Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Rodriguez

Court of Criminal Appeals of Texas

February 28, 2018



          Walker, J., filed a dissenting opinion in which Richardson and Keel, JJ., joined.


         Fernando Rodriguez, Jr., Applicant, seeks habeas corpus relief because one of the prosecutors in his case allegedly represented him as defense counsel. As a result, Applicant claims a violation of due process, trial court error in denying a motion for new trial, and ineffective assistance of appellate counsel for failing to raise the issue on appeal. The record before us is too deficient to warrant an outright denial, and the information that is in the record suggests that Applicant may be entitled to relief. Accordingly, I believe that the Court should remand this matter to the habeas court for further fact gathering. Because the Court does not do so, I respectfully dissent.

         I - Counsel Switching Sides in the Same Matter Violates Due Process

          In Landers v. State, we summarized the applicable legal principles for disqualification of prosecutors. See Landers v. State, 256 S.W.3d 295, 303-08 (Tex. Crim. App. 2008). There, we stated:

If a prosecuting attorney has formerly represented the defendant in the "same" criminal matter as that currently being prosecuted, he is statutorily disqualified. The Legislature has decreed that this conflict of interest is both obvious and actual, and we have so held. Thus, for example, if a prosecutor has previously represented a defendant in a burglary guilty-plea proceeding, he is statutorily disqualified from representing the State in a later probation revocation of that same burglary case. For a prosecuting attorney to "switch sides" in the same criminal case is an actual conflict of interest and constitutes a due-process violation, even without a specific showing of prejudice. This has been called a "hard and fast rule of disqualification."

Id. at 304 (citing Ex parte Spain, 589 S.W.2d 132, 134 (Tex. Crim. App. 1979) and Edward L. Wilkinson, Conflicts of Interest in Texas Criminal Cases, 54 Baylor L. Rev. 171, 177 (2002)). In this case, Applicant claims that one of the prosecuting attorneys, Cristina Alva, formerly represented him while she was employed by the Webb County Public Defender's Office. It is not disputed that Alva was a member of the prosecution team in this case. The issue turns upon whether Alva formerly represented Applicant and whether that former representation was part of the same matter.

         II - Bail Stage and Trial Are Part of the Same Matter

         In Ex parte Spain, we held that due process was denied because the prosecutor who filed the State's motion to revoke probation and who represented the State at the revocation hearing had originally represented Spain as defense counsel when Spain pleaded guilty. Spain, 589 S.W.2d at 133-34. The case before the Court today does not involve a guilty plea and a probation revocation. However, Spain is instructive, because although the guilty plea stage and the probation revocation stage involve different legal and factual issues (that is, whether a defendant is guilty of an offense and what sentence could be and should be imposed involves different questions than whether a probationer has violated the terms of his community supervision), they both are part of the same criminal matter-the revocation is but a chapter in the story of the offense. Here, bail release proceedings for an offense also involve separate issues from the trial of that very same offense (that is, whether a defendant would pose a danger to the community, whether he would be a flight risk, what conditions would be required of him while on bail, etc., versus whether that defendant committed the offense and, if so, how he should be punished). Yet, the bail release is for that same offense, and is, therefore, part of that same criminal matter. Therefore, if Alva represented Applicant during the bail phase, her representation of Applicant would have occurred in the same matter as her prosecution of Application. If so, she switched sides on the same matter, and due process was violated.

         III - It Is Unclear Whether an Attorney-Client Relationship Was Formed

         Alva testified that she could not recall whether she met with Applicant. However, on a public defender's office's Client Interview Sheet for Applicant, handwriting was found that Alva admitted was hers. Additionally, the Webb County Public Defender's Office sent Applicant a letter informing him that Alva was assigned to work on his case at the magistration level. Finally, Applicant testified that Alva met with him to work on his bail. Accordingly, it is at least undisputed that Alva was assigned by the Webb County Public Defender's Office to do work on Applicant's magistration, even though she does not remember doing so.

         Alva, unable to recall whether she met with Applicant at all, unsurprisingly also could not remember specifically what was discussed with Applicant. Instead, Alva gave general testimony about what she would do in a typical case. Alva testified that when she was employed at the public defender's office, she was assigned to do magistration-level work for appointed clients who had been arrested. She would meet with those defendants, gather information relevant to getting the defendant released on bail, and if any information on the offense was given, she would take that information as well. She would also explain the laws regarding bail, especially the law revolving around article 17.151 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 17.151 (West 2015 & Supp. 2016) (Release because of delay). If Alva was informed by the client that the client was already represented by counsel, her policy was to cease communication with the client.

         Unlike Alva, however, Applicant was able to provide testimony about their meeting. He testified that he and Alva discussed both release on bail and the facts of the offense. He also testified that Alva met with him for a second time a few weeks later to further talk about bail and the case.

         The habeas court disregarded Applicant's testimony about what happened, and the court stated in its ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.