Opinion issued May 27, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-00399-CR

———————————

JAMES DANIEL GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 506th District Court

Grimes County, Texas

Trial Court Case No. 18135

MEMORANDUM OPINION

A jury convicted appellant James Daniel Green of murder and, after finding 

the allegations in two enhancement paragraphs true, assessed his punishment at life 

imprisonment. In five issues, Green argues the trial court abused its discretion by 

(1) denying his motion to suppress certain statements he made to his alleged 
2

common-law wife, Mary Mariah Craig, and law enforcement; (2) admitting jail 

phone calls between Green and Craig even though the sponsoring witness did not 

have personal knowledge concerning maintenance of the phone records and was not 

the custodian of records; (3) admitting transcripts of the phone calls between Green 

and Craig; (4) allowing the State’s forensic dental identification expert to testify 

about the decedent’s dental records and include them in a demonstrative exhibit; and 

(5) allowing Craig’s counsel to represent her during Green’s murder trial even 

though her counsel had once represented Green in a separate criminal case that the 

State was using to enhance Green’s punishment range in this case. 

We affirm the trial court’s judgment. 

Background1

The decedent, Jason Currie (“Currie”), went missing on June 25, 2016. A few 

days before his disappearance, Currie accidently pocket-dialed Colton Manning’s 

(“Manning”) cell phone. Appellant James Daniel Green (“Green”), who was with 

Manning when Currie called, overheard Currie tell another man that he was planning 

to steal three ounces of methamphetamine from Green.

1

 Appellant James Daniel Green was charged with and later convicted of Jason 

Currie’s murder. Green moved to suppress statements he made to his alleged 

common-law wife, Mary Mariah Carey, and law enforcement. The background 

section is based on testimony elicited during the motion to suppress and during trial.
3

Unaware that Green had overheard the prior conversation, Currie called Green 

on June 25, 2016, to arrange a purported drug purchase. Currie and his friend, Mike 

Melson (“Melson”), met up with Green and Manning at Green’s home that 

afternoon. After using methamphetamine, the four men drove to a friend’s deer 

camp where Currie and Melson believed they would consummate the drug 

transaction. After arriving at the secluded location around dusk, Green angrily 

confronted Currie about the earlier phone call to Manning and other matters. Currie 

denied ever saying he would rob Green and claimed that a mutual friend had stolen 

his phone. According to Green, Manning and Currie then got into a physical 

altercation and Manning shot Currie several times with a .38 revolver. Green 

admitted that he also shot at Currie with a sawed-off .410 shotgun when Currie was 

lying on the ground. He does not know, however, if his shots hit Currie. 

Green and Manning considered shooting Melson as well, because Melson had 

witnessed Currie’s murder. Instead, they gave one of the guns to Melson and forced 

him to shoot Currie, which in their minds incriminated Melson for Currie’s murder.

When Green and Manning turned away to get more ammunition, Melson fled in 

Currie’struck. He wrecked the truck, however, and ran through the brush to a nearby 

home to seek help. The homeowner called 911 around 10 p.m. and reported that 

Melson was banging on the door begging to come inside because someone was 

following and intending to shoot him. Melson told the Grimes County Sheriff’s 
4

deputy who responded to the call that Currie had been shot. The deputy thought 

Melson was high on narcotics and did not appear to take Melson’s claim seriously. 

After Melson fled the deer camp, Green and Manning loaded Currie into the 

back of Green’s truck and looked for a place to dispose of the body. They eventually 

threw Currie’s body into a ditch off a dirt road and returned to the deer camp to clean 

up and burn all evidence of the murder. Green and Manning then drove to Green’s 

home where Green’s alleged common-law wife, Mary Mariah Craig (“Craig”), had 

been waiting up for him.2It was late in the evening and Craig was getting ready for 

bed when Green arrived. When she pressed Green for information about where he 

had been, Green allegedly told Craig that he and Manning had just killed Currie.

When Craig found out Manning and Green were leaving again, she insisted on going 

along because she wanted to spend time with Green. The three of them then left in 

Green’s minivan and drove towards Manning’s grandparents’ home in the country. 

According to Craig, Manning wanted to show the property to Green for reasons

unknown to her. By this time, calls and information were coming into the sheriff’s 

office from various sources implicating Green and Manning in Currie’s 

disappearance. According to Craig, Manning became nervous when he saw a police 

2 Green contends that he and Craig were common-law spouses at the time of the 

shooting and the record reflects that they often referred to one another as husband 

and wife when speaking to law enforcement. During the hearing on the motion to 

suppress and at trial, however, Craig denied that she was ever married to Green.
5

vehicle heading in the direction of Green’s home and he opened the passenger-side 

door and threw a backpack out of the minivan.

After arriving at Manning’s grandparents’ home in the early morning hours, 

the trio drove around the property. One of the planks on a wooden trestle bridge 

they were trying to cross broke and the minivan became stuck on the bridge.

Manning left Green and Craig behind with the minivan to get help. He called Mike 

Ferguson (“Ferguson”) between 3 and 4 a.m. on June 26, 2016 and begged him to 

come and pull the van off the bridge. Ferguson and another man eventually arrived 

and freed the minivan. Manning, who had fallen asleep outside his grandparents’ 

home, left in the minivan with Green. Craig, who left with Ferguson, returned home 

later that morning. Green left the county, but he eventually returned home that 

evening.

After Green returned home, Green and Craig retrieved Currie’s body from the 

ditch, loaded it into the back of Green’s truck, covered the body with various items, 

and then looked for a new place to dispose of the body. Green and Craig eventually 

left Currie’s body in a creek bed on a ranch next to the Manning family property. 

They then burned additional items off the county road, near the ranch.

Captain Blake Jarvis (“Captain Jarvis”), Investigator Daniel Wagnon

(“Investigator Wagnon”), and Investigator Kindale Pittman (“Investigator Pittman”) 

of the Grimes County Sheriff’s Office, as well as Ranger Jeff Owles with the Texas 
6

Rangers (“Ranger Owles”) and other law enforcement officials continued to 

investigate Currie’s disappearance. They recovered Currie’s wrecked truck and the 

backpack Manning had thrown out of the minivan, but they were unable to locate 

Currie. The backpack contained, among other things, a sawed-off .410 shotgun, 

shotgun shells, a handgun holster, and various clothing items.

On July 6, 2016, Green, Craig, and Ferguson3 were arrested for theft of a 

tractor unrelated to Currie’s murder. Captain Jarvis and Ranger Owles tried to 

interview Green when he was taken into custody on the theft charge. After advising 

Green of his rights under Article 38.22, Section 2(a) of the Texas Code of Criminal 

Procedure and Miranda v. Arizona, 384 U.S. 436 (1966)4, Green invoked his right 

to counsel and the officers ended the interview. Later that day, Captain Jarvis and 

Ranger Owles interviewed Green at Green’s request. The officers advised Green of 

his rights prior to the second interview and Green waived his rights. He agreed to 

speak with the officers and did not invoke his right to counsel.

3 After Captain Jarvis learned that Ferguson had a warrant for his arrest in another 

county, he approached Ferguson and asked him to wear a wire to obtain information 

from Green about Currie’s disappearance. Captain Jarvis told Ferguson that he 

would help get the other case dismissed. Although Ferguson initially agreed to help, 

he ultimately decided not to go through with it, and he told Green about Captain 

Jarvis’s plan. All of this occurred before Ferguson and Green were arrested for theft 

on July 6, 2016.

4 The warnings required by Article 38.22 include those articulated in Miranda v.

Arizona, 384 U.S. 436 (1966), as well as a warning that the accused “has the right 

to terminate the interview at any time.” TEX. CODE CRIM. PROC. art. 38.22, §§ 2(a), 

3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
7

On July 11, 2016, Craig, who was still in custody on the theft charge, went on 

a ride with Investigators Pittman and Wagnon to try to locate Currie’s body. Craig

became very upset on the ride back to the jail and repeatedly asked the investigators 

to let her speak with Green. A recording of Craig’s conversation with the officers 

was admitted into evidence during the suppression hearing. Investigators Pittman 

and Wagnon conveyed her request to Captain Jarvis, and he agreed to facilitate a

meeting between Craig and Green.

That same day, Craig and Green met in one of the interview rooms equipped 

with audio and video recording. When asked why she wanted to talk to Green, Craig 

testified at the suppression hearing: “Because I wanted Danny to confess. I wanted 

him to admit. I wanted to be done with the whole situation. I wanted to be able to 

go home. I just wanted to be -- I wanted it to end.” Craig also testified that Captain 

Jarvis, Investigator Wagnon, and Investigator Pittman did not promise her anything 

to get her to speak with Green or request that she ask any specific questions of Green. 

She also denied having any agreement with them to elicit information from Green 

that they could use in their investigation. 

Captain Jarvis testified that he did not ask Craig to ask Green any specific 

questions or give her instructions about the meeting. He denied promising Craig 

anything to get her to speak to Green. Captain Jarvis also stated that he did not 

promise Green or Craig they would have privacy in the interview room, and Green 
8

and Craig knew or should have known based on prior interviews that their 

conversations in that room could be recorded. Investigator Pittman testified that it 

was Craig’s idea to meet with Green. Investigator Pittman also stated that neither 

he nor Investigator Wagnon asked Craig to talk to Green. He also testified that he 

did not request Craig to ask Green any questions about Currie’s murder or any other 

matter. He also denied promising Craig anything to meet with Green or having any 

kind of agreement with Craig to act as an agent of the State to elicit information from 

Green for the investigation. 

Investigators Pittman and Wagnon tried to interview Green right after his 

meeting with Craig. Investigator Pittman, however, acknowledged at the 

suppression hearing that the officers did not advise Green of his rights before 

speaking with him on July 11, 2016. The interview was included on the same 

recording as Green’s and Craig’s conversation, and the entire recording was 

admitted into evidence for purposes of the suppression hearing without objection. 

No evidence regarding Investigators Pittman’s and Wagnon’s July 11, 2016 

interview with Green was admitted at trial. 

On July 13, 2016, Captain Jarvis learned that someone was trying to post bond 

for Green and Captain Jarvis conveyed this information to Craig. According to 

Craig, Captain Jarvis told her that if she helped them locate Currie’s body, he would 

help get her released on a personal recognizance bond and she could go home to her 
9

kids. Craig led investigators to Currie’s remains later that day. She also led them to 

the first location where Green and Manning had disposed of Currie’s body. Craig 

was released on a personal recognizance bond and set up with a motel room for a 

few days and money for clothes and food. Green called Craig from jail multiple 

times after her release. Four calls in which Green made inculpatory statements to 

Craig about Currie’s murder were admitted into evidence.

Captain Jarvis tried to meet with Green again on July 14, 2016, after they 

found what they believed to be Currie’s body, but Green invoked his right to counsel,

and Captain Jarvis ended the interview. On July 18, 2016, Captain Jarvis brought 

Green back to the interview room. Captain Jarvis told Green that Craig had called 

him over the weekend to let him know that Green wanted to talk to him. Green

confirmed that he had requested to talk to Captain Jarvis. Green told Captain Jarvis 

that he had spoken with Craig on the phone, and she had convinced him to ask for 

the meeting. Captain Jarvis then read Green his rights under Article 38.22 and 

Miranda. Green waived those rights, agreed to speak to Captain Jarvis, and did not 

invoke any of his rights. He confessed to Currie’s murder. A recording of Green’s 

confession and a transcript of the interview were admitted into evidence at trial. 

Motion to Suppress

In his first issue, Green argues that the trial court abused its discretion by

denying his motion to suppress incriminating statements he made to law 
10

enforcement and Craig. According to Green, the statements were not made freely 

and voluntarily and thus their admission violated Articles 38.22 and 38.23 of the 

Texas Code of Criminal Procedure.

5 Green contends that Craig was acting as an 

agent of the State and coerced him to confess. According to Green, Craig induced 

him to make incriminating statements to law enforcement while he was in custody.

A. Standard of Review

“A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse 

of discretion.” Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial 

court's ruling should be reversed only if it is arbitrary, unreasonable, or “outside the 

zone of reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.

App. 2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

In a motion to suppress hearing, the trial court is the sole trier of fact and judge of 

the credibility of the witnesses and the weight to be given their testimony. State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Thus, the judge may believe or 

disbelieve all or any part of a witness’s testimony even if that testimony is 

uncontroverted. Id. This is so because it is the trial court that observes firsthand the 

demeanor and appearance of a witness, unlike an appellate court, which can only 

5 Green also argued at trial that the statements were subject to spousal privilege 

pursuant to Rule 504 of the Texas Rules of Evidence. On appeal, however, Green 

acknowledges that either spouse may waive the privilege and even if Craig is his 

wife, he could not prevent her from testifying about their conversations.
11

read an impersonal record. Id. Although we generally limit our review to evidence 

introduced at the suppression hearing, when the parties later re-litigate the 

suppression issue at the trial on the merits, we consider all evidence, from both the 

pre-trial hearing and the trial, in our review of the trial court’s determination. 

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).

B. Applicable Law

The United States Constitution and the Texas Code of Criminal Procedure 

prohibit the use of statements made by a criminal defendant against himself if 

procured through custodial interrogation without the necessary procedural 

safeguards to secure the Fifth Amendment right against self-incrimination. Miranda

v. Arizona, 384 U.S. 436, 444 (1966); Jones v. State, 119 S.W.3d 766, 772 (Tex.

Crim. App. 2003); TEX.CRIM. APP. PROC. art. 38.22; see also TEX.CRIM. APP. PROC.

art. 38.23(a) (“No evidence obtained by an officer or other person in violation of any 

provisions of the Constitution or laws of the State of Texas, or of the Constitution or 

laws of the United States of America, shall be admitted in evidence against the 

accused on the trial of any criminal case.”). The warnings that Article 38.22 requires 

include those articulated in Miranda, as well as a warning that the accused “has the 

right to terminate the interview at any time.” TEX. CRIM. APP. PROC. art. 38.22,

§§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
12

The procedural safeguards of Miranda and Article 38.22 apply to custodial 

interrogation by law enforcement officers or their agents. Wilkerson v. State, 173 

S.W.3d 521, 527 (Tex. Crim. App. 2005); Hailey v. State, 413 S.W.3d 457, 474 

(Tex. App.—Fort Worth 2012, pet. ref’d). “Custodial interrogation” involves 

“questioning initiated by law enforcement officers after a person has been taken into 

custody or otherwise deprived of his freedom of action in any significant way.”

Miranda, 384 U.S. at 444.

Private citizens ordinarily are not considered law enforcement officers and 

thus cannot engage in custodial interrogation under Article 38.22. See Hailey, 413 

S.W.3d at 474. A citizen who acts as an agent of law enforcement and interrogates 

a person in custody, however, is “bound by all constitutional and statutory 

confession rules, including Miranda and Article 38.22.” Wilkerson, 173 S.W.3d at 

529–30. In this context, “[t]he term ‘agency’ denotes a consensual relationship 

which exists between two persons or parties where one of them is acting for or on 

behalf of the other.” Id. at 529. The law does not presume an agency relationship, 

and the person alleging its existence has the burden of proving it. Id. When 

considering whether information from a criminal defendant was procured by a 

person acting as a government agent, courts must determine whether the person 

acted pursuant to an agreement with or instructions from a known “government 

agent.” Manns v. State, 122 S.W.3d 171, 182 (Tex. Crim. App. 2003). The person 
13

who procured the challenged information will not be considered a government agent 

absent agreement or instruction predating procurement of the information. Id.

C. Analysis

Green confessed to Currie’s murder when he met with Captain Jarvis on July 

18, 2016. The record reflects that Green, who had requested the meeting with 

Captain Jarvis through Craig, waived his rights and agreed to speak with Captain 

Jarvis. Green argues on appeal that his statements to Captain Jarvis were not given 

freely and voluntarily because Craig coerced or induced him to confess and make 

incriminating statements to law enforcement. Green, however, does not explain how 

Craig allegedly coerced or induced him. Craig was not present during the July 18 

interview, and she did not previously discuss the nature of the meeting or what would 

be discussed with Captain Jarvis. Green does not provide a factual basis for his 

assertions or identify any other reasons why his statements to Captain Jarvis were

inadmissible.

Green also complains about the admission of incriminating statements uttered 

during certain phone calls with Craig. The record reflects that Green initiated each

of those phone calls, not Craig, and that Green offered the incriminating statements 

voluntarily and not in response to questioning by Craig. Thus, Green’s statements 

to Craig were not a product of custodial interrogation. See Banargent v. State, 228

S.W.3d 393, 402 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding 
14

recordings of phone calls made by defendant from prison were not product of 

custodial interrogation); State v. Scheineman, 77 S.W.3d 810, 813 (Tex. Crim. App.

2002) (holding no custodial interrogation occurred when defendant’s custodial 

statement was not made in response to interrogation by law enforcement personnel 

but instead was made when defendant was alone with co-defendant).6

Based on the record, we conclude that the trial court did not abuse its 

discretion by denying Green’s motion to suppress his statements to Craig and 

Captain Jarvis.

We overrule Green’s first issue. 

Admission of Evidence Jail 

In his second and third issues, Green argues that the trial court abused its 

discretion by admitting audio recordings of telephone conversations between him 

and Craig while he was in custody and transcripts of those recordings, because the 

State did not properly authenticate the recordings.

7

6 Green’s statements to Craig on July 11, 2016 were not admitted into evidence or 

used in the State’s case in chief.

7 Green further contends that the recordings and transcripts should not have been 

admitted because they contain incriminating statements that he made to Craig after 

Currie’s body was discovered and Craig was acting as an agent of the State during 

the calls. We addressed the admissibility of these statements in our analysis of 

Green’s first issue.
15

A. Standard of Review and Applicable Law

Texas Rule of Evidence 901 governs the authentication requirements for the 

admissibility of evidence. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App.

2018). “To satisfy the requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient to support a finding that 

the item is what the proponent claims it is.” TEX.R.EVID. 901(a). The authentication 

requirement can be satisfied for a voice recording by, among other things, “[a]n 

opinion identifying a person’s voice—whether heard firsthand or through 

mechanical or electronic transmission or recording—based on hearing the voice at 

any time under circumstances that connect it with the alleged speaker.” Id.

901(b)(5); see also Diamond v. State, 496 S.W.3d 124, 141–42 (Tex. App.—

Houston [14th Dist.] 2016, pet ref’d). Alternatively, the authentication requirement 

for some evidence, including business records, can be satisfied independently 

through Texas Rule of Evidence 902. See TEX. R. EVID. 902(10); Jones v. State, 572 

S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (stating evidence 

“may be authenticated under either [Rule 901(b)(1)-(10)] governing extrinsic 

evidence that satisfies authentication requirement or [Rule 902(1)-(10)] governing

self-authentication and need not be authenticated under both”).

We review a trial court’s ruling on an authentication issue under an abuse of 

discretion standard. Fowler, 544 S.W.3d at 848. We will uphold a trial court’s 
16

admissibility decision when that decision is within the zone of reasonable 

disagreement. Id. The trial court does not abuse its discretion in admitting evidence 

when it reasonably believes that a reasonable juror could find that the evidence has 

been authenticated or identified. See id. at 848–49. Under this liberal standard, “it 

is the jury’s role ultimately to determine whether an item of evidence is indeed what 

its proponent claims; the trial court need only make the preliminary determination 

that the proponent of the item has supplied facts sufficient to support a reasonable 

jury determination that the proffered evidence is authentic.” Id. (quoting Butler v.

State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015)).

B. Analysis

Lt. Daniel Caswell (“Lt. Caswell”), the Grimes County Jail administrator, 

testified that he is the records keeper for the Grimes County Sheriff’s Office and the 

custodian of records for all calls placed over the inmate telephone system. Lt. 

Caswell testified that the calls are kept in the normal, ordinary course of business, 

but they are not maintained by the county. Instead, the county uses a private vendor, 

NCIC Inmate Phone Systems, to manage its inmate telephone systems. According 

to Lt. Caswell, the vendor provides the operating systems, hardware, software, and 

all the equipment. The vendor maintains all the records for the county. Lt. Caswell 

also testified that he is familiar with the jail phone call recoding system, and that the 

recording equipment was in good working order in June and July 2016. 
17

Lt. Caswell testified that each inmate has a unique personal identification,

assigned to them upon arrival at the jail, and the inmate must use that number to 

access the phone system. Lt. Caswell, who can log directly into the inmate phone 

system maintained by NCIC from his computer, located four phone calls associated 

with Green’s personal identification number. Lt. Caswell listened to the recordings 

of the calls and downloaded the recordings onto separate DVDs, which were 

admitted into evidence as State’s Exhibits 164 to 167. Lt. Caswell initialed each 

DVD. Lt. Caswell testified that he listened to the four phone calls, and he recognized 

one of the voices on all four of the recordings to be that of Green.

Based on this evidence, we hold that the trial court’s determination that the 

State supplied facts sufficient to support a reasonable jury determination that the 

proffered evidence is authentic is within the zone of reasonable disagreement. Thus, 

the trial court did not abuse its discretion by admitting the audio recordings and their 

corresponding transcripts.8 Fowler, 544 S.W.3d at 848–49.

We overrule Green’s second and third issues.

8 Having determined that the evidence is admissible under Rule 901, it is not 

necessary to address whether the evidence also satisfies the requirements for selfauthentication under Rule 902. See Jones v. State, 572 S.W.3d 841, 848 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.) (stating evidence may be authenticated 

under either Rule 901 or 902 “and need not be authenticated under both”).
18

Admission of Expert Testimony and Demonstrative Evidence

In his fourth issue, Green argues that the trial court abused its discretion by 

allowing Dr. Paula Brumit (“Dr. Brumit”), the State’s forensic dental identification 

expert, to use a PowerPoint exhibit to testify about the process she used to determine 

that the skull recovered by police was Currie’s, because her testimony and the exhibit 

included inadmissible evidence, namely, Currie’s dental records from the Texas 

Department of Criminal Justice (“TDCJ”). Green argues that Currie’s dental records 

from TDCJ are inadmissible hearsay.

Rule 703 of the Texas Rules of Evidence provides that “an expert may base 

[her] opinion on facts or data in the case that the expert has been made aware of, 

reviewed, or personally observed.” TEX. R. EVID. 703. The rule clarifies that such 

facts or data need not be admissible if “experts in the particular field would 

reasonably rely on those kinds of facts or data in forming an opinion on the subject.”

Id. The expert’s disclosure of these facts and data, however, is subject to the same 

relevancy constraints that govern the admission of other kinds of evidence. See TEX.

R. EVID. 705(d) (“If the underlying facts or data would otherwise be inadmissible, 

the proponent of the opinion may not disclose them to the jury if their probative 

value in helping the jury evaluate the opinion is outweighed by their prejudicial 

effect.”); see also TEX. R. EVID. 403.
19

Dr. Brumit testified that she is a forensic dentist and a practicing dentist with 

thirty-five years of experience. A forensic dentist is a dentist trained to assist law 

enforcement with the identification of human remains through dental examination. 

Dr. Brumit, who teaches forensic dental analysis at two universities, is the former 

chair of the forensic dentistry section of the American Academy of Forensic 

Sciences and has co-written several peer-reviewed articles on the topic. Dr. Brumit 

testified that forensic dentists identify the body of a deceased person by comparing 

dental records from that person to the dental records of a known person, typically, 

the decedent. She testified such dental records are the kind of evidence that experts 

in her field reasonably rely upon to make determinations of identification. 

Dr. Brumit received digital images of the skull recovered by the sheriff’s 

office, including photographs and x-rays of the decedent’s skull, upper jaw, and 

maxilla, and she compared these dental records to Currie’s antemortem (predeath) 

dental records. Dr. Brumit used a PowerPoint presentation with certain images to 

explain to the jury how she determined that the skull found in the creek in Grimes 

County, Texas was that of Currie. Green argues that the trial court abused its 

discretion by allowing the State to use the PowerPoint presentation because it 
20

included inadmissible evidence, namely, Currie’s antemortem dental records from 

TDCJ.

9

Green’s argument is unavailing. As noted, an expert may disclose the 

underlying facts or data relied upon, even if inadmissible, so long as experts in the 

field reasonably rely on such facts or data in forming an opinion on the subject. See

TEX. R. EVID. 703 & 705(d). Based on Dr. Brumit’s testimony, we conclude that 

trial court did not abuse its discretion in admitting Dr. Brumit’s testimony. See id.

We overrule Green’s fourth issue. 

Disqualification of Counsel

In his fifth issue, Green argues that the trial court abused its discretion by 

allowing Craig’s appointed counsel, Mark Maltsberger (“Maltsberger”), to represent 

Craig at Green’s trial even though Maltsberger had once represented Green in a 

criminal matter that the State was trying to use to enhance the applicable punishment 

range for Green. The record reveals that Maltsberger represented Green in a case 

involving two counts of burglary of a habitation in 2005.

10 Green, who was 

9 Green does not contend that Currie’s dental records from TDCJ are more prejudicial 

than probative. And to the extent he attempts to raise a chain-of-custody issue on 

appeal, he does not support his contention with any argument, authority, or citations 

to the record and has therefore waived this issue. TEX.R. APP. P. 38.1(i) (appellant’s 

brief “must contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record”).

10 See Green v. State, No. 10-05-00365-CR, 2006 WL 3627967 (Tex. App.—Waco 

Dec. 13, 2006, no pet.) (mem. op.).
21

sentenced to two terms of forty years’ imprisonment to run concurrently for the 2005 

burglary, was on parole for the offenses when Currie was murdered.

The State argues that Green waived this argument because he did not file a 

motion to disqualify Maltsberger and that even if he had filed such a motion and the 

trial court had denied it, he should have challenged the decision by filing a petition 

for writ of mandamus. See In re Meza, 611 S.W.3d 383, 385 (Tex. Crim. App. 2020) 

(reviewing denial of motion to disqualify filed in petition for writ of mandamus); 

Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (orig. proceeding) (per 

curiam) (holding party who does not move to disqualify opposing counsel in timely 

manner waives complaint). Even if we assume, without deciding, that Green 

properly preserved the issue for appeal, Green still would not prevail. 

A. Standard of Review and Applicable Law

A party moving for disqualification based on violation of a disciplinary rule 

must “establish with specificity” that the disciplinary rule was violated. In re

Thetford, 574 S.W.3d 362, 373–74 (Tex. 2019). We review a trial court’s refusal to 

disqualify a lawyer for abuse of discretion. Id. at 375. “A trial court abuses its 

discretion when it acts in an unreasonable or arbitrary manner or, stated differently, 

when it acts without any reference to guiding rules or principles.” Id. (quoting In re

Meador, 968 S.W.2d 346, 353 (Tex. 1998) (orig. proceeding)).
22

Green alleges that Maltsberger should have been disqualified because his 

representation of Craig violated Texas Disciplinary Rule of Professional Conduct 

1.09. Rule 1.09 section (a) states:

(a) Without prior consent, a lawyer who personally has formerly 

represented a client in a matter shall not thereafter represent another 

person in a matter adverse to the former client:

(1) in which such other person questions the validity of the lawyer’s 

services or work product for the former client;

(2) if the representation in reasonable probability will involve a 

violation of Rule 1.05; or

(3) if it is the same or a substantially related matter.

TEX. DISCIPLINARY RULES OF PROF’L CONDUCT 1.09(a).

11

 Rule 1.09 does not 

absolutely prohibit a lawyer from representing a client against a former client. See

TEX. DISCIPLINARY RULES OF PROF’L CONDUCT 1.09 cmt. 3; In re Chonody, 49 

S.W.3d 376, 379 (Tex. App.—Fort Worth 2000, no pet.).

The question under section(a)(2) of Rule 1.09 is whether Green established 

that Maltsberger’s representation of Craig during Green’s murder trial “in reasonable 

probability [would] involve a violation of Rule 1.05.” Rule 1.05 protects 

confidences. Before a trial court may disqualify a lawyer under Rule 1.09(a)(2), the 

court must find a reasonable probability that some aspect of 1.05 will be violated. 

11 Green’s counsel did not explicitly reference Rule 1.09 at trial.
23

Rule 1.05, referenced in Rule 1.09(a)(2), addresses a lawyer’s duties with respect to 

a client’s confidential information. Rule 1.05(b), pertinent to this action, provides:

(b) [A] lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client[.]

* * *

(3) Use confidential information of a former client to the disadvantage 

of the former client after the representation is concluded unless the 

former client consents after consultation or the confidential information 

has become generally known.

Id. 1.05(b)(1) & (3). “Confidential information” is defined as 

“[P]rivileged information” and “unprivileged client information.” 

“Privileged information” refers to the information of a client protected 

by the lawyer-client privilege of Rule 503 of the Texas Rules of

Evidence or of Rule 503 of the Texas Rules of Criminal Evidence. . . . 

“Unprivileged client information” means all information relating to a 

client or furnished by the client, other than privileged information, 

acquired by the lawyer during the course of or by reason of the 

representation of the client.

Id. 1.05(a). 

Because Maltsberger represented Green in the 2005 burglary cases, 

section(a)(3) of Rule 1.09 only prohibits Maltsberger from representing Craig in this 

case “if it is the same or a substantially related matter.” Id. 1.09(a)(3). “[M]atters 

are substantially related when the similarity of the facts involved ‘creates a genuine 

threat that confidences revealed to [the client’s] former counsel will be divulged to 

his present adversary.’” In re Thetford, 574 S.W.3d at 374 (quoting NCNB Tex. Nat.

Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989)). “Neither conclusory statements
24

of similarities nor facial similarities willsuffice—the movant must delineate specific 

facts that tie the former and current representations together.” In re Thetford, 574 

S.W.3d at 374.

B. Analysis

At trial, Green’s counsel objected to Craig testifying, arguing: “I believe 

there’s a direct conflict of interest between [Maltsberger’s] representation of Ms. 

Craig and his former representation of my client. And I would like that reflected in 

the record.” Green’s counsel explained that the conflict had arisen when Craig, who 

had referred to Green as her husband during the initial investigation, testified at the 

hearing on the motion to suppress that she did not consider herself married to Green 

and was not invoking spousal privilege. According to Green’s counsel, “the conflict 

arises, Judge, where the testimony is adverse to my client and there’s been legal 

advice given to Ms. Craig as to a particular legal issue, specifically the issue of 

marriage and common-law marriage by Mr. Maltsberger to Ms. Craig. And that 

legal advice is contrary to what’s in the best representation of his former client Mr. 

Green.”

Although Green identified the general subject matter at issue (the existence of 

a purported marriage between Green and Craig), he failed to demonstrate that the 

factual matters involved in his 2005 burglary case were so related to the facts in the 

present murder case that Maltsberger’s representation of Craig created a genuine 
25

threat that confidences Green revealed to Maltsberger during his representation of 

Green in 2005 would be divulged to Craig in 2016. See In re Thetford, 574 S.W.3d 

at 374. Green also did not offer any evidence that there is a “reasonable probability” 

that Maltsberger could reveal confidential information Green shared with him during 

the 2005 case.

We conclude that the trial court did not act in an unreasonable or arbitrary 

manner when it allowed Maltsberger to represent Craig, and therefore, the trial court 

did not abuse its discretion. See id. at 373–74.

12

We overrule Green’s fifth issue.

Conclusion

We affirm the trial court’s judgment. 

Veronica Rivas-Molloy

Justice

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).

12 We further note that Green’s 2005 convictions for burglary of a habitation were only 

relevant as to the enhancements in the indictment for purposes of assessing his 

punishment, and that Craig did not testify at the punishment phase.