In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00205-CR
______________________________
RAY BOYD ASHLOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 20222
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Ray Boyd Ashlock’s community supervision has been revoked on the motion of, and
prosecution by, the office of Richard Glaser, the elected Criminal District Attorney for Fannin
County. Appealing the revocation and resulting sentence, Ashlock complains that Glaser’s office
was not authorized to prosecute the revocation. We affirm the trial court’s judgment, because
(1) the Fannin County Criminal District Attorney was authorized to represent the State, (2) the trial
court was not required to memorialize its ruling in writing, and (3) Ashlock failed to show harm.
Some history is needed to understand the situation presenting itself. After Ashlock was
charged with first degree felony theft in 2001, the standing prosecutor at the time, Fannin County
Attorney Myles Porter, recused himself and his office; and the trial court named Joel Durrett as
―the prosecutor pro tem in this cause.‖1 Ashlock was ultimately convicted and sentenced to ten
years’ confinement. Several months after entry of judgment, Ashlock’s sentence was probated
and he was placed on community supervision for a period of ten years.
In 2007, while Ashlock was on community supervision, the Texas Legislature created the
office of the Criminal District Attorney of Fannin County, effective January 1, 2008. See TEX.
GOV’T CODE ANN. § 44.174 (Vernon Supp. 2010). When Ashlock was arrested for shoplifting in
1
The motion for appointment of an attorney did not cite a reason for the recusal, but merely stated:
COMES NOW, Myles Porter, County Attorney for Fannin County, Texas, and pursuant to Article
2.07 CCP [Code of Criminal Procedure], requests the Court to permit he and his office to recuse
themselves in the above styled and numbered causes [sic] and asks the Court to appoint an attorney
from outside this office to prosecute this case.
Durrett was the assistant district attorney for Grayson County.
2
August 2010, Glaser moved to revoke Ashlock’s community supervision. Ashlock objected to
the participation of the Fannin County Criminal District Attorney, based on the ongoing
appointment of the prosecutor pro tem. The trial court overruled Ashlock’s objection and
permitted the Fannin County Criminal District Attorney to represent the State at the revocation
hearing. The trial court granted the State’s motion to revoke and sentenced Ashlock to ten years’
confinement.
Because there is no written motion seeking to vacate the order appointing the attorney
pro tem and no written order granting same, we examine the record of the related proceedings.
Both the State and Ashlock presented arguments regarding the continued representation of the
State by the attorney pro tem. The district attorney requested the trial court to withdraw the order
appointing the attorney pro tem, in that the district attorney’s predecessor voluntarily recused.
The district attorney stated, ―I do not operate under the same disqualification that my predecessor
did and do not wish to be recused.‖ Ashlock maintained that the order of appointment was not
limited in time and that the attorney pro tem was appointed for all proceedings in this matter and is
responsible for the complete prosecution of the cause, including any revocation procedures.
According to Ashlock, once the original prosecutor was disqualified, the attorney pro tem was the
only person who could then prosecute the action.
In response, the State argued that there is no longer a conflict. The previous attorney
―had a friendship and he voluntarily recused himself.‖ The present Criminal District Attorney’s
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office ―does not continue with that same conflict.‖
The trial court took judicial notice that ―Joel Durrett remains an assistant district attorney
over in the Grayson County District Attorney’s Office.‖2 The trial court’s ruling authorized
the current district attorney to rescind any previous recusals that had been requested
by Myles Porter who served as County attorney. The duties of the prosecution of
this case will then be in the Fannin County Criminal District Attorney’s Office and
we’ll proceed at this time, having addressed those issues.
(1) The Fannin County Criminal District Attorney Was Authorized to Represent the State
The appointment of attorneys pro tem is governed by Article 2.07 of the Texas Code of
Criminal Procedure:
Whenever an attorney for the state is disqualified to act in any case or proceeding,
is absent from the county or district, or is otherwise unable to perform the duties of
his office, or in any instance where there is no attorney for the state, the judge of the
court in which he represents the state may appoint any competent attorney to
perform the duties of the office during the absence or disqualification of the
attorney for the state.
TEX. CODE CRIM. PROC. ANN. art. 2.07 (Vernon 2005). When a prosecutor voluntarily recuses, as
in this case, he or she is deemed to be disqualified under the statute. Coleman v. State, 246
S.W.3d 76, 81 (Tex. Crim. App. 2008).3 The attorney appointed after such a recusal is called an
2
Sadly, the appointed prosecutor pro tem was later shown to have passed away. This revelation played no part in the
controversy as the trial court’s notation for the record establishes that the prosecutor pro tem was alive at the time of
the ruling.
3
Even one who is not legally disqualified may request to be recused from a case and replaced with a different attorney
in order to avoid even the appearance of impropriety. Coleman, 246 S.W.3d at 81. Alternatively, a prosecutor may
4
attorney pro tem, and ―stands in the place of the regular attorney for the state and performs all the
duties the state attorney would have performed under the terms of the appointment.‖ Id. at 82.
The decision to modify an order appointing an attorney pro tem is within the sound
discretion of the trial court, and it will not be disturbed absent an abuse of discretion. Id. at 85.
A trial court abuses its discretion when it acts arbitrarily and unreasonably. Reynolds v. State, 227
S.W.3d 355, 371 (Tex. App.—Texarkana 2007, no pet.). As long as a court’s ruling is within the
zone of reasonable disagreement, it will not be disturbed on appeal. Salazar v. State, 38 S.W.3d
141, 153–54 (Tex. Crim. App. 2001). In short, the trial court is given a ―limited right to be
wrong,‖ as long as the result is not reached in an arbitrary or capricious manner. Montgomery v.
State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Ashlock maintains that, once an attorney pro tem is appointed, the case must be handled to
conclusion by the attorney pro tem. Ashlock relies on Coleman in support of this position. But
Coleman stands for the proposition that a prosecutor pro tem cannot be forced out by a defendant
just because the prior conflict has ceased. It does not support Ashlock’s position.
In Coleman, the defendant was charged with aggravated perjury based on his testimony in
a prior trial and in other hearings. Coleman, 246 S.W.3d at 79–80. The prosecutor voluntarily
recused himself from the perjury case because of the potential that he might be called as a witness.
Id. at 80. The court granted the recusal and appointed two prosecutors pro tem. Id. Shortly
choose to recuse to protect against a violation of the Rules of Professional Conduct. State ex rel. Eidson v. Edwards,
793 S.W.2d 1, 6 (Tex. Crim. App. 1990).
5
before trial, a new district attorney was elected and took office. Coleman sought to remove the
prosecutors pro tem, claiming that the newly elected district attorney was qualified and not
conflicted, and therefore was the only person who should prosecute the case. Id. The high
criminal court disagreed. In upholding the continuation of the State’s representation by the
attorneys pro tem, the court stated:
When the newly elected district attorney, Wally Hatch, took office and replaced
Mr. McEachern, he did not have any conflict of interest with appellant. If he had
wanted to do so, Mr. Hatch could have requested the trial court to terminate the
appointment of the attorneys pro tem because he was the duly elected district
attorney and was not disqualified from acting. But Mr. Hatch chose to have the
attorneys pro tem continue to represent the State, presumably because they were
ably handling the case and were prepared for the imminent trial. As the court of
appeals noted, there is no evidence in the record that Mr. Hatch objected to the
attorneys pro tem’s actions in this case.
Id. at 85.
Ashlock maintains that, as in Coleman, the Criminal District Attorney in this case made no
request to the trial court to terminate the appointment of the attorney pro tem and that order,
without time limitations, continued in effect. It is true that no written request to terminate the
appointment of the attorney pro tem is found in this record. The record does reveal, however, that
the Criminal District Attorney for Fannin County orally asked the trial court specifically to rescind
the order appointing the attorney pro tem. Even though this request was not presented in the form
of a written motion, it was nevertheless presented to the trial court, as reflected in the record.
An attorney pro tem shall continue to prosecute the case during the period of
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disqualification of the attorney for the State. TEX. CODE CRIM. PROC. ANN. art. 2.07(a). Ashlock
complains that, because the record does not indicate the period of disqualification was over, the
trial court erred in permitting the Criminal District Attorney to represent the State at the revocation
hearing. This contention is based on the assertions that there is no record evidence reflecting the
reasons the original prosecuting attorney recused himself and his office and that those reasons
were now abated.
Here, the Fannin County Criminal District Attorney had the right to request that the recusal
be rescinded. See Coleman, 246 S.W.3d at 85. In Coleman, the elected district attorney was
entitled to make the request because he was the duly elected district attorney and was not
disqualified from acting. Id. Here, Glaser was the duly elected district attorney. Nevertheless,
in order to show that his predecessor’s recusal (and that of his office) should be rescinded, it should
have appeared that Glaser was not disqualified from acting, that is, that the reasons for the original
recusal of his predecessor must no longer pertain. The only reference in the record to the recusal
is found in Glaser’s statement to the trial court:
We’d ask the Court withdraw that [pro tem] order and rescind it based on the
purpose for which the appointment was made was a voluntary recusal by my
predecessor when the office was a county attorney. . . . I do not operate under the
same disqualification that my predecessor did and do not wish to be recused. In
this case, I believe the anticipation of the disqualification of Mr. Porter was that he
had a friendship and he voluntarily recused himself, and that was within his
authority. There wasn’t any other conflict involved. The office does not
continue with the same conflict, even though I’m aware of and know of and have
done business with [Ashlock], but I do not perceive this to be that my office would
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be conflicted out from Mr. Ashlock’s case as with any other businessman that was
in town that we did business with. . . .
The trial court apparently relied on Glaser’s representations regarding the reason for the
recusal and suggesting that Glaser and his office did not share the conflict of ―friendship‖ with
Ashlock,4 but merely ―did business‖ with him. Ashlock claims this statement is not evidence in
the formal sense, and we agree. See White v. State, 982 S.W.2d 642 (Tex. App.—Texarkana
1998, pet. ref’d). In certain circumstances, however, unsworn statements of counsel may be
relied on by the court. See, e.g., Goode v. Shoukfeh, 943 S.W.2d 441, 451 (Tex. 1997) (unsworn
statements of counsel offered to explain why peremptory challenges exercised); Parra v. State,
935 S.W.2d 862, 868 n.1 (Tex. App.—Texarkana 1996, pet. ref’d) (nonevidence introduced and
considered by court without objection during Batson5 hearing becomes evidence).
Moreover, we recognize that counsel has a duty of candor as an officer of the court and that
the trial court was entitled to rely on the fulfillment of that duty. See Hartsell v. State, 143 S.W.3d
233, 234 (Tex. App.—Waco 2004, no pet.). ―Reliance on counsel’s statements is justified by
Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct which forbids a lawyer from
making a false statement of material fact to a tribunal. . . .‖ United States Gov’t v. Marks, 949
S.W.2d 320, 327 (Tex. 1997). Given the ethical canons’ requirement of candor and the
acceptance of unsworn statements of counsel in other types of proceedings, we conclude that the
4
Glaser did not specifically state Porter’s friendship was with Ashlock, but this is implied in his statement to the trial
court. In any event, Glaser stated that neither he nor his office was conflicted in this case.
5
Batson v. Kentucky, 476 U.S. 79 (1986).
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trial court was entitled to rely on Glaser’s representations that no conflict or reason for recusal
remained. The trial court, therefore, acted within its discretion in determining that the Fannin
County Criminal District Attorney could represent the State in the revocation hearing. 6
(2) The Trial Court Was Not Required to Memorialize Its Ruling in Writing
Next, Ashlock contends that, because no order was entered which permitted anyone but the
attorney pro tem to represent the State, the Criminal District Attorney for Fannin County was not
entitled to usurp that role. The record herein contains neither a written order rescinding the
appointment of the attorney pro tem nor one substituting counsel.
Article 2.07 of the Texas Code of Criminal Procedure, which controls the procedures for
the appointment of an attorney pro tem, does not set forth a procedure for the removal of pro tem
counsel. No written order of appointment is explicitly required. The pertinent language merely
calls for the court to ―appoint any competent attorney to perform the duties of the office during the
absence or disqualification of the attorney for the state.‖ TEX. CODE CRIM. PROC. ANN.
art. 2.07(a). While a written order is certainly the preferred practice, we are not directed to
6
It is also worth noting that elected officials, such as a district attorney, enjoy a special status linked to their election by
the voters and that such an official has a right to serve in that office—short of a due process violation—unless
statutorily decreed procedures are followed to remove him or her from office. See State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 211 n.15 (Tex. Crim. App. 2007); Edwards, 793
S.W.2d at 4–5. This conclusion is supported by the protected nature of elected office in general and that of a district
attorney in particular. Because a district attorney’s office is ―constitutionally created and protected,‖ his or her
authority ―cannot be abridged or taken away.‖ Landers v. State, 256 S.W.3d 295, 303–04 (Tex. Crim. App. 2008)
(quoting Edwards, 793 S.W.2d at 4). ―A trial court may not disqualify a district attorney or his staff on the basis of a
conflict of interest that does not rise to the level of a due-process violation.‖ State ex rel. Hill v. Pirtle, 887 S.W.2d
921, 927 (Tex. Crim. App. 1994). With no such violation or disqualification of the present district attorney appearing
in the record, the trial court acted in accordance with this protected status in restoring the duties of office in this case.
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caselaw which suggests or requires that the order of appointment or the grant of a motion to
rescind a recusal under Article 2.07 be in writing.
The failure to enter a written order either rescinding the State’s recusal or otherwise
revoking the order appointing the attorney pro tem can cause confusion, especially if reference is
made only to the clerk’s record. Here, however, the trial court granted the motion to rescind the
recusal in open court on the record. There can be no question regarding the trial court’s ruling.
We will not reverse the judgment of the trial court merely because the grant of the State’s oral
motion to rescind was not memorialized in writing.
(3) Ashlock Failed to Show Harm
While we have found no error, we note that, even if we were to determine that the trial
court erred in rescinding the recusal of the prior prosecutor, any such error must be disregarded
unless it affected Ashlock’s substantial rights. See TEX. R. APP. P. 44.2(b); Coleman, 346 S.W.3d
at 85–86. Ashlock has neither alleged nor shown that his rights were adversely affected by the
trial court’s decision to permit the Fannin County Criminal District Attorney to represent the State
in the revocation hearing.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: May 5, 2011
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Date Decided: May 10, 2011
Do Not Publish
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