
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-046-CR
 
 
STEVEN 
HARRY POWERS                                                       APPELLANT
 
V.
 
THE 
STATE OF TEXAS                                                                  STATE
 
 
------------
 
FROM 
COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
 
------------
 
OPINION
 
------------
I. Introduction
        A 
jury found Appellant Steven Harry Powers guilty of driving while intoxicated (DWI), 
and the trial court sentenced him to 150 days in jail, probated for two years, 
and imposed a $750 fine.  The primary issue we address in this appeal is 
whether the trial court erred by overruling Powers’s objection to the dual 
roles played in this case by attorneys in the district attorney’s office: 
prosecutor and witness.  Because we hold that Powers satisfied his burden 
of showing the dual roles performed by assistant district attorneys in this case 
deprived him of a fair trial or otherwise affected his substantial rights, we 
will reverse and remand.
II. Background 
Facts
        On 
August 27, 2001, at approximately 9:30 p.m., Shannon Serrano, a cashier at a 
Texaco station located at 501 Avenue H in Arlington, Texas, looked out the gas 
station window and noticed a white car speeding down the adjacent road.  
Shortly thereafter, Serrano heard a crash and observed that the same white car 
had crashed into a traffic pole.  Serrano immediately called 911 to report 
the accident.
        Officer 
Samuel Williams and Officer Greg Dickerman, police officers for the City of 
Arlington during that time, responded, in separate vehicles, to the accident.  
After arriving at the intersection of Avenue H and Watson Road, the officers 
observed a white Chevy Corsica that had crashed into a pole.  Paramedics at 
the scene were already in the process of examining Powers, the sole occupant of 
the vehicle, for possible injuries as a result of the crash.
        After 
the paramedics finished examining Powers, both officers questioned him about the 
accident.  During this time, Powers admitted that he was the driver of the 
wrecked vehicle.  Officer Williams noticed that Powers’s balance appeared 
unsteady, and he “smelled a strong odor of alcoholic beverage on [Powers’s] 
breath” as he spoke with Powers.  Officer Dickerman also noticed the 
smell of alcohol emanating from Powers’s breath, and he observed that 
Powers’s eyes appeared watery and his speech appeared slurred.  As a 
result, the officers asked Powers if he had been drinking, and Powers admitted 
to consuming alcohol before the accident.  Officer Williams then discovered 
in Powers’s vehicle a 12-ounce styrofoam cup containing the remnants of 
“some type of mixture of drinks [that] smelled of strong odor of alcoholic 
beverage.”  Suspecting that Powers might be intoxicated, Officer Williams 
administered the horizontal gaze nystagmus (HGN) test to Powers.  According 
to Officer Williams, Powers exhibited all six indicia of intoxication.  
Powers then advised Officer Williams that he felt dizzy and requested medical 
attention.  Officer Williams called emergency personnel back to the scene 
and told Powers that he was under arrest.
        Emergency 
personnel returned to the scene of the accident and transported Powers to the 
hospital for medical treatment.  Officer Williams followed the ambulance in 
his police vehicle.  While in the emergency room, Officer Williams asked 
Powers to submit to the taking of a blood specimen and read Powers the required 
statutory warnings advising him of the consequences of refusing to submit to the 
taking of such a specimen.1  See Tex. Transp. Code Ann. § 724.015 
(Vernon Supp. 2004).  Powers refused to provide a blood specimen.  
After Officer Williams completed the requisite paperwork for a DWI case, he 
released Powers from custody with the DWI arrest pending.  Powers was 
subsequently arrested and charged with DWI.
        At 
the time of trial, Officer Williams was no longer employed as an Arlington 
Police Officer.  Instead, he worked as a misdemeanor prosecutor for the 
Tarrant County District Attorney’s Office, the same office prosecuting Powers 
on the DWI charge.  When the State called Williams as a witness, he 
testified on direct examination concerning his change in employment status.  
Powers immediately objected to Williams’s testimony and moved for a mistrial, 
seeking to disqualify the Tarrant County District Attorney’s Office from the 
case because Williams, a material witness, was a member of the office.2  The trial court stated that it was taking the issue 
under advisement until the following morning, but allowed the State to continue 
presenting its case in chief, including resuming its examination of Williams as 
a fact witness.
        The 
following morning, Powers presented further argument in support of his motion 
for a mistrial, focusing on the conflict of interest raised by permitting 
members of the Tarrant County District Attorney’s Office to both prosecute 
Powers and to testify against Powers.  Powers argued, in part,
 
As 
the Court knows, the Rules of Evidence prohibit attorneys from expressing their 
own personal opinions about the merits of the case.  [The prosecutors] 
can’t get up in front of the jury and say:  I believe, you know, the 
defendant is guilty.  You should find him guilty.  We all know 
that’s a prohibited comment.  So we’re only half a step away from that 
when we call his witness who works for Tarrant County. Obviously, witnesses can 
have opinions.  Okay.  So we have - - We have the witness, fellow 
employee, essentially doing the same thing, except he happens to have the hat of 
witness after being introduced as an assistant DA.
 
Powers 
pointed out that Williams was assigned to prosecute DWI cases in County Criminal 
Court Number One, that the misdemeanor prosecutors were supervised by Richard 
Alpert, and that one of the assistant district attorneys prosecuting Powers was 
also assigned to that court.  As a result, Powers contended that “we 
don’t just have his [Williams’s] immediate supervisor calling him as a 
witness, we have his partner [in County Criminal Court Number One] calling him 
as a witness.”  Powers argued that he suffered harm from the State’s 
presentation of Williams as a fact witness because, by calling its own 
prosecutor as a witness, the Tarrant County District Attorney’s Office was 
essentially vouching for Williams’s credibility, and as a result, the jury 
might give undue weight to Williams’s testimony.3  
Powers also asserted that his right to a fair trial should trump any 
inconvenience arising from requiring the State to hire a visiting or special 
prosecutor when a material witness is a member of the prosecuting office.  
After Powers concluded his argument, the trial court denied his request for a 
mistrial, but the court specifically instructed the State to refrain from any 
further reference to Williams’s position as a prosecutor for Tarrant County.  
Thereafter, the jury found Powers guilty of the offense of DWI.  This 
appeal followed.
III. Dual Roles 
of the District Attorney’s Office
        In 
his first point, Powers contends that the trial court erred by allowing members 
of the Tarrant County District Attorney’s Office to both prosecute Powers and 
to testify against Powers.  The State, however, maintains that the trial 
court did not err because Powers has not met his burden to demonstrate that he 
was deprived of a fair trial or that his substantial rights were affected by the 
dual role played by the district attorney’s office.
        A.     Standard 
of Review
        Rule 
3.08 of the Texas Disciplinary Rules of Professional Conduct outlines when a 
lawyer, or another lawyer in the same firm, may assume dual roles of an advocate 
and a witness in the same adjudicatory proceeding. Tex. Disciplinary R. Prof’l Conduct 
3.08, reprinted in Tex. Gov’t 
Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9); see 
Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex. Crim. App. 2003).  Rule 
3.08 states:

(a) 
A lawyer shall not accept or continue employment as an advocate before a 
tribunal in a contemplated or pending adjudicatory proceeding if the lawyer 
knows or believes that the lawyer is or may be a witness necessary to establish 
an essential fact on behalf of the lawyer's client, unless:
 
(1) 
the testimony relates to an uncontested issue;
 
(2) 
the testimony will relate solely to a matter of formality and there is no reason 
to believe that substantial evidence will be offered in opposition to the 
testimony;
 
(3) 
the testimony relates to the nature and value of legal services rendered in the 
case;
 
(4) 
the lawyer is a party to the action and is appearing pro se; or
 
(5) 
the lawyer has promptly notified opposing counsel that the lawyer expects to 
testify in the matter and disqualification of the lawyer would work substantial 
hardship on the client.
 
                 . 
. . .
 
(c) 
Without the client's informed consent, a lawyer may not act as advocate in an 
adjudicatory proceeding in which another lawyer in the lawyer's firm is 
prohibited by paragraphs (a) or (b) from serving as advocate.
 
Tex. Disciplinary R. Prof’l Conduct 
3.08 (a), (c).  Alleged disqualification under rule 3.08 does not entitle 
an appellant to relief on appeal unless the appellant can demonstrate actual 
prejudice resulting from the opposing party’s service in the dual roles of 
advocate and witness.  Id. cmt. 10; Gonzalez, 117 S.W.3d at 
837.
        The 
court of criminal appeals has held that the actual prejudice requirement is 
satisfied by a showing that the opposing party’s service in the dual roles of 
advocate and witness deprived the defendant of a fair trial or otherwise 
affected his substantial rights.  See Gonzalez, 117 S.W.3d at 837-38 
(applying actual prejudice test to the State); House v. State, 947 S.W.2d 
251, 253 (Tex. Crim. App. 1997) (applying actual prejudice the test to a 
defendant).  The issue therefore is whether Powers has demonstrated actual 
prejudice, that is, that the dual roles played by the district attorney’s 
office in this case deprived him of a fair trial or affected his substantial 
rights.  See House, 947 S.W.2d at 253; Brown v. State, 921 
S.W.2d 227, 230 (Tex. Crim. App. 1996).
        B.     Testimony 
by Williams
        Immediately 
after Williams took the stand to testify, the State called attention to his 
status as a member of the prosecuting office:
 
[PROSECUTOR]: 
Sam, how are you employed?
[WILLIAMS]: 
I’m currently employed as an assistant district attorney for Tarrant County.
 
[PROSECUTOR]: 
Is that the same office that myself and [the other prosecuting district 
attorney] works for?
 
[WILLIAMS]: 
Yes, it is.
 
[PROSECUTOR]: 
Are you assigned, likewise, to the misdemeanor section like myself and [the 
other prosecuting district attorney] are?
 
[WILLIAMS]: 
Yes, I am.
 
[PROSECUTOR]: 
Are we friends?
 
[WILLIAMS]: 
Yes, we are.
[PROSECUTOR]: 
Now, Sam, before we go any further, I want to get something straight now.  
With your relationship with us, with your knowledge with us--
 
[DEFENSE 
COUNSEL]: I object, Your Honor.  May we approach the bench?
 
Prior 
to this time, the jury was unaware that Williams was no longer a police officer 
or that he was a member of the prosecuting office.
        Thereafter, 
during his testimony, Williams provided a large portion of the State’s 
evidence to prove a contested element of the charged offense—Powers’s 
intoxication at the time of the accident.4  For 
example, Williams testified that he was the primary officer assigned to 
Powers’s case and that he believed, based on his investigation and his contact 
with Powers, that on the evening of August 27, Powers was intoxicated and had 
lost the normal use of his mental or physical capabilities by reason of the 
introduction of alcohol into his body.  Through Williams, the jury also 
heard testimony that Powers’s breath smelled of alcohol after the accident, 
that Powers exhibited all six indicia of intoxication when given the HGN test, 
that Powers admitted to drinking prior to the accident, that Williams recovered 
a styrofoam cup containing some alcoholic mixture from Powers’s vehicle at the 
scene of the accident, and that Powers refused to submit a blood specimen after 
being asked to do so.
        C. 
   Actual Prejudice: Did Dual Roles Deprive Powers 
of a Fair Trial 
or Affect His Substantial Rights?
        Powers 
asserts that the Texas Court of Criminal Appeals’s recent decision in Gonzalez 
controls the disposition of his appeal.  117 S.W.3d 831.  We 
agree.  In Gonzalez, the Court of Criminal Appeals held that the 
trial court properly granted the State’s pretrial motion to disqualify defense 
counsel.  Id. at 840-41.  In that case, defense counsel was a 
key witness, having personal knowledge of a contested matter bearing directly on 
his client’s guilt.  Id. at 838.  The court of criminal 
appeals held that the State would suffer actual prejudice if defense counsel 
were permitted to perform the dual roles of fact witness and attorney because 
the jury could potentially attach undue weight to his testimony, hampering the 
State’s ability to adequately challenge his credibility as a witness.  Id. 
at 840.  The court also expressed concern that defense counsel’s dual 
roles as both an advocate and a witness would unfairly prejudice the State 
because the jury would not know “whether to interpret his statements as 
evidence or as an analysis of the evidence.”  Id. at 841.  
Consequently, the court held that the State established actual prejudice because 
confusion resulting from counsel’s dual roles would most likely have 
substantially affected the jury’s verdict.  Id. at 840.
        Although 
Gonzalez involved a situation where defense counsel assumed dual roles, 
the court of criminal appeals’ actual prejudice analysis in that case 
demonstrates the type of dual-role problems the court views as unfairly 
impacting a trial.  The dual-role problems present in Gonzalez are 
the same dual-role problems present in this case.  In the instant case, as 
in Gonzalez, Williams, a member of the prosecuting office, was a key 
witness, having personal knowledge of a contested matter bearing directly on 
Powers’s guilt—his intoxication at the time of the accident.  
Therefore, Williams’s credibility as a fact witness was clearly at issue 
during the trial, just as Gonzalez’s counsel’s credibility would have been 
at issue.  See also Hammett v. State, 713 S.W.2d 102, 105 (Tex. 
Crim. App. 1986) (stating that a witness puts his veracity at issue merely by 
taking the stand).  Moreover, because during trial the State called 
attention to the fact that Williams was an assistant district attorney, it is as 
likely that the jury attached undue weight to his testimony as it is that the 
jury in Gonzalez would have attached undue weight to defense counsel’s 
testimony.  Gonzalez, 117 S.W.3d at 840; see also United States 
v. Birdman, 602 F.2d 547, 553 (3rd Cir. 1979) (recognizing that a 
prosecutor’s position as a government attorney may artificially enhance his 
credibility as a witness).  Because the jury was conscious of Williams’s 
heightened status as both a member of the prosecuting office and a witness, 
Powers was hampered in effectively challenging Williams’s credibility to the 
same extent the State was hampered in Gonzalez.  117 S.W.3d at 840; see 
also Wisdom v. State, No. 10-02-00171-CR, 2004 WL 691678, at *4 (Tex. 
App.—Waco Mar. 31, 2004, no pet. h.) (holding a defendant demonstrates actual 
prejudice from the denial of a motion for continuance when he shows a resulting 
inability to effectively cross-examine a State's witness); Bert Wheeler’s, 
Inc. v. Ruffino, 666 S.W.2d 510, 513 (Tex. App.—Houston [1st 
Dist.] 1983, no pet.) (noting that an attorney’s dual role as an advocate and 
a witness may handicap opposing counsel’s ability to effectively impeach 
him).  To a lesser degree than Gonzalez, this case also raises the 
issue that the jury could be confused whether Williams was testifying based on 
information he learned on the night of the offense, or subsequently as a member 
of the district attorney’s office prosecuting Powers.  Gonzalez, 
117 S.W.3d at 840; see also Tex. 
Disciplinary R. Prof’l Conduct 3.08 cmt. 4.
        A 
dual-role problem also exist in this case that was not present in Gonzalez.  
Because Williams, the primary fact witness for the State, worked for the same 
office that was prosecuting Powers, an appearance of lack of objectivity 
concerning his testimony is possible.5  Powers 
argued this point, “we don’t just have his [Williams’s] immediate 
supervisor calling him as a witness, we have his partner [in County Criminal 
Court Number One] calling him as a witness.”  Allowing members of the 
same district attorney’s office to both prosecute a case and to provide 
controlling testimony on a controverted matter directly bearing on a 
defendant’s guilt could potentially undermine public confidence in the 
integrity of the judicial process.  Accord Birdman, 602 F.2d at 554 
(recognizing that “justice must satisfy the appearance of justice”).
        Thus, 
we hold that Powers demonstrated actual prejudice from the dual roles played by 
the district attorney’s office: the hampering of his ability to challenge 
Williams’s credibility on cross examination; the likelihood that the jury 
would give extra credibility to Williams’s testimony because he was with the 
district attorney’s office prosecuting Powers; the concern that the jury could 
be confused as to whether Williams was testifying to facts as a fact witness or 
based on information learned in his capacity as an assistant district attorney; 
and the concern that the appearance of justice is not served when a witness’s 
immediate supervisor and partner are responsible for calling the witness and 
presenting the witness’s testimony.  Because the court of criminal 
appeals held in Gonzalez that these types of dual-role problems 
concerning a material fact witness would unfairly impact the trial and have a 
substantial and injurious effect or influence on the jury’s verdict, we reach 
the same conclusion here.6  See Gonzalez, 
117 S.W.3d at 840; see also Tex. 
R. App. P. 44.2(b).
        The 
State cites this court’s decision in Stanley v. State to support its 
contention that Powers has not demonstrated sufficient prejudice to entitle him 
to relief in the instant case.  880 S.W.2d 219 (Tex. App.—Fort Worth 
1994, no pet.).  In Stanley, a Tarrant County Assistant District 
Attorney testified as a fact witness against a defendant who was ultimately 
convicted of burglarizing her home.  Id. at 220.  We are 
unpersuaded that Stanley controls the outcome of this case for several 
reasons.  First, we delivered the Stanley decision well before the 
court of criminal appeals’s decision in Gonzalez.  Second, 
although the appellant in Stanley complained on appeal that a member of 
the district attorney’s office could not prosecute a case in which another 
district attorney from the same office was the complainant and a fact witness, 
this court held that the appellant waived this complaint because he did not 
object at trial to the dual-role participation of the district attorney’s 
office.  Id. at 220.  Finally, although this court nonetheless 
in dicta addressed the appellant’s unpreserved dual-role complaint, we held 
only that the Texas Disciplinary Rules did not as a matter of law preclude one 
lawyer from a district attorney’s office from prosecuting a case where another 
lawyer from the same office would testify as a fact witness and that the 
appellant failed to demonstrate sufficient prejudice in order to entitle him to 
relief based on the State’s dual-role participation in that case.  Id. 
at 221-22.
        We 
do not retreat in this case from our holding in Stanley.  We again 
hold that the Texas Disciplinary Rules do not per se preclude assistant district 
attorneys within a single office from assuming dual roles of advocate and 
witness in the same adjudicatory proceeding.  But here, unlike in Stanley, 
Powers has met his burden of demonstrating actual prejudice from the dual 
roles of the prosecuting office.  See Gonzalez, 117 S.W.3d at 840-41 
(explaining actual prejudice).
        Because 
Williams’s testimony provided the majority of the evidence tending to prove 
Powers’s intoxication at the time of the accident and because Powers presents 
not only the same dual-role problems as those raised by the State and addressed 
by the court of criminal appeals in Gonzalez, but an additional problem 
as well, we are persuaded that the State’s service in the dual roles of 
advocate and witness in this case affected Powers’s substantial rights or 
deprived him of a fair trial.  See Gonzalez, 117 S.W.3d at 
840-41; see also Tex. R. App. P. 
44.2(b).  Consequently, we must sustain Powers’s first point.
IV. Conclusion
        Having 
sustained Powers’s first point,7 we reverse the 
trial court’s judgment and remand the case for a new trial.
 
  
                                                                  SUE 
WALKER
                                                                  JUSTICE
 
 
PANEL B:   HOLMAN, 
GARDNER, and WALKER, JJ.
 
PUBLISH
 
DELIVERED: 
July 1, 2004

 
NOTES
1.  
The record contains State’s Exhibit #1, a document entitled “Statutory 
Warning” that Officer Williams utilized in advising Powers.
2.  
Powers’s counsel advised the trial court that he was not informed before trial 
that Williams was now an assistant district attorney with the Tarrant County 
District Attorney’s Office.  Powers maintained that, had he known of 
Williams’s employment status before trial, he would have filed a pretrial 
motion to disqualify the entire office from prosecuting the case.  The 
State did not dispute at trial Powers’s lack of knowledge of Williams’s new 
employment, nor does the State do so on appeal.
3.  
Specifically, Powers argued:
So 
what’s the harm to us?  The harm to us is the DA gets to argue something 
that they don’t get to argue if they have a different DA; and that is, this 
person is not just a DA, this person is our DA.  This is my coworker, 
therefore, he’s entitled to extra belief because it’s my credibility on the 
line now because I hired him.  That’s the harm.  The harm is he gets 
more credibility because we somehow made this decision to hire him.
4.  
Officer Greg Dickerman also testified for the State.  He thought Powers was 
intoxicated, but his primary function at the scene was “to work the accident 
that we were initially dispatched to.”
5.  
In United States. v. Treadway, the court emphasized this concern stating,

It 
is obvious that the opportunity for tailoring a witness's testimony to the needs 
of the Government’s case is maximized if recourse is permitted to the 
testimony of an experienced trial attorney who is interested in the successful 
presentation of that case.  Especially in criminal litigation, where so 
much is at stake for the defendant, must the Bench and Bar demand adherence to a 
principle that is designed to ensure objectivity in the presentation of 
evidence.
 
445 
F.Supp. 959, 960 (N.D. Tex. 1978).
6.  
In fact, Williams was a more important witness than Gonzalez’s attorney was in 
the Gonzalez case.  Here, there was little direct evidence of 
Powers’s guilt other than Williams’s testimony.  During closing 
argument, the State instructed the jury to “focus on [Williams’s] 
testimony” when discussing the evidence of Powers’s intoxication.
7.  
Because our holding regarding Powers’s first point disposes of this appeal, we 
do not reach Powers’s remaining point.  See Tex. R. App. P. 47.1.
