IN THE TENTH COURT OF APPEALS
No. 10-19-00239-CR
AURELIO HERNANDEZ CRUZ, Appellant v.
THE STATE OF TEXAS, Appellee
From the 21st District Court Burleson County, Texas Trial Court No. 15,547
MEMORANDUM OPINION
In one issue, Appellant Aurelio Hernandez Cruz challenges his conviction for
continuous sexual abuse of a child. We will affirm.
The underlying facts are not at issue. Cruz argues that he was denied due process
because the trial court failed “to take remedial action to address a disclosed conflict of
interest involving a lead prosecuting attorney and a key witness for the State . . . .” Prior
to trial, the State disclosed a relationship between the lead prosecutor in the case and the
polygraph examiner who obtained an incriminating statement from Cruz. The State informed the trial court that the prosecutor had been removed from the case and “walled
off” from further participation. The trial court denied Cruz’s oral motion to disqualify
the district attorney’s office.
The polygraph examiner was also a constable who performed bailiff duties for the
trial court. The constable was reassigned by the trial court for any proceedings involving
Cruz. The trial court granted the State’s motion in limine that precluded the defense from
mentioning the relationship between the constable and the former prosecutor. The
constable testified at trial. The defense did not object to the constable’s testimony or to
the admission of the video depicting the polygraph interview.
Cruz argues that the trial court was obligated to take remedial action, including
granting his request to disqualify the Burleson County District Attorney’s office, sua
sponte prohibiting the constable from testifying, or, at a minimum, holding an evidentiary
hearing on the issue of the constable’s “potential influence stemming from his romantic
involvement” with the former prosecutor, and allowing Cruz to reveal the “exculpatory
evidence to the jury through argument and cross-examination.” Cruz further argues that
the constable’s testimony was “critically important to the State” because it offered the
only evidence “which removed the case from the typical ‘he said, she said’ category of
sexual assault case which often ends in acquittal.”
Cruz identifies no legal authority that would have required the trial court to take
“sua sponte” action to exclude the constable’s testimony. Cruz cites to Holloway v.
Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) and Orgo v. State, 557 S.W.3d
858 (Tex. App.—Houston [14th Dist.] 2018, no pet.), which are inapposite to the present
Cruz v. State Page 2 case. Both Holloway and Orgo involve conflicts of interest between a defendant and his
trial counsel, not a potential conflict possessed by the prosecutor. Even under those
circumstances, neither case mandates that a trial court sua sponte take action on a potential
conflict without a specific request or objection from the defendant.
Nor has Cruz identified anything in the record that would have required the trial
court to take sua sponte action. The former prosecutor began working for the Burleson
County District Attorney’s Office on September 4, 2018—after the indictment was
returned against Cruz on April 26, 2018. The date of the constable’s interview/polygraph
examination of Cruz on November 7, 2017 also predated the former prosecutor’s
employment with the District Attorney’s office. Defense counsel failed to present
anything to the trial court regarding the date the relationship between the former
prosecutor and the constable began or the exact nature of that relationship. As in Orgo,
the trial court in this case made an adequate inquiry regarding Cruz’s complaints at the
pre-trial hearing and provided Cruz the opportunity to present whatever supported his
complaints. The trial court further adequately inquired into the potential conflict,
receiving assurance that the former prosecutor had been removed from the case. The trial
court, without anything further from Cruz, was not required to make further inquiry. See
Orgo, 557 S.W.3d at 862.
Cruz v. State Page 3 The only issue before this Court, therefore, is whether the trial court erred in
denying Cruz’s motion to disqualify the district attorney’s office.1
We review a trial court’s ruling on a motion to disqualify a district attorney and/or
his staff for an abuse of discretion. Landers v. State, 256 S.W.3d 295, 303 (Tex. Crim. App.
2008); Neville v. State, 622 S.W.3d 99, 102 (Tex. App.—Waco 2020, no pet.).2 A trial court
abuses its discretion when its decision lies “outside the zone of reasonable disagreement.”
Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Neville, 622 S.W.3d at 102.
The burden is on the party requesting disqualification to establish that an actual conflict
exists. See Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003).
The office of a district attorney is constitutionally created and protected, and “[a]
trial court has limited authority to disqualify an elected district attorney and her staff
from the prosecution of a criminal case.” Buntion v. State, 482 S.W.3d 58, 76 (Tex. Crim.
App. 2016). As such, there are only limited instances in which a district attorney or her
staff may be disqualified. Landers, 256 S.W.3d at 303-04.
Generally, the trial court’s authority to disqualify a district attorney in a particular
case requires proof that the district attorney has a conflict of interest that rises to the level
of a due process violation. Landers, 256 S.W.3d at 304. “Prosecutorial misconduct rises to
1 Although not expressed as a separate issue, Cruz complains that the trial court erred in granting the State’s motion in limine. This issue was not preserved for appeal as Cruz did not object to the constable’s testimony at trial. See Brock v. State, 495 S.W.3d 1, 12 (Tex. App.—Waco 2016, pet. ref’d).
2 Cruz refers at one point to his motion to “recuse” the District Attorney’s office. However, recusal and disqualification are not interchangeable, and a trial court cannot require a prosecutor’s recusal. In re Ligon, 408 S.W.3d 888, 891 (Tex. App.—Beaumont 2013, no pet.). To the extent this is a separate appellate issue, Cruz did not raise it with the trial court, and it has not been preserved for appeal. See TEX. R. APP. P. 33.1.
Cruz v. State Page 4 a due-process violation when it is so significant that it deprives a defendant of a fair trial.”
Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim. App. 2012) (citing Greer v. Miller, 483 U.S.
756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). A due process violation may arise when
a district attorney has a conflict of interest due to previous representation of a defendant.
Landers, 256 S.W.3d at 304. If the district attorney represented the defendant in the same
criminal matter, there exists a due process violation as a matter of law.
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IN THE TENTH COURT OF APPEALS
No. 10-19-00239-CR
AURELIO HERNANDEZ CRUZ, Appellant v.
THE STATE OF TEXAS, Appellee
From the 21st District Court Burleson County, Texas Trial Court No. 15,547
MEMORANDUM OPINION
In one issue, Appellant Aurelio Hernandez Cruz challenges his conviction for
continuous sexual abuse of a child. We will affirm.
The underlying facts are not at issue. Cruz argues that he was denied due process
because the trial court failed “to take remedial action to address a disclosed conflict of
interest involving a lead prosecuting attorney and a key witness for the State . . . .” Prior
to trial, the State disclosed a relationship between the lead prosecutor in the case and the
polygraph examiner who obtained an incriminating statement from Cruz. The State informed the trial court that the prosecutor had been removed from the case and “walled
off” from further participation. The trial court denied Cruz’s oral motion to disqualify
the district attorney’s office.
The polygraph examiner was also a constable who performed bailiff duties for the
trial court. The constable was reassigned by the trial court for any proceedings involving
Cruz. The trial court granted the State’s motion in limine that precluded the defense from
mentioning the relationship between the constable and the former prosecutor. The
constable testified at trial. The defense did not object to the constable’s testimony or to
the admission of the video depicting the polygraph interview.
Cruz argues that the trial court was obligated to take remedial action, including
granting his request to disqualify the Burleson County District Attorney’s office, sua
sponte prohibiting the constable from testifying, or, at a minimum, holding an evidentiary
hearing on the issue of the constable’s “potential influence stemming from his romantic
involvement” with the former prosecutor, and allowing Cruz to reveal the “exculpatory
evidence to the jury through argument and cross-examination.” Cruz further argues that
the constable’s testimony was “critically important to the State” because it offered the
only evidence “which removed the case from the typical ‘he said, she said’ category of
sexual assault case which often ends in acquittal.”
Cruz identifies no legal authority that would have required the trial court to take
“sua sponte” action to exclude the constable’s testimony. Cruz cites to Holloway v.
Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) and Orgo v. State, 557 S.W.3d
858 (Tex. App.—Houston [14th Dist.] 2018, no pet.), which are inapposite to the present
Cruz v. State Page 2 case. Both Holloway and Orgo involve conflicts of interest between a defendant and his
trial counsel, not a potential conflict possessed by the prosecutor. Even under those
circumstances, neither case mandates that a trial court sua sponte take action on a potential
conflict without a specific request or objection from the defendant.
Nor has Cruz identified anything in the record that would have required the trial
court to take sua sponte action. The former prosecutor began working for the Burleson
County District Attorney’s Office on September 4, 2018—after the indictment was
returned against Cruz on April 26, 2018. The date of the constable’s interview/polygraph
examination of Cruz on November 7, 2017 also predated the former prosecutor’s
employment with the District Attorney’s office. Defense counsel failed to present
anything to the trial court regarding the date the relationship between the former
prosecutor and the constable began or the exact nature of that relationship. As in Orgo,
the trial court in this case made an adequate inquiry regarding Cruz’s complaints at the
pre-trial hearing and provided Cruz the opportunity to present whatever supported his
complaints. The trial court further adequately inquired into the potential conflict,
receiving assurance that the former prosecutor had been removed from the case. The trial
court, without anything further from Cruz, was not required to make further inquiry. See
Orgo, 557 S.W.3d at 862.
Cruz v. State Page 3 The only issue before this Court, therefore, is whether the trial court erred in
denying Cruz’s motion to disqualify the district attorney’s office.1
We review a trial court’s ruling on a motion to disqualify a district attorney and/or
his staff for an abuse of discretion. Landers v. State, 256 S.W.3d 295, 303 (Tex. Crim. App.
2008); Neville v. State, 622 S.W.3d 99, 102 (Tex. App.—Waco 2020, no pet.).2 A trial court
abuses its discretion when its decision lies “outside the zone of reasonable disagreement.”
Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Neville, 622 S.W.3d at 102.
The burden is on the party requesting disqualification to establish that an actual conflict
exists. See Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003).
The office of a district attorney is constitutionally created and protected, and “[a]
trial court has limited authority to disqualify an elected district attorney and her staff
from the prosecution of a criminal case.” Buntion v. State, 482 S.W.3d 58, 76 (Tex. Crim.
App. 2016). As such, there are only limited instances in which a district attorney or her
staff may be disqualified. Landers, 256 S.W.3d at 303-04.
Generally, the trial court’s authority to disqualify a district attorney in a particular
case requires proof that the district attorney has a conflict of interest that rises to the level
of a due process violation. Landers, 256 S.W.3d at 304. “Prosecutorial misconduct rises to
1 Although not expressed as a separate issue, Cruz complains that the trial court erred in granting the State’s motion in limine. This issue was not preserved for appeal as Cruz did not object to the constable’s testimony at trial. See Brock v. State, 495 S.W.3d 1, 12 (Tex. App.—Waco 2016, pet. ref’d).
2 Cruz refers at one point to his motion to “recuse” the District Attorney’s office. However, recusal and disqualification are not interchangeable, and a trial court cannot require a prosecutor’s recusal. In re Ligon, 408 S.W.3d 888, 891 (Tex. App.—Beaumont 2013, no pet.). To the extent this is a separate appellate issue, Cruz did not raise it with the trial court, and it has not been preserved for appeal. See TEX. R. APP. P. 33.1.
Cruz v. State Page 4 a due-process violation when it is so significant that it deprives a defendant of a fair trial.”
Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim. App. 2012) (citing Greer v. Miller, 483 U.S.
756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). A due process violation may arise when
a district attorney has a conflict of interest due to previous representation of a defendant.
Landers, 256 S.W.3d at 304. If the district attorney represented the defendant in the same
criminal matter, there exists a due process violation as a matter of law. Id. There is no
allegation that the District Attorney or the former prosecutor represented Cruz at any
time in this criminal prosecution. There is, therefore, no basis for disqualification of the
Burleson County District Attorney’s Office as a matter of law.
A due process violation may arise if the district attorney represented the defendant
in a different matter, but only if the defendant can prove that he was actually prejudiced
by the district attorney’s prior representation. Id. at 304-05. Actual prejudice occurs when
the district attorney obtains confidential information by virtue of that representation
which may be used to the defendant’s disadvantage. Id. at 305. Cruz has not alleged that
the District Attorney or the former prosecutor previously represented him in any matter,
nor has he identified any confidential information that was revealed as a result of the
relationship between the former prosecutor and the constable.
There have been instances where courts have deemed a district attorney to have a
conflict of interest that rises to the level of a due process violation when the district
attorney had a substantial connection to a case that did not arise from prior
representation. See In re State, 572 S.W.3d 264, 269 (Tex. App.—Amarillo 2018, no pet.)
(orig. proceeding) (plurality op. on reh’g). Such potential conflicts may arise when the
Cruz v. State Page 5 district attorney or one of his staff has a financial interest in the prosecution, is a material
fact witness, or is the alleged victim of the crime being prosecuted. See Ligon, 408 S.W.3d
at 896. Cruz has not made any such allegation in regard to the District Attorney or the
former prosecutor in this case. Cruz has failed to establish, therefore, that any actual
conflict existed that would be a ground for disqualification of the Burleson County
District Attorney’s Office. See Buntion, 482 S.W.3d at 77 (“Appellant has not alleged, and
we have not found, that any actual conflict existed. [The District Attorney] did not
previously represent appellant, nor did any of her staff. Thus, appellant fails to show any
conflict which this Court has previously found as grounds for disqualification.”).
Assuming without deciding that the relationship between the former prosecutor
and the constable represents a “substantial connection” to the case, Cruz did not
articulate to the trial court, or to this Court, how that relationship actually prejudiced his
prosecution. While Cruz asserts that the constable was a “critical” witness, the testimony
of the victim was sufficient to support Cruz’s conviction. See Cervantes v. State, 594 S.W.3d
667, 673 (Tex. App.—Waco 2019, no pet.).
Based upon the information before it, the trial court did not abuse its discretion in
denying Cruz’s motion to disqualify, particularly in light of the fact that the former
prosecutor was removed from Cruz’s case. We overrule Cruz’s sole issue and affirm the
judgment of the trial court.
MATT JOHNSON Justice
Cruz v. State Page 6 Before Chief Justice Gray, Justice Johnson, and Justice Davis3 Affirmed Opinion delivered and filed August 25, 2021 Do not publish [CR25]
3 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
Cruz v. State Page 7