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Click here for the full text of this decision FACTS:The appellant was involved in a single-car accident in Tarrant County. Two officers responded to the scene, both of whom later testified as fact witnesses at appellant’s trial. The officers’ testimony described appellant’s poor performance in field sobriety tests and the horizontal gaze nystagmus test, and generally tended to show that appellant was intoxicated at the time of the accident. One of the two officers, Samuel Williams of the Arlington Police Department, later became employed by the Tarrant County District Attorney; and by the time of trial, he worked as a prosecutor in the misdemeanor section. Although Williams worked in the same county as the court of conviction and had other matters pending before the court of conviction, he did not serve as a lawyer in appellant’s case. Appellant objected when Williams was called to the stand, complaining that the rules of professional responsibility prevented his testimony. Because appellant did not have notice that the prosecutor was going to call Williams, the trial court took a recess to allow appellant to develop his argument. Ultimately, the trial court received the testimony over appellant’s objection and denied his request for a mistrial. The court of appeals did not address whether Williams served “dual roles,” i.e., whether Williams’s mere status as 1. a lawyer with the district attorney’s office and 2. a fact witness in the case, constituted “dual roles” as proscribed by Texas Rule of Professional Responsibility 3.08. Powers v. State, 140 S.W.3d 851 (Tex. App. Fort Worth 2004). The court of appeals, however, concluded that “dual-role problems” deprived appellant of a fair trial or otherwise affected his substantial rights. HOLDING:The court reverses the judgment of the court of appeals. The court of appeals erred in applying Rule 3.08 because Williams did not serve as an “advocate” in the proceeding. Williams testified about his personal observations as a police officer, and his participation in the case extended no further. By taking no part in the case as a lawyer for the Office of the District Attorney, Williams’s only role in the proceeding was as a fact witness. Thus, because Williams did not serve “dual roles” as advocate and witness, the trial court did not abuse its discretion in admitting his testimony. This is the primary distinction between this case and the holding in Gonzalez v. State, 117 S.W.3d 831 (Tex. Crim. App. 2003), which the court of appeals found controlling. In Gonzalez, the court upheld disqualification of defense counsel, who unlike Williams here, was personally trying the case, and was the only fact witness with personal knowledge upon a disputed essential fact. When it is clear that an advocate is serving dual roles, it is proper to determine whether the opposing party would suffer actual prejudice by an alleged violation of the rule. House v. State, 947 S.W.2d 251 (Tex. Crim. App 1997). On the other hand, when it is clear that a lawyer is not serving dual roles, the reviewing court should not proceed to determine whether the complaining party was harmed. Furthermore, the trial court did not abuse its discretion because Williams’ former role as the lead investigating/arresting officer in this case would not prevent him from “accept[ing] or continu[ing] employment” in the Office of the District Attorney. Rule 3.08(a). “We are loathe to read into the law a requirement that would discourage lawyers from serving as public servants, and more importantly, that would discourage government entities from hiring otherwise desirable candidates for fear that the government would be prevented from going forward on a charge because one of its lawyers happened to have personal knowledge upon which testimony should be taken to resolve an essential fact.” OPINION:Holcomb, J.; Keller, P.J., Price, Womack, Johnson, Keasler, Hervey and Cochran, J.J., joins. Meyers, J., did not participate.

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