in Re the State of Texas, Relator

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00265-CR

IN RE THE STATE OF TEXAS, RELATOR

OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

December 20, 2018

CONCURRING OPINION ON REHEARING Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Before us is a motion for rehearing in this cause. I vote to grant it. I also concur

in the decision to conditionally issue mandamus directing the Honorable Pat Phelan, of

the 286th Judicial District, to vacate his July 2, 2018 and August 15, 2018 orders granting

the motions to disqualify Christopher Dennis and the 286th District Attorney’s Office from

prosecuting cause nos. 14-12-8123, 16-02-8667, 16-09-8879, 16-09-8894, 17-06-9051,

17-06-9074, 17-06-9081, 17-07-9112, 17-07-9113, 17-07-9122, 17-09-9133, 17-11-

9197, and 17-11-9211. My reasons for so concluding follow.

When can a trial court disqualify a district attorney? That is the issue here. The

State argues that the authority is limited to situations involving prior representation by the

prosecutor. No doubt, precedent has held that a district attorney may be disqualified for engaging in a conflict of interest. The conflicts alluded to normally encompass those

arising when the prosecutor previously represented the accused in the same matter. See

Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008). Prior representation of

the accused in a different matter may also be a conflict of interest warranting

disqualification if the circumstance denies the accused due process. Id. at 304–05.

But, the Court of Criminal Appeals left open the likelihood of disqualification in at

least one other scenario. It too implicates a conflict of interest, one not founded upon

prior representation but, rather, personal bias or grudge. See Ex parte Reposa, AP-

75,965, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *32–33 (Tex. Crim. App. Oct. 28,

2009) (not designated for publication).1 Admittedly, claims of this ilk do not merit

automatic disqualification. Id. at *32. Quite the contrary, the party seeking disqualification

must show that the conflict, i.e., personal bias or grudge, prejudiced the accused “in such

a manner as to rise to the level of a due process violation.” Id.

Prosecutors are like everyone else. They too have their biases and need not be

entirely neutral and detached. Marshall v. Jerrico, Inc., 446 U.S. 238, 248–49, 100 S. Ct.

1610, 64 L. Ed. 2d 182 (1980); see Buntion, 482 S.W.3d at 77 (Tex. Crim. App. 2016)

(observing that a prosecutor need not be a neutral party in criminal litigation). They may

also be quite zealous in their advocacy. See Buntion, 482 S.W.3d at 77; Ex parte Reposa,

2009 Tex. Crim. App. Unpub. LEXIS 725, at *33. Nevertheless, they are public officials

1 I am aware of the directive that unpublished opinions of the Court of Criminal Appeals should not be cited as precedent. TEX. R. APP. P. 77.3. I am also aware of the fact that the Court of Criminal Appeals has cited its own unpublished opinions in their own subsequent published opinions. See Buntion v. State 482 S.W.3d 58, 77 (Tex. Crim. App. 2016) (citing Ex parte Reposa, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *36). Because that Court cites its own unpublished opinions, there is little reason why I should ignore such valued writing. Indeed, it would be unfair to suggest that unpublished opinions should not be used as authority since they represent a special outcome in a special case. Irrespective of the case, an appellate court is bound to abide by the law irrespective of whether its decision is published or unpublished, and I have no reason to think that the Court of Criminal Appeals failed to do that in Ex parte Reposa.

2 bound to serve the public interest, Marshall, 446 U.S. at 249–50, not their own. While

they are free to exercise much discretion, that discretion does not insulate them from

judicial scrutiny when their decisions are motivated by improper factors. Id. So, the Due

Process Clause of the 14th Amendment of the United States Constitution does impose

limits. Id.; Ex parte Reposa, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *33. Interjecting

“a personal interest, financial or otherwise, into the enforcement process may bring

irrelevant or impermissible factors into the prosecutorial decision and in some contexts

raise serious constitutional questions.” Marshall, 446 U.S. at 249–50. As observed in Ex

parte Reposa, the United States Supreme Court in Marshall “left open the possibility that

‘different considerations might be held to apply if the alleged biasing influence contributed

to prosecutions against particular persons, rather than to a general zealousness in

the enforcement process.’” Ex parte Reposa, 2009 Tex. Crim. App. Unpub. LEXIS 725,

at *33 (emphasis added). The step from acceptable zeal to prohibited bias comes when

the prosecutor has “an axe to grind against the defendant, as distinguished from the

appropriate interest that members of society have in bringing a defendant to justice.” See

id. at *36. The record at bar contains evidence upon which the trial court could have

found that pivotal “axe to grind.”

The trial court disqualified the prosecutor, Christopher Dennis and the 286th

District Attorney’s office, from prosecuting the actions wherein Christina Woods Duffy

represented the accused upon finding that Dennis had a conflict of interest that rose to

the level of a due process violation. The conflict was personal and found its genesis,

according to the trial court, when Duffy successfully urged a motion to exclude a State’s

expert witness on behalf of one of her clients. That led the district attorney to text Duffy

3 via cell phone that “any pending cases you have with offers outstanding . . . those offers

are revoked, expired, and null. Effective immediately.” (Emphasis added). The

prosecutor followed this announcement with at least two other writings wherein he again

told Duffy that “there would be no offer at this time.” When asked by the trial court whether

he was retaliating against Duffy because she succeeded in having an expert excluded,

the district attorney described his decision “as a strategy.” He also told the trial court that

what he did “as a matter of strategy, as a reaction to something that another counsel

does, is well within, not just my right as prosecutor, but is within my responsibility as

prosecutor.” (Emphasis added). He continued as follows:

If I have 20 lawyers opposing me, and 19 of them behave in a certain fashion, and we get along in a certain way, and things go swimmingly, shall we say, and I treat them one way; but, one acts differently and things go differently, and things work differently, it is not prosecutorial [vindictiveness] for me to change my strategy in dealing with the one.

Based on Duffy successfully urging a motion to exclude on behalf of her client, the

prosecutor thought a change of strategy was needed. So, he “appraised what happened

in that hearing, and . . . decided that the best thing for my office to do at that moment

was to halt proceedings in those cases,” “those cases” being “every case that [he] had

with [Duffy].” (Emphasis added).

The district attorney also informed the trial court that he had used this strategy with

two other defense attorneys. Subsequent evidence obtained via affidavit and hearings

led the trial court to conclude that Dennis’s utterance about using the strategy before was

a “misrepresentation.” So too did it deem the prosecutor’s action to be a violation of the

constitutional right to equal protection enjoyed by both Duffy and her clients, which

violation arose from Duffy “exercising protected legal rights of” her clients.

4 This is not a plea bargain case or one purporting to recognize a right to a plea

bargain.2 A defendant has no right to demand that the State offer him such an agreement.

Thompson v. State, 691 S.W.2d 627, 635–36 (Tex. Crim. App. 1984) (en banc); accord

Hallmark v. State, 541 S.W.3d 167, 181 (Tex. Crim. App. 2017) (observing that the State

“is not required to enter into plea bargain agreements”). Moreover, a prosecutor generally

has the authority to withdraw a plea offer at any time before both the defendant accepts

and the trial court approves of it. Becerra v. State, No. 07-17-00169-CR, 2018 Tex. App.

LEXIS 8696, at *3–4 (Tex. App.—Amarillo Oct. 24, 2018, pet. filed) (mem. op., not

designated for publication).

Nor is this a case wherein effort is made to control the prosecutor’s abundant

discretion in choosing how to perform his duties. He is elected by the people and charged

with the task of enforcing our criminal laws.

Rather, the case at hand concerns whether a prosecutor may remain prosecutor

in cases wherein he denied the defendants certain privileges merely because their

attorney zealously and successfully represents them. The adverse implications to a

defendant’s Sixth Amendment right to counsel posed by such a scenario cannot be

denied. See U.S. CONST. amend. VI (stating “[i]n all criminal prosecutions, the accused

shall enjoy the right to . . . have the Assistance of Counsel for his defence”). That

amendment, as made applicable to all states via the Due Process Clause of the

Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 341–45, 83 S. Ct. 792,

9 L. Ed. 2d 799 (1963), accords a defendant the right to reasonably effective assistance

2 The prosecutor represented that he had outstanding plea offers when he decided to revoke them.

5 of counsel. See Strickland v. Washington, 466 U.S. 668, 685–86, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).

The prosecutor’s policy of withholding plea offers to those represented by Duffy

left Duffy with little choice. She could 1) withdraw with the hope that Dennis then would

deign to treat her ex-clients in the same manner he treated defendants in general, 2)

remain counsel with the understanding that the district attorney intended to treat her

clients differently because she represented them, or 3) remain counsel and opt to give

her clients a level of representation deemed acceptable to the prosecutor.

As the district attorney said, “If I have 20 lawyers opposing me, and 19 of them

behave in a certain fashion, and we get along in a certain way, and things go swimmingly

. . . and I treat them one way; but, one acts differently and things go differently, and things

work differently.” This comment suggests a general mode of practice focused not

necessarily on justice and the purportedly criminal acts of the accused and their impact

on the victims and society. Rather, it connotes a focus on the identities of defense

counsel, the manner in which defense counsel chose to fulfill their duties to their clients,

and their relationships with the prosecutor. If the prosecutor finds the relationships

acceptable, their clients receive one measure of treatment, such as a plea offer. If the

prosecutor dislikes the relationships with other counsel, their clients receive different

treatment, such as no plea offer. This runs contrary to the prosecutor’s obligation to do

justice. See TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005) (stating, among other

things, that “[i]t shall be the primary duty of all prosecuting attorneys, including any special

prosecutors, not to convict, but to see that justice is done”).

6 Indeed, implicit in the presumption that prosecutors undertake a criminal

prosecution in good faith and in a non-discriminatory fashion, see Gawlik v. State, 608

S.W.2d 671, 673 (Tex. Crim. App. [Panel Op.] 1980) (noting the presumption that

prosecutors undertake their duty in a good faith and a non-discriminatory fashion), is the

obligation to act in good faith and in a non-discriminatory fashion. Conduct dictated by

impermissible considerations, such as race, religion, or a desire to interfere with the

accused’s constitutional rights, evinces prohibited discrimination and bad faith. Malouff

v. State, No. 03-13-00723-CR, 2015 Tex. App. LEXIS 10338, at *7–8 (Tex. App.—Austin

Oct. 7, 2015, no pet.) (mem. op., not designated for publication). And, while it may be

that a prosecutor has great discretion in deciding to whom to offer a plea bargain, I found

no authority permitting that discretion to be exercised based upon defense counsel’s

desire to effectively represent his or her clients as mandated by the United States

Constitution. Nor did the State cite me to any such authority.

Nor did the State cite me to authority insinuating that the extension of plea bargains

may lawfully be founded upon whether the prosecutor deems personally acceptable an

opposing counsel’s successful advocacy of a legal position on behalf of her client. Again,

the dispute between the district attorney and Duffy arose from the latter’s winning effort

to exclude the testimony of a State’s expert witness. He simply found her successful

advocacy for her client’s interests unpalatable. So, an obviously intentional decision was

made to strike at her through all her clients by withdrawing all plea offers previously

extended to them. This evinces a mode of discriminatory prosecution dictated by

personal grudge. It illustrates nothing short of retaliation based upon the defendant

obtaining a favorable legal ruling, and authority certainly tells us that due process forbids

7 the State from retaliating for a defendant’s exercise of a constitutional right, such as the

right to reasonably effective counsel. See Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim.

App. 2004) (stating that “a decision to prosecute violates due process when criminal

charges are brought in retaliation for the defendant’s exercise of his legal rights”).

The evidence before the trial court illustrated that the district attorney had “an axe

to grind” against Duffy and those defendants who turned to her to further their Sixth

Amendment constitutional rights. He ground that axe in a retaliatory way which

transgressed due process, in my opinion. The circumstances remind me of a tenet

learned years ago and involving this State’s concept of employment at will: an employer

can generally terminate an employee with reason or for no reason, but he cannot do so

for impermissible reason. The district attorney was free to extend and withdraw plea

bargains at his discretion, but he must be prohibited from doing so for impermissible

reasons. So, the trial court correctly determined that the district attorney at bar operated

under a conflict of interest implicating due process when it came to withdrawing plea offers

from Duffy’s clients.

Yet, I am left concerned by the evidence, or lack thereof, indicating prejudice. Ex

parte Reposa and its predecessors link due process and prejudice together. As the Ex

parte Reposa court said, the party seeking to disqualify the prosecutor “must demonstrate

that an actual conflict of interest existed which prejudiced [the applicant] in such a

manner as to rise to the level of a due-process violation.” Ex parte Reposa, 2009 Tex.

Crim. App. Unpub. LEXIS 725, at *32. Maybe the court is saying that, without prejudice,

there is no due process violation. Maybe it is saying that the due process violation (e.g.,

prosecutorial retaliation for exercising constitutional rights) must be prejudicial. Yet,

8 under either interpretation, the existence of prejudice is necessary. If the defendant is

not prejudiced by the circumstances, then the prosecutor cannot be disqualified.

Here, evidence illustrates that the district attorney withdrew outstanding plea offers

to all of Duffy’s clients. And, though there exists evidence that there may have been more

than one offer outstanding at the time, the record fails to show to whom they were

extended or how many defendants were extended an offer. Nor does it show that the

defendant being prosecuted in the case that instigated the row between Dennis and Duffy

had been offered a plea bargain. To that I add evidence illustrating the prosecutor quickly

changed the tone of his prior text message about plea offers. He did that through a letter

sent on the same day wherein he told Duffy that offers would not be forthcoming “at this

time.” So too did he later extend an offer to at least one of her clients. Whether there

were more, we do not know. Whether that offer was extended to a defendant who had

previously been extended an offer, we do not know. Nevertheless, evidence filling those

gaps was undoubtedly available to Duffy since the offer or offers were undoubtedly

extended to her clients through her, and it was her burden, as representative of her

clients, to proffer it.

Simply put, the evidentiary scenario brings to mind the adage “actions speak

louder than words.” Dennis intended to retaliate when initially texting Duffy about

withdrawing plea offers. Nonetheless, his actions illustrate backpedaling from that intent.

He apparently opened the door to plea negotiations and even extended an offer to a client

of Duffy. This uncontradicted evidence leads me to conclude that the prejudice needed

to allow disqualification presents itself as a possibility as opposed to an actuality. So, to

9 the extent precedent requires evidence of actual prejudice, I cannot say Duffy satisfied

the burden.

Consequently, I concur with Justice Pirtle to the extent he concluded there existed

a conflict of interest.3 I concur with Justice Parker to the extent she concluded the

evidence of actual prejudice was deficient. Thus, I would reverse the trial court’s order

disqualifying Christopher Dennis from prosecuting the proceedings listed in the opening

paragraph of this opinion. Yet, I do so with the caveat that anger and impulse runs among

us all; to control them is not easy but necessary to effectively serve the elected office.

Brian Quinn Chief Justice

Publish.

3 Regarding Justice Pirtle’s reference to “Schrodinger’s Cat,” one can find an explanation of the

principle at 2:55 into the YouTube video located on the internet at https://youtu.be/3DjfZpwdN-o. Sheldon’s monologue on the subject is insightful. Truly, just as one may not know if the box hides a living or dead cat until the box is open (assuming of course it is not shaken first), one cannot know if he has encountered harm until that harm is experienced. Nonetheless, our jurisprudence seems to have little use for Schrodinger or his cat given that prejudice and harm are elemental to many legal concepts. For instance, without prejudice, counsel’s ineffectiveness is irrelevant. See Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017) (requiring evidence of prejudice). Without prejudice, most errors do not result in reversal. See TEX. R. APP. P. 44.2 (requiring harm as a prerequisite to reversal). As Sheldon concludes, “it is only by opening the box, you’ll find out which it is”; only by waiting to the end to assess the act’s affect do we generally discover if corrective action is needed. Working in the past tense may not be the most effective or efficient way to work, but our body of law tends to require as much from us. And, that leaves me to question whether we should normally wait until the end to correct the wrong. Sadly, the answer comes not from me but from minds higher up the judicial ladder.