APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO.
2011CRN000531-D3(A) IN THE 341ST DISTRICT COURT
FROM WEBB COUNTY
Walker, J., filed a dissenting opinion in which Richardson
and Keel, JJ., joined.
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
- Counsel Switching Sides in the Same Matter Violates Due
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.
- Bail Stage and Trial Are Part of the Same Matter
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.
- It Is Unclear Whether an Attorney-Client Relationship Was
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.
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.
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.
habeas court disregarded Applicant's testimony about what
happened, and the court stated in its ...