In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-19-00052-CR

___________________________

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

JUSTIN MICHAEL LOVE, Appellant

V.

THE STATE OF TEXAS
2

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 
3

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.
4

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
5

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.
6

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.
7

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 
8

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).
9

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).
10

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.
11

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 

5

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

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.
12

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 
13

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 

7

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

Rule 1.06.
14

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 
15

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.
16

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.
17

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).
18

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 crossexamination, 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.
19

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.
20

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.
21

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:
22

• “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 
23

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
24

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 trialcourt 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.
25

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.
26

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.”).
27

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 
28

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 

11Recognizing that criminal defendants enjoy constitutional rights not 

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.
29

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.
30

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

12Along 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:
31

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 handholding? 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 nondisclosure and redaction rules.” Chuck Lanehart & Charles Blevins, The Michael Morton 

Act Revisited ¶ 5, https://lubbockcriminaldefense.com/2016/06/01/the-michaelmorton-act-revisited/ (last visited Mar. 11, 2020).
32

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:
33

[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 witnesstampering 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 
34

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, 
35

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

13We 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.
36

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 
37

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. 

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

against him at his trial. Neither side asked about her viewing the DVD or sharing its 

contents.

15The 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.
38

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 
39

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:
40

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 crossexamination, 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 
41

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.
42

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
43

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.

16We 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.
44

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 
45

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 
46

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

Publish

Delivered: March 26, 2020