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Click here for the full text of this decision FACTS:During the defendant’s trial for aggravated assault, the defense sought to elicit testimony from the witness � who had been knifed several times during a fight in a nightclub restroom � about the victim’s inability to identify the defendant during a pretrial hearing. Allegedly, the victim had to ask a court interpreter who the defendant was. In response, the state asked to call the defendant’s attorney to rebut the “false impression” created by the victim’s confusion. The defendant’s objection was overruled, so the attorney took the stand and testified that he did not hear the victim ask the interpreter to identify the defendant. The defendant was convicted, and San Antonio’s 4th Court of Appeals affirmed the conviction. On petition for discretionary review, the defendant argues that he was denied a fair trail and that he received ineffective assistance of counsel under the Sixth Amendment, both due to his attorney having to testify against him. HOLDING:Reversed and remanded for a new trial. The court finds the appeals court decision did not fully consider the implications of allowing defense attorneys to be called as fact witnesses by the state. The court nonetheless compliments the appeals court for taking “great pains to reach a sound result,” and says that the challenge presented to it is to fashion a workable rule that is fair to both the state and the defense bar. Since Ford v. State, 314 S.W.2d 101 (Tex.Crim.App. 1958), the general rule in Texas has been that calling defense counsel as a fact witness for the state is error. Despite this clear edict, though, there has not been an accompanying test for harm. The court then adopts the “compelling need test” for such a practice. Under this test, the state must show: (1) there is no feasible alternative for obtaining and presenting the information to the jury except through defense counsel’s testimony; and (2) the testimony is essential, not merely relevant, to the state’s case.” A trial court must make the state prove these two elements � out of the presence of the jury � before allowing the defense counsel to be called as a witness. In this case, the state did not demonstrate a compelling need for the attorney’s testimony. There was no showing that the interpreter to whom the victim made the inquiry was not available to testify. Furthermore, the testimony was not essential to the state’s case because the defendant’s questioning of the victim did not necessarily leave a false impression. The testimony the defense counsel did elicit from the victim was probative. The court then finds that a standard harm analysis would be inadequate. “We hold that, when there is a compelling need to call defense attorney as a witness in the case, the trial court must take all appropriate ameliorative measures to prevent harm. Appropriate ameliorative measures include, but are not limited t (1) substitution of another attorney to replace defense counsel once it becomes apparent that the testimony is required; and (2) appointment of an additional attorney to represent the defendant during the questioning of defense counsel if there is a compelling need for counsel to testify. The failure to take such measures affects the analysis. The trial court must also be confident that defense counsel’s credibility before the jury will not be impugned, tarnished, or discredited in any way; the jury will not be confused by the testimony, the subsequent argument relating to the testimony, or the break in the proceedings; and the testimony will not involve, relate to or touch upon any privileged communication.” The court notes all of the policy reasons why a lawyer should not have to testify against his client, such as avoiding divulging privileged information or lodging appropriate objections to one’s own testimony. The court adds that it was “manifestly unfair” to make the counsel in this case testify against his will, against the very client he was sworn to defend. The lawyer’s credibility immediately becomes suspect in the eyes of the jury. “Above all, it was unfair to the defendant, who was convicted with the help of his own lawyer’s testimony.” OPINION:Charles R. Holcomb, J.; Keller, P.J., and Meyers, Womack, Hervey, and Cochran, JJ., joined. Johnson, J., filed a concurring opinion, in which Price, J., joined. Keasler, J., concurred in the result. CONCURRENCE:Cheryl A. Johnson, J. “Today the court adopts the compelling-need test as the standard for determining whether during a criminal trial, the state may properly call, as a fact witness for the state, the defense counsel in that trial. While the test is narrow and the burden on the state properly heavy under this test, I do not believe that it completely addresses the problem. “Very rarely will circumstances permit the state to carry its burden of demonstrating the lack of a feasible alternative and critical need for the testimony.”

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