Flores v. State

¶1OPINION

¶2delivered the opinion of the Court,

¶3The issue we decide today is whether, absent a compelling need for the testimony, it is error to order defense counsel to testify over objection when called by the State as a fact witness. We conclude it is and reverse the judgment of the appellate court.

¶4I. The Relevant Facts

¶5A jury convicted appellant of aggravated assault, and the trial court, after finding the enhancement paragraphs true, sentenced him to fifteen years in prison. The victim was stabbed several times during a knife fight in a nightclub restroom. However, the issue of who actually stabbed him was hotly contested at trial. In support of his theory, defense counsel elicited testimony that the victim had been unable to identify the defendant during an earlier pre-trial hearing and had to ask the court interpreter who the defendant was. Although defense counsel never got a straight answer from the victim, the State requested permission to call defense counsel as a witness in an attempt to rebut this “false impression.” Defense counsel objected, but was ordered to testify as to his recollection of the incident between the victim and the interpreter. Defense counsel testified that he did not hear the victim ask the interpreter to identify the defendant.

¶6II. The Appellate Issues

¶7The exact issue upon which we granted review is “whether the court of appeals was correct in holding there is no reversible error when the State calls defense counsel as a witness to testify on behalf of the State during the guilt/innocence phase of appellant’s jury trial.” Appellant complains that (1) he was denied a “fair trial,”1 and (2) he received ineffective assistance of counsel under the Sixth Amendment.

¶8*147In addressing these arguments, the court of appeals concluded that appellant’s reliance on our decision in Ford v. State was misplaced; defense counsel’s credibility was not undermined by the ordered testimony; and the ineffective assistance complaint involved a “self-interest conflict,” therefore, harm was not presumed and, moreover, none was shown.2 As to appellant’s fair-trial complaint, the court of appeals does not expressly hold whether the trial court erred by ordering defense counsel to testify over objection. The opinion suggests that the appellate court found no error, but even if it was error, it was harmless. As to appellant’s Sixth Amendment argument, the appellate court applied our holding in Monreal v. State, 947 S.W.2d 559 (Tex.Crim.App.1997) to find that trial counsel was burdened with a conflict of interest, but found no harm. We find the underpinnings and rationale of the court of appeals’s implicit and express holdings unreasonable for a number of reasons. However, that is not to say that the court of appeals did not take great pains to reach a sound result, or that its reasoning is entirely illogical or lacking in thought. Indeed, the most daunting task before this court, and presumably the lower court too, was fashioning a workable rule that is fair to both the State and the defense bar when there is little Texas precedent and while bearing in mind the primacy of the rights of the accused. Thus, we find that the appellate court’s judgment cannot be affirmed because it failed to consider fully the implications of the practice of calling defense counsel as a fact witness for the State in a criminal proceeding.3 Accordingly, based on our analysis below, we hold that the court of appeals erred.

¶9III. Analysis

¶10As noted, appellant’s complaint is based on two grounds: (1) his right to a fair trial in violation of Texas and federal law, and (2) a violation of the right to effective assistance of counsel. We find appellant’s argument under the first ground compelling, and therefore do not address his second argument.

¶11It is not surprising that our decisional law is sparse when it concerns defense counsel being called to testify against his own client during the client’s criminal prosecution. In fact, over forty-five years have passed since we have addressed such a complaint. In Ford v. State4the State called trial counsel to the stand and elicited testimony in the presence of the jury designed to show that trial counsel had, in some fashion, acted improperly during jury selection. We reversed, holding that “[t]he questions propounded were clearly improper, and the trial court fell into error when he overruled the timely objection made thereto.”5 Our decision in Ford is the likely reason that prosecutors across the state have since refrained from requesting testimony from defense counsel during a criminal prosecution. This is not a mere supposition, because the practice has been tolerated in varying degrees in other jurisdictions by applying a “compel*148ling need” test.6 Nevertheless, since Ford, the rule in Texas has been that calling defense counsel as a fact witness for the State is error. However clear our edict was, we did not espouse a test for harm.7 In fashioning our test today, we considered the policy behind the lawyer-witness rule,8 authority from other jurisdictions, and federal law.

¶12Those state and federal courts that have addressed the issue of calling defense counsel as a witness in a criminal trial have been very reluctant to permit such an action.9 Permitting a prosecutor to call the defendant’s attorney as a witness “inevitably confuses the distinctions between advocate and witness, argument and testimony, [and] is acceptable only if required by compelling and legitimate need.” 10 Under the compelling need test, which we adopt today, the State must show that: (1) there is no feasible alternative for obtaining and presenting the information to the jury except through defense counsel’s testimony;11 and (2) the testimony is essential, not merely relevant, to the State’s case. It is error to order defense counsel to testify as a witness in the trial unless the trial court determines, outside the presence of the jury, that there is a compelling need for defense counsel’s testimony under this two-pronged test.

¶13In Venable v. State,12 the Court of Special Appeals of Maryland ordered a new trial under circumstances similar to those here. The prosecutor called Venable’s lawyer to the stand to impeach the testimony of a non-party witness. The State *149argued to the jury that securing defense counsel’s testimony “was the only way I had of showing you at that time that [the non-party witness] was lying.”13 After concluding that “putting defense counsel in the position of a prosecution witness is something that ‘should be avoided whenever possible,’ ”14 the Maryland court found that, as a practical matter, the situation prevented the attorney from performing his duties and consulting with his client; that there was no way to assure that the attorney’s credibility would not be adversely affected; and moreover, the record did not reflect the right to introduce impeachment testimony.15

¶14On the record before us, we conclude that the State did not demonstrate a compelling need for defense counsel’s testimony because there was no showing that the interpreter was unavailable.16 Moreover, the testimony was not essential to the State’s case. The State argued that the testimony was necessary to repair a “false impression” by defense counsel.17 But, in our view, defense counsel did not necessarily leave a “false impression” by questioning the victim about his need to ask the identity of his attacker. The record does not reflect whether someone else told defense counsel that the victim asked about the identity of his attacker.18 Regardless, these facts do not present an appropriate situation where the testimony could be properly admitted under this exception; therefore, it cannot be fairly said that defense counsel’s testimony was essential to the State’s case under the second prong of our compelling need test. That is, defense counsel did not necessarily leave a false impression-he merely elicited probative testimony. Accordingly, we hold that the trial court erred under both prongs of our compelling need test in ordering the testimony over objection. And, as explained below, we hold that the error was harmful.

¶15The court of appeals reasoned that the substance of the testimony bore only on a trivial matter and therefore could not have affected the jury’s decision. Examining the harm as resulting from just the substance of the testimony is not the proper focus. The court of appeals concluded that the “testimony neither strengthened the State’s case nor weakened Flores’s case,” and it was unlikely that, in view of the overwhelming evidence of guilt, “the average juror would have found the State’s case less persuasive had the State never called defense counsel to testify.” Flores, 90 S.W.3d at 880. This is beside the point.19 The harm flows, in part, from *150placing the lawyer in a dual role and the impressions created thereby, which is the primary concern of the lawyer-witness rule cited to us by appellant. Tex. DisciplinaRY R. PROF. Conduct 3.08.

¶16The facts of Venable illustrate the problem with looking to just the substance of the testimony in determining whether a defendant is harmed by this type of error. In Venable, the facts to which the attorney testified were merely collateral — i.e., whether the witness was notified by defense counsel about the criminal trial. The harm, as perceived by the Maryland court, had nothing to do with the substance of the testimony. Instead, the court addressed its concern to the overall effect of such a practice.

¶17We believe a standard harm analysis would be inadequate to address the error which is brought to bear on the proceeding itself.20 Framing the harm in this fashion demonstrates why a Strickland21 analysis, as adopted by the court of appeals, is inadequate to address this type of error. If the focus is on the substance of the testimony, it obscures the greater consideration of the continuing credibility of defense counsel as an advocate after testifying as a witness. These policy considerations, at the very heart of the lawyer-witness rule, should be the focus of the harm analysis — not whether, upon the entire record, the substance of the testimony elicited prejudiced appellant’s case.22

¶18We 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 to: (1) substitution of another attorney to replace defense counsel once it becomes apparent that the testimony is required;23 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.

¶19A lawyer acting as witness against his client cannot properly perform his, duties to his client. With the lawyer on the stand and the client at counsel table, “it is impossible for the defendant to consult with his *151attorney.”24 And, a lawyer who is testifying for the State cannot adequately protect the record.25 With our preservation rules, it would be a super-human accomplishment to lodge proper and specific objections to the questions while testifying for the State.26 Additionally, one would have to avoid divulging any privileged information 27 and inadvertent admissions and anticipate the effect of one’s answers, while keeping in mind the issues upon which cross-examination of oneself would be required.28 And, after being burdened with this impossible task, the lawyer would then be faced with cross-examining himself and arguing the client’s case to the jury.29 Putting a defense attorney in the position of arguing his own credibility to the jury is akin to striking the defendant over the shoulder of his attorney.30 Our overall concerns were succinctly stated by the Ohio Court of Appeals in State v. Livingston:31

The adversary system of justice is predicated upon the proposition that justice will most surely prevail when adversaries are pitted one against the other. Under that system, it is the sworn duty of defense counsel to use all honorable and legal means to defend a client charged with a crime. It is inconceivable that a lawyer, seeking to convince a jury of the innocence of his client, or that the accused has not been proven guilty, can perform that high duty when he assumes the dual role of defense counsel and witness for the prosecution. Such a procedure sullies the entire legal profession. More particularly, it is manifestly unfair to the honorable trial counsel in this case, who was forced, against his will, to testify against the very client he was sworn to defend; his credibility as a lawyer 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.

¶20Thus, in accordance with our holding today, the State may indeed call defense counsel to the stand, and the court may require the lawyer testify, but the State will do so at its own peril.

¶21III. Conclusion

¶22Because the trial court did not undertake any ameliorative measures, the concerns brought about by calling defense counsel as a witness against his own client have not been assuaged here. Therefore, we reverse the court of appeals and remand for a new trial.