Justin Michael Love v. State

• Court: Court of Appeals of Texas
• Decided: March 26, 2020
• Docket: 02-19-00052-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00052-CR ___________________________

JUSTIN MICHAEL LOVE, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 30th District Court Wichita County, Texas Trial Court No. 56,962-A

Before Kerr, Birdwell, and Bassel, JJ. Opinion by Justice Kerr OPINION

Passed into law in 2013 and with a 2014 effective date, the Michael Morton Act

ensures that criminal defendants, witnesses, and prospective witnesses can review

many of the State’s discovery materials above and beyond those that are purely

exculpatory, thus allowing more transparency into criminal prosecutions. See Tex.

Code Crim. Proc. Ann. art. 39.14; Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

1196–97 (1963) (establishing State’s duty to disclose exculpatory evidence). But with

that expanded right come responsibilities: defense counsel cannot let a client, witness,

or prospective witness have a copy of the discovery materials (except for that person’s

own statement), and before letting a client, witness, or prospective witness view the

materials, counsel must redact the types of identifying information laid out in Article

39.14(f). See Tex. Code Crim. Proc. Ann. art. 39.14(f).

This appeal involves what should happen when defense counsel is sloppy with

the State’s discovery DVD, letting his jailed client’s wife—herself a witness—take the

original to review on her own, thereby creating a situation in which she surreptitiously

downloaded the unredacted DVD’s contents onto her own computer, and when she

and defense counsel do not later agree on exactly what he told her when lending her

the file.

With defense counsel’s mishandling the discovery as a springboard, the State

argued that defense counsel had made himself a witness or created a conflict of

interest with his client in violation of the Texas Disciplinary Rules of Professional

2 Conduct, and it persuaded the trial court to disqualify Love’s chosen counsel from

continued representation. We must decide whether disqualification was appropriate

and proportionate on the facts of this case, keeping in mind that Love’s wife could

have reviewed a (redacted) DVD anyway and told Love what was in the State’s file—

and when Love’s counsel could have reviewed the file with Love himself, thereby

providing Love with the same information that purportedly spurred Love to attempt

witness tampering. The fact that Love’s wife and defense counsel recalled comments

made at the file drop-off slightly differently did not create a conflict of interest nor did

it make defense counsel a necessary witness on an essential fact. We thus conclude

that the trial court abused its discretion by disqualifying counsel from representing

Love.

Love’s Indictment, Conviction, and Sentencing

The State indicted Love for engaging in organized criminal activity, with

murder as the predicate offense. See Tex. Penal Code Ann. § 71.02(a)(1). Specifically,

the State alleged that Love had murdered Domanic Thrasher on June 2, 2015, while

participating in a combination to illegally deliver marijuana. Nearly two years after

Love’s codefendant Blayne Brooks was tried and sentenced to 60 years in prison, a

jury found Love guilty and assessed his punishment at 50 years’ imprisonment. After

being sentenced, Love appealed.

3 Appellate Issues

In the first of his three issues, Love asserts that the trial court reversibly erred

by disqualifying his retained counsel. Because we sustain Love’s first issue and because

the error is structural, we reverse the trial court’s judgment and remand the cause for a

new trial without needing to reach Love’s two other issues, which deal with alleged

jury-charge error.

Background

To put into context the trial court’s disqualifying Love’s chosen lawyer

(Retained Counsel), we briefly describe the offense and its aftermath.

A. Love, his business partner, and a go-between attempt a drug sale; the purported buyer attempts to steal the drugs instead; and before the purported buyer can make his getaway, Love’s business partner shoots and kills him.

Love and Brooks ran a marijuana business out of Love’s home, which he

shared with his wife, Tamilyn.

In June 2015, Love, Brooks, and go-between Whitney O’Brien were in Love’s

home discussing a prospective sale of two ounces of marijuana to someone who

identified himself in text messages only as “E.” Tamilyn and her friend Daphnee

Selser were present and heard the conversation.

The prospective sale to the unknown E left the group uneasy. Marijuana

normally sold for $200 to $250 an ounce, but because O’Brien and her boyfriend were

late on their rent money, she quoted E an inflated price. When E made no effort to

4 negotiate a better deal—haggling being common in drug transactions—something

seemed off. So to add “muscle,” Love decided to go with Brooks and O’Brien to

make the sale.

At the designated rendezvous, Brooks and O’Brien realized that E was former

Rider High School football star Domanic Thrasher, whom both recognized from high

school. Brooks knew Thrasher to be a “jackboy”—someone who robbed drug

dealers—but the three proceeded with the planned sale anyway, parking Love’s

Suburban and letting Thrasher get into the back seat.

It went badly. Even though Love had a gun visibly displayed as a hoped-for

deterrent, Thrasher grabbed the bag of marijuana and took off. As Thrasher ran,

Brooks began shooting, hitting and killing him. According to O’Brien, Brooks fired at

Love’s urging. O’Brien retrieved the marijuana, and the three sped off. Shaken,

O’Brien asked to be let out of the car, but Love threatened her.

Once back at Love’s house, Tamilyn and Selser were again privy to everything

Love, Brooks, and O’Brien said and did. That same afternoon, Love—along with

Tamilyn, their children, and Selser—fled to Tamilyn’s brother’s home in Colorado.

Law enforcement eventually traced Thrasher’s murder to Love, Brooks, and

O’Brien through Thrasher’s cell phone and an anonymous Facebook post. 1

1 Tamilyn had told her sister what had happened, and her sister anonymously posted the information on Facebook.

5 B. After over a year of loyalty to her husband, Love’s wife turns State witness.

In November 2015, Tamilyn had testified to the grand jury about Brooks’s and

O’Brien’s involvement in Thrasher’s murder. Because of spousal immunity, at that

time the grand jury did not hear from Tamilyn about Love’s own role. Then in August

2016, before any of the three defendants had gone to trial, Tamilyn was caught

delivering a felony quantity of marijuana in a drug-free zone.

The resulting indictment led to Tamilyn’s facing revocation of her probation

from an unrelated theft incident. To avoid going to prison, Tamilyn made a plea deal

in September 2016 under which she waived her spousal privilege and agreed to testify

against Love. The next month, accordingly, Tamilyn went back before the grand jury,

this time to describe her husband’s role in Thrasher’s murder.

C. Long before Love’s wife agreed to testify for the State, Retained Counsel allowed her to possess the original DVD containing the State’s Article 39.14 discovery; the State learns of this from jailhouse telephone conversations.

Months before Tamilyn flipped in September 2016, and while Love continued

to sit in jail, the State—as is customary—recorded telephone conversations between

Tamilyn and Love spanning February through April 2016 during which Love asked

Tamilyn to send witnesses of their acquaintance to her brother’s in Colorado so that

they could not testify at Brooks’s first-scheduled trial and to tell those witnesses to not

remember anything if the State did call them to the stand. Nothing in the record

suggests that Tamilyn followed through on those requests.

6 Although Love was never charged with attempted witness tampering, the State

anticipated using these recordings to show Love’s consciousness of guilt. See Wilson v.

State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (explaining that an “attempt to

tamper with a witness is evidence of ‘consciousness of guilt’”). Thus far, the scenario

is straightforward.

But another matter complicated the State’s using the recordings.

Toward the end of December 2015 and in keeping with its disclosure

obligations under the Michael Morton Act, the State had turned over discovery

materials to Retained Counsel by giving him a DVD containing witness statements

and other case information. Instead of having Tamilyn view this file in the controlled

environment of his office, in early February 2016 Retained Counsel simply dropped

the DVD off for Tamilyn to review and later return. Retained Counsel did not first

redact certain information as Article 39.14(f) requires, nor did he ensure that Tamilyn

could retain a copy only of her own witness statement, as the statute allows. See Tex.

Code Crim. Proc. Ann. art. 39.14(f).2

2 Article 39.14(f) provides:

The attorney representing the defendant . . . may allow a defendant, witness, or prospective witness to view the information provided under this article, but [the attorney] may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security

7 During a conversation with Love on February 8, 2016, which was apparently

the day she got the DVD, Tamilyn told Love that she was not supposed to have the

discovery disk. Tamilyn was recorded that February day as saying,

I’m on my way to Walmart to get a charger for this laptop because even though it’s highly not allowed, [Retained Counsel] is going to release this dis[k] to me for two days because he said it will take me eight hours to read everything and it would be best I do it. Neither him nor I have eight hours to set in the office and go over it all.

....

He just said under . . . . He said do not lose it because if you do I’ll fly blind because I can’t get another one and he said do not tell that you have it because it is so not okay.

Love instructed Tamilyn to save the file on “Granny’s” computer; in a later

conversation that day, Love told Tamilyn to make copies of the file so that she could

give the disk back to Retained Counsel. Before returning the discovery disk to

Retained Counsel, and without his knowledge, Tamilyn did indeed download the

entire file.

The chief investigator for the Wichita County District Attorney’s office, who

was monitoring the jail calls, determined at the time, as he wrote in his later report,

that “if Tamilyn’s statements [on February 8, 2016] about [Retained Counsel] were

true, it would be a violation of CCP 39.14(f).”

number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement.

Id. (emphases added).

8 Although the record is silent about why the State did not immediately alert the

trial court to conduct that it has characterized as “illegal,” the State now knew of a

discovery violation, the original source of which was Retained Counsel. Over multiple

conversations throughout the spring of 2016, Tamilyn read or described to Love

much of the file’s contents.3

D. The State notifies the trial court of a “Potential 39.14 Violation by Defense Counsel Tendering a Copy of the File to an Unauthorized Third Party.”

Tamilyn cut her deal in September 2016, and in October the State filed its

notice of the potential Article 39.14 violation that had occurred some eight months

earlier. That notice was couched exclusively in terms of subsection (e), which

prohibits disclosing discovery to an unauthorized “third party,” rather than subsection

(f), which deals with witnesses and prospective witnesses such as Tamilyn.4 Not (yet)

raising the specter of disqualification, the State wrote that it

3 At some point, she also read part of the discovery to fellow witness Selser and shared a portion with a former employer who was writing a story and “needed crime lingo.” 4 The difference between (e) and (f) is significant. Under the former, without a court order defense counsel cannot disclose anything nonpublic to a “third party”; the latter subsection, in contrast, allows the defendant, witnesses, and prospective witnesses to review the State’s discovery, with some limitations. In our view, Tamilyn was never an “unauthorized third party” for Michael Morton Act purposes despite the State’s frequently characterizing her that way. By the time of the disqualification hearing, as we explain later, the State acknowledged that she was a witness entitled to review discovery materials. In its briefing to us, the State glosses over these conflicting positions and lumps together citations to both (e) and (f).

9 believe[d] that the Court should be placed on notice of this potential violation of 39.14(e) by [Retained Counsel] so the Court can conduct whatever inquiry and take whatever actions that it wishes. Section 39.14, as a discovery provision, empowers and entrusts the protection of this critical information with the Court, as the Court is in charge of the discovery process.

The State attached the chief investigator’s report to its notice; as we mentioned,

the investigator cited the very different Article 39.14(f), not (e). The reasons for the

discrepancy are not apparent.

E. After Brooks’s trial, Love moves to change venue out of Wichita County.

The murder of a former Wichita Falls high-school football star had

understandably generated much publicity in the local media at the time, as did

Brooks’s November 2016 trial and the run-up to it. Newspaper accounts and televised

reporting frequently recounted O’Brien’s assertion that it was Love who had told

Brooks to shoot Thrasher, as well as Love’s threats toward O’Brien if she had tried to

get out of the car or if she talked to the police. Televised portions of Brooks’s trial

that are in the record include a clip of Brooks’s mother testifying about the sway that

Love held over her years-younger son and several defense witnesses testifying that

Love controlled Brooks’s actions.

Shortly after Brooks was sentenced, local media turned to reporting the State’s

offer of a 50-year plea deal to Love, its December 31, 2016 deadline, and his rejection

of that offer.

10 In addition to all these (and more) examples of pretrial publicity that, Love

argued, had ruined his ability to get a fair trial in Wichita County, Love included two

sentences at the end of his change-of-venue motion describing what he captioned

“Publicity Surrounding Defendant’s Counsel”:

It was further reported on the news, radio and texomas [sic] home page[5] that the State has asked the Court to investigate Love’s lawyer because he reportedly gave discovery documents to Love’s wife. It was reported on the news, radio and texoma’s [sic] home page that counsel has been arrested twice before.

Love quoted one online news article referring to Retained Counsel’s “less

than . . . stellar reputation” while reporting that Retained Counsel had once been

“arrested for hitting another man in the face with a beer mug at Old Town Saloon

and also arrested for allegedly showing up drunk and naked to a woman’s house a year

after he ran for District Attorney.”6

With regard to Love’s claim of damaging publicity about Retained Counsel, the

State’s response to Love’s venue motion did not address either the discovery violation

or counsel’s earlier brushes with the law, relying instead on the fact that Retained

Counsel was continuing to receive felony appointments: “Naturally, if [Retained

Counsel’s] reputation were so bad that he could not effectively represent defendants

“Texoma’s Homepage” is the website of local NBC and Fox affiliates KFDX 5

and KJTL. See www.texomashomepage.com (last accessed March 4, 2020). 6 That same article picked up on the State’s view that Retained Counsel had “illegally” given Tamilyn a discovery disk.

11 in Wichita County, then [Retained Counsel] would have withdrawn from the felony

appointment list or the district judges would have stopped appointing him.”

The State’s suggested fix for all of Love’s pretrial-publicity concerns—the vast

majority of which related to Love himself—was for the trial court to leave it to jury

selection to gauge whether a fair jury could be selected in Wichita County. “If the

defendant’s claims about publicity are correct, then that would be evident at voir

dire.”

In questioning the district attorney’s chief investigator toward the end of the

venue hearing about Retained Counsel’s reputation, the State asked:

So do you believe that jury selection would also be an important tool to show whether these claims about [Retained Counsel’s] reputation being so bad that he cannot adequately represent this Defendant to a Wichita County jury, that that would be exposed in jury selection whether that’s true or false?

The investigator agreed that would be true “if the questions are asked.”

The trial court recessed the May 15, 2017 venue hearing to finish at a later date.

In the roughly 130-page transcript of that hearing, the topic of the discovery violation

came up on six pages, and only briefly at that.

F. Three days after the venue hearing is recessed, the State moves to disqualify Retained Counsel.

On May 18, three days later, the State moved to have Retained Counsel

disqualified. The State contended that his “unauthorized tendering of the State’s file

to Tamilyn Love, an unauthorized third party” who had “illegally obtained possession

12 of the file” put Retained Counsel in the dual role of advocate and witness and “so

entangled” him in the proceedings that a conflict between Love’s and Retained

Counsel’s interests existed.

In the State’s view, the discovery violation would inevitably become an issue at

trial: in order to show that Love had attempted to tamper with witnesses and that he

had had access to the discovery file through Tamilyn’s reading it to him, the State

would have to show how Tamilyn came to “illegally” possess the DVD in violation of

Article 39.14(e), something that would inescapably involve Retained Counsel’s

actions. The State relied on Rule 3.08 of the Texas Disciplinary Rules of Professional

Conduct (“Lawyer as Witness”) and to a much lesser degree also on Rule

1.06 (“Conflict of Interest”). 7 See Tex. Disciplinary Rules Prof’l Conduct RR. 1.06,

3.08, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A.

As with its earlier notice, the State cited only Article 39.14(e) as the basis for its

motion and indirectly explained why it had not sought disqualification earlier by

asserting that

[t]his conflict became unmistakably clear to the State at the motion to transfer venue hearing on May 15, 2017, when the defense attorney developed testimony from [Love’s mother] and the defendant concerning the discovery violation and implied that the prosecutor was striking at the defense attorney’s reputation by documenting the violation on the record in open court without seeking any affirmative

In its 11-page motion, the State devoted two short paragraphs at the end to 7

Rule 1.06.

13 sanctions. [Criminal-defense attorney] Mr. [Robert] Estrada, a defense witness, also alluded to this.

The State was referring to the following testimony: at the venue hearing,

Retained Counsel had asked Love’s mother one question about the discovery

violation: “Did you also see newscasts or articles about -- about -- about me -- about

notice given to the Court that I had reportedly violated discovery rules?” She

answered, “Yes.” In the course of questioning Love, Retained Counsel had asked

whether, at the December 9, 2016 hearing at which the plea offer was discussed and

reported on (and the discovery violation mentioned), the prosecutor had “request[ed]

any kind of relief or sanctions that day other than saying that [the discovery-violation

notice] had already been filed,” to which Love answered, “No.” Love also testified

that he had seen newscasts that same day reporting Retained Counsel’s alleged

violation, and “before [Love] knew it the 6 o’clock [news] not only had that [Love]

came to court, had the [plea] offer, but then it had [Retained Counsel’s] mugshot on

the screen on Channel 3 and talked about [Retained Counsel’s] criminal history and

the alleged violation of the 39.14(e).”

Finally, Attorney Estrada testified at the venue hearing about pretrial publicity

involving Love and was asked one question by Retained Counsel about the discovery

violation: “Are you aware that there was also a motion filed and it was stated on the

record that the district attorney’s office suspected me [of] improper conduct with

regard to discovery?” Estrada responded, “Only from what I read.” Estrada did not

14 testify that the publicity surrounding Retained Counsel contributed to his opinion that

Love could not get a fair trial in Wichita County, pointing instead to—

• the fact that Domanic Thrasher had been a high-school football star, adding that “Hollywood would not be able to come up with a better name for a high school football player in Texas”;

• the popularity of football in Wichita Falls, the rivalries between Thrasher’s high school and other schools, and “kids grow up wanting to play football”; and

• media reports of witness testimony at Brooks’s trial about Love, “because it’s already out there. It can’t be unsaid.”

During the State’s cross-examination of Attorney Estrada at the venue hearing,

it continued the subsection (e) theme that Retained Counsel had no right whatever to

disclose the discovery file to Tamilyn:

Q. Now, you’re familiar with the discovery provisions of the Code of Criminal Procedure 39.14, aren’t you?

A. Yes.

Q. Especially 39.14(e) that prohibits disclosure of the file to an unauthorized third party without prior court permission.

A. That’s right.

Q. . . . If I represent to you that my investigator learned that the defense attorney in this case had tendered the file to an unauthorized third party and that that third party was engaging in borderline witness tampering type behaviors and I had that information, that’s certainly something I had a duty to notify the Court of?

A. And I believe you did.

15 In his initial response to the State’s disqualification motion, Love called the

issue of “how Tamilyn Love came into the possession of the file . . . a red herring.”

The State filed a reply, which Love answered in a further response filed the day of the

disqualification hearing, May 26, 2017.

Love’s May 26 “Response to the State’s Reply to Defendant’s Response to the

Motion to Disqualify” contains the first explicit observation that Tamilyn could in fact

“view the information provided” under the Michael Morton Act, as Article 39.14(f)

states, because she “was and is a witness in this case,” as Love noted. Thus, only on

the day of the hearing was the trial court pointed to something other than the State’s

absolutist subsection (e) position.

In preliminary remarks before the trial court began hearing testimony, Retained

Counsel put the matter in a nutshell: “They are saying that she illegally obtained a

file. . . . If she didn’t illegally obtain it, then there’s no basis for disqualifying me.”

The disqualification hearing saw the State now raise the subsection (f) redaction

issue for the first time:

Q. Had you reviewed that disk before you gave -- relinquished it to her?

[Retained Counsel:] I think I skimmed a little bit of it, but I had not reviewed it thoroughly.

16 Q. And what did -- what redactions did you make to that disk before you released it to her?[8]

A. I don’t know how to redact a disk. So I didn’t make any redactions.

Q. And when you gave it to her, you told her something to the effect, it’s highly not allowed for me to give this to you and don’t tell anyone that you have it because it is not okay?

A. I did not tell her that.

Q. In fact, you also told her that, if you lose it, I’ll have to fly blind because I can’t get another disk?

A. That’s correct. Because I gave her my actual DVD.

Q. Okay. And normally if you had misplaced that DVD, you could request another one from the DA’s office, couldn’t you?

A. I don’t know if I could get one, but I could request one.

Despite the State’s now asking about redactions, it continued to blur the

subsection (e)/(f) distinction: the State’s next question was whether Retained Counsel

knew that he could not request another DVD because he “knew that what [he] did

was in violation of 39.14(e)?” Retained Counsel answered, “No.” And when later

asked if he had ever “reported to the Court the fact that [he] released that disk to an

8 Nothing in the monitored jail calls between Tamilyn and Love had even hinted at a redaction issue, so the State’s question marks the first time it implied that a failure-to-redact violation of subsection (f) was as “illegal” or improper as releasing discovery materials to an unauthorized third party under subsection (e). As noted, the State’s October 2016 notice of a potential Article 39.14 violation relied wholly on subsection (e).

17 unauthorized third party,” Retained Counsel responded: “I am going to object. I don’t

believe she’s an unauthorized third party . . . .”

Testifying at the disqualification hearing in narrative form on cross-

examination, Retained Counsel explained further:

It’s my belief that, as a witness, she could view the actual DVD that [the prosecutor] tendered to me. She could do it in my office. I’m not going to sit in there with her. Nobody has time to sit in there with her. I’m not going to search her purse. I’m not going to strip search her. If she is going to violate, she is going to violate it; she is going to take pictures of it. I trusted her, because she was [Love]’s wife, to look at it. She didn’t have time to come into the office and sit there. It was a pretty lengthy disk, I think. And so I trusted her to do -- to look at it, bring it back to me, not to disclose it to anybody else or make any copies. So I believe any -- I believe she had the right to review the file, the actual DVD. I did not make a copy of the actual DVD and give it to her.

Retained Counsel maintained that he took precautions by giving Tamilyn

explicit instructions: “I told her that she couldn’t lose it, that she couldn’t make copies

of it, that she couldn’t let anybody else see it, that she needed to look at it and bring it

back to me.” For her part, Tamilyn had this to say about having gotten the DVD in

February 2016:

Q. And did [Retained Counsel] give you the disk, the discovery disk, the initial discovery disk in this case?

A. He did.

Q. And when he gave you that disk, did he make a statement to you something of the effect that, it’s highly not allowed for me to release this disk to you?

A. He did inform me, yes.

18 Q. Did he tell you to not tell anyone that you had it because it’s so not okay?

A. Something along those lines. I think those are my words. But yes.

On being cross-examined by Retained Counsel, Tamilyn agreed that she knew

he had given her his “one and only DVD,” that he did not make a copy of his DVD

and give it to her to keep, and that he told her he “had to have it back.” Tamilyn also

agreed that Retained Counsel had had no reason not to trust her with the original and

that he had not suggested that she should “influence any witnesses” or “tell people

not to come to the trial or avoid service.”

Under questioning at the hearing, the chief investigator agreed with Retained

Counsel that “witnesses can review the discovery materials that y’all give to [defense

counsel],” answering, “They can review them, yes, with stipulations.” The investigator

also acknowledged that all the witnesses’ addresses were public record. 9

In his closing remarks, Retained Counsel noted that in seeking his

disqualification, the State had to show that it would suffer “actual prejudice” if he

continued to represent Love; that there were “no adequate measures” the trial court

could take short of disqualifying him; and that a “compelling need, that it’s essential

9 Addresses are among the identifying information that must be redacted under subsection (f). By all accounts, all the witnesses whom Love urged Tamilyn to send to Colorado to avoid testifying at Brooks’s trial were known to both of them.

19 and not just relevant,” existed for Retained Counsel’s testimony at trial. As for the

substance of that theoretical testimony, Retained Counsel summed up:

[W]hat am I going to testify about? She can look at this information, Judge. So there’s no issue before the jury. By law, she can look at it and so there’s -- whether it is in my conference room, whether it’s in my office, whether it’s in my reception room or wherever, she can look at this information. So she has access to this information, Judge. The witnesses are all out there. Their names are out there and addresses. So there’s no issue, Judge.

The trial court granted the State’s motion and disqualified Retained Counsel

with the following order:

After considering the evidence, authority, and argument of counsel in the pending motion to disqualify, I make the following findings:

1. By improperly disclosing the discovery file to Tamilyn Love, [Retained Counsel] has made himself a likely witness in the trial of Justin Love.

2. As a witness, [Retained Counsel] would find himself in the dual role of advocate and witness. He is prohibited from serving in that dual role.

3. Should the defense attempt to prevent or limit the State’s ability to question [Retained Counsel] about his role and/or motive in the discovery violation, such an attempt would impermissibly hamper the State’s case.

4. Even if not called to testify under oath, [Retained Counsel] would, in all likelihood, become an “unsworn witness” as discussed in Gonzalez v. State.

5. [Retained Counsel]’s actions have created a conflict between himself and his interests and those of the defendant.

The State’s motion to disqualify [Retained Counsel], as trial counsel, is GRANTED.

20 This order does not indicate whether the trial court concluded that the

“improper disclosure” referred to in its paragraph 1 stemmed from a subsection (e)

violation, as the State had consistently maintained, or from a subsection (f) violation,

something that was new to the mix on the day of the disqualification hearing.

ISSUE ONE: DISQUALIFICATION OF COUNSEL

Applicable Legal Principles

Because the State initially argues that Love did not preserve error on the

disqualification issue, we address that aspect of the State’s argument first.

A. Love preserved his first issue for appeal.

Love argues that the trial court reversibly erred by ordering Retained Counsel’s

disqualification “based on a conflict of interest between [Love] and his counsel under

Texas Disciplinary Rule of Professional Conduct 3.08.” The State suggests that Love

waived the issue by attacking only one of the two grounds ostensibly underpinning

the trial court’s order. That is, the State asserts that the order—although it cites no

particular disciplinary rule—relied both on Rule 1.06 (“Conflict of Interest”) and on

Rule 3.08 (“Lawyer as Witness”) but that Love’s first issue attacks only the Rule

3.08 ruling and so must be overruled.

Love’s brief never specifically cites Disciplinary Rule 1.06, but Love does

repeatedly refer to a “conflict of interest” between himself and Retained Counsel;

following are some of the examples:

21 • “Though this Court has adopted Gonzalez v. State, 117 S.W.3d 831 (Tex. Crim. App. 2003)[,] it has not had the opportunity to apply the holding to a situation where the trial court disqualified a party’s attorney on the motion of an opposing party based on a conflict of interest.”

• “The State filed a motion to disqualify [Retained Counsel] from representing Love claiming that relinquishing the file to Tamilyn . . . created a conflict between him and Love.”

• “The trial court ruled [Retained Counsel]’s discovery file violation created a conflict between him and Love under Tex. Disciplinary R. Prof’l Conduct 3.08. The court determined that the State suffered harm based on the Texas Court of Criminal Appeals decision in Gonzalez v. State, 117 S.W. 3d 831 (Tex. Crim. App. 2003).”

• “Despite the fact that . . . the State’s case suffered no actual prejudice by the alleged conflict between Love and his attorney[,] the trial court removed [Retained Counsel] from the case. By removing . . . Love’s retained attorney from the case under the guise of a ‘conflict of interest’ the trial court sanctioned the weaponization of the rules of professional conduct.”

• “The State is not permitted to use a conflict between a defendant and his attorney to reap an advantage through disqualification. The party seeking disqualification must demonstrate actual prejudice resulting from opposing counsel’s service in the dual role of advocate-witness. Nothing about [Retained Counsel]’s possible conflict with Love would limit the State’s ability [to] pursue its case.” [footnotes omitted]

From this, we conclude that Love’s brief does not ignore the conflict-of-interest issue.

Moreover, Disciplinary Rules 1.06 and 3.08 are not mutually exclusive. Rule

3.08 encompasses aspects of Rule 1.06—that is, conflict-of-interest concerns are

present in Rule 3.08, even if secondarily. For example, Rule 3.08(b) provides: “A

lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the

lawyer believes that the lawyer will be compelled to furnish testimony that will be

substantially adverse to the lawyer’s client, unless the client consents after full

22 disclosure.” See Tex. Disciplinary Rules Prof’l Conduct R. 3.08(b). And comment

10 to Rule 3.08 addresses conflicts of interest: “[A] lawyer should not seek to

disqualify . . . opposing [counsel] under . . . Rule [3.08] merely because the opposing

lawyer’s dual roles may involve an improper conflict of interest with . . . the opposing

lawyer’s client, for that is a matter to be resolved between lawyer and client or in a

subsequent disciplinary proceeding.” Id. R. 3.08 cmt. 10. Although the two rules

admittedly have different focuses, a Rule 3.08 analysis necessarily implicates some

Rule 1.06 concerns.

Next, the State argues that to the extent Love’s brief addresses Rule 1.06, his

briefing is inadequate. We disagree. Love’s brief goes beyond just lawyer-as-witness

concerns; it acknowledges conflict-of-interest issues and cites Wheat v. United States—a

pure conflict-of-interest case—three times. See 486 U.S. 153, 108 S. Ct. 1692 (1988).

The Texas Court of Criminal Appeals has cited Wheat for the proposition that a party

moving to disqualify opposing counsel must show an actual conflict or a serious

potential for conflict. Bowen v. Carnes, 343 S.W.3d 805, 812 (Tex. Crim. App. 2011)

(orig. proceeding) (quoting Wheat, 486 U.S. at 164, 108 S. Ct at 1700). And even the

Rule 3.08 case on which both Love and the State rely extensively, Gonzalez v. State,

cited Wheat for the same proposition. 117 S.W.3d 831, 844 (Tex. Crim. App. 2003).

Love also argues that remedies other than disqualification were available and that any

conflict between himself and Retained Counsel was not the State’s concern unless the

23 State could show actual prejudice. In short, Love did not ignore or fail to adequately

brief the conflict-of-interest concerns.

We are to construe briefs liberally. Tex. R. App. P. 38.1(f) (“[T]he statement of

an issue or point will be treated as covering every subsidiary question that is fairly

included.”), 38.9 (requiring courts to liberally construe briefs for substantial

compliance with rules). Thus to the extent, if any, that the trial court relied on Rule

1.06, we conclude that Love’s brief encompasses Rule 1.06, and to the extent that the

trial court did not rely on Rule 1.06, Rule 1.06’s concerns are subsumed within a Rule

3.08 analysis—on these facts at least. Regardless, as we noted, Love did address

conflict-of-interest concerns in his brief. See, e.g., Barnett v. State, 161 S.W.3d 128,

132 (Tex. App.—Fort Worth 2005) (noting principle that briefs should be liberally

construed to serve the interests of justice), aff’d, 189 S.W.3d 272 (Tex. Crim. App.

2006). We hold that Love preserved his first issue and so will analyze its merits.

B. We apply an abuse-of-discretion standard of review.

When the trial court disqualifies an attorney, we review its decision for an abuse

of discretion. See Landers v. State, 256 S.W.3d 295, 303 (Tex. Crim. App. 2008). But

even under this standard, sometimes the review is highly deferential and other times

not. When reviewing factual determinations, we defer almost totally to those trial-

court findings that the record supports, especially when the findings turn on

evaluating credibility and demeanor. Id. But when reviewing how the trial court

applied the law to the facts, we use the no-deference de novo standard. Id.

24 C. Although the right is not limitless, defendants have the right to choose their retained counsel, and the State’s burden in getting chosen counsel removed is thus a heavy one.

When it comes to a paid attorney, 10 a defendant has the right to choose his own

counsel, although that right is not absolute. Gonzalez, 117 S.W.3d at 836–37; Trammell

v. State, 287 S.W.3d 336, 342–43 (Tex. App.—Fort Worth 2009, no pet.). For example,

a defendant has no right to an advocate who is not a member of the bar, to an

attorney whom the defendant cannot afford, to an attorney who declines to represent

him, or to an attorney who has a previous or an ongoing relationship with an

opposing party. Gonzalez, 117 S.W.3d at 837. While a strong presumption favors a

defendant’s right to retain counsel of choice, other important considerations—such as

the judicial process’s integrity and justice’s fair and orderly administration—may

override this presumption. Id.

If a trial court unreasonably or arbitrarily interferes with a defendant’s right to

choose his own counsel, its actions rise to the level of a constitutional violation. United

States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S. Ct. 2557, 2564 (2006) (holding that

“erroneous deprivation of the right to counsel of choice, with consequences that are

10 “A clear distinction exists between paying clients and indigent defendants. Because paying clients may contract for representation from the lawyer of their choice, they are free to accept or reject representation by a lawyer after having been informed of a conflict of interest.” Haley v. Boles, 824 S.W.2d 796, 798 (Tex. App.— Tyler 1992, no pet). “However, an indigent defendant is assigned the lawyer who will represent him. The indigent defendant’s consent to continued representation under Rule 1.06(c)(2) does not embody the same degree of free choice as that of the paying client.” Id.

25 necessarily unquantifiable and indeterminate, unquestionably qualifies as structural

error”) (cleaned up); Gonzalez, 117 S.W.3d at 837; cf. Richardson-Merrell, Inc. v. Koller,

472 U.S. 424, 443, 105 S. Ct. 2757, 2767 (1985) (Stevens, J., dissenting on other

grounds) (“[I]n a criminal case an erroneous order disqualifying the lawyer chosen by

the defendant should result in a virtually automatic reversal.”). Thus, in disqualifying

defense attorneys, courts must proceed carefully—“especially if less serious means

would adequately protect the government’s interests.” Gonzalez, 117 S.W.3d at 837.

D. Disciplinary Rule 3.08 does not warrant disqualifying counsel unless the lawyer’s testimony is “necessary” to an “essential fact”; if so, the opposing party must still show that it will be prejudiced if the lawyer is not removed.

Disciplinary Rule 3.08 warns that a lawyer should not accept or continue

employment if the lawyer knows or believes that he “is or may be a witness necessary

to establish an essential fact.” See Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a). In

determining whether defense counsel should be disqualified due to the risk of

becoming a witness, Texas courts use Disciplinary Rule 3.08 as a guideline. Gonzalez,

117 S.W.3d at 837. That rule does not present the disqualification standard but

provides relevant considerations. Id. at 837–38; see also Johnson v. State, 352 S.W.3d 224,

229 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“Rule 3.08 was promulgated

as a disciplinary standard, and not a procedural rule for attorney disqualification. . . .

Nevertheless, Texas courts often reference the Rule as a guideline when determining

whether a lawyer should discontinue his representation of a client.”).

26 In civil cases involving Rule 3.08, our supreme court has noted that

“‘[d]isqualification is a severe remedy’” and “is a measure that can cause immediate

harm by depriving a party of its chosen counsel and disrupting court proceedings.” In

re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (orig. proceeding) (quoting Spears v. Fourth

Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding)) (citing In re Nitla

S.A. de C.V., 92 S.W.3d 419, 423 (Tex. 2002) (orig. proceeding)). “Mere allegations of

unethical conduct or evidence showing a remote possibility of a violation of the

disciplinary rules will not suffice,” then, to merit disqualification. Spears, 797 S.W.2d at

656. Moreover, the “fact that a lawyer serves as both an advocate and a witness does

not in itself compel disqualification.” Sanders, 153 S.W.3d at 57 (citing Ayres v. Canales,

790 S.W.2d 554, 557–58 (Tex. 1990) (orig. proceeding); In re Chu, 134 S.W.3d 459,

464 (Tex. App.—Waco 2004, orig. proceeding); May v. Crofts, 868 S.W.2d 397,

399 (Tex. App.—Texarkana 1993, orig. proceeding)).

As the Sanders court observed, disqualification is appropriate only if the lawyer’s

testimony is “‘necessary to establish an essential fact.’” Id. (quoting Tex. Disciplinary

Rules Prof’l Conduct R. 3.08(a)). It is the movant’s burden to show that opposing

counsel’s testimony will be necessary. See Gonzalez, 117 S.W.3d at 838; In re Garza,

373 S.W.3d 115, 118 (Tex. App.—San Antonio 2012, orig. proceeding). The party

requesting disqualification must also show that the opposing lawyer’s dual roles as

attorney and witness will cause the party actual prejudice. See Gonzalez, 117 S.W.3d at

837; see also Sanders, 153 S.W.3d at 57. “Without these limitations, the rule could be

27 improperly employed ‘as a tactical weapon to deprive the opposing party of the right

to be represented by the lawyer of his or her choice.’” Sanders, 153 S.W.3d at

57 (quoting Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 10 (stating that a

lawyer “should not seek to disqualify an opposing lawyer by unnecessarily calling that

lawyer as a witness”)); see also House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App.

1997) (“The rules should not be used as a tactical weapon to disqualify opposing

counsel for their alleged disciplinary rule violations . . . .”); In re Bahn, 13 S.W.3d 865,

873 (Tex. App.—Fort Worth 2000, orig. proceeding) (stating that courts “must adhere

to an exacting standard when considering motions to disqualify so as to discourage

their use as a dilatory trial tactic”).

In a criminal matter, when moving to kick defense counsel off a case based on

counsel’s putatively being both advocate and witness, the State bears a “heavy

burden” to justify the disqualification. Gonzalez, 117 S.W.3d at 837. The State must

demonstrate “actual prejudice,” 11 and showing only a possible future disciplinary-rule

violation does not suffice. Id. Moreover, the party seeking disqualification cannot

invite or concoct the requisite actual-prejudice scenario by unnecessarily calling

Recognizing that criminal defendants enjoy constitutional rights not 11

possessed by the State, the Gonzalez court acknowledged the “meager” caselaw concerning “what it means for the State to demonstrate actual prejudice arising from a defense counsel’s violation of Rule 3.08.” Id. at 839. Ultimately sidestepping the question, the Texas Court of Criminal Appeals simply assumed that the State would have to satisfy the harmful-error standard of appellate-procedure rule 44.2(b)—that is, that the State must “show that its ‘substantial rights’ would be affected by an opposing attorney’s alleged ethical violation.” Id. at 840.

28 defense counsel as a witness. Id. at 838; cf. Flores v. State, 155 S.W.3d 144, 149 (Tex.

Crim. App. 2004) (noting that “putting defense counsel in the position of a

prosecution witness is something that ‘should be avoided whenever possible’”

(quoting Venable v. Maryland, 108 Md. App. 395, 405, 672 A.2d 123, 128 (1996)

(quoting Kaeser v. Nevada, 96 Nev. 955, 958, 620 P.2d 872, 874 (1980)))).

E. Article 39.14 contains no built-in sanctions or remedial measures for a defense counsel’s mishandling the State’s discovery disclosures.

The Michael Morton Act was designed to ensure that a defendant can discover,

on request, the “evidence material to any matter involved in the action.” See Tex.

Code Crim. Proc. Ann. art. 39.14(a). The statute allows defense counsel to show

clients, witnesses, and prospective witnesses the State’s file, with certain information

redacted, and to give them a copy of their own statements to keep. See id. art. 39.14(f).

The Act does not include any mechanisms for dealing with discovery violations on

defense counsel’s part, such as making those violations a ground for disqualification.

The Michael Morton Act’s silence on this score is apparently a feature, not a

bug:

Though potential sanctions (against both sides) were proposed and discussed in the formulation of the legislation, it was ultimately decided that such matters were better not specifically addressed. Frankly, both prosecutors and defense lawyers were leery about the application of express sanction. In the end, the consensus was that since courts already possess the inherent power to order remedial and sometime[s] punitive (non monetary) sanctions, it was best left to the remedies that already existed rather than trying to write a set of rules or guidelines that could produce unintended consequences for both sides.

29 W. Troy McKinny, Criminal Discovery in Texas—2014: The Beginning of a Brave New World

of Fairness 8 (State Bar of Texas 40th Annual Advanced Criminal Law Course, Ch. 10,

2014), http://www.texasbarcle.com/Materials/Events/13098/168130_01.pdf (last

visited Mar. 10, 2020).

Another commentator has observed that the Michael Morton Act “[c]uriously”

fails to “create a crime or other sanction for violation of its nondisclosure

requirement.” Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton

Act Could Fundamentally Change Texas Criminal Discovery, or Not, 48 Tex. Tech L. Rev.

893, 916 (Summer 2016). In Professor Reamey’s view, this void

presents a challenge for the trial judge. If an attorney . . . misbehaves by improperly disclosing information obtained from the state, the court might refer the matter for possible attorney discipline or hold the lawyer in contempt if the court’s order was violated. Presumably, a sanction might issue using the court’s general supervisory powers.

Id. (footnotes omitted). 12 12 Along the same lines is a paper written after the Act had been in place for a year, cataloging how district attorneys around the state were dealing with the new requirements. Some offices reported that if defense counsel violated Article 39.14, they would respond by restricting future defense counsel access to information— unilateral sanctions against defense counsel that the paper calls “improper” and “rife with the potential for abuse. If a prosecutor believes that a defense lawyer has violated the Morton Act, the proper recourse is to draw this violation to the presiding court’s attention, and in egregious circumstances, report the conduct to the State Bar.” Towards More Transparent Justice: The Michael Morton Act’s First Year 29 (2015), http://texasdefender.org/wp-content/uploads/Towards_More_Transparent_ Justice.pdf (last visited Mar. 10, 2020).

On the flip side, some defense counsel find that the new disclosure rules create logistical headaches. A 2015 analysis conducted for the Texas Criminal Defense Lawyers Association yielded these (and other similar) comments:

30 Article 39.14’s framework thus does not explicitly contemplate that a court can

disqualify an attorney for a subsection (f) violation in and of itself.

Applying the Legal Principles

So what might it take for a discovery violation to warrant defense counsel’s

disqualification? According to the State, if a violation puts a defendant crosswise with

his counsel by placing counsel in the Rule 3.08 dual position of being both witness

and advocate or by foreclosing counsel from pursuing some otherwise reasonable trial

strategy because it might expose his role in the discovery violation (thus making

counsel’s interests conflict with his client’s under Rules 3.08 or 1.06 or perhaps both),

• “Significant time is required to review discovery with clients and their families because giving copies to them is no longer allowed.”

• “In the old days, when we had to go and write everything down in the DA’s office, I could still take the damn thing and give it to my client, and at least they read what I wrote, so they knew what was there. Now, I’m supposed to not only redact the damn thing, I’m also supposed to not let them hold onto it. How much time in a day do you have to do that kind of hand- holding? It doesn’t exist.”

The Cost of Compliance: A Look at the Fiscal Impact and Process Changes of the Michael Morton Act 45, 46 (March 2015), http://www.tcdla.com/Images/TCDLA/%20 Temporary%20art/MMA%20Final%20Report.pdf (last visited Mar. 10, 2020). Lubbock County defense attorneys had similar complaints, as a June 2016 article appearing in Lubbock Law Notes reveals: “[M]any Lubbock criminal defense lawyers eschew the redaction process and simply read discovery to clients, omitting identifying information; others prepare written summaries of discovery which can be given to clients to keep and study on their own time. A few lawyers admitted ignoring the non- disclosure and redaction rules.” Chuck Lanehart & Charles Blevins, The Michael Morton Act Revisited ¶ 5, https://lubbockcriminaldefense.com/2016/06/01/the-michael- morton-act-revisited/ (last visited Mar. 11, 2020).

31 then the defendant cannot keep his chosen lawyer. Although we agree in theory with

the State’s position, the facts here are materially different from Gonzalez v. State, the

leading Texas case on defense-lawyer-as-witness disqualification.

There, Gonzalez (a physician) and several others were indicted for engaging in

organized criminal activity involving an insurance-fraud scheme tied to staging car

accidents and billing for nonexistent medical treatment. One of the State’s key

witnesses had participated in the scheme, first as a car-wreck “victim” and then as an

employee in Gonzalez’s clinic. After the indictments were handed down, the witness

spoke and met with Gonzalez’s defense counsel and others several times, resulting in

an agreement—to which counsel was privy—by which Gonzalez would pay the

witness $10,000. The reason for the offered payment was hotly contested. Gonzalez,

117 S.W.3d at 835.

Arguing that defense counsel had “personal knowledge bearing directly on the

guilt or innocence of his client and the credibility of the State’s key witness,” id., the

State succeeded in moving to disqualify counsel under Rule 3.08. Id. at 836. Gonzalez

appealed his subsequent conviction, contending that the trial court had wrongly

deprived him of his chosen lawyer. Id. The court of criminal appeals rejected that

argument because defense counsel’s personal knowledge of and involvement with a

promised payment that the State argued was meant to bribe a witness went to the core

of the prosecution:

32 [T]he State intended to introduce evidence about which defense counsel had personal knowledge. The fact that defense counsel had personal knowledge would become obvious through the testimony of the State’s witness. This evidence, an allegation that defendant, through his attorney, attempted to bribe a witness for favorable testimony, was not merely tangential to the case or to defendant’s guilt, but would support an inference that such conduct demonstrated defendant’s consciousness of guilt for the crime charged.

Id. at 842. We see the Gonzalez defense counsel’s clear entanglement with a material,

disputed issue as a far cry from Retained Counsel’s situation.

A. The discovery violation and Tamilyn’s and Retained Counsel’s differing recollections were tangential not only to the State’s case against Love but also to the State’s wanting the jury to learn about Love’s witness- tampering comments.

Because proving that Love committed the charged offense of organized

criminal activity did not require proving the discovery violation or anything relating to

Tamilyn’s possessing, downloading, or partially sharing the State’s file, the Article

39.14(f) situation had only glancing importance to the State. See Harrison v. State,

788 S.W.2d 18, 23 (Tex. Crim. App. 1990) (holding that trial court erroneously

declared mistrial based on defense counsel’s cross-examining police officer on matter

within counsel’s personal knowledge and stating that even if counsel’s questions were

improper, they “were of ‘merely tangential importance’ to the case itself and did not

‘irreversibly inject’ counsel’s credibility as an issue in the trial”). Here, Retained

Counsel’s theoretical testimony about the discovery violation and what he told

Tamilyn about the propriety of her having the disk was not “necessary,” nor would it

have gone to an “essential fact.” Garza, 373 S.W.3d at 118 (party seeking

33 disqualification of opposing counsel must “establish[] both a genuine need for the

attorney’s testimony and that the testimony goes to an essential fact”); Bahn,

13 S.W.3d at 873 (discussing Rule 3.08 in civil case); cf. Gonzalez, 117 S.W.3d at

843 (approving lower courts’ tacit finding that “the record supported the conclusion

that it would be necessary for the State to call [the] attorney . . . as a witness [to the

meetings with the key witness] if he did not put himself on the stand”; it “would have

been evident that [the] attorney . . . was involved in the conversations about which

[the witness] testified”).

And despite the State’s argument, the discovery violation’s circumstances were

tangential and unnecessary even to show that Love attempted to tamper with

witnesses, which the State wanted to use as consciousness-of-guilt evidence. The

attempt itself is what was important, not the facts underpinning it.

The State argued that the discovery violation would necessarily come into play

because it was Tamilyn’s having unfettered access to the file that prompted Love to

ask her to send witnesses away or instruct them to clam up if they testified at Brooks’s

trial. The State claimed, relatedly, that its evidence would be truncated and its case

prejudiced unless it could go into how Tamilyn came to possess the discovery and

how her sharing it with Love contextually explained his tampering attempt. We are

not persuaded.

Like any witness or prospective witness, Tamilyn was allowed to “view the

information provided under” Article 39.14(a), which includes “any offense reports,

34 any designated documents, papers, written or recorded statements of the defendant or

a witness, . . . or any designated books, accounts, letters, photographs, or objects or

other tangible things not otherwise privileged” that are relevant and within the State’s

possession. See Tex. Code Crim. Proc. Ann. art. 39.14(a), (f). The statute places only

two limits on witness access to this information: defense counsel cannot let a witness

keep a copy of anything other than his or her own statement; and when viewing the

materials, the witness cannot be allowed to see anyone else’s “address, telephone

number, driver’s license number, social security number, date of birth, and any bank

account or other identifying numbers contained in the document or witness

statement.” See id. art. 39.14(f). As we know, Tamilyn downloaded the entire file.13

But had Retained Counsel followed statutory protocol by having Tamilyn

review a properly redacted DVD at his office, she still would have known (a) who the

State’s witnesses were, (b) what they had said in their statements, and (c) everything

else except specific identifying information (address, etc.) that is not alleged to have

been used in any way. Love might not have heard Tamilyn read verbatim witness

statements or other file materials to him, but he could certainly have heard Tamilyn

13 We also know that Retained Counsel failed to redact address, phone number, and other protected information from the DVD before letting Tamilyn have it, but the record does not suggest that she or Love or anyone else learned something personally identifying about a witness that they did not already know. This particular infraction thus has even less to do with Retained Counsel’s disqualification.

35 summarize the file’s contents and statements the witnesses had given to law

enforcement.

And it hardly needs pointing out that Love himself had the right to know what

was on the DVD. See id. (providing that defense counsel “may allow a defendant . . .

to view the information provided under this article[] but may not allow [the

defendant] to have copies”). Some logistical hurdles were certainly presented by

Love’s being in jail and by the amount of information on the DVD, but the point

remains: if Retained Counsel had gone over the file with Love directly, Love would

have had exactly the same information and exactly the same motivation to tell

Tamilyn to get the witnesses out of town or encourage them to have memory lapses.

We see no straight line between Retained Counsel’s violation of Article 39.14(f)

and Love’s attempt to tamper with witnesses; the former was neither a cause of nor a

precondition for the latter. And because the record is devoid of anything implicating

Retained Counsel himself in possible witness tampering, whatever he might have said

to Tamilyn when lending her the DVD does not transmute the discovery violation

into something that is material to Love’s attempted tampering.

The State points to one conversation recorded after Tamilyn had turned State’s

evidence in which a clearly unhappy Love promised Tamilyn that he and Retained

Counsel were going to make her misuse of the discovery an issue at trial, apparently as

a way to damage her credibility or otherwise cause mischief. The State claims that this

threat, if it materialized, would have required it to call Retained Counsel as a witness

36 to rebut any misimpression that Tamilyn had gotten the file from the State. But we

cannot see any incentive for Love and Retained Counsel to point fingers at Tamilyn

on this score; opening this can of worms only to have Retained Counsel’s discovery

violation revealed could well have prejudiced Love by showing defense attorneys in a

poor light generally and by showing that the miscreant attorney was one whom Love

had chosen and paid for. Besides, Love had other ways to undermine Tamilyn’s

credibility, such as her own criminal history and plea bargain to stay out of prison, if

trashing his wife ended up being his trial strategy. 14

As for any possible conflict between Love and Retained Counsel, Love was

present at the disqualification hearing, heard Retained Counsel oppose the State’s

motion, and implicitly agreed that his chosen lawyer should remain on the case.15 Cf.

Indeed, Love’s threats to Tamilyn did not materialize when she testified 14

against him at his trial. Neither side asked about her viewing the DVD or sharing its contents. 15 The State’s concern that Love was setting the stage for a later postconviction writ was speculative. We do not believe that such a future possibility suffices to override a defendant’s choice of retained counsel in the present. See Aguirre v. State, No. 11-11-00313-CR, 2013 WL 5776948, at *1 (Tex. App.—Eastland Oct. 24, 2013, no pet.) (mem. op., not designated for publication) (“Under the doctrine of invited error, Appellant is estopped from complaining that her counsel rendered ineffective assistance of counsel due to the purported conflict of interest.”). Additionally, the disqualification hearing’s focus was never on whether Love waived a conflict or whether the trial court should accept or decline it. See Wheat, 486 U.S. at 163, 108 S. Ct. at 1699; Bowen, 343 S.W.3d at 812. “The issue of informed consent is not a matter to be decided by the court at a disqualification hearing, but is a matter to be decided between the client and the attorneys.” Bahn, 13 S.W.3d at 873.

37 Bowen, 343 S.W.3d at 816–17 (granting mandamus when trial court disqualified

defense counsel on State’s motion despite clients’ waiving conflict).

The State itself would have faced some risk in placing Retained Counsel’s

conduct before the jury, for it could be seen as “attacking the defendant over the

shoulders of counsel,” which is improper. Fuentes v. State, 664 S.W.2d 333, 335 (Tex.

Crim. App. [Panel Op.] 1984) (“The prosecutor’s comment was calculated to convey

. . . the impression that [defense] counsel acted in bad faith as a matter of course . . . .

It is axiomatic that the State may not strike at a defendant over the shoulders of his

counsel or accuse defense counsel of bad faith and insincerity.”); Crutcher v. State,

481 S.W.2d 113, 117 (Tex. Crim. App. 1972) (“We do note the prosecutor’s argument

personally attacking defense counsel in an effort to inflame the minds of the jury to

the accused’s prejudice should not be condoned.”). The State acknowledged these

concerns at the disqualification hearing but argued them as an affirmative basis to

disqualify Retained Counsel and not as a basis to make the discovery violation off

limits during the trial.

Allegations of a disciplinary-rule violation or evidence showing only a possible

future violation do not suffice for disqualification. See Gonzalez, 117 S.W.3d at 837.

Moreover, raising the discovery violation at trial would have been unnecessary, and a

party cannot invite prejudice by “unnecessarily calling the opposing counsel as a

witness.” See id. at 838. Additionally, disqualification “should not be used as a tactical

weapon to deprive the opposing party of the right to be represented by the lawyer of

38 his or her choice.” See Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 10. As an

example, comment 10 notes that a lawyer should not seek an opponent’s

disqualification under Rule 3.08 “merely because the opposing lawyer’s dual roles may

involve an improper conflict of interest with respect to the opposing lawyer’s client,

for that is a matter to be resolved between lawyer and client or in a subsequent

disciplinary proceeding.” Id. Here, the State was using the violation as a tactical

weapon rather than leaving any potential conflict-related problem between Retained

Counsel and Love to the realm of a later disciplinary proceeding, where it belonged.

Although we must defer to the trial court’s findings, its finding that Retained

Counsel was “a likely witness in the trial” is not supported by the record and is

unreasonable. More important, being a “likely witness” is not the right formulation.

Before a trial court invokes Rule 3.08 to deprive a criminal defendant of his chosen

counsel, the attorney should be a necessary witness on an essential fact. See id. R. 3.08(a).

This foundational requisite is wholly absent here, and for this reason alone the trial

court abused its discretion in granting the State’s disqualification motion.

B. The risk of any prejudice to the State was minimal.

Even if Retained Counsel’s testimony might have been necessary on some

essential fact—which it was not—the State still had to show that counsel’s continued

representation would prejudice the State before disqualification was appropriate. See

Gonzalez, 117 S.W.3d at 837. The court of criminal appeals described as follows what

such prejudice to the State in the dual-role circumstance might look like:

39 If counsel [testifies], the State [is] prejudiced not only by the undue weight jurors might . . . attach to counsel’s testimony, but also by the confusion that would most likely . . . result[] during argument regarding whether counsel [is] summarizing evidence or further testifying as to personal knowledge. However, even if [an] attorney . . . [does] not testify, but refer[s] to his own recollection of the events through cross- examination, the State [is] prejudiced by the implication to the jury that his questions represent[] the truth based on his personal knowledge of what had occurred. The State [is thereby] prejudiced by the inability to clarify counsel’s testimony and impeach counsel’s credibility. Counsel’s personal knowledge regarding [the disputed issue affects] the jury’s perspective . . . on the credibility of [witnesses].

Id. at 840.

But let’s say that Retained Counsel stayed on the case and testified—as at the

disqualification hearing—that he lent Tamilyn the discovery disk as a matter of

convenience, that he told her not to copy the DVD and that he needed it back, and

that he did not tell her that allowing her to possess the DVD was “highly not allowed,”

or words to that effect. At most, a “he said, she said” situation would have arisen on

that latter point—a point that had nothing to do with Love’s attempted witness

tampering. In our view, whether a jury believed Tamilyn or Retained Counsel on a

snippet of conversation that was a side issue would not have prejudiced the State or in

any way undermined its ability to get a conviction.

We have a similarly hard time seeing how Retained Counsel’s being an

“unsworn witness” would have harmed the State’s case. If Tamilyn testified that

Retained Counsel had told her that possessing the DVD was improper, she had still

conceded at the disqualification hearing that she was given Retained Counsel’s lone

40 DVD, knew that he had not made a copy for her to keep, and had been told that

Retained Counsel had to have it back. Questioning that might have been designed to

make her out to be a liar on the “highly not allowed” paraphrase strikes us as pointless

and irrelevant, and not a line of inquiry that would have helped Love’s defense (or

harmed the State’s prosecution) one bit.

The State argues that evidence of Tamilyn’s possessing and interacting with the

discovery file and discussing its contents with Love and others were “inextricable

contextual components of the critical evidence showing that Love, realizing that he

was ‘fucked’ based on the information Tamilyn had read him from [the] file[,]

instructed her to hide witnesses and to suppress testimony, establishing his

consciousness of guilt.” From this position, the State contends that “[e]ither [Retained

Counsel’s] testimony about those matters, as a sworn witness, or his representations

about them, as an unsworn witness during questioning and without subjecting himself

to cross-examination, would have confused the jury and would have prejudiced the

State.” But the State’s claim of prejudice hinges entirely on the notion that what

Tamilyn did with information from the discovery file, and Love’s reaction to that

knowledge, would not have been possible without Retained Counsel’s Michael

Morton Act violation. We are unpersuaded for reasons already explained, chief among

them that both Tamilyn and Love were entitled to view the witness statements all

along.

41 In Gonzalez, the State “intended to introduce the bribery evidence [in which

defense counsel had direct, personal involvement] as evidence of appellant’s

consciousness of guilt.” Id. at 846. Here, the State argued that it intended to introduce

the witness-tampering evidence—of which Retained Counsel had no knowledge—as

evidence of Love’s consciousness of guilt. Retained Counsel knew only that he had

given the discovery disk to Tamilyn with instructions for her to bring it back and not

show it to anyone, which is not evidence of Love’s consciousness of guilt. It is this

disconnect between the evidence that Retained Counsel could theoretically have

offered and what the State wanted to show that substantively distinguishes this case

from Gonzalez.

At the disqualification hearing and also before us, the State expressed additional

concerns that the discovery violation might impact Tamilyn’s and Selser’s testimony.

But these concerns would have existed even without the violation: as the prosecutor’s

chief investigator admitted during the hearing, because they were witnesses, both

Tamilyn and Selser could have properly reviewed a redacted copy of the Article

39.14 discovery. See Tex. Code Crim. Proc. Ann. art. 39.14(f).

And if a witness’s trial testimony deviates from what the witness has said

previously, attorneys challenge these inconsistencies with the witness’s earlier

statements, recorded interviews, or testimony. Both Tamilyn and Selser had given

statements to detectives in August 2015. Both had testified before the grand jury—

twice, for Tamilyn. And both had testified at Brooks’s trial. To show any

42 inconsistencies, neither the State nor Love needed the discovery violation in order to

impeach Tamilyn or Selser.

On the facts of this case, we hold that the State did not satisfy its burden to

show prejudice if Retained Counsel was not removed from representing Love.

C. The State had other ways to show Love’s attempted witness tampering without raising Retained Counsel’s Michael Morton Act violation.

As we have pointed out, although Love and Tamilyn had discussed both

attempted witness tampering and the (tangential) discovery violation, those two

matters were not inextricably intertwined. The State could easily have offered Love’s

attempted witness tampering as evidence of consciousness of guilt without showing

the discovery violation—and in fact that is what ended up happening when Love went

to trial represented by appointed counsel.16

As a State’s witness, Tamilyn testified truthfully that Love had asked her to

encourage witnesses to leave the state or plead ignorance if they were forced to testify.

That was an easy and direct way to show attempted witness tampering without tying it

to any Article 39.14(f) violation.

16 We recognize that we are to analyze the trial court’s ruling based on facts existing at the time of that ruling and not on later developments. See, e.g., Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). But because the State was able in the end to show Love’s attempted witness tampering without anyone’s uttering a word about Retained Counsel’s having given Tamilyn the file, we can observe without needing to speculate that the Article 39.14 problem was easily sidestepped.

43 The State also played portions of the phone-call recordings at Love’s trial.

Those portions show Love’s asking Tamilyn to tamper with witnesses, but any

reference to the underlying discovery violation was edited out, again demonstrating

that a jury could hear, without confusion, about Love’s attempted witness tampering

completely divorced from the Article 39.14(f) situation. Avoiding the discovery

violation was salutary all the way around, really: unnecessarily going into a violation

that was immaterial to what the State wanted to show about attempted witness

tampering might have caused jurors to question the judicial process’s integrity, which

is to be avoided. See Gonzalez, 117 S.W.3d at 836.

In any event, whether the State could have dealt with the discovery violation by

any number of less drastic means than seeking Retained Counsel’s disqualification is a

factor to consider only if the State has shown that (a) defense counsel is a necessary

witness to an essential fact, and (b) the State will be prejudiced by the continued

representation. See id. at 845 (“As long as the basis for the disqualification is

adequately shown by the record, the trial judge need not expressly state its

consideration of less drastic alternatives in the record.”). Because the State did not

make these fundamental showings, we need not dwell in any detail on the precise

contours of what the trial court might have done to ameliorate the situation.

D. Disqualification constituted an abuse of discretion.

We hold that the trial court’s disqualifying Retained Counsel constituted an

abuse of discretion. Retained Counsel was not a material or necessary witness on any

44 material or essential fact, nor did the State establish prejudice. On this record,

remedies short of disqualification were available. See id. at 837. Nor was the potential

for conflict serious. See Bowen, 343 S.W.3d at 815 (“On the facts presented here,

however, [when defendants had consented to counsel’s representation even though

counsel had previously represented a key prosecution witness in an unrelated criminal

matter,] the potential for such a conflict is not serious.”).

E. The error was structural; the harm was reversible.

The United States Supreme Court has had “little trouble” concluding that the

erroneous deprivation of the right to chosen counsel “unquestionably” qualifies as

structural error. Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at 2564. The consequences

are necessarily “unquantifiable and indeterminate.” Id., 126 S. Ct. at 2564. When it

comes to investigating, developing the defense’s theory, selecting the jury, presenting

the witnesses, and arguing to the jury, different attorneys pursue different strategies.

Id., 126 S. Ct. at 2564. And the choice of attorney affects whether and on what terms

the defendant cooperates with the prosecution, bargains for a plea, or decides to go to

trial. Id., 126 S. Ct. at 2564.

Because the erroneous denial of counsel bears on a representation’s myriad

aspects, the denial directly impacts the framework within which the trial proceeds—or

whether it proceeds at all. Id., 126 S. Ct. at 2564–65. Knowing the different choices

that the disqualified counsel would have made and quantifying their impact on the

proceedings’ outcome is not possible. Id., 126 S. Ct. at 2565. Many counseled

45 decisions, including those involving plea bargains and cooperation with the

government, do not even concern trial conduct at all. Id., 126 S. Ct. at 2565. A

harmless-error analysis in such a context would be a speculative inquiry into a what-if

universe. Id., 126 S. Ct. at 2565.

We sustain Love’s first issue, reverse the trial court’s judgment, and remand the

cause to the trial court for a new trial.

ISSUES TWO AND THREE

Because Love’s second and third issues, even if sustained, could not afford him

any greater relief than his first issue, we need not address them. See Tex. R. App. P.

47.1.

Conclusion

We reverse the trial court’s judgment and remand the cause to the trial court

for a new trial.

/s/ Elizabeth Kerr Elizabeth Kerr Justice

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Delivered: March 26, 2020