 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. Landers, 256 S.W.3d at 309.

                                                 7
       The State argues that the matter is not substantially related because "prosecution for the same

type of offense did not, by itself, make the two proceedings substantially related." The State bases

its argument on language abstracted from Landers, taking the position that there is no showing how

the "same or inextricably related facts, circumstances or legal questions were at issue in both

proceedings." Thus, the State concludes, the two proceedings are not substantially related. We

disagree.

       The State also asserts that we have acknowledged erroneously finding, in our Goodman

mandamus opinion, a substantial relationship between the two cases. It bases that argument on our

recognition that the Texas Court of Criminal Appeals had found we erred in our mandamus ruling.

We disagree with that assertion also. That holding by that court goes no further than to hold that the

application of the disqualification rule was not so clear as to be enforceable by mandamus. It does

not suggest that our evidentiary observations in that opinion were incorrect. Neither Landers nor

the opinion of the Texas Court of Criminal Appeals in its review of our Goodman mandamus action

have thrown our conclusions on those matters into doubt. The mere fact that the Texas Court of

Criminal Appeals found mandamus an inappropriate remedy does not imply a holding that those

conclusions were incorrect.

       We see no reason to retreat from our conclusions on those matters. Neither Goodman nor

the State has directed us to any additional evidence that would impact that determination.




                                                  8
       (b)     There Has Been No Showing of Actual Prejudice

       Having determined that Young previously personally represented Goodman in a substantially

related matter and received confidential communications from Goodman on the relevant topics, we

are now required to move to the other part of the analysis and look for actual prejudice8—to see

whether the prosecutor used any confidential information to Goodman's disadvantage.

       The record of the entire proceeding is before this Court. We thus examine the entirety of the

record to determine if actual prejudice has been shown. We note that Landers, where the court

reviewed a direct appeal, did not describe the analysis as a review for harm. Instead, the court

reviewed the actions of the prosecutor, in light of the information the appellant claimed Young had

learned during his prior representation (there was none) that might be used against her, in its search

for actual prejudice.9

       Goodman's only real argument is that his due-process rights were violated by (a) requiring

him to testify at the pretrial hearing about the precise nature of the communications with Young

about the number of beers he drank every day; (b) his inability to call Young as a witness during

guilt/innocence, postulating that he might have been called to explain possible flaws in the


       8
         Goodman cites a series of cases from other jurisdictions (some civil, some criminal) holding
that a defendant's due-process rights are violated when his former defense counsel prosecutes him
or her in a substantially related case. Those cases are well reasoned and persuasive, but the Texas
Court of Criminal Appeals' requirement of actual prejudice is controlling before this Court.
       9
         The court did state in a footnote that Young did not cross-examine Landers using
information that he had obtained during his representation, but the opinion does not rely in any form
on that fact.

                                                  9
enhancement case, or in punishment to explain theft by check charges he managed to get dismissed;

(c) the fact that the current prosecutor was the person whose name appeared on court documents as

Goodman's previous defense counsel; and (d) animosity between Goodman and Young.

       Goodman has directed us to no evidence or testimony that shows he was actually prejudiced

as a result of Young's serial representations. Since Goodman can show no prosecutorial act or

omission, in this case, springing from any confidences disclosed in the earlier representation, actual

prejudice has not been shown.

       We overrule this contention of error.

(2)    The Trial Court Did Not Abuse Its Discretion in Finding that Goodman's Blood Was Tested
       for Medical Purposes

       Goodman also contends that the trial court erred by allowing into evidence the hospital

blood-test results showing his excessive blood-alcohol level. His argument is phrased as a violation

of his constitutional right to confrontation and as a violation of Section 724.017 of the Texas

Transportation Code.

       The general constitutional claim is that he was denied the related right to cross-examine

witnesses for the State with regard to the blood testing. Goodman points out that, although there was

evidence from an Emergency Medical Services worker that blood was drawn and from a laboratory

supervisor that testing was done, the records show only that a call from the laboratory stated the

results and that the person who actually did the testing did not testify at trial. Thus, Goodman




                                                 10
argues, the admission of the results violated his rights under the Confrontation Clause of the Sixth

Amendment to the United States Constitution. See Crawford v. Washington, 541 U.S. 36 (2004).

       To reach that argument, however, the laboratory report must be "testimonial" evidence and

thus subject to the Confrontation Clause, as explained in Crawford. Crawford applies the

Confrontation Clause only to testimonial statements of absent witnesses. Id. at 180.

       These cases require the Court to determine which police "interrogations" produce
       statements that fall within this prohibition. Without attempting to produce an
       exhaustive classification of all conceivable statements as either testimonial or
       nontestimonial, it suffices to decide the present cases to hold that statements are
       nontestimonial when made in the course of police interrogation under circumstances
       objectively indicating that the primary purpose of interrogation is to enable police
       assistance to meet an ongoing emergency. They are testimonial when the
       circumstances objectively indicate that there is no such ongoing emergency, and that
       the primary purpose of the interrogation is to establish or prove past events
       potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813 (2006).

       Our task, therefore, is to review the trial court's decision on whether the blood-alcohol test

was made primarily for the purpose of establishing or proving past events relevant to a later

prosecution.

       In this case, the State stipulated that there had been a statement made in a discussion between

the officers in which one stated that they were going to "take him to the hospital so they could do a

blood draw." Were that the entire story, that suggests the report was testimonial in nature.

       Officer Mike Ford testified at a suppression hearing, however, that, although Goodman was

not transported by ambulance, Ford took him to the hospital because, "I wanted to make sure that


                                                 11
he was not injured more severely than . . . I could see, so it was for his well-being and his care." He

specifically testified that he did not take him there as part of his investigation and that he did not

request that blood be drawn. Kimberly Miller, a nurse who cared for Goodman, testified that his

blood was drawn that day for medical care, not at law enforcement request.

       An appellate court reviewing the trial court's decision on the admissibility of evidence may

reverse it only for an abuse of discretion, i.e., only when the trial court's decision was outside the

zone of reasonable disagreement. Shuffield v. State, 189 S.W.3d 782, 792 (Tex. Crim. App. 2006).

There was evidence cutting both ways. In such a situation, the trial court could reasonably find both

that the blood was not drawn at the request of law enforcement and that it was tested for medical

purposes. Thus, the court could conclude that the report was not testimonial and that Crawford was

therefore not implicated. The same conflict in evidence also negates Goodman's contention under

the Texas Transportation Code, which allows only certain categories of individuals to draw blood

for the purpose of alcohol testing. There is ample evidence to support a conclusion that Goodman's

blood was drawn for medical purposes.10 We find no abuse of discretion.

       We overrule this contention of error.

(3)    Admitting Stewart's Statement to Police Was Not Harmful Error

       Goodman also contends that the trial court improperly admitted hearsay statements by Robin

Stewart, as related by Ford, at the trial. The statement, as related by the officer, was given by



       10
            TEX . TRANSP . CODE ANN . § 724.017 (Vernon Supp. 2009).

                                                  12
Stewart to police at the scene of the accident. Goodman complains that the evidence was

inadmissible hearsay and that its admission violated his constitutional right to confront Stewart, a

witness against him. We hold that admitting the statement was not harmful error because of these

conclusions: (a) hearsay was not erroneously admitted, because Stewart's statement was a present-

sense impression and Goodman "opened the door" to its admission; and (b) no reversible Crawford

violation occurred, because Goodman "opened the door" to its admission and it was harmless beyond

a reasonable doubt.

        It appears that Ford took a written statement from Stewart, that a copy was later e-mailed to

her, and that she returned it. The record also shows that, thereafter, police efforts to contact Stewart

were uniformly unsuccessful. The gist of Stewart's statement was that she had stopped after seeing

the pickup truck run a stop sign, cross a street, and hit a utility pole; that she did not see the driver

of the vehicle well enough to identify him; that the second vehicle stopped behind her; and that its

occupant got out and followed the person who got out of the pickup truck. The driver of that second

vehicle, Darryl Morgan, testified that he had followed Goodman as he attempted to get away from

the scene and had directed officers to Goodman's location.

        The statement was first brought up by the State by asking whether witness statements were

taken. On cross-examination, counsel asked Ford whether Stewart had told him that the person in

the vehicle was wearing a white baseball cap. Ford's answer was that he would have to refer to

Stewart's statement. Counsel declined that invitation and asked again whether he remembered such



                                                   13
a comment. Ford sidestepped, stating that another officer had talked to her more, while Ford was

taking care of Goodman.

       Goodman's counsel then, however, went on to ask (in the vein of refreshing Ford's memory)

if, in her statement, Stewart had told him about the baseball cap. The question was so phrased as a

setup for the next series of questions; Goodman was wearing no cap, and none was found. The issue

being addressed was whether Goodman was indeed the person who had driven the wrecked truck;

there was no direct identification of him behind the wheel of the vehicle.

       The State then, on redirect, began delving into the contents of Stewart's statement. At that

point, counsel objected on confrontation grounds. After a brief voir dire, counsel again objected, on

confrontation grounds and because her statement, as read by the officer, was hearsay.

       (a)     Hearsay Was Not Erroneously Admitted, Because Stewart's Statement Was a
               Present-Sense Impression and Goodman "Opened the Door" to Its Admission

       The State argues that Stewart's statement was admissible, over the hearsay objection, as an

excited utterance. We disagree. For the excited-utterance exception to apply, three conditions must

be met: (1) the statement must be a product of a startling occurrence that produces a state of nervous

excitement in the declarant and renders the utterance spontaneous and unreflecting, (2) the state of

excitement must still so dominate the declarant's mind that there is no time or opportunity to contrive

or misrepresent, and (3) the statement must relate to the circumstances of the occurrence preceding

it. Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. [Panel Op.] 1979); Mumphrey v. State,

155 S.W.3d 651, 663 (Tex. App.—Texarkana 2005, pet. ref'd); see Wall v. State, 184 S.W.3d 730


                                                  14
(Tex. Crim. App. 2006) (discussion in testimonial context). The critical factor in determining when

a statement is an excited utterance under Rule 803(2) "is whether the declarant was still dominated

by the emotions, excitement, fear, or pain of the event." Lawton v. State, 913 S.W.2d 542, 553 (Tex.

Crim. App. 1995) (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). The

time elapsed between the occurrence of the event and the utterance is only one factor considered in

determining the admissibility of the hearsay statement. Id. That the declaration was a response to

questions is likewise only one factor to be considered and does not alone render the statement

inadmissible. Id. The admissibility of an out-of-court statement under the exceptions to the general

hearsay exclusion rule is within the trial court's discretion. Coffin v. State, 885 S.W.2d 140, 149

(Tex. Crim. App. 1994); see TEX . R. EVID . 801–06.

       There is no evidence about the length of time that had elapsed, Stewart's state of mind at the

time, or whether she experienced any excitement. This was a minor one-vehicle accident with no

apparent injuries or other individuals or automobiles involved. In the absence of any evidence about

the context surrounding the statement, we find no support for the State's assertion that this was an

excited utterance.

       That said, the testimony was still admissible over the hearsay objection as a present-sense

impression.11 A present-sense impression is a statement describing a condition either while



       11
         Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). "If the ruling was correct
on any theory of law applicable to the case, in light of what was before the trial court at the time the
ruling was made, then we must uphold the judgment."

                                                  15
perceiving the condition or event or immediately thereafter. See TEX . R. EVID . 803(1). Even on the

thin evidence provided of the context in which the statement was taken, it is apparent that it was

taken closely in time to the incident, before Stewart left the scene, and the statement described the

event and conditions she had observed. We do not reverse a trial court's ruling on the admission of

evidence unless that ruling falls outside the zone of reasonable disagreement. Shuffield, 189 S.W.3d

at 792. Under an abuse of discretion standard, the court's ruling was easily within that zone.

       It also appears that the trial court's reason for admitting the testimony is also correct: defense

counsel had opened the door to the admission of further testimony from the statement by bringing

a portion of its contents before the jury.

       When part of an act, declaration, conversation, writing or recorded statement is given
       in evidence by one party, the whole on the same subject may be inquired into by the
       other, and any other act, declaration, writing or recorded statement which is necessary
       to make it fully understood or to explain the same may also be given in evidence, as
       when a letter is read, all letters on the same subject between the same parties may be
       given. "Writing or recorded statement" includes depositions.

TEX . R. EVID . 107.

       The difficulty in analyzing this argument lies in the need to determine what is necessary to

make the portion brought up by defense counsel fully understood or explained fairly. In this case,

as the purpose for defense counsel's questioning about the white ball cap and Stewart's statement was

to cast doubt on the identification of Goodman as the driver, the State could legitimately bring in the

additional statements to show the remainder of her observations that tended to implicate Goodman




                                                  16
as the driver, not just the singular question of whether he was wearing a hat. The testimony was

properly admissible under this theory.

        (b)     No Reversible Crawford Violation Occurred, Because Goodman "Opened the Door"
                to Its Admission and It Was Harmless Beyond a Reasonable Doubt

        Goodman also contends, however, that to allow Stewart's statement into evidence violates

his constitutional right to confront the witnesses against him under Crawford. Since we have

concluded that Goodman opened the door to the admission of the evidence, no Crawford error has

been shown.

        Even if the door had not been opened, the admission of the evidence was harmless beyond

a reasonable doubt. See Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006). Under Rule

44.2(a) of the Texas Rules of Appellate Procedure, we must "calculate, as nearly as possible, the

probable impact of [any] error on the jury in light of the other evidence." Id.; see TEX . R. APP . P.

44.2(a) If there is a reasonable likelihood that the error materially affected the jury's deliberations,

then the error is not harmless beyond a reasonable doubt. As explained by the Texas Court of

Criminal Appeals, "if an appellate court rules that a constitutional error in the admission of evidence

is harmless, it is, in essence, asserting that the nature of that evidence is such that it could not have

affected the jury's deliberations or verdict." Id.

        Stewart's statement was cumulative of testimony from the citizen who chased Goodman

down and the testimony of the officer. It provided nothing new and little to no explanation of




                                                     17
anything involved in the incident. It was, at most, a rather dry summary. The statement itself was

not read to the jury; the officer merely hit the highlights.

          The testimony consisted of perhaps three pages, most of which was discussion between

counsel and rulings by the trial court. It is not emotionally charged, it is not detailed; in fact, it

provides nothing beyond that already properly admitted as evidence.

          We conclude that any error is harmless beyond a reasonable doubt.

          We affirm the judgment of the trial court.



                                                          Josh R. Morriss, III
                                                          Chief Justice

                                       CONCURRING OPINION

          The Texas Court of Criminal Appeals has held that a due-process violation is shown in this

setting

          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. Actual
          prejudice would occur, for example, if:

          1. the prosecuting attorney has previously personally represented the defendant in "a
          substantially related matter"; and

          2. the prosecuting attorney obtained "confidential" information by virtue of that prior
          representation which was used to the defendant's disadvantage.

Landers v. State, 256 S.W.3d 295, 305 (Tex. Crim. App. 2008).




                                                     18
       We have found that the prosecutor previously represented Leslie Gene Goodman in a

substantially related matter and obtained confidential information by virtue of that prior

representation. The only remaining matter is whether the confidential information was used to the

defendant's disadvantage.      If one must prove the prosecutor actually presented in open court

during the trial evidence that demonstrates the use of a confidential communication, there will be

no prosecutorial disqualifications in the State of Texas. It would take a particularly dull prosecutor

to place into the trial record evidence demonstrating that he or she "used" the confidential

information.    Lawyers, including prosecuting attorneys, "use" information in a myriad of

ways—most of which do not find their way into the trial record.

       First, a prosecuting attorney has an enormous amount of discretion about which cases to

pursue and uses whatever information, from whatever source, to make such prosecutorial decisions.

If an indictment is filed, judgments about guilty pleas and the terms thereof allow a prosecutor to use

whatever knowledge or information obtained by any source, including confidential information from

a previous client. During the selection of a jury, lawyers routinely use information acquired by their

own experiences, conversations, or possibly confidential communications. During the course of the

trial, the prosecutor may use information, known only to the prosecutor, to prompt a line of direct

or cross-examination. Witnesses may be found based on personal or confidential information. This

is only a small number of the many ways lawyers might use confidential information in trial




                                                  19
prosecution to a defendant's disadvantage. Needless to say, none of this will be reflected in the trial

record.

          The point is that requiring actual proof in the record that such confidential information is

"used to the disadvantage of the defendant" is virtually an impossible burden. In this case, we have

found that Goodman has not directed us to "evidence or testimony" that shows he was actually

prejudiced by the prosecutor's previous representation of him. That burden of proof is not required

in Texas civil cases where the stakes only involve money or property, but in criminal cases, where

personal liberty is involved, we now require far greater proof for disqualification of the state

attorney.12 It is true that prosecuting attorneys are elected officials, but a prosecutor is first an

attorney subject to the same rules of conduct as all other attorneys and duty bound to uphold the

integrity of legal proceedings. The rationale for the distinction between civil and criminal cases in

Texas is that in civil cases, there is no necessity to prove that a due process violation occurred. State

ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 213 (Tex.

Crim. App. 2007) ("But there is no requirement in the civil context that the failure to disqualify

counsel must rise to the level of a due-process violation."). Unquestionably, when a due process



          12
          The Texas Supreme Court has held in civil cases that disqualification of counsel may only
occur when "the matters embraced within the pending suit are substantially related to the factual
matters involved in the previous suit . . . . Sustaining this burden requires evidence of specific
similarities capable of being recited in the disqualification order. If this burden can be met, the
moving party is entitled to a conclusive presumption that confidences and secrets were imparted to
the former attorney." NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (citations
omitted).

                                                   20
violation is demonstrated, the prosecutor must be disqualified and error is apparent, but that does not

necessarily lead to the conclusion that a due process violation is the only instance in which a

prosecutor should be disqualified. The requirement to prove a due process violation is one we have

chosen to impose in Texas criminal cases even though that burden is not required in Texas civil

cases or in criminal cases in several other states.

       In Reaves v. State, 574 So. 2d 105, 107 (Fla. 1991), the Florida Supreme Court held that a

conviction must be reversed if the trial court denies a pretrial defense motion to disqualify a

prosecutor who previously has represented the defendant in any criminal matter that involved or

likely involved confidential communications with the same client.

       The Supreme Court of Washington in State v. Stenger, 760 P.2d 357 (Wash. 1988), held that

the prosecuting attorney's prior representation of a first degree murder defendant in unrelated

criminal matters while the attorney was in private practice required disqualification of the attorney

from participation in this death penalty murder prosecution, where the defendant had confided

uncharged crimes, drug use, and anti-social behavior to the attorney during the prior representation.

The court concluded that there were matters which could influence the attorney's discretion to seek

the death penalty.

       The Arizona Supreme Court disciplined an attorney who formerly represented the defendant

in three DUI cases and then prosecuted him in another DUI case. According to the court, the

attorney's conduct in prosecuting his former client created a substantial danger that confidential



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information revealed in the course of the attorney-client relationship would be used against the client

by his former attorney. In re Ockrassa, 799 P.2d 1350 (Ariz.1990).

       Other cases involved the same difficulty as presented here—the prosecuting attorney

represented the defendant in prior cases wherein the defendant was convicted and those convictions

are used to enhance punishment in the present case. The Indiana Supreme Court considered the

enhancement allegations to be substantially related to the present prosecution and noted "that even

though the defendant's prior convictions were a matter of public record, it could not be said "without

speculation that the prosecutor's knowledge of these prior cases will not actually result in prejudice

to defendant." State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind.1982); see also State

ex rel. Keenan v. Hatcher, 557 S.E.2d 361, 370 (W. Va. 2001) ("[T]he circumstance we face here,

where the prosecutor represented the defendant in connection with the predicate convictions, simply

raises too great a danger that a client's confidences may be betrayed. The Court therefore holds that

a prosecutor is disqualified from representing the State in a recidivist proceeding . . . where such

lawyer acted as defense counsel in connection with the prior felony convictions that are the basis for

such proceeding.").13

       We cannot expect a system of justice that is perfect and at all times achieves a just result.

But the machinery of our criminal justice system should be structured, as much as is reasonably

possible, to accomplish that goal. One of the ingredients of justice is that the trial "must satisfy the

       13
        Admittedly, Texas is not the only state to require a showing of a due process violation. See
Landers, 256 S.W.3d 295 (summarizing other jurisdictions with similar holdings).

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appearance of justice." Offutt v. United States, 348 U.S. 11, 14 (1954). Requiring a high standard

of conduct for the administrators of our judicial system is a small price to pay to achieve justice.

       With these comments, but also recognizing controlling precedent, I concur with the majority

opinion.



                                                      Jack Carter
                                                      Justice

Date Submitted:        September 16, 2009
Date Decided:          December 1, 2009

Publish




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