                                    NO. 07-06-0134-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   MAY 31, 2007
                          ______________________________

                         JOHN RICHARD SIMONS, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

              FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY;

       NO. 99-03-A-2583-CR; HONORABLE ROBERT W. KINKAID, JR., JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


       This appeal challenges the revocation of community supervision based on a motion

filed by a prosecutor who previously represented appellant in the same action. Finding no

reversible error, we affirm the trial court’s judgment.


       Appellant John Richard Simons was charged with felony possession of a controlled

substance in 1999, in a proceeding conducted in the 64th District Court of Castro County.

Attorney James R. Horton was appointed to represent appellant. Appellant pled guilty in

July 1999 and was sentenced in accordance with a plea agreement to five years
confinement, suspended for a period of five years, a $1,000 fine, restitution, and

reimbursement of costs.


       The State filed a motion to revoke appellant’s community supervision in January

2000. The motion was dismissed at the State’s request in March 2000. The State’s

second motion to revoke was filed in July 2001 by James R. Horton, by then serving as

County and District Attorney for Castro County. It alleged violations of five of the terms and

conditions imposed on appellant. Counsel was appointed for appellant, and the motion to

revoke was heard in June 2002. Appellant executed a written stipulation of evidence and

pled true to violation of four conditions. After appellant pled true, but before the trial court

ruled on the motion, the prosecutor informed the court he had represented appellant when

the case was originally before the court noting “there would be a conflict there. Unless the

defendant has a problem with that conflict - -.” Defense counsel represented that appellant

“doesn’t have a conflict. I have talked with him and his parents and they feel comfortable

proceeding here today.” In response to the court’s question, appellant confirmed it was his

desire to proceed. The trial court continued appellant on community supervision, and in

May 2003 the payment terms of his community supervision were reworked through an

agreed order, also signed by Horton for the State.


       The State, again represented by Horton, filed a third motion to revoke in March 2004

alleging violation of three conditions of appellant’s community supervision. A capias was

issued the same month. The record reflects appellant was arrested on the capias in

February 2006 when he was released from custody in Oklahoma. On his request, counsel



                                               2
again was appointed to represent him.1 At the March 2006 hearing on the motion,

appellant again stipulated to evidence supporting the motion and pled true to each

allegation. The issue of Horton’s previous representation of appellant was not raised. The

trial court revoked the community supervision and imposed the original sentence of five

years confinement and a $1,000 fine.


       Appellant now presents a single point assigning error to prosecution of the motion

to revoke by a prosecuting attorney who had previously represented him in the same

action. He asserts the prosecutor’s conduct violated article 2.01 of the Code of Criminal

Procedure and his due process rights. He seeks reversal of the revocation order and

discharge from community supervision.        Citing article 1.14 of the Code of Criminal

Procedure, the State contends any conflict was subject to waiver and appellant waived the

complaint.2


       Appellant relies on State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Crim.App.

1990) (orig. proceeding), Ex parte Morgan, 616 S.W.2d 625 (Tex.Crim.App. 1981) (orig.



       1
       Appellant’s appointed counsel at this 2006 revocation proceeding was not the
same lawyer who represented him during the 2002 proceeding.
       2
         The State also relies on In re S.C., 790 S.W.2d 766 (Tex.App.–Austin 1990, writ
denied), as holding the absence of a showing the prosecutor had received any confidential
information harmful to appellant’s case and the failure to make a timely objection waives
any complaint. In re S.C., a civil case, is to be distinguished. In In re S.C. the attorney’s
prior representation was limited, involving one of three juvenile detention hearings in a
different case arising from different facts. The court found the prior matter was not
substantially related to the one before the court. 790 S.W.2d at 777. By contrast, Mr.
Horton represented appellant during his plea bargain and subsequent guilty plea in the
same case as the current revocation proceeding.


                                             3
proceeding), and Ex parte Spain, 589 S.W.2d 132 (Tex.Crim.App. 1979) (orig. proceeding).

In Morgan and Spain, like here, the same attorneys who represented the defendants at the

time they pled guilty and were placed on community supervision subsequently prosecuted

motions to revoke the community supervision in the same case.3 616 S.W.2d at 626; 589

S.W.2d at 133-34. Both challenges were presented in petitions seeking writs of habeas

corpus and the factual recitations in those opinions do not indicate the complaints had

been presented to the trial court. The Court of Criminal Appeals granted relief in both

cases. In Spain the court relied on Article 2.01 of the Code of Criminal Procedure

providing the district attorney shall represent the State in all criminal cases “except in cases

where he has been, before his election, employed adversely.” Tex. Code Crim. Proc. Ann.

art. 2.01 (Vernon 2005). It also cited American Bar Association Standards Relating to the

Prosecution Function and Defense Function cautioning against the prosecution of former

clients. The court condemned the practice, holding that when a district attorney prosecutes

a defendant the district attorney “previously represented in the same case, the conflict of

interest is obvious” and violates article 2.01 and the defendant’s right to due process. 589

S.W.2d at 134.4 It concluded, “The prosecutor in this case should never have initiated or



       3
        See also Ex parte Miller, 696 S.W.2d 908, 910 (Tex. Crim. App. 1985), overruled
on other grounds, Ex parte Richardson, 201 S.W.3d 712 (Tex.Crim.App. 2006) (orig.
proceeding), holding, in the context of a judge’s disqualification, that the proceeding
revoking probation is the same case as the proceeding in which probation was imposed.
       4
        Federal courts also find that “[D]ue 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). See also Garrett v. State, 252
S.W. 527, 529, 94 Tex.Crim. 556 (1922) (op. on rehearing) (quoting predecessor to article
2.01).

                                               4
participated in the revocation proceedings.” Id.5 The holding in Morgan was based on the

analysis in Spain. 616 S.W.2d at 626. Although Eidson, a mandamus proceeding, held

the trial court exceeded its authority by disqualifying a district attorney and his staff from

prosecuting a case,6 the opinion reaffirmed the holdings of Morgan and Spain with respect

to the rights violations that result from prosecution of a defendant by a prosecutor who

previously represented the defendant in the same matter. Eidson, 793 S.W.2d at 6-7.


       Spain’s holding disqualifying the district attorney from prosecuting the same case

in which he had represented the defendant has been referred to as a “hard and fast rule

of disqualification.” Edward L. Wilkinson, Conflicts of Interest in Texas Criminal Cases, 54

Baylor L. Rev. 171, 177 (2002). The Court of Criminal Appeals’ opinion in Johnson v.

State, 169 S.W.3d 223 (Tex.Crim.App. 2005) cert. denied, 546 U.S. 1181, 126 S.Ct. 1355,

164 L.Ed.2d 66 (2006), lists among the few situations in which convictions may be

overturned even though the trial court has done nothing wrong, that in which “the

prosecutor has a conflict of interest requiring recusal.” Id. at 229, citing Eidson, 793

S.W.2d at 6.




       5
          In addition to the obvious conflict of interest, the court in Spain said that
prosecution by a district attorney of the defendant previously represented in the same case
causes the integrity of the prosecutor’s office to suffer. 589 S.W.2d at 134. The State also
has an interest in being represented by an attorney who is not burdened by the danger of
conflicting obligations.
       6
        But see In re Goodman, 210 S.W.3d 805 (Tex.App.–Texarkana 2006) (orig.
proceeding), finding, under the circumstances presented, the trial court’s duty to disqualify
the prosecutor enforceable by mandamus.

                                              5
       We turn to the State’s waiver argument, which we must evaluate by reference to the

classification of rights described in Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.

1993), overruled in part on other grounds, Cain v. State, 947 S.W.2d 262, 264

(Tex.Crim.App. 1997). In Marin, the court distinguished among “systemic,” or absolute,

requirements and prohibitions, which cannot be waived or forfeited by the parties; rights

which are “waivable” only by express action of a defendant; and those which are

“forfeitable,” or lost if not requested by the defendant. Id. at 279.


       The initial question raised is whether the prohibition of prosecution of a defendant

by his former lawyer is an absolute prohibition, independent of the defendant’s wishes.

See Marin, 851 S.W.2d at 279 (referring to “requirements and prohibitions which are

essentially independent of the litigants’ wishes”). The Court of Criminal Appeals has said

that the clearest instances of nonwaivable, nonforfeitable systemic requirements are those

affecting the court’s jurisdiction, both subject matter and personal. Mendez v. State, 138

S.W.3d 334, 341 (Tex.Crim.App. 2004). Since Marin, the court has recognized additional

absolute requirements. Saldano v. State, 70 S.W.3d 873, 888-89 (Tex.Crim.App. 2002)

(listing such requirements). While Mr. Horton’s initiation and prosecution of the revocation

proceeding against appellant raise the issue of his authority to take those actions, they do

not raise an issue about the court’s jurisdiction to adjudicate the proceeding or about its

jurisdiction over appellant. Nor are any of the additional absolute requirements listed in

Saldano implicated here.      We conclude that the district attorney’s actions did not

contravene a systemic, absolute prohibition under Marin’s framework.




                                              6
       At oral argument, appellant’s counsel made us aware of the recent opinion of the

Texarkana court of appeals in In re Goodman, a mandamus proceeding. In a rather

thorough discussion of the dangers to a fair trial that attend the prosecution of a defendant

by his former attorney, the court found the relator’s due process rights were jeopardized

under the circumstances present in that case. 210 S.W.3d at 814. Goodman does not

involve an issue of waiver, however, nor was the characterization of the defendant’s rights

under Marin an issue before the court. The case is not dispositive of the issue before us.


       Marin’s second category comprises “rights of litigants which must be implemented

by the system unless expressly waived.” 851 S.W.2d at 279. A litigant is not deemed to

have given up such a right unless “he says so plainly, freely, and intelligently, sometimes

in writing and always on the record.” Id. at 280; see Garcia v. State, 149 S.W.3d 135, 143

(Tex.Crim.App. 2004) (discussing waiver of category-two Marin right). Here, as noted, at

the 2002 revocation proceeding, the prosecutor raised the issue of his prior representation

of appellant. Although appellant’s counsel did not use the term “waive,” she told the court

she had consulted with her client about the prosecutor’s conflict of interest, and that he had

agreed to proceed despite the conflict. The court confirmed that was appellant’s wish.

Nothing in the record of that hearing causes us to doubt that appellant’s decision to

proceed with the hearing was freely and intelligently made. We agree with the State that

appellant there waived his right not to be prosecuted by his former lawyer.7

       7
         Characterization of appellant’s prosecution by his former lawyer as a due process
violation does not preclude its waiver. See, e.g., Ieppert v. State, 908 S.W.2d 217, 219
(Tex.Crim.App. 1995) (acknowledging that due process rights can be “waived”); Rogers v.
State, 640 S.W.2d 248, 265 (Tex.Crim.App. 1982) (op. on second motion for reh’g) (lack
of objection on due process grounds to failure to hold probation revocation hearing waived
error).

                                              7
       The question now becomes whether appellant’s waiver was effective only for the

2002 proceeding on the State’s second motion to revoke, when his probation was

continued, or remained in effect for the State’s third motion to revoke. In addressing this

question, we find guidance in the Court of Criminal Appeals’ opinion in Mendez, 138

S.W.3d 334. The appellant there contended the trial court erred by failing to withdraw, sua

sponte, his guilty plea before the jury when evidence inconsistent with his guilt was

presented. His appellate complaint was raised for the first time on appeal. Id. at 342. The

court analyzed rules relating to a criminal defendant’s plea in a jury trial, and found the

defendant has a right to plead not guilty that is waivable, under the Marin classification.

Id. at 343. Completing its analysis, the court concluded that once a defendant has made

a valid waiver of his right to plead not guilty, “it is appropriate that the defendant be

required to take some affirmative action to don the armor again.” In the absence of a

timely effort by the defendant to withdraw his plea of guilty, the court held, he could not

complain on appeal that the trial court failed to do it for him. Id. at 350.


       As a part of its analysis in Mendez, the court noted that the reasons a particular

defendant chooses to plead guilty are better known to that defendant than to the trial court.

Id.   Likewise, appellant is in the best position to know his reasons for waiving the

prosecutor’s conflict of interest in 2002, and to know whether those reasons remained

applicable to the later revocation proceeding. Although the proceedings were separated

by several years and their outcomes were different, they were alike in their essentials. The

grounds alleged in both motions included appellant’s commission of a violation of

Oklahoma law. In both revocation proceedings, appellant stipulated to the evidence


                                              8
supporting the allegations of Oklahoma law violations and pled true to those allegations,

as well as to more technical violations. In the absence of some indication that appellant

desired, when the State pursued its third motion to revoke his community supervision, to

don again the previously-removed armor protecting him from the prosecutor’s conflict of

interest, we conclude his earlier waiver remained effective.


       We echo here the Court of Criminal Appeals’ statement in Spain: “The prosecutor

in this case should never have initiated or participated in the revocation proceedings.” 589

S.W.2d at 134. Finding, however, that the district attorney’s doing so did not transgress

an absolute prohibition under the applicable law, and that appellant freely waived his

objection to the resulting conflict of interest, we overrule appellant’s point of error, and

affirm the trial court’s judgment.




                                                 James T. Campbell
                                                      Justice



Publish.




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