Shelby Vinton Davis, Sr. v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-291-CR

SHELBY VINTON DAVIS, SR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2001-361-C

O P I N I O N

A jury found Shelby Vinton Davis, Sr. guilty of possession of a controlled substance. Davis pled true to two enhancement paragraphs and was sentenced to 16 years in prison with an $8,000 fine. Davis brings two issues on appeal contending that the District Attorney had a conflict of interest. We affirm.

In his first issue, Davis contends that his right to a fair trial was violated when the trial court failed to order the recusal of the McLennan County District Attorney s Office, upon a showing of the existence of a conflict of interest. Specifically, he contends that the District Attorney had a conflict of interest because he had represented Davis in a prior criminal charge. Although both Davis and the State initially argue about whether the trial court has the authority to remove or disqualify a district attorney from a case, the State correctly points out that we need not reach this question if we decide that no conflict exists. The law in this area is less than well-settled. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994) (orig. proceeding); State ex. rel. Eidson v. Edwards, 793 S.W.2d 1, 4-6 (Tex. Crim. App. 1990) (orig. proceeding). Thus, without deciding whether the trial court has the authority to disqualify a district attorney, we will first determine whether the record supports a claim that the District Attorney should have been disqualified based upon a conflict of interest.

Article 2.01 of the Code of Criminal Procedure provides, in part, that [e]ach district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon Supp. 2002). When a district attorney prosecutes someone whom he previously represented in the same case, the conflict of interest is obvious and the integrity of the prosecutor s office suffers. Ex parte Spain, 589 S.W.2d 132, 134 (Tex. Crim. App. 1979); see also Ex parte Morgan, 616 S.W.2d 625, 626 (Tex. Crim. App. 1981). However, where a district attorney has not represented a defendant in any way or at any stage of a current prosecution, there is no conflict, and the district attorney is not disqualified. Munguia v. State, 603 S.W.2d 876, 878-79 (Tex. Crim. App. 1980); Reed v. State, 503 S.W.2d 775, 776 (Tex. Crim. App. 1974). The movant has the burden to prove the district attorney is disqualified. See Hill, 887 S.W.2d at 927; Reed, 503 S.W.2d at 776. If an elected district attorney is lawfully disqualified from prosecution of a certain cause, his assistants will also be disqualified. Eidson, 793 S.W.2d at 5, n. 5; State v. May, 270 S.W.2d 682, 684 (Tex. Civ. App. San Antonio 1954, no writ).

On the day of trial, Davis filed a motion to recuse the District Attorney s Office because the District Attorney had previously represented Davis in a case involving an attempted burglary charge in 1989, over ten years prior to the facts which give rise to the current prosecution. Davis was convicted in that case but testified at a hearing on his motion that he was granted a new trial on appeal. He also stated that the case was dismissed and never retried. On cross-examination, Davis explained that the District Attorney knew about his past at the Methodist Home, my history in Austin State Hospital, [and] Rusk State Hospital.... Davis acknowledged, though, that all of the information he claimed the District Attorney knew was evidence that was introduced in his trial on the attempted burglary charge.

There was no evidence presented that the District Attorney represented Davis in the current prosecution or ever discussed the facts of the current prosecution with Davis. Thus, Davis did not show that the District Attorney was disqualified due to a conflict of interest. The trial court did not err in denying Davis s motion to recuse. His first issue is overruled.

In his second issue, Davis contends that he was denied a fair trial when the District Attorney s Office failed to recuse itself, upon a showing of the existence of a conflict of interest. Because we have decided that Davis made no showing of a conflict, further discussion of this issue is unnecessary.

The trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 21, 2002

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