COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: 

STATE OF TEXAS, 

RELATOR.

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No. 08-16-00156-CR

ORIGINAL PROCEEDING

ON PETITION FOR WRIT OF

MANDAMUS

O P I N I O N

The State of Texas has filed a mandamus petition against the Honorable Luis Aguilar, 

Judge of the 243rd District Court of El Paso County, Texas. The State asks the Court to order 

Respondent to set aside his order disqualifying Assistant District Attorney Denise Butterworth 

from the prosecution of a capital murder case against Luis Solis Gonzalez.1 We conditionally 

grant the relief requested in the State’s petition.

FACTUAL SUMMARY

Gonzalez is charged with capital murder based on the allegation that he killed three 

individuals during the same criminal transaction on or about May 30, 2012. The State is seeking 

the death penalty. The day after the offense, Joe Zimmerly conducted a forensic interview of a 

four-year-old child who witnessed the offense. Detective Jerome Hinojos and Assistant District 

Attorney Denise Butterworth observed the interview. Almost four years later, on May 26, 2016, 

 

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 The case is styled State of Texas v. Luis Solis Gonzalez (cause number 20120D04103).
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Gonzalez filed a motion to disqualify Butterworth on the ground that it is an ethical violation for 

an attorney to act as an advocate and a witness in the same proceeding. The motion alleges that 

Butterworth is a potential witness because she observed the interview. In its response to the 

motion, the State asserted that Butterworth’s presence at the interview did not result in a due 

process violation, and therefore, she could not be disqualified.

At the hearing on the motion, Butterworth testified that she was called out to the childadvocacy center on May 31, 2012 to observe the forensic interview of a child witness. It was 

Butterworth’s practice to speak with the interviewer prior to the interview, and although she 

could not recall that she spoke with Zimmerly prior to the interview, she assumed that she had 

done so. At the time of the interview, Butterworth did not have any knowledge of the 

investigation because it was unfolding, and she would not have been able to provide any 

information to Zimmerly. Butterworth and Detective Hinojos observed the entire interview from 

an adjacent room where they could not be seen by the witness. Butterworth, who does not speak 

Spanish, noted that the majority of the interview was conducted in Spanish. Nevertheless, 

Butterworth had an opportunity to observe the child’s demeanor and she formed an opinion 

regarding the child’s credibility. At one point in the interview, Zimmerly took a break and exited 

the interview room. During this break, Zimmerly spoke with both Butterworth and Hinojos 

before resuming the interview. Butterworth did not go to the crime scene, and she did not recall 

being present when the child’s clothes were collected. 

Butterworth also testified that the standard protocol required that a child be interviewed 

only once. Under the protocol, a prosecutor and a detective are present to observe the interview 

from behind the two-way glass as was done in this case. The prosecutor and detective are 

present to ensure that all necessary questions are asked during this single interview. Butterworth 
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did not speak to the child, and the child did not see or speak to her. Further, Butterworth was not 

communicating with Zimmerly as he was conducting the interview. 

Joe Zimmerly also testified at the hearing. When asked if a prosecutor typically gives the 

interviewer background information prior to the interview, Zimmerly stated that the investigating 

agencies typically give the interviewer “whatever information they have at that point.” 

Zimmerly referred to this exchange of information as “staff[ing] the case.” Defense counsel also 

asked Zimmerly if there was a way for him to communicate with the prosecutor who was 

observing the interview. Zimmerly replied that he usually took a break when he was about twothirds of the way through the interview and he would ask the investigators, and the prosecutor if 

one was present, whether he had missed anything. 

Detective Jerome Hinojos testified that he was assigned to observe the forensic interview 

of the child witness. Hinojos gave Zimmerly an overview of the case prior to the interview. 

Hinojos recalled that Butterworth was present during the interview, but he did not remember 

whether she was present when he gave Zimmerly the overview of the case. The interview was 

conducted in both Spanish and English, and Hinojos translated pertinent portions of the child’s 

statements for Butterworth while they were observing the interview. In Hinojos’ opinion, the 

child did not understand the difference between the truth and a lie, and he appeared to “lose 

focus” during the interview. Zimmerly took a break during the interview and asked Hinojos and 

Butterworth whether he needed to ask any other questions, but nothing else was covered after the 

break.

Officer Martin Martinez photographed the child-witness and collected clothing from him 

at the child advocacy center. Martinez collected a buccal swab from the child at the police 

station. He was not present during the interview of the child, and Martinez did not recall seeing 
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Butterworth when he was collecting the child’s clothing at the child advocacy center. 

At the conclusion of the hearing, Respondent granted the motion to disqualify 

Butterworth. Respondent subsequently made written findings of fact and conclusions of law. 

Respondent found that Butterworth was present for the staffing of the case and when Zimmerly 

took a break to ask those present whether he needed to cover anything else. He also found that 

she was “indirectly actively involved in the interview . . . .” In his conclusions of law, 

Respondent stated that Gonzalez’s due process rights would be actually prejudiced by 

Butterworth serving as counsel for the State “given her role as an active witness to the interview 

. . . .”

THE STANDARD OF REVIEW

To be entitled to mandamus relief, the relator must make two showings: (1) that he has 

no adequate remedy at law; and (2) that what he seeks to compel is a ministerial act. In re State 

ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App. 2013); see In re State of Texas, 162 S.W.3d 

672, 675 (Tex.App.--El Paso 2005, orig. proceeding). The ministerial act requirement is 

satisfied if the relator can show a clear right to the relief sought. Weeks, 391 S.W.3d at 122. A 

clear right to relief is shown when the facts and circumstances dictate but one rational decision 

“under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), 

and clearly controlling legal principles.” Id., quoting Bowen v. Carnes, 343 S.W.3d 805, 810 

(Tex.Crim.App. 2011).

DISQUALIFICATION OF THE PROSECUTOR

It is well established that a trial court has limited authority to disqualify an elected district 

attorney and his staff from the prosecution of a criminal case. Buntion v. State, 482 S.W.3d 58, 

76 (Tex.Crim.App. 2016). The office of a district attorney is constitutionally created and 
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protected. Buntion, 482 S.W.3d at 76; Landers v. State, 256 S.W.3d 295, 303-04 

(Tex.Crim.App. 2008); TEX.CONST. art. V, § 21; see also State ex rel. Eidson v. Edwards, 793 

S.W.2d 1, 4 (Tex.Crim.App. 1990). Consequently, the district attorney’s authority “cannot be 

abridged or taken away.” Buntion, 482 S.W.3d at 76, quoting Landers, 256 S.W.3d at 303-04. 

A district attorney and the assistant district attorneys are responsible for recusing themselves in a 

particular case to avoid conflicts of interest and the appearance of impropriety. Buntion, 482 

S.W.3d at 76; see Coleman v. State, 246 S.W.3d 76, 81 (Tex.Crim.App. 2008); State ex rel. 

Eidson, 793 S.W.2d at 5.

Gonzalez asserted in the trial court that Butterworth should be disqualified on the ground 

that it is an ethical violation for an attorney to act as an advocate and a witness in the same 

proceeding. In support of this argument, he cited Rule 3.08 of the Texas Disciplinary Rules of 

Professional Conduct which generally prohibits a lawyer from being an advocate before a 

tribunal if the lawyer knows or believes that the lawyer is or may be a witness necessary to 

establish an essential fact on behalf of the lawyer’s client. TEX.DISCIPLINARY R. PROFESSIONAL 

CONDUCT 3.08, reprinted in TEX.GOV’T CODE ANN. tit. 2, subtit. G, app. A (West 2013 & Supp. 

2016).

Showing a violation of the disciplinary rules is insufficient in itself to compel the 

disqualification of a district attorney or assistant district attorney. Buntion, 482 S.W.3d at 76; 

Martinez v. State, No. 08-14-00130-CR, 2016 WL 4447660, at *6 (Tex.App.--El Paso August 

24, 2016, pet. ref’d). The defendant must go further and show actual prejudice rising to the level 

of a due process violation. See Landers, 256 S.W.3d at 304-05. In this context, actual prejudice 

requires that the defendant show that the alleged disciplinary rule violation would deprive him of 

a fair trial or otherwise affect his substantial rights. See Martinez, 2016 WL 4447660, at *6, 
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citing House v. State, 947 S.W.2d 251, 253 (Tex.Crim.App. 1997). Further, the party seeking 

disqualification cannot invent the necessary prejudice by unnecessarily calling the opposing 

counsel as a witness. Martinez, 2016 WL 4447660, at *6, citing Gonzalez v. State, 117 S.W.3d 

831, 837 (Tex.Crim.App. 2003). 

In his written conclusions of law, Respondent cited the Court of Criminal Appeals’ 

decision in Gonzalez to support his decision to disqualify Butterworth. In that case, the 

defendant and several co-defendants were charged with engaging in organized criminal activity 

based on allegations that the group stole more than $200,000 in an insurance fraud scheme 

involving staged automobile accidents. Gonzalez, 117 S.W.3d at 835. The defendant, Alfonzo 

Gonzalez (Alfonzo), was a physician who treated persons purported injured in the staged 

accidents. Id. The State’s key witness, Percy Gonzalez (Percy), was a participant in the scheme, 

and he later took a job at Alfonzo’s clinic generating phony medical narratives and bills under 

Ralph’s supervision. Id. Alfonzo discussed with Percy the financial arrangements he had with 

another co-defendant. Id. After he and Alfonzo were indicted, Percy had several telephone 

conversations and two meetings with Ralph Gonzalez, who is Alfonzo’s attorney. Id. During 

these meetings and conversations, it was agreed that Alfonzo would pay Percy $10,000, but the 

reason for the payment was disputed. Id. Alfonzo paid $3,000 to Percy, but he refused to pay 

the remaining $7,000. Id.

The State apparently learned of this payment arrangement and it sought to disqualify 

Attorney Gonzalez based on Disciplinary Rule 3.08 because counsel had personal knowledge 

directly bearing on the guilty or innocence of his client and the credibility of the State’s key 

witness. Gonzalez, 117 S.W.3d at 835. The State argued that defense counsel was a potential 

witness in the case and the attorney’s dual rules of advocate and witness would confuse the jury. 
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Gonzalez, 117 S.W.3d at 835. At the hearing on the motion to disqualify, Percy testified that the 

payment was an attempt to buy testimony favorable to Alfonzo. Id. Attorney Gonzalez claimed 

that the initial payment was given to Percy out of an effort to help him, but Percy threatened to 

testify unfavorably to Alfonzo unless he was paid the additional $7,000. Id. Defense counsel 

also testified at the hearing on the motion to disqualify. Id. at 842.

The trial court disqualified defense counsel, and the Court of Criminal Appeals upheld 

that decision because the record showed that defense counsel had personal knowledge of, and 

was actually involved in, the potential witness tampering. Gonzalez, 117 S.W.3d at 844-45. The 

Court of Criminal Appeals observed that the record showed the State intended to introduce 

evidence about which defense counsel had personal knowledge, and defense counsel testified 

that he intended to impeach the State’s witness with tape recordings or transcripts of some of the 

conversations counsel had with the witness. Id. at 843. The Court concluded it would be 

apparent to the jury that the attorney had personal knowledge of the events which conflicted with 

the witness’s testimony. Id. at 842-43. Consequently, defense counsel’s credibility would be an 

issue in the case and the jury could interpret his questions and arguments related to the issue as 

the equivalent of unsworn testimony. Id. at 841-46. 

The facts of this case are not close to Gonzalez. When the record is read in the light most 

favorable to the trial court’s ruling, the evidence showed that Butterworth did nothing more than 

be present for the staffing of the case prior to the interview, observe the forensic interview of the 

child witness from another room, and be present when the interviewer asked whether he needed 

to cover anything else with the child. Assuming for the sake of argument that the child witness 

testifies at trial inconsistent with his recorded statement, he can be impeached with the video 

recording of the interview, and by the testimony of the interviewer and Detective Hinojos. 
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Gonzalez failed to show that Butterworth will be a necessary witness to any issue in the case, 

including the credibility of the child witness. Butterworth’s presence at the interview and limited 

participation do not amount to a violation of Rule 3.08, and it does not result in actual prejudice 

rising to the level of a due process violation. Under Gonzalez’s interpretation of Rule 3.08, a 

prosecutor could not interview witnesses while preparing for trial without running afoul of this 

rule. This has never been the law in Texas. We conclude that Respondent clearly abused his 

discretion by granting the motion to disqualify Butterworth. Accordingly, we sustain the issue 

presented in the State’s mandamus petition and conditionally grant mandamus relief. The trial 

court is directed to withdraw the order disqualifying Butterworth from the prosecution of the 

case. The writ will issue only if Respondent fails to comply.

November 30, 2016

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)