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

___________________________ No. 02

- 19

- 00052

- CR

_______________ _____ _______

On Appeal from the 30t h Di stri ct Court Wichita County, Texas Trial Court No. 56,962

- A

Bef ore Kerr, Birdwell, and Bassel, JJ. Opinion by Justice Kerr 

### J USTIN 

### M ICHAEL 

### L OVE 

### , Appell ant

V



### . T HE 

### S TATE OF 

### T EXAS2 OPINION
Pass ed into law in 201 3 and with a 2014 effective date , t h e Michael Morton Act

ensure s that criminal defendan ts, w i tness es, and prospec t ive w it ne ss es can review many of the State ’ s discov ery materials above and beyond those that are purely exculpatory , thus allowing more transparency into criminal prosecution s . See Tex.
Code C rim. Proc. Ann. art . 39.14 ; Brady v. Maryl and , 373 U.S. 83, 87, 83 S

. Ct. 1 194 , 1196

– 97 ( 1963) (esta blishing State ’ s duty to disclose exculpatory evidence)

. But w ith
that expanded right come responsibilities : defense counsel cannot let a client, witness,
or pros pective witness have a copy of the d iscovery materials (except for th at person ’ s

own statement), and before l etting 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 C rim. Pr oc. A nn. art . 39.14 (f).
This appeal involves what should happen when defense c ounsel i s sloppy with
the State ’ s discover y DVD , letting his jaile d client ’ s wife

— herself a witness

— take the original to review on her own , thereby creating a situation in which she s urreptitiously
download ed the unredacted DVD ’ s content s onto her own co mp uter , and when she
and defense counsel do n o t 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 def en se counsel had made himself a witness or created a conflict of
int erest with his client in v io lation of the Texa s Di sciplinary Ru les of Professional3 Conduct , and it persuaded the trial court to disqualify Love ’ s chosen counsel from

con t inued repres entation. We must decide whether disqualification was ap p rop ri ate and proportionate on the facts of this case , keeping in mind that Love ’ s wife could
hav e reviewe d a ( redacted ) DVD anyway and told Love what was in the State ’ s file

— and when Love ’ s counsel could have revi ewed the file with Love himself , the reby
pr ovi di ng Love with the sam e info rmation that purportedly spurred Love to attempt witness tampering

. The fact that Love ’ s wife and defense counsel reca lled comments made at the fil e dro p

- off slightly differently did not create a conflict of interest nor did
it make defense c ounsel a necessary witness on an essential fact

. We thus c onclud e that the trial court abused its discretion by disqualifying counsel from repres e nting
Love

. Lov e ’ s I ndictment, Conviction, and Se ntencing
T he State indicted Love for engag in g in organized cr im i nal activ ity , wi t h
murder as the predicate o ffense

. See Tex. P enal Code Ann. § 71.02(a)(1)

. Specif icall y, the State a lleged that Love had murdered Dom anic Thrasher on June 2, 2015, while participa ting in a combination to illegal ly deliv er ma r i ju ana. Nearl y two ye ars after
Love ’ s cod efendant Bl ayne Brooks was tried and sentenced to 60 years in prison , a jury found Love gu i lty and assessed h is pu ni shm ent at 50 years ’ imprisonment. After being sentenc e d , Lov e appealed.4 Appellate Issues
In the first of his three issues , Love asserts that the trial court reversi b ly erred by disqualif ying hi s ret ain ed counsel

. B ecause w e sustain L o ve ’ s first issue a nd b ec ause the er ror is structural, we rev er se the trial court ’ s judgment and re mand the ca use f or a new trial without n eeding to reach Love ’ s two other issue s , which deal with alleged jury

- char ge error . Back ground
To put into context the trial co urt ’ s disqu alif ying Lo ve ’ s cho sen lawyer (Retained C ounsel) , we br iefl y d escri be the offense and its aft e rmath

. A. Lo ve , his business part ner, an d a go

- between attempt a drug sale ; the purported buyer attempts to s t eal t he drugs instead ; and be fore the purported buyer c an make his get away, Lo ve ’ s business pa rt ner shoots an d kil ls h im
. Love and B rooks r an a mari juana bu siness out of Love ’ s home , whi c h he
shared with his wif e, Tami l yn . In June 2015 , Love, Br oo ks, and go

- betw een Whit ney O ’ B ri en we re in Love ’ s ho me disc u ss ing a pro s pec tive sale of two ounces of mari juana to someon e who
identified himself in te xt me ssage s o nly as “ E

. ” Tam il yn and he r f r i end Daphne e Selser w er e pre sent and heard the conve r s ation

. The p r o spect ive sale to the unk nown E left the group uneasy. Mariju ana

n or mally sold for $200 to $250 an ounc e, bu t b ec a u se O ’ Brien an d her boyfriend w ere la te on their rent money , she quoted E a n in flated price

. When E made no e ffort to5 negotiate a b etter deal

— haggling being common in dru g transactions

— something
seemed o f f

. S o to add “ muscle, ” Love decided to go with Brook s an d O ’ Brie n to make the sale

. A t t h e designated rende z vous , Brooks and O ’ Bri en realized that E was former
Ride r High School football star Domanic Thrasher , whom b oth recognize d fro m hi gh
scho o l

. B rooks knew Thrasher to b e a “ jackboy ”

— some one who rob b ed drug
dealers

— b ut the three proceeded w ith th e planned sale a ny wa y , parking L o ve ’ s Suburban and letting Thrasher get into t he back seat
. It went badly. Even though Love had a gun visibly displayed as a hoped

- for
deterren t , Thrasher grabbed the bag of marijuana and took off. As Th ras her ran, Bro o ks began shootin g, h i t ting and killing him

. A ccording to O ’ B rien , Brooks fired at
Love ’ s urging. O ’ Brien re t r ieved t he ma rij uana , and the three sped off

. Shaken , O ’ Brien as ked to be let out of the car, b ut Love threaten ed her.
Once back a t Love ’ s hous e, T amilyn and S elser w ere ag ain p rivy t o eve ryt hing Love, Brooks, and O ’ B rien said a nd d id. T hat same afternoon, Love

— along with
Ta milyn, th ei r children, and Sels er

— fled to Tam ilyn ’ s brot her ’ s home in Color ado

. L a w enf orceme n t even tually t race d Thras her ’ s mu rder to Love , Brooks, and
O ’ Brien t hrough T hrasher ’ s cell phone and an anon ymous F ace b ook post
. 1

1 Tam ily n had told her si s t er what had happened , and her si st er anonymously posted the in formation on F acebook

.6 B. After over a year of loyalty to her husband, Love ’ s wife turns State witnes s . I n November 2015, Tamilyn had te stified to the grand jury about Brooks ’ s and
O ’ B rien ’ s invol ve ment in Thrasher ’ s murder. Because of spousal immunity , at that
ti me the gran d jury did not hear from Tami lyn about Love ’ s own role. The n in August 2016, b efore any of th e three def endants had gone to trial, Tamilyn was caught
deli ve r ing a fe lony quan t ity of mariju ana in a drug

- free zone

. The resulti ng indictme nt led to Tamilyn ’ s facing revocation of her probation
from an unrela ted t heft in c i de nt
. T o avoid going to prison , Tamilyn made a plea dea l in Sep t e m b er 2016 under which she waived her s pousal privilege an d agreed to testify
aga inst Love

. T he next month, accordi ngly, T amilyn went b ack before the gran d jury,
this time to describe her husband ’ s role in Thra sh er ’ s mu rder

. C. Long before Love ’ s wife agreed to testify for the State, Retained C oun sel allow ed her to possess the original DV D cont aining th e State ’ s Arti cl e 39.14 disco very ; the State learns of this from jailhouse telephone convers ations
. Mon th s b efore Tamilyn fli p ped in September 2016 , and w h i le Love continued
to sit in j ail , th e S tate

— as is customary

— r ecorded telep hone co nv ersations between Tamilyn and Lo ve spanning F eb ruary through April 2016 du ring which Love asked Tamilyn to send witnesse s of their acquaintance to her bro ther ’ s in Colorado so that
the y could not tes tify at Bro ok s ’ s first

- scheduled trial and to tell those wit ne ss es to not remember anyt hi ng if th e St at e did cal l them to the stand

. No thing in the record
sug ges t s that Tamilyn followed t hrough on t hose requests.7 Although Love was never charge d wit h attempted witness tampe ring , t h e State anticipated us ing these recor d ing s to show Lov e ’ s consci ousnes s of gu i l t
. See Wilson v. State , 7 S.W.3d 136, 141 (Tex. Crim. App. 1 999) (e xplain ing that a n “attemp t t o tamper with a witness is eviden c e of ‘ cons cious ness of guilt’”). Thus fa r , the scenario
is st raig htfor ward.
But another ma tter complicated the S ta te ’ s usin g the reco rdings.
Toward the end of December 2015 and i n keeping with its di sclo sure obligations u nder the Michael Morton Act , the State h ad turned over discovery
materials to Retained Counse l by giving him a DVD con taining witness statements

a nd o ther case information

. Instead of having Tamilyn vie w th is fil e in the controlled
environment of his office , in early Feb ruary 2 01 6 Retaine d Counsel simply dropped
the DVD off for T amilyn to review and later return
. Retaine d Counsel did not first

r edact certain information as Article 3 9.14 (f ) requires , nor did he ensure that Tamily n could retain a copy only of her own wi tn ess stat ement , as the statute allows

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

. 2

2 Article 39 .14 (f) provides:
T he attorney representing the def endant

. . . may allow a defe ndant , witness, o r prospective witnes s t o vie w the i nfor m ation provided under thi s article, but [the attorn ey] ma y not allow that person to have copies of the i nformation provided, other than a copy of the witness ’ s own statement. Before al lowi ng that person to view a do cumen t or the wit ness statement of
an ot h e r un der this subsection, the person poss essing the inf orm at ion shall redact the address, telephone numbe r, driver ’ s license number, social security8 During a conversa t io n with Love on Febru ary 8, 2016, which was apparently the day she got the DVD , Tamilyn tol d Love that she was not supposed to have the
di sco v ery d is k

. Tamilyn was recorded that February d ay as saying , I ’ m on my wa y to Walmart to get a charger for th is laptop because ev en though it ’ s highly not allowed, [Retained Counsel] is going to rele ase this dis [k] to me for two days because he sai d it w il l take me eight hours to read everything and it would be best I do it. Ne ither him nor I have eight hours t o set in the office an d go over it all.

. . . . He just said under

. . . . He said do not lose it because if you do I ’ ll fly blind because I ca n ’ t get another one and he said do not tell that you have it becau se it is so n ot okay. Love instructed Tamilyn to save the file on “ Granny ’ s ” compu ter ; in a later
conversation that d ay, L ov e told Tamilyn to make copies of the file so that she could give the disk back to Retained Counse l. B efore returni ng the di scovery disk to
Retain ed Counsel , and without his knowl edge, Tamilyn did indeed download t he

en ti re file

. T he chief invest igator 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 stateme nts [on February 8, 2016] about [ Retai ne d C o unsel] were
true, it would b e a violation of CCP 39.14(f)

. ”
number, date of birth, and any ban k acco unt or other identifying nu mbers contained i n the document or wi tn e s s st atement

. I

d. (e mphases added ).9 Although t he record is silent about why the S tate did not immediately alert the
trial court to conduct that it has characterize d as “ illegal , ” t he S tate no w kne w of a disco very v iolat ion , the original so urce of wh ich wa s R etained Counsel

. O ver multiple

conve rsati ons throu ghout the spring of 2016 , Tamilyn read or describe d to Love
much of th e file ’ s contents
. 3
D. The State notifies the trial court of a “ P otenti al 39.14 Violation by Defense C o unsel Ten dering a Copy of the File to an Unauthorized T hird Party. ” Tamilyn cut her deal in Septem be r 2016 , and in O ctober the State filed its

not ice of t he potential Article 39. 14 violatio n that had occu rred some eight months
earlier

. That notice wa s couched exclusively in terms of subsection ( e), which prohibits d isclosing discovery to a n una uth orize d “ third party , ” rathe r than subsection (f) , whic h deals with witnesses and prospectiv e witnesses suc h as Tamilyn

. 4 No t (yet) raising the specter of dis qualifica tion, t he State wrote that it

3 At some point, s he al so read part of the disco very to fellow wi tness Se lser and shared a portion with a former employer who was writing a story a n d “ needed cr ime lingo. ”

4 The differen ce between (e) and (f) is significant. Under the former, without a court order defense c ounsel can not disclose anything nonpublic to a “ third party ” ; the latter subs ection , in contrast, all ows the defendant, witne sses, an d pro spe ctive witnesses to review the State ’ s discovery , wit h some limitations

. In our view, Tamilyn was never a n “ una uthor ized t hird party ” for Michael Mort on Act purposes despite the State ’ s frequently characterizing her t hat way

. B y the t ime of the di sq ualification hearing, as we explain l ater , the State acknowledge d that she was a witness entitle d to review di scovery mater ials. In its brief ing to us, the State g losses over these conflicting po s i tions and lumps together citations to both (e) and (f)

.10 believe [d] that the Court should be placed on notice of thi s potential viol ation of 39.14(e) by [Retained Co unsel ] s o the Court can conduct whatever i nquiry and t ake what ever actions that it wishes. Section 39.14,
as a discov ery provision, emp owers and entrusts the protection of this critical information wit h the Court, as the Co urt is in charge of the discovery proc es s. The State attached t he chief investigator ’ s rep ort to its notice; as we mention ed,
the i nvestigator cited t he very different Article 39.14(f), not ( e)

. T he reasons for the
discre pancy are not apparent
. E. After Brooks ’ s trial, Love mo ves to change venue out of W ichita County. The murder of a former Wic hita Falls high

- school football star had understandably generated much publi city in the loca l media at the time , as did
Br ooks ’ s November 2016 trial and th e run

- u p to it. Newspaper accounts and tel evised reporting frequently recounted O ’ Brien ’ s assertion t hat it was Love who had told
Brooks to shoot Thr asher, as well as Love ’ s thr eats to ward O ’ Br ien if she had tri ed to get out of the car or if she talk ed to the pol ic e. T elevised portions of Brooks ’ s trial
that are in th e record in clude a clip of Brooks ’ s mother te s tifying about the sway that
Love held over her years

- youn ger son and several def ense witnesses testif ying that
Love controlled Brooks ’ s actions.
S hortly a fter Brooks wa s sentenced, l ocal media turned to reporting th e State ’ s

o ffer of a 50

- y ear plea deal t o Love , its December 3 1, 2016 deadl in e , and his rejection
of that offer

.11 In addition to all th e s e (and more) examples of pretrial publicity that , Love argued , had ruined his ability to get a fair t rial in Wichit a Co unty , Love included two

sentence s at the end o f his change

- of

- venue motion describi ng what he captioned

“ Publicity Surrounding Defendant ’ s Counsel ” : It was f urther re ported on the news, radio and texomas [sic] home page [ 5 ] that the State has asked the Court to investigate Love ’ s lawyer because h e rep or tedly gave discovery documents to L ove ’ s wife. It was reported on the news, radio and texoma ’ s [sic] home page that counsel has been arrested twice bef ore. Love quoted on e online news article r eferring to Retained Counsel ’ s “ less
than

. . . ste llar re putation ” while report ing that Reta ined C o unsel had once been

“ arrested for hitting another man in th e face wi th a beer mug at Old Town Saloon and also arrested for allegedly show ing up drun k and naked to a woman ’ s house a year
after he ran for Dist rict At torney. ” 6 With regar d to Love ’ s claim of damaging publicity about Retained Coun sel, t h e State ’ s response to Love ’ s venue motion did not address either the discovery violation

or counsel ’ s e arlier brushes with the law , relying instead on th e fact t hat R et a ined
Counsel was cont inu ing to receive f elon y appointments: “ Naturally, if [ Retained
Co unsel ’ s] reputation were so bad that he could not effectively represent defendants

5 “ T exoma ’ s Hom e page ” i s the website of lo cal NBC and Fox affiliate s KFDX and KJTL. See www.texomashomepage.com (la st a c cessed March 4 , 2020).

6 That same a rticle picked up on the State ’ s view that Retained Counsel had

“ illegally ” given T amilyn a discovery di sk

.12 in Wichit a C o unty, t hen [ Retained Counsel ] would have withdrawn f rom t he felon y appoi n tment list or the dis trict jud ges would have stopped appointing him. ”
The Sta te ’ s sugg ested fix for all of Love ’ s pretrial

- publicity concerns

— the vast majority of which relat ed to Love himself

— was for the trial cou rt to leave it t o j ury

s election to gaug e whether a f air jury could be selected in Wichita C o unty
. “ I f the
defendant ’ s claims ab out publicity are correct, then that would be ev ident at voir
dire. ” In ques tioning the district attor ne y ’ s ch ief inve stigator toward the e nd of the venue hearing about Retained Counsel ’ s reputation , the S tate aske d: So do you believe that jury selection would also be an important tool to show whether these claims a bout [Retained Couns el ’ s] reputation bein g so bad that he cannot adequa tely re present this Defendant to a W ichita County jury, that that would b e exposed in jury selection whether that ’ s true or false? The investigator agreed that would be true “ if the questions are ask ed. ”
Th e trial court re cessed the May 15, 20 17 venue heari ng to finish at a later date

. In t he rou ghly 130

- page transcript of that hearing, the topic of the discovery violation
came up on six pages , an d only briefly at that

. F. Three days af ter the v enue hearing is recessed, the State moves to disqualify Retained Counsel.
On May 18, t hree days la ter, the State moved to have Retained Counsel disqualified

. The State cont ended that his “ unauthorized tendering of the Stat e ’ s file
to Tami lyn Love, an unauthor ized third party ” who had “ illegally obtained possession13 o f the fi l e ” put Retained Counsel in t he dual role of advocate and witness and “ so entangled ” hi m in the procee dings that a conflict between Love ’ s an d Retained
Cou nsel ’ s in terests exis ted.
In t he Stat e ’ s view, the discovery v iolation would inevitabl y become an issue at
trial : in order to show that Love had attempt ed to tamper w ith witnesses and that he
had had access to t he dis cover y fi le throu gh T a mi lyn ’ s reading it to him , the State
would ha ve to show how Tamilyn came to “ illegal ly ” po sses s t he DVD in viola tion of Article 39.14(e) , something that would inescapab ly i nvolve Retained Counsel ’ s actions

. Th e State relied on Rul e 3.08 o f the T e xa s Discip lin ary R u les of Pr ofess i onal Conduct ( “ Lawyer as Witness ” ) and to a mu ch lesser degree a l s o on Rul e 1.06 ( “ Conflict of Inte r est ” )

. 7 S ee Tex. Disci pli nary R ules Prof’l Conduct R R

. 1 .0 6,
3 .08 , reprinted in Tex. Gov ’ t Code Ann., tit. 2, sub tit. G, app. A

. As with its earlier notice , t he State cited only Article 39.14(e) as the b asis for its
motio n and indirectly explained why it had not soug ht di squali fication earlier b y

a sserting that [t]his conflict became unmista kably clear to the State a t the m otion to transfer venue hearing on May 15, 2017, when the defense attorney developed testimony from [ Love ’ s mot her] and the defendant concerning the discovery violation and implie d that the prosecutor was striking at the def ense attorney ’ s reputatio n by do cumenting the vio lation on the re co rd in open court without seeking any affirmative

7 I n i ts 1 1

- page motion, the State devot ed two short parag raph s at th e end to Rule 1.06

.14 sanctions. [Crimi nal

- defense attorney] Mr. [Robert ] Estrada , a defense wit ness , also alluded to this. The State was referring to the following testimony : a t the ve nue hearing,
Retained Coun sel had a sked Love ’ s mother one question about the discov ery violation: “ Di d you also see newscasts or articles about

-- about

-- about me

-- about notice given to t he Court that I had reportedly violated dis covery rules ? ” She answered, “ Yes

. ” I n the cour se 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 dis cover y violation ment ioned) , the prosecutor had “ request[ed] any kind of relief or s a n c tions that day other than sa ying t hat [the dis covery

- violation notice] had already been filed, ” to whic h Love answered , “ N o. ” Love also testified
that he had seen newscasts that same da y reporting Retai ned Counsel ’ s alleged violation, and “ bef ore [ Lo ve ] knew it the 6 o ’ clock [news] no t only had that [ Love ]

ca me to court, had the [pl ea] offer, but then it had [R etained Counsel ’ s] mug shot on
the screen on Cha nnel 3 and talked about [ Retained Coun sel ’ s ] criminal history and the alleged violation o f the 3 9.14(e). ” Finally , A ttorney Estrada testified at the venue hearing about pretrial publicity involving L ove 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 st ated on the
record that the distric t attorney ’ s office suspected me [ o f ] improper conduct with

re gard to dis covery? ” Estrada res ponded, “ Only from what I read. ” Estrada did not15 testify tha t t he publicity surrounding Ret ained C ounsel contributed to his opinion t h at Love could not get a fair trial in Wichita County , pointing instead to

—

• the fact th at Domanic Thrasher had been a high

- school football star , a dding that “ Holly wood would not be ab le to come up with a better nam e for a high school football player in Tex a s ” ;

• the popularity of football in Wichita Falls , the r ivalries between Th rasher ’ s high school and other schools , and “ kids grow up want ing to play foo tball ” ; and

• media reports of wit ness testi mony at Brooks ’ s trial about Love , “ becaus e it ’ s already out there. It can ’ t be unsaid. ” During t he State ’ s c ross

- examina tion of Atto rney Estrada at the venue hearing , it continued the subsection (e) theme that Retained Counsel had no right wh a t e v er to d isclose the discovery file to Tamil yn : Q. Now, you ’ re familiar with the discovery provisions of the Code of Criminal Pro cedure 3 9.14, aren ’ t y ou? A. Yes. Q. Especially 39.14(e) that pro hibits disclosure of the file to an unauthor ized third party w i thou t prior court permission. A. That ’ s right.

. . . . Q.

. . . I f I represent to you that my investigator learned that t he defense at torney in this case had tendered the file to an unauthorized third party and tha t that third party was engaging in bor derl i ne witness tampering type behaviors a nd I had that information, that ’ s certainly something I had a duty to notify the C o urt of? A. A nd I believe you did.16 In his initial response to the State ’ s disqual ification motion , Lo ve called the
issu e of “ h ow Tamilyn Love came into the posse ssion of the f ile

. . . a red herring. ”
The State filed a reply , wh ich Love answered i n a further response filed the day of the
di squalification hearing , May 26, 2 017

. Love ’ s May 26 “ Respo ns e to the State ’ s Reply to Defendant ’ s Res ponse to the
M otion to Disqualify ” cont ains the first explicit observation th at Tamilyn could in fact

“ view the i nformation provided ” under the Michael Morton Act , as Article 3 9.14(f)

states , because she “ was and is a witness in this case , ” as Love n oted. Thus , o nly on the day of the hearing was the trial court pointed to s omething other than the State ’ s abs olutis t subsection (e) pos ition

. In preliminary remarks before t he trial court began hearing tes timon y , Retained
Counsel put the matter in a nutshell: “ They a re sa ying that she illegally obtained a
fil e . . . . If she didn ’ t illegally obtain it, then there ’ s no basis for disqualifying me. ” The disqualification hearin g saw the State now raise the s ub section (f) redaction
issue for the first time : Q. Had you review ed that disk before you gave

-- relinquished it to her ? [Retained C ounsel : ] I think I skimmed a little bit of it, but I h ad not reviewed it thoroughly.17 Q. And what di d

-- what red act ions di d 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 mak e any redactions. Q. And when you gave it to her, you told her something to th e effect, it ’ s highly not allow ed for me to give this to you a nd don ’ t t ell anyone that you have it because it is not okay? A. I did not tell her that. Q

. In fact, you also told he r that, if you lose it, I ’ ll have to fly blind because I can ’ t get another disk? A. That ’ s correct. Becau se I gave her my actual D VD. Q. Okay. And normally if you had misp laced that DVD, you could reque st 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. Despi te the State ’ s now asking about redactions, it continued to b lu r the subsection (e)/(f) distinctio n : the State ’ s next question wa s whether Retained Counsel
knew that he could not re quest ano ther DVD because he “ knew that what [h e] did
was in violation of 39.14 ( e)? ” Retained C ounsel answered , “ No

. ” A n d when later
asked if he had ever “ reported to the Court the fact that [he] released that disk to an

8 N othing in the monitor ed jail ca lls be twee n Tamilyn and Love had even hinted at a red action issue , so th e State ’ s questi on marks the first time it implied that a f

ai l u re

- to

- redact violation of subsection (f) was as “ illegal ” or improper as releasing discovery materials to an unauthorized third par ty under su bsection (e)

. A s noted, the State ’ s October 2016 notice of a potential Article 39.14 violation relie d wholly o n s u bsecti on ( e)

.18 unauthorized thir d party , ” Retained Counsel responded: “ I am goi ng to object. I don ’ t believe she ’ s an una uthorized third p arty
. . . . ”
Tes tifyi ng at the disqualification hearing in narrative form on cross

examination , Retained Counsel explained fu rther:
It ’ s my b elief that, as a witness, she could view the actual DVD that [the prosecutor] tendered to me. She could do it i n my office. I ’ m not goin g to sit in there with her. Nobody ha s time to sit in there with he r. I ’ m not going to search her purse. I ’ m not going t o 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, bec ause sh e was [Love] ’ s wife, to look at it. She didn ’ t have time to come into t he office and sit there. It was a pretty length y dis k, I think. And so I trusted her to do

-- to loo k at it, bring it back to me, not to disclose it to anybody else or make any c opies

. So I believe any

-- I believe sh e h ad the right to revie w the file, the a ctual DVD. I did not make a c opy of the actual DVD and give it to her. Retained C ou nsel mai ntaine d that he took precau tio ns by giving Tami ly n explicit in structi on s : “ I told he r that she couldn ’ t lose it , that s he couldn ’ t make cop ies of it, that she couldn ’ t let anybody else see it, t ha t she needed to look at it and bring it
ba ck to me. ” For her part, Tamilyn had this to say about having gotten the DVD i n February 2016: Q. And did [Retained Counsel] give you the disk, the disco very disk, the initial discovery disk in this c ase? A. He d id. Q. And when he gav e you that disk, did he make a statement to you something of the effect tha t, it ’ s highly not allo we d for me to release this disk to yo u? 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. Som ething along those lines. I think those are my words

. But yes.
On being cross

- examin ed by R etained C o unsel, Tamilyn agreed tha t she knew he had given her his “ one a nd only DVD, ” that he did not make a copy of hi s DVD and give it to her to k e ep, and that he told her he “ had to have it back. ” Tamilyn also agreed that Retained Cou nsel ha d had no reason not to trust her wi th the original and
that he had not su ggest ed that she should “ influence any witnes se s ” or “ tell people
not to come to the tr ial or avoid service. ” Under questioning at the hearing, t he chief inves tigato r agr ee d with Retained
Counsel that “ witne sses can review the discovery material s that y ’ all give to [defense counsel] , ” answer ing, “ They can review them, yes, with stipulations. ” The invest igator
also ackn owledged that all the wi tnesses ’ addresses were p ublic record. 9
In his closi ng remarks, Retained Counsel noted tha t in seeking his disqualification, the State ha d to show that it would suffer “ actual prejudice ” if he
continued t o represen t Love; that there were “ no ade qua te mea s u res ” the t rial co urt could take short of disqualifyi ng him; and that a “ compelling need , t hat it ’ s essential

9 Addresses are among the identifying informa tion that must be redacted u nder
s ubsection (f ) . By all account s, all the witnesses whom Love urged Tamily n to send to Colorad o to avoid testif ying at Brooks ’ s trial were known to both of them.20 and not just relevant, ” exist ed for Retained C ounsel ’ s testimony at trial. As for the
substanc e of that theoretical testimony, R etained C ounsel summe d up: [ W]hat am I going to testify about? She can look at this information , J u dge. So there ’ s no issue before the jury. By l aw, 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 receptio n roo m or wherever, she can look at this i nformation. So she has acce ss to thi s information, Judge. The witnesses are all out there. Their names are out there and addresses. So there ’ s no issue, Judge. T he tri a l court g ranted t he State ’ s m otion an d dis qu alified Retained Counsel
with the f ollowing order:
After con sidering th e evidence, aut hor ity, and ar g um ent of counsel in the pending motion to disqualify, I mak e the following fin dings:
1. By i m properl y d i sclo sing t h e discove ry file to Tami lyn Love , [R e ta ined Counsel] has made himself a li ke ly witness in the trial of Justi n Love. 2. As a wit ness, [Reta i ne d C ounsel] woul d find himself in the dual role of advo cat e and witness. He is prohibited fr o m servin g i n th at dua l ro le

. 3

. S h ould the de fense at tempt t o prevent or limit the State’s abil it y to question [Retained Counsel] a bout his role a nd/ or motive i n t he discove ry vi olation, such an attempt would impermis sib ly hamper the State’s case. 4. Ev e n if not c all ed to te s tify unde r o a th, [Retain ed Couns el]
w ou ld, in all likelihood, become an “u ns worn witness” as discus sed in Go nz alez v. State

.

5. [ Retained C ou nse l] ’s actions have creat ed a conflict between himsel f a nd h is interests and those of the d efendant. The State’ s motion t o d isqualify [R etained Couns el ] , as trial counsel, is G RANTE D.21 This order does not indicate whether the trial cour t concluded that the

“ improper disclosure ” referred to in its paragraph 1 stemmed fro m a subsection (e )
viol ation , as the Sta te had consistently maint ained, or from a subsection (f) viol a tion , something that was new to the mix on the day of the disqualification hearing

. I SSUE O NE : D ISQUALIFICATION OF C O UNSEL Applicable Legal Principles
Becau se the State initial ly ar gu es that Lo ve did not preserve error on the disqualificati on issue, we a ddress that aspect of the State ’ s argument firs t.
A. Love pr eserved his first issue for appeal
. Love argues that the trial court re versibl y err ed by orde ri ng Retained Counsel ’ s disqu al ification “ based o n a con flict of i nterest between [Love] and his counsel under
Texas Dis ciplinar y Rule of Professiona l Conduct 3.08. ” The St ate suggests that Lo ve waive d th e issue by at tack i n g only one of the two g rounds os te nsibl y underpi nning
the trial cou rt ’ s ord e r. That i s, t h e State asse rts tha t the order

— although it cites no particular discip lin ary rule

— r e lie d both on Ru le 1.06 ( “ Con flict of Int er est ” ) and on Rul e 3.08 ( “ Lawyer as Witne s s ” ) but that L o ve ’ s first i ssue at tacks o nly t h e Rule
3.08 r uling and so mu s t be overruled

. Love ’ s brief n eve r specifically cit es Discipli nary Rule 1.06 , but Love does
repea tedl y refer to a “ co nfl ict of interest ” b e tween himself and Retained C ounse l ; following are some of t he e xamples :22 • “ Though this Court has ad opted Gonzalez v. S tate , 117 S .W .3d 831 (Tex. Crim. App. 2 003) [ ,] it has not had the opport unity to apply the holding to a situation where the t rial court disqualified a pa rty ’ s atto rney on t h e motion of an oppos ing p ar ty based on a conflict of interest. ”

• “ The State filed a motion to disqualify [ Retained C ounsel] from repre senti ng Love c laiming that relinqui shing the file to Tamil yn . . . create d a confl i ct between him and L ove. ”

• “ The trial cour t r uled [ Re tain ed Counsel ] ’s discovery file violation created a
co nflict bet ween h im and Love under Tex. Dis ciplinary R. Prof’l C onduct 3.0 8. The court deter mined that the Stat e s uffered harm based on t he T e xas Co urt of Crimin al Appeals de ci sion in Gonzale z v . Stat e , 117 S .W. 3d 831 ( Tex. Crim. App. 2003). ”

• “ Despit e the fact t hat

. . . the State ’ s case suffered no ac tual preju dice by the all e ge d conflict between Lov e a nd his attorney[,] the tr ial co urt removed [Retained Counse l] f r o m the cas e. By removing

. . . Love’s retain ed a ttorn ey from the case unde r th e guise of a ‘ conflict of in te rest ’ the trial court sanctioned the weapon ization of the r ul es of profession al co n d uct. ”

• “ The S tate is not p ermitted to use a conflict bet wee n a defendan t a nd his at torney to reap an advanta ge throug h disqualificat ion. Th e party seeking disqualification m ust demonstr ate actu a l p r ejudice result i ng f ro m opposing
co uns el’s service in the du al rol e of a dvocate

- witn e ss. Nothing abo ut [Retained Co uns el] ’s possib le confli ct with Love would li mit the State’ s abilit y [to] pu rsue its ca s e. ” [footnotes omitted]
F rom th is, w e conclude that Lov e ’ s brief d oes not ignor e the conflict

- o f

- inter est issue.
Moreove r, Disciplinary Rul e s 1.06 a nd 3.08 are not mutually exclusive

. R ule
3 .08 encompas ses a spects of Rule 1. 06

— that is, conflict

- of

- interest conce rns ar e
pres ent in Rule 3

. 08 , even if secon da r il y . F or examp le, Rule 3.0 8(b ) provides : “ A lawyer shall not continue as an a dvocate in a pen ding a d judicatory proceeding i f the lawyer bel ieves that t h e lawyer will be compelled to furnish t estimon y tha t will be
substa nti ally a dver s e to the law yer’s clie nt, unless the client conse nts after full23 d isclosure

. ” See Tex. Disciplina ry R ules Prof’l Cond uc t R. 3.08 (b )

. And comment
10 to Rule 3 .08 address es confl ict s o f interest : “[A] lawyer should not seek to disqualify .

. . opposin g [ couns el ] u nder . . . Rule [3.08] merely be cause the opposing lawyer’s dual r oles may involve an improper co nf li ct of interes t w ith . . . the opposing lawyer’s client, for that is a matt e r to be reso lved between lawyer and cli ent or in a subsequ ent disci pli nary pr oce eding.” Id. R. 3.08 cmt
. 10. A lt houg h t he two rules admittedly have d if ferent foc uses , a Rule 3.08 analysis necessarily implicates some
Rule 1.06 concerns . Next , the S tate argues that to the e xtent Love ’ s brief addre ss es Rule 1.06, his
brie fing is ina de quate. We disa gree. Love ’ s brief goes beyon d jus t lawyer

- as

- witness

concern s ; it acknowle dg es c onflict

- of

- interest issues and cites Wheat v . Unit ed States

— a
pure conflict

- of

- inter est c ase

— t hree ti mes . S ee 486 U.S . 153, 108 S. Ct. 1 692 (1988)

. The Tex as C our t o f C riminal App eals has cited Wheat fo r th e propos ition that a party

mov ing to disqualify opposing counsel must show an actual con fl ict o r a ser ious
pote ntial for conflic t. Bow en v. Carnes , 343 S .W.3d 805, 812 (Tex. Crim. App. 2011) (o rig. proceed ing) ( q uot ing Wheat , 486 U.S. at 164, 108 S. Ct a t 1 7 00)

. And ev en the
Rule 3.08 case on which both Love and the S t a te rely extensively , Go nzale z v. Stat e , cited Wheat for the sam e proposition

. 117 S.W.3d 831, 844 (Tex. Crim . A pp. 2003)

. Love also argues t hat rem edies o ther th an disqua lification were a va il a ble and that any

co nfl ict bet wee n himself an d Retained Counsel was not t he S t ate ’ s concern unless the24 S tate could show ac tual pr e judice

. I n s hort, L ove d id not ignore o r fail to adequately
brief th e conflict

- of

- interes t concerns
. We are to c onstrue briefs liberally. Tex. R. App. P. 38.1(f) (“[T] he state men t of

a n issue o r p oint will be tr ea ted as covering every subsidiary question that is fairly
incl uded.”) , 38.9 (requ iring cou rts to liber all y construe briefs for su bstanti al compliance with rules). T hus t o the extent , if a ny, t hat the trial co u rt r e li e d on Rul e
1 .06, w e conclude that Love ’ s brief encompasses Ru le 1.06 , and to the e xten t that the
trial court did not rely on R ule 1.06, Rul e 1.06 ’ s co ncerns are su bsu me d within a Rul e 3.08 analysis

— on these facts at lea st
. Reg ard le ss, as we noted, Lov e d id ad dre ss conf l ict

- of

- interest con cer ns in hi s brief. See , e.g. , Barnett v . State , 161 S.W.3d 12 8,
132 (Te x. App

. — Fort W orth 2005) (noting pri nciple that briefs sho uld be liberally

const rued to serve the interests of justice) , aff’d , 189 S.W. 3d 272 (Tex. Crim. A p p. 2006)

. We hold t hat Love p rese rv ed his first issue and so will analyze its merits

. B. W e appl y a n ab use - of

- discretion s tand ard of r eview
. When the trial court disqualifi es an att or ney, we r evi ew its decision for an abuse
of di s c retion

. See Lan der s v. State , 2 56 S.W.3d 29 5, 303 (Tex. Cr im. A pp. 2008)

. But

eve n under this s tandard, sometime s the review is highly deferentia l and other tim es

n ot. When re vie win g f actual determinati ons, we defer almo st to t a l ly to th os e t rial

cou rt find ing s that the r e cord su pports, esp ecial ly whe n th e findi ng s tur n on evaluating cr ed ibility and demean or. Id. But when reviewi ng how the t ri al c our t applie d the law to the facts, we us e the no

- d e fer ence de novo stand a r d

. Id.25 C. Although the right is not limitless, d efe nd a nt s h ave the right to choose t heir re tain ed cou nsel , and t he State ’ s bu rden in gettin g ch osen counse l removed is th us a heavy on e . When it comes to a paid atto rney , 10 a defendant has th e right t o cho ose his o wn

co u ns el, althoug h t hat right is not a bs ol u t e . Gon zal ez

, 11 7 S.W.3d at 836

– 3 7 ; Trammel l
v. Sta te , 287 S.W. 3d 336 , 342

– 43 (Tex . Ap p.

— Fort Worth 2009, no pet. )

. For example,

a defendan t h as no right to an advocate who is not a member of the bar, to an

atto rne y wh om th e def endant c annot afford, to an at torn e y w ho de cl i n es to r e present him, or to an at torney wh o h as a previo us or a n o n going rel ationship with an

o ppo sing part y. Gonzalez , 117 S.W.3d at 83 7. While a str ong presumption fav ors a defe ndant ’ s righ t to retai n co unsel of choi ce, other importa nt co nsid e rat ion s

— su ch a s the judicial process ’ s integ rity and justice ’ s fair an d o r derl y admi nistration

— may

overr i d e this presumptio n. Id.

If a trial cour t unreasonab ly or arbit rarily interferes with a d ef endant ’ s rig ht to
cho os e his ow n counsel, it s actions ri se t o the level of a constit ution al vi ol ation. U nited
S tates v. Gonzalez

- Lopez , 548 U.S. 140, 1 50 , 126 S. C t. 2557, 2564 (2006) (holding that

“ erroneous deprivatio n of the righ t to counsel of choi c e, with consequences that are

10 “ A clear distinction exists bet ween paying clients and indige nt defenda nts. Because paying clients may contract for r epresen tation from the la wyer of their
c hoic e, they are free to accept or rej ec t repr esentation by a la wyer after ha v

ing been informed of a c onflict of interest. ” Haley v . Boles , 824 S.W.2d 796, 798 ( Tex. App.

— T yler 1992, no pe t)

. “ However, an indige nt de fendant i s ass igned the l awyer who wi ll repr esent him. T he indigent defenda nt ’ s conse nt to continued re presentation u nder Rule 1.06(c)(2) d oe s not embody the same degree of free choice as that of the p aying clie nt. ” Id.26 necessarily u nquantifiable and ind eterminate, unquestionably qualif ie s as structural

error ” ) (cleane d up); Gonzale z , 117 S.W.3d at 837 ; c f. Richardson

- Merrell, Inc. v. Ko ller , 472 U.S. 424, 44 3 , 105 S. Ct. 2757, 2767 (1985) ( Steve ns, J., dissenting on other grounds) ( “ [I] n a crimin al ca se an erroneous order dis q ualifyi ng th e lawyer chosen by
the defendan t s hould re sult in a virtually autom atic reversal

. ” ). Thus, in di squalif ying
defense attorne y s , cou rts mu st proceed caref ully

— “ es pe cially if les s s er ious means
would ade q ua tely prot e ct th e g overnment ’ s inter ests
. ” Gonzalez , 1 17 S.W.3d at 837.
D. Disciplinar y Rule 3.08 doe s not warra nt disqua lifying counsel unless the lawy er ’ s testimony is “ necess a ry ” to an “ essential fact ” ; if so, the opposing party must still show that i t will be pre judic e d if the lawyer is not removed.
D is ciplinary Rule 3.08 warns that a l awyer should not accept or contin ue employment if the lawyer knows or believes that he “ i s or may be a witness nec e ssary

to establish an essential fact

. ” See Tex. Di sciplinary R ul es Pr of ’ l Conduct R. 3 .08(a)

. In
de termin in g w h ethe r de f ense cou n sel sh ould be disqualifi ed due to the risk of
be com ing a witne ss, Tex as courts use Disciplinary Ru le 3. 08 as a guideline. Gonzalez , 117 S.W.3d at 8 37. That rule does not presen t the disqualif icati on standard but
prov ides relevant co ns ideration s . Id. at 83 7

– 38 ; see a lso Johnson v. St at

e , 352 S.W.3d 224, 229 ( T ex. App.

— Houston [14th Dist.] 2011 , pet. ref ’ d

) ( “ Rule 3.08 was prom ulgated as a disciplin ary standard, and not a procedural rule for at t orney di squalification

. . . . Neverthel es s, Texas courts o f ten reference the Rule as a gui deline when deter mi ni ng whether a lawyer should discontinue his representati on of a client. ” )

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

“ ‘ [d]is qu a l ification is a severe remedy ’ ” a nd “ is a measure that can cause immediate harm by depriving a p arty of its chosen counsel and disrup ting court procee dings. ” In

re Sanders , 153 S.W.3d 54, 57 (Te x . 2004) (orig. proceeding ) (quoting Spears v. Fourth
Court of Appeals , 797 S.W.2d 654, 656 (Te x. 1990) (or ig. proceeding) ) ( citing In re Nitla
S.A. de C.V. , 92 S.W .3d 419, 423 (Tex. 2002) (orig. proceeding) )

. “ M ere all ega tions of unethical conduct or evidence showing a remote possibility of a violation of t he
di sci plinary rules will not suffice , ” th en, to merit disqua lification. S p e a r s , 797 S.W.2d at
656. Moreover, t he “ fact that a law yer serves as both an advocate and a w itness does not in itself compel disqualification. ” Sander s , 153 S.W.3d at 57 (citing A yres v. Canales , 790 S. W.2d 554 , 557

– 58 ( T e x . 1990) (or ig. proceeding); In re Chu , 134 S.W.3d 459,
46 4 (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 , d is qua lification is app ropriate only if t he lawyer ’ s testimony is “ ‘ necessary to establish a n essential fact. ’ ” I d. (qu oting Tex. Disciplinary
R

ules Prof ’ l Conduct R. 3 .08(a)). It is the movant ’ s burde n to show that opposing
counsel ’ s testimony will be n ecess ary . See Gonzale z , 117 S .W.3d at 838 ; In re Garz a , 373 S.W.3d 115, 118 (Tex. App.

— San Antonio 2012, ori g. proceeding)

. T he party requesting disqualification must als o show that the opposing lawyer ’ s dual roles as attorney and witness will cause the pa rty a ctu al prejudice. See Gonzalez , 117 S .W .3d at
837 ; see also Sande rs , 153 S.W.3d at 57. “ Wit hout these limitations, the rule could be28 improperly employed ‘ as a t ac tica l weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice. ’ ” Sande rs , 153 S.W.3d a t
57 (quoting Tex. Disciplinary R ules Prof ’l C on duct R. 3.08 cmt. 10 (stating th at a lawyer “should not seek to disqualify an o pposing lawyer by unne cessarily calling that lawyer as a witness”) ) ; see also House v. St at

e , 947 S.W.2d 251, 253 (T ex. Crim. A pp
. 1997) ( “ The rules should not be used as a tactical weapon to disqualify opposing counsel for their alleged disciplinary r ule violations

. . . . ” ) ; In re Bahn , 13 S.W.3d 865, 873 (Tex. App.

— Fort Worth 2000, orig. proc eed ing) ( stat ing that courts “ must a dh ere to an exacting standard when cons idering motions to disqualify so as to discourage
their use a s a dila tory trial tactic ” ).
In a criminal matter , w h en m oving to kick defe nse counsel off a case base d o n counsel ’ s put ati vely being both a dvocat e an d witn es s , the Sta te bears a “ h eavy burde n ” to justify t he disqualific ation

. Gonzalez , 117 S.W.3d at 83 7

. T he Sta te mu st dem onstrat e “ a ctual pre judice , ” 11 and showing o nly a p ossi ble future discip l inary

- rule
vio lation does n o t suf f ice. Id. Moreover, t he par ty see ki ng disqua lif ica tion c annot
invit e or conco c t the re quis ite actu al

- prejudice s cenario by unnece ssarily cal lin g

11 Recognizing th at criminal defe ndants enjoy consti tutional ri ghts not possessed by the Sta te , the Gonzalez cour t ack nowle dged th e “ meager ” ca selaw concerni ng “ what it means fo r t he State to demonstrate actual prejudice arising from a def ense couns e l ’ s violation of Rule 3.08

. ” Id. at 839. Ultimately s idest epping the q uestion, the Texas C ourt of C riminal A ppeals simp ly as s um ed that the State w ould hav e to satisfy the harm ful

- er ro r s tandard o f appellate

- procedure rule 44.2(b)

— that is, that t h e State must “ show that its ‘ substanti al rights ’ would be affe cted b y an opp osing a ttorney ’ s alleged ethical viol ation. ” Id. at 8 40

.29 defense couns el a s a witness. Id. at 838 ; c f. Flores v. State , 155 S.W.3d 144, 1 49 (Tex. Crim. App. 200 4) (n oti ng that “ putting defense co unsel in the position of a prosecution witness is som ething that ‘ should be avoided whenever possible ’ ” ( quoting Ven able v. Mar yland , 108 Md. App. 395, 405, 67 2 A.2d 123, 128 ( 1996) (qu oting Kae ser v. Nevada , 96 Nev. 955, 958 , 620 P. 2d 872, 874 (1980) ) ) )

. E
. A r ticle 39.14 contains no built

- in sanction s or remed ial measures for a def ense counsel ’ s mis handling the S tate ’ s discovery disclo s ures . Th e Michael Morton Act was designed to ensure that a defendant can discove r ,

on re quest, the “ evidence material to an y matter involved in the action

. ” See Tex.
Code Crim. Proc. Ann. art. 39.14(a). The statute allows defense counsel to show
cl ients, witnesses , and pr ospective witnesses the State ’ s fi le , with certain information

r edact ed, and to give them a copy of their o wn statement s to keep

. See id. art. 39 .14(f).
T he Act does not include any mechanisms for dealing with discovery violations o n defense counsel ’ s part , such as making those violations a ground for disqualif ication

. The Mi chael Morton Act ’ s sil ence on thi s score is apparently a feature, not a bug: Though potent ial sanctions (against both sides) were proposed and discussed in th e formulation of the legislation, it was ultimate ly dec ided that such matters were better not s pec ifically addressed. Fr ankly, b oth p rosecutors a nd d efense lawyer s were leery about the app lication of express san ction. I n the en d, the consensus was that sin ce courts already possess the inherent power to order r emedial and sometime[s] punitive (n on mo net ary) sanctions, it was best left to the remedie s that already exist ed rather than trying t o write a set of rules or gui delines th at could produce unintended c on s equences for both sides.30 W. Troy McKinny, Crimina l Discovery in Texa s

— 2014: The Beginn ing o f a Brave New World of Fairness 8 ( S ta te B ar of Texas 40 th Annual Advanced Criminal Law Course , Ch. 10, 2014), h t tp://www.texasbarcle.com/Materia ls/Events/13098/168 130_01.p df ( las t visited Mar . 1 0 , 2020)

. Anothe r commentator has observed that the Michael Morton Ac t “ [ c ] uriously ”
fails to “ create a cr ime or other sanction for violation o f its nondisclosure requirement. ” Ger ald S. R e amey, The Truth Might Set You Free: How the Micha el Mort on Act C ould Fundamentally Ch an ge Texas Criminal Di scovery, or Not , 48 Te x. Tech L . Rev. 893, 916 (Summer 2016). In P ro fessor Reamey ’ s view, this void
pr es ents a challenge f or the trial judge. If an attorney

. . . misbehaves by imprope rly disc l osin g i nfor mation obtained from the stat e, the court might refer the matter for possible attorney d iscipline or hold the lawyer in con tempt if the court ’ s o rder was vi olated. Presu mably, a sa nction might issue using the court ’ s general supervisory powers. Id. ( f ootnotes o m itted). 12

12 Along the same lines is a pap er written after the Act had bee n in place for a y ear , cataloging how district attorn eys a r ound the state were dealing w ith the new requirements. S ome offi ces r eported that if defense counsel violated Article 39.14, they would re spond by restrictin g future defense counsel access to in for mation

— un ilateral sanc tion s against defense counsel that th e paper calls “ improper ” and “ rife with the poten tial for abuse. If a prosecutor beli eves that a de fense lawyer has violated the M orton Act, the proper recourse is to draw t his violatio n to the pre siding court ’ s attention, and in e greg ious circums tances, r eport the conduct to the State Bar. ” Towards More Transparent Ju stice : The Michael Morton Act ’ s F irst Y ear 2 9 (2015 ), http:// texa sdefender.org/wp

- c ontent/upload s/Towards_More_Transparent_ Justice.pdf (last vis ited Mar . 1 0 , 2020).
O n the f lip side , some defense counsel find that the new dis closu re rules create logistica l head aches. A 2015 analysis condu cte d for the Texas C r imi nal Defense Lawyers A ssociation yielde d these (and other similar ) comments:31 Article 39. 1 4 ’ s framework thus does not explicitly contemplate that a court can
dis qualify an attorney for a subsection (f) violation in an d of itself

. Appl ying t he Legal Principles
So what might it take for a discovery violat ion t o w arrant defense cou nsel ’ s dis quali fi cation ? According to the S tate, if a violation put s a defendant cross wi se with
h is counsel b y placing counsel in the Rule 3 .0 8 dual position of being both witness
and advoc ate or by for eclosing counsel from pursui n g s o me otherwise reasonable trial

strate gy because it might expose h is role in the discovery violation ( thus making
counsel ’ s interest s conflict with his client ’ s un de r Rule s 3.08 or 1.06 or perhaps both ) ,

• “ Significa nt time is required to review discovery with c lients and their families because g iving copies to them is no long er all owed. ”

• “ In the old days, w hen 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 l ea st they read what I wrote , so they knew what was there. Now , I ’ m suppo sed to not only redac t the damn t hi ng , I ’ m also suppo sed to not let them hold onto it. How much time in a day do yo u have to do that kind of hand

holding? I t doesn ’ t exist. ”
T

he Cost of Compliance: A Look at the Fiscal Impact and Process Change s of the Michael Morton Act 45, 4 6 (March 2015), http://www.tcdla. com/Images/TCDLA /%20 Temporary%20art/ MMA%20Final%20Report.pdf (last visited Mar . 1 0 , 20 20)

. Lubbo ck C o unty defense attorne ys had similar complaints, as a June 20 16 article appearing in Lubbock L a w Notes reveals: “ [M]any Lub bock criminal defense lawyers
es chew the redactio n process an d simply read di s covery to clients, omitt in g identi fying information; othe rs prepare written summaries of discov ery which can be give n t o clients to keep and study on their own time. A few lawyer s admitted ignoring the non

disclosure and redacti on rules. ” Chuck L a nehart & Charles Blevins, The Mic hael Mo rton Act Revisited ¶ 5 , https://lubbockcriminaldefen se.com/2016/06/01/the

- michael

morton

- act

- revisited / (last visit ed Mar . 11, 2020)

.32 then the defendant cannot keep his c hosen l awye r. Alth oug h we agree in theory with
the Sta te ’ s position , the facts her e are materially different from Gonzalez v. State , the leading Tex as case on defense

- lawyer

- as

- wi tn ess disqualification

. There, Gonzalez (a physician ) and several others were indict ed fo r eng agi ng in organized crimina l activity i nvolving an insurance

- fraud scheme tied to staging car accidents and billing for nonexistent medical treatment. One of the St ate ’ s key
witnesse s had participated in the scheme, first as a car

- wreck “ victim ” a nd th en as an employee in Gonzalez ’ s clinic. A ft er the indictments were handed down, the witness spoke and met w ith Gonzalez ’ s defense counsel and others several times , re su lting in
an agreement

— to which counsel was privy

— by which Gonzalez would pay the
wi tness $10, 000

. T he r eason for the of fered paym en t was hotly contested

. Gonzalez , 117 S.W.3d at 835.
Ar guing that defense counsel had “ personal knowledge bearing directly o n the guilt or innocence of his client and the credib ility of the State ’ s key witness , ” id

. , th e S tate succeeded in mov in g to disqu al ify counsel under Rule 3.08. Id

. a t 836. Gonzalez appealed his subsequent conviction, contending that the trial court had wrongly depri ve d him of his chosen lawyer. Id. T he court of criminal appeal s rejected that
argument because defe nse counsel ’ s per sonal knowledg e of an d involvement with a promised payment that the State argued was meant to bribe a witness went to the core of the prosecutio n:33 [T]he State intended to introduce evidence about which defense cou nsel had personal kno wledg e. The fact that defense counse l had p ersonal knowledge would become obvious through the testimon y of the State ’ s witness. This evidence, an allegation that defe nd ant, through his attorney, attempted to bribe a witness for favorab le testimony, was not mere ly tangential t o the case or to defe nd ant ’ s guilt, but would support an inference that such condu ct demonstr ated defendant ’ s con sciousness of guilt for the crime c harge d. Id. at 842. We see the Gonzalez defense counsel ’ s clear ent a nglement with a m at erial , d isputed issue as a far cry f rom R et ained Counsel ’ s situation

. A. T h e disc overy violation and Tamilyn ’ s and Retained Counsel ’ s differing recollections w ere ta ng e ntia l not only to the S tate ’ s case against Love but al s o to the Sta te ’ s w anting t he jur y to lea rn about Love ’ s witness

tamperi ng c o mm ents . Because pr o ving that Love committed the char ged off ense of organized

cr iminal activi ty did not require proving the di scovery violation or anything re lating to Tamilyn ’ s poss essing, downl oading, or partiall y s ha rin g the State ’ s fil e , t he Arti cle
3 9. 14 (f) situation ha d only g lancing import ance to the S tate
. See Ha rri s on v. State , 788 S

. W.2d 18 , 23 (T ex. C rim . App. 1990) (h olding that tr i al court erroneously
declared mistrial b a sed on defens e counsel ’ s cross

- e xamin ing police officer on matter
wi thin co unsel ’ s personal knowledge and stating that even if counsel ’ s questions were imp ro per , they “ wer e of ‘ merely tangential imp or tanc e ’ to the case itself and did not

‘ irrevers ibly inje ct ’ counsel ’ s credibility as an i ssue in the trial ” ). Here, Retain ed
C ou ns el ’ s theore tical testimony about the discovery violatio n an d what he told Tamilyn about the propriety of her having the dis k was not “ necessary , ” nor wou ld it have gone to an “ esse ntial fac t
. ” Ga rza , 373 S.W.3d at 118 (pa rty seeking34 disqualification of o pp osing counsel mu st “ establish[] both a genuine need for the
attorney ’ s test imony and that the testimony goes to an essentia l fact ” ); Bahn , 13 S.W.3d at 873 (discussi ng Rule 3.08 in civil case) ; c f. Gonzal ez

, 117 S .W.3d at
843 (approving lower courts ’ tac it finding that “ the record supported the conclusion
that it woul d be necessary for the State to call [the] attorney
. . . as a wi tness [to the meetings with the key witness] if he did not put himse lf on the stand ” ; it “ wou ld have
been eviden t that [the] attorney
. . . was involved in the conversations about which [ the wi tness] testified ” ).
A nd despite the State ’ s argume nt, th e discov er y violatio n ’ s circum stances were tange ntial and unnecessary even to sh ow that Love attem pt ed to ta mper with
witnesses , which the St at e wanted to us e as consciousness

- of

- guilt evidence . The

att empt it s elf is what was important , not the facts underpinning it

. The St ate argued t hat the discovery viola tion woul d necessaril y com e i nto play
because it wa s T amilyn ’ s having unfettered access t o th e file that prompted Love to
ask her to send witnesses a w ay or instruct the m to clam up if they testified at Brooks ’ s

t ri al

. T he State claimed, relatedly, th at its evidence woul d be tru n cated and its case prejudiced un l e ss it cou ld go into h ow Tami lyn came to p ossess th e discove ry and
how h er sha ring it with Love contextually exp laine d his t am pering at tem pt
. We are

n o t persuaded.
Like a n y witness or prospe ctive wi tness , Tamilyn was allowe d to “ vi ew the information provided under ” Article 39.14 (a) , whic h in cludes “ any offense reports,35 any d esignated documents , papers, w ri tten o r recorded state ments of the defendant or

a witness , . . . or any de signated books , acc oun ts, letters, photographs, or ob je ct s or other tangible things not otherwise pr i vileg ed ” that a re r elev ant and within the State ’ s
pos session. See Tex. C ode Cri m . Pro c. Ann . art. 39.14(a) , (f)

. The statute places o nly

two li mit s on witness a cces s to th is infor mat ion : defense counsel canno t let a w itn ess keep a copy of anything other than his or her own sta tem ent ; and when viewing the
materia ls, the witness can not be a ll owed to s ee anyone else ’ s “ address, telephone number, driver ’ s license n umber, social se curit y n umber, date of birth, and any ban k

account or ot her identifying numbers contained in the document or wi tness

statement. ” See id. art. 39 .14(f ). As we know , Ta mi lyn downloaded the entire file

. 13
But had Retaine d Counsel f ollowed statutory protocol b y hav ing Ta milyn
review a properly redact ed DV D at his offi ce , she still would have k nown (a) who the
State ’ s witnesses were , (b) what they had said in their statemen ts , and (c) ever ything else except spe cific identif ying inf ormation (address, etc.) that i s not al leged to have
been used in any wa y . Love might not have heard Tamily n read verbatim wit ness

statements o r other file mat e r i al s to him , but he c ould certainly ha ve heard Tamilyn

13 We also kn ow th at Retained C o unsel failed to r edact address, phone number, and other pr ot ected information fro m t he DVD before letting Tamilyn have it , but the record does not suggest that she or Love or anyone else learne d something perso na lly identifying about a witness that they did not already kno w . Th is particula r in fr action thus h as ev en less to do with Reta ine d C o unsel ’ s disqualification.36 summarize the file ’ s co ntents an d statemen ts the witnesses had given to law
enf orcement
. And i t hardly nee ds po in t ing o ut that Love himsel f had the right to k now what
was on the DVD. Se e id. ( pro vid i n g that defense coun sel “ may allow a de fendant

. . . to view the informat ion provided under this article [] bu t m ay not allow [t he
de fen dant] to have copies ” ). Some logi st ical hurd les were ce rtainly presented by
Love ’ s being in jail and by the amount of informati on on the DVD, but the po int

re ma ins : if Retained Couns el had gone o ver the file with Love directly , Love would
have had ex act ly the same information and exa ctly th e same m otivat ion to te ll Tamilyn to get the wi tnesses out of town or encourage the m to have memory lapses

. W e se e no str ai ght l ine between Retained Counsel ’ s violation of Article 39.14(f)
and Lo ve ’ s attempt to tampe r w ith witn esses ; t he former was n ei th er a cause of nor a precondition f or the latter. And because the record is devoid of anything implicating
Retaine d Counsel hi mself in possible witness tampering , whatever he might have said to Tamilyn when lending her the DVD does not transmute the di s co ve ry violation into something that is material to Love ’ s attempted tampering

. T he St at e points to one c onvers at ion recorded a ft er Tamilyn had turned State ’ s evidence in which a clearly unhappy Love pr omised Tamilyn that h e and Re taine d
Counsel w e re goin g t o make her misuse of the discovery a n issue at trial , apparently as

a way to damage h er credibilit y or otherwise cause mischi ef

. The State claims that this
threat , if it materialized, would have req uire d it to call R e tain ed Counsel a s a witness37 to rebut an y mis imp res sion that Tamilyn had gotten the fil e from the St ate
. But we cannot see any incentive fo r Love and R e tained Counsel to point fingers at Tam ilyn
on this score ; o pening th is can of worms o nly to have Retained C ounse l ’ s di sc overy violation revea led coul d wel l h ave prejudiced Love by showing defense attorneys in a
poor light generally and by show in g that the miscreant attorney was one whom Love
h ad chosen and paid for. Besi des, Love had other ways to un dermine Tamilyn ’ s cred ib ility , such as her ow n criminal hi story and plea bargain to stay out of prison, if trashing his wife ended up being his tri al strategy. 14 As for any possible conflict between Love and Retained Counsel, Love was
pre sent at the d isqua lification he aring , heard Retained Counsel opp ose t he State ’ s motion, and implicitly agree d t hat h is chosen lawyer should remain on the case

. 15 Cf.

14 Indeed, Love ’ s threats to T amilyn did not materialize when she testified agai nst him at his tri a l. Neither s ide asked about her viewing the DVD or sharing it s co n tents
.
15 The State ’ s concern that Lov e was setting the stage fo r a later post conviction writ was speculative . We do not be lieve that such a future possibility suffices to override a defendan t ’ s choice of retained counsel in the present

. See Aguirre v. State , No. 11

- 11

- 00313

- C R, 2013 WL 5776948, at *1 (Tex. App.

— Eas tla nd Oct. 24, 2013, no pet.) (mem. op., not designated for pu blication) ( “Under the doctrine of invited error, Appellant is estop p ed from complaining that her counsel rendered ineffective
ass istan ce of counsel due to the purported co nflict of interest. ”). Ad ditionally, t he disquali fication hearing ’ s focus was never on whether Love waived a conflict or whether the trial court should a ccept or decline it. See Wheat , 486 U.S. at 163, 108 S. Ct. a t 169 9; Bowen , 343 S.W.3d at 812. “ The issue of informed consent is not a matter to be decided by the court a t a disqualificat ion hearing, but is a matter to be decided betwee n the client and the attorneys. ” Bahn , 13 S.W.3d at 873.38 Bowen , 343 S.W.3d at 816

– 17 (granting mandam us when trial court disqualified
de fense counse l on S tate ’ s motion despite clien ts ’ waiving conflict).
T he Stat e its e lf would have faced some r isk in placing Reta ined Counsel ’ s conduct before t he jury , for i t could be seen as “ attacking the defendan t over the shoulders of counsel, ” which is improper. F uentes v. S tate , 664 S .W.2d 333, 33 5 (Tex. Crim. App. [Panel O p
. ] 198 4) ( “The prosecu tor’s comment w as calculated to co nvey

. . . the impression that [defen s e ] counsel acted in bad faith as a m atter of course . . . . It is axiomatic that the State may not strike at a defenda nt over the sh ou lders of his
counsel or accus e def en se counsel of bad faith and i nsincerity.”); Cr ut

cher v. State , 481 S.W.2d 113, 117 (T e x . Crim. App. 1972) (“We do note the pros ecut or’s ar gument personally attacking defense counsel in an eff ort t o inflam e t he minds of t he jury to the accused’s prej udice s hould not be c ondoned.”). T he State acknowledg ed these

co n cer ns at the disqualification h earing b ut argued them as a n affirmati ve basis to
d isqualify Retained Counsel and not as a bas is to ma ke th e discover y v iolation off
l im its during the tri al.
Al legations of a disciplinary

- rule violation or evidence showing only a possible
futu re violation do not suffice for disquali fication

. S ee Gonzalez , 117 S.W.3d at 8 3 7

. Moreover, r aisi ng the disc over y violation at tri al would have been unnecessary, and a
par t y c an n ot invite prejudice by “ unnecessarily calling the opposing counsel a s a witne ss . ” See id. at 83 8

. Additi on ally, d is qualification “should not be used as a tactical weapon to de prive the o p p os ing party of the r ig

ht to be repre sente d by the lawye r of39 hi s or her c hoice. ” See Tex. D is ciplinar y R u les Prof’l Conduct R. 3. 08 cmt. 10. As an

e xample, comment 1 0 n otes that a lawyer should not seek an opponent ’ s disqualif ication under Rule 3.08 “ mere ly b ecause th e opposin g lawyer ’ s dual roles may
involve a n impro per conflict of interest with respe ct to the opposing lawyer ’ s client,
f

or that is a matter to be resolved betwee n lawyer and client or in a subsequent disciplinary proceeding

. ” Id

. Here , the State was using the vi ol ation as a tactical
weapon rather than l eav ing any potential conflict

- relat ed problem between Ret ained
Counsel and L ove to th e realm of a later disciplinary proceeding, where it b e longed

. A lthough we must defer to the tri al c ou rt ’ s fi ndings, its f indi ng th at Retain ed
Counsel was “ a likely witnes s in t he trial ” is not supported by t he record and is

un reasonabl e. More important , b eing a “ likely witness ” is not the right formulation

. B efore a trial court invok es Rule 3.08 to depriv e a c riminal defendant of h is chosen
counsel , the attorney sho uld be a nece ssary witness on an ess ential fact

. See id. R. 3 .08(a). This foundational req ui site is wholly absent here , and for this reason alone the t rial
court abus ed its discretion in g rantin g the State ’ s dis qualificat io n motion

. B
. The risk of an y pr ejudice t o the State w as minimal.
Even if Retained Counsel ’ s testimony might have been neces sa ry on some essential fact

— which it was not

— the State stil l had to show tha t counsel ’ s continued
repres entat ion would prejudice th e S tate before disqualification was approp riate

. See
Go nz alez , 117 S.W.3d at 83 7

. The court of criminal appeals described as fo llows what such prejudice to the State in the dual

- role circumstance might look like :40 If counsel [test ifie s ], the State [is] prej ud iced not only by the undue weight jurors might

. . . attach to counsel ’ s testimony, but also by the confusion that would mo st likely

. . . result [] during argument regarding whether counsel [is] summarizing evidence or fu rther testi fying as to personal k no wledge. However, even if [an] attorney
. . . [does] not t estify, but refer [s] to his own recollection of the events through cro ss

examination, the State [is] prejudiced by the implicatio n to the jury that his qu estions repres ent [] the t ruth based on his pers on al knowledge of what had occurred. T he State [is ther eby] prejudiced by the inability to clarify counsel ’ s testimony and im pe ach counsel ’ s credibility. Counsel ’ s personal knowledg e regarding [the disputed is sue affects ] t he jur y ’ s p erspective

. . . on th e credibility of [witnesses]. Id. at 8 40.
But let ’ s sa y that Retained Couns el stayed on the case and testified

— as at the
dis qu alification hearing

— that he lent Tamilyn the discovery disk as a matter of
convenience , that he told h er no t to copy the DVD and th at he needed it back, and
that he did not tell her th at allowing her to possess the DVD was “ highl y not allowed, ”
or words to that effect . At most, a “ he said, she said ” situation would have arisen on
that latte r point

— a point that had nothing to do with L ove ’ s attempted witness tampering. In our view, w heth er a jury believed Tamilyn or Retained Counsel on a snippet of convers at ion that was a side issue would not have prejudiced the State or in
any way undermined its abili ty to get a conviction

. We have a s imilarly hard time seeing how Retaine d Counsel ’ s bein g an

“ unsworn witness ” would have harmed the State ’ s case. If Tamilyn te s tified that
Retained Counsel had told her that possessing the D VD was improper, she h ad still

c oncede d at the disqualification h ea ring that she was given Retained C oun sel ’ s lone41 DVD, knew that he had not made a copy for her to keep, and had been t old th at Retained Counsel had to have it back. Questioning that might have been designed to

ma ke her out to be a li ar on the “ highly not al lowed ” paraphrase strikes us as point less
and irrelev ant , and not a line of inquiry that would have help ed Love ’ s defense ( or harmed the State ’ s prosecution) one bit

. T he State argues that evidence of Tamilyn ’ s possessing and i ntera cting with the
dis cove ry file and discussing its contents wit h Love and other s were “ inextricable contextual components o f the cr itical evidence sh o w ing that Love, realizing that he

was ‘ fucked ’ based on the information Tamilyn had rea d him from [the] file [,]
instructed her to hi de witnesses and to sup press testimon y, establishing his consciousness of gui lt. ” From this pos it ion , the State contends that “ [e]ither [Retained
Counsel ’ s] testimony about those mat ters, as a sworn witne ss, or his representat io ns about them, as an un sworn witness during questioni ng and witho ut subjecti ng hi mself

to cross

- examination, would have con fu sed the jury and would have prejudiced the
State. ” But th e State ’ s c laim o f pre judice hinge s entirely o n the notion that what Tamilyn did with information f rom the discovery file , and Love ’ s react ion to that knowledge , would n ot have been possible without Retained Counsel ’ s Michael
Morton Act violation . We are unpersuad ed for re asons alre ady explained , ch ie f among them that both Tamilyn and Love were entitled to view the witness statemen ts all
alon g .42 In Gonzalez , the State “ int en ded to introduce the bribery evidence [ in which
defense counsel had di rect, personal involvement ] as e viden ce of a ppellant ’ s

cons ci ousness of guilt. ” Id. at 846. Here, the State argued that it i ntended to introduce
the witne ss

- tampering e vidence

— of which R etained Counsel had no knowledge

— as evidence of Love ’ s consciousness of guilt. Retained Counsel knew o nly t hat he had given the d is covery disk to Tamilyn with instructions for her to bring it ba ck and not show it to anyone, which is not evidence of Love ’ s consciousness of guilt. It is th is
disconnect between the evidence that Retain ed Counsel could t he or et icall y have
offered and wh a t the State wanted to show that substantively dis tinguishes this case
from Gonz alez

. At the dis qualification hearing and also b efore us , t he Sta te e xpressed additional

conce rns that the d i scovery v iol ation might imp act Tami lyn ’ s an d S e l s er ’ s testimony.
But t hese conc erns would have existed even wi thout the v iol at ion : a s th e prosecut or ’ s chief in vest ig ator admi tted dur i n g the hearing, because th ey were witnesses, both
T amil y n and Sels er could have properly r eview ed a redacted c opy of the Ar t icle
39.14 discovery. S ee Tex. Code Crim. P roc. Ann. art. 39.14 (f)

. And if a witness ’ s tr ia l testimony dev iate s fro m what the w it ness ha s s aid
p reviou sl y, at t o rneys challenge thes e in cons isten c ies w ith the witness ’ s earl i e r

s tatements, recorded interviews, or tes timony

. Both Tamilyn and Selser had given

sta te m ent s to detectives in August 2015. Both had te stified bef ore t he grand ju r y
— twice, for Tamilyn

. And b o th had testified at B rooks ’ s trial. To s ho w an y43 incon sistenc ies , n either th e Stat e nor Love needed the discovery viol at io n in order to impeach Tamilyn or S elser

. On t he facts of this ca se, we hold that the State did not satisfy its burden to show prejudice i f Re tained C o un sel was not removed fr om representing Love.
C
. The State had other ways to show Love ’ s attempted wit ness tampering with out raising Retained Counse l ’ s Michael Mor ton A ct violation. A s we have poi nted out , a lthough Love and Tamilyn had discusse d bo th

atte mpted witness tamperin g and the (tangential ) discovery violation , those two

matters were not inextricabl y int e rtw i ned. T he State could easily have of fer ed Lo ve ’ s

a tt e mpted w itness tamp e ring as evid ence of consciousness of guilt wi t hout show ing

t he d is cove r y violation

— and i n fac t that is what ended up happ ening when Love went to trial represented by appointed coun sel

. 16
As a State ’ s witness , Ta mi lyn tes ti f ied truthfully tha t Lo ve had a sked her to

enco urage witnesses to lea ve the sta te or p l ea d i gnoran ce if th ey were forced t o t esti fy

. T hat was an easy and direct way to show attempted witness t ampering without tying it to any Artic le 39.14 (f) violation

.

16 We recognize that we ar e to analy ze the trial court ’ s ruling based on facts existing at th e time of tha t ruling and not on later dev elopments. See, e

. g., Wh itehead v. St ate , 130 S.W.3d 866, 872 (Tex . Crim. Ap p. 2004). But because the State was able in the end to show Love ’ s atte mpted witness tampering wi thout anyone ’ s uttering a word about R eta ined Counsel ’ s having given Tami lyn the fi le, we can ob serv e wit ho ut needing to speculate that the Article 3 9.14 probl em was eas ily sidestepped

.44 The State al s o played portions of the phone

- call r ec ordings at Lov e ’ s trial

. T hos e por ti ons show Love ’ s aski ng Ta m i lyn to tamper wit h w itnes ses , b ut any reference to t he un derlying discovery v iolati on was e dited out , again demonstrat in g that a jury could hear , without confusion, about Love ’ s attempted wit nes s tampering completely di v or ced f ro m the Article 39. 14( f) situation

. A voiding the discovery
violation was salut ary all the way around , rea ll y : unnecessar ily goi ng i nto a v iolation
that was immaterial to what the State wanted to show abo ut att empte d witn ess tampering mi gh t have cause d jurors to question the judici a l process ’ s integri ty , which
is to be av oided

. See G onzalez , 117 S.W. 3d at 836

. I n any event, whether the State could have dealt with the discovery violation by any number of le ss dra stic me ans than seeking Ret ai ned Counsel ’s disqualification is a factor to consider only if the State has shown that (a) defe ns e counsel is a necessary
wi tness to an essential fact, and (b) the State will be prejudiced by the continued representation

. See id. a t 845 ( “As long as the b asis for the disqu alification is adequately shown by the record, the trial judge need not expres sly state its
consideration o f less drastic alternatives in the record. ”). Because the State did not

ma k e these fundamental s howing s, we n eed not dwell in any d etail on the precise

co ntours of what the trial court might have done to ameliorate the situatio n. D. Dis qu a lification cons ti tut e d an abuse of discretion.
We hold that the trial court ’ s d isqualifying Retained Co unsel con sti tut ed a n

a buse of discreti on . Re tained Counsel was not a material or necessary witness on any45 material or essential fact , nor di d the State establish preju di ce . O n this record,
remedies short o f disqualificat ion we re available. See id. at 83 7

. Nor w as t he pot entia l
fo r conflict serious

. See Bow en , 343 S. W.3d a t 81 5 ( “ On the facts present ed here,
howev er, [whe n defendants had consen ted to counsel ’ s repre senta ti on even though counsel had previously represented a key prosecution witness in an unrelated crim inal

m atter , ] the potent ial for s u c h a c onflic t is not serious

. ” )

. E. T he er ror was structur al; th e harm w as r eversib le.
The Unite d States Supr eme Court has ha d “ little tr o uble ” concluding that the

erro neous depr i v ation of the right to chosen couns el “ unq uest io na bly ” qual ifi es as

s tru ct u r a l error. Gonzalez

- Lopez , 548 U.S. at 150, 126 S. Ct. at 2564

. The cons equences are necessarily “ unquantif i able and indeterm in ate. ” Id. , 126 S. Ct. a t 2564

. When it

comes to i nvestigati ng, de velop ing the defense ’ s theo ry , select i ng t he jur y, present ing
th e wi tn esses, and arguing to the jury , d ifferent attorney s p u rsue different strategies

. Id. , 126 S

. Ct

. at 2564

. And th e choic e of attorne y affect s whe ther and on wha t term s the d efendant co operates wi th the prosecution , bar gains for a p l ea , or decides to g o to trial. Id. , 126 S. Ct

. at 2564

. Because the erroneous denial of cou nsel bears on a represent atio n ’ s my riad
aspects , the d enial directly im pacts the fr am ework within w h ich t he tria l proceeds

— or whether it proceeds a t a ll. Id

. , 12 6 S

. Ct

. at 2564

– 65

. K no w ing the different choice s that the d i squalified counsel would h a ve ma d e and quantifying th eir i mp ac t on t he proceedings ’ o ut come is not pos sible. Id. , 12 6 S. Ct. at 256 5

. Many counse led46 decisio ns, inclu di ng those inv olvi ng p le a bar g ains a nd cooperati on wi th the
governmen t, do not even concern t rial co nduct at all. Id. , 126 S. Ct. at 256 5. A
h armless

- e rr or ana lysis in such a c o n text would be a speculativ e i nquir y into a wh a t

- if
univers e. Id. , 126 S. Ct. a t 256 5.
We su stai n Lo v e ’ s fi r st i ss ue , reverse the t ri al court ’ s judgment, an d remand the

cau se to the t rial court f o r a new tr ial.
I S SUES T WO AND T HREE
Beca u se Love ’ s second a nd th ird issues , ev en if sustained, could not af ford him

an y greater r elie f than h is first i ssue , we need not addr ess them

. See T ex . R. Ap p. P.
47

. 1

. Conclus ion
W e reverse the trial cou r t ’ s judgment an d remand the cau se t o the t rial court
fo r a new tr ial

.

/s/ E lizab eth Kerr Eliza beth Kerr Jus tice
Pub l ish
Deli v ered : March 26, 2020