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Click here for the full text of this decision FACTS:Two police officers, Samuel Williams and Greg Dickerson, responded to a report that a car had crashed into a telephone pole. Officer Williams gave the driver, Powers, the horizontal gaze nystagmus test and said he observed six indicia of intoxication. At the hospital, Powers refused Williams’ request for a blood sample, and Powers was later arrested for DWI. But at the time of trial, Williams no longer worked for the Arlington Police Department; he was a misdemeanor prosecutor for the Tarrant County District Attorney’s Office, the same office that was prosecuting Powers. When the state called Williams as a witness, he testified to his change in employment status. Powers objected and sought a mistrial, seeking to disqualify the Tarrant County District Attorney’s Office because Williams, a material witness, was a member of the office. The trial judge denied the motion for a mistrial, but instructed the state to refrain from referring to Williams’ position as a prosecutor for Tarrant County. The jury found Powers guilty of DWI. HOLDING:Reverse and remand. Texas Disciplinary Rule of Professional Conduct 3.08 governs when a lawyer may appear as both an advocate and a witness in the same adjudicatory proceeding. The 2nd Court cites Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex. Crim. App. 2003) for the proposition that alleged disqualification under Rule 3.08 does not entitle an appellant to relief on appeal unless the appellant can demonstrate actual prejudice resulting from the opposing party’s service in the dual roles of advocate and witness. That actual prejudice can be demonstrated by showing that the opposing party’s service in the dual roles of advocate and witness deprived the defendant of a fair trial or otherwise affected his substantial rights. The court notes that Williams provided a large portion of the state’s evidence regarding the contested matter of Williams’ intoxication: testimony that Powers’s breath smelled of alcohol after the accident; that Powers exhibited all six indicia of intoxication when given the HGN test; that Powers admitted to drinking prior to the accident; that Williams recovered a styrofoam cup containing some alcoholic mixture from Powers’ vehicle at the scene of the accident; and that Powers refused to submit a blood specimen after being asked to do so. The court applies Gonzalez to these facts, to look at the kinds of dual-role problems the Court of Criminal Appeals views as unfairly impacting a trial: the credibility of a key fact witness with personal knowledge of a contested matter; the jury attaching undue weight to his testimony; the dual role hampering opposing counsel’s ability to effectively challenge the witness’s credibility; and jury confusion about which role the witness/advocate is playing at any given time. The court also noted an additional problem in this case: the possibility of an appearance of a lack of objectivity regarding his testimony. Powers argued this point, saying that both Williams’ immediate supervisor and his partner in county criminal court called him as a witness. The court agrees, finding that, “allowing members of the same district attorney’s office to both prosecute a case and to provide controlling testimony on a controverted matter directly bearing on a defendant’s guilt could potentially undermine public confidence in the integrity of the judicial process.” However, the court stands by its prior holding in Stanley v. State, 880 S.W.2d 219 (Tex. App. � Fort Worth 1994, no pet.) that the Texas Disciplinary Rules of Professional Conduct do not per se preclude assistant district attorneys within a single office from assuming dual roles of advocate and witness in the same adjudicatory proceeding; its goes on to note that, here, Power did show actual prejudice from the dual roles of the prosecuting office. Because the court finds that these types of dual-role problems concerning a material fact witness affected Powers’ substantial rights or deprived him of a fair trial, it reverses and remands for a new trial. OPINION:Walker, J.; Holman, Gardner and Walker, JJ.

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