(Assigned), dissenting.
I respectfully dissent. On rehearing, appellant requests that we reconsider our analysis of his point of error one. In point one, appellant complains that the trial court abused its discretion in disqualifying his attorney, Ralph Gonzalez, and thereby violated his constitutional right to an attorney of his choice. I would grant rehearing on this point and reverse and remand.
The trial court granted the State’s motion to disqualify appellant’s attorney, Ralph Gonzalez, pursuant to rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. The State alleged that attorney Gonzalez (1) had instructed appellant to pay Percy Gonzalez, (Percy) an indicted coconspirator some money, and (2) had telephone conversations with Percy which he taped. After these conversations, Percy became a witness for the State. At the healing on the motion, Percy claimed that attorney Gonzalez attempted to buy his testimony on behalf of the appellant, and attorney Gonzalez claimed the money paid and to be paid by appellant to Percy was to assist him in paying his attorney since he was indicted for matters allegedly arising out of his employment by appellant.
In granting the motion, the trial court apparently did not attempt to analyze and apply rule 3.08, but simply disqualified attorney Gonzalez concluding: “[A]s I read the rule, a lawyer cannot just act as a lawyer for a person if he is going to be a witness.” The trial court properly excluded the testimony of Percy and attorney Gonzalez in regard to the issue in question but violated appellant’s constitutional rights by refusing to allow attorney Gonzalez to continue as appellant’s attorney. The exclusion of any testimony regarding the witness tampering issue removed any possible confusion of the jury or prejudice to the State or to the appellant. Tex.R. Evid. 403. It would have been an acceptable alternative had attorney Gonzalez been allowed to remain as appellant’s attorney but disqualifying attorney Gonzalez was too drastic. See Harrison v. State, 788 S.W.2d 18, 23 (Tex.Crim.App.1990).
The majority believes that it is conceivable that appellant could have (1) urged a motion to exclude the witness tampering evidence prior to the time the trial court excluded such evidence on its own motion, or (2) brought a motion to reinstate attorney Gonzalez as counsel after the such evidence was excluded, but cites no authority to indicate appellant was required to make these motions in order to preserve appellant’s complaint for appeal. The motions suggested by the majority, while conceivable, were not necessary because the record reflects that the trial court was fully aware of appellant’s complaint when it heard and ruled on State’s motion to disqualify; and appellant was not required to make a formal exception to the trial court’s ruling or have the trial court reaffirm its disqualification order in a subsequent, separate order in order to preserve error. Tex.R.App. P. 33.1(a)(c). Appellant’s failure to make either of these motions is immaterial.
The exclusion of any testimony regarding the witness tampering issue did not deprive the State of a fair trial or otherwise effect its substantial rights. See House v. State, 947 S.W.2d 251, 253 (Tex.Crim.App.1997). In any event the State did not complain that the trial court's ex-*884elusion of the testimony violated its substantial rights or deprived it of a fair trial.
The majority concludes the evidence clearly supports the trial court finding that attorney Gonzalez apparently was a “key witness” because of the conversations he had with Percy Gonzalez, the State’s key witness against appellant. I disagree. While the allegation of “witness tampering” may have been “controversial and contested” as the majority concludes, the allegation was not as to a fact essential to appellant that would either preclude attorney Gonzalez from testifying in rebuttal to Percy’s testimony or disqualify him under rule 3.08 from serving as appellant’s attorney. The term “key witness” has no significance in connection with rule 3.08 as it is not defined therein, and is not supported by the law or the record. Neither was the allegation of “witness tampering” a fact essential to the State, although it was raised by the State. A lot was said about “witness tampering” in the motion to disqualify hearing but actually it turned out to be an uncontested, non-issue, and attorney Gonzalez was really not the “most important witness appellant had” as the trial court overstated unnecessarily at the hearing. The lawyer-witness prohibited by rule 3.08 is the lawyer who knows he is a witness necessary to establish an essential fact on behalf of his client. Since the fact in question is on behalf of the State, attorney Gonzalez is not a lawyer-witness who may be disqualified under the rule. The State did not prove attorney Gonzalez knew or believed that he was or may be a witness necessary to establish an essential fact on behalf of appellant, his client. The probabilities were that neither Percy nor attorney Gonzalez would be witnesses testifying about this unlikely issue. It is fairly obvious Percy was unlikely to testify because he and the State knew attorney Gonzalez had tapes of their conversations (one of which is in the record) to impeach Percy’s testimony. Likewise, appellant had nothing to gain by raising this issue even though he had his attorney to counter Percy’s testimony. The issue was not essential for either appellant or the State. This was proven because the State did not use Percy, and appellant did not use attorney Gonzalez to testify about these conversations. Therefore, it is apparent the State was using rule 3.08 as a tactical weapon to place appellant at a disadvantage by having his attorney disqualified. Perhaps the State believed its coconspirator witness needed to be protected but the issue in question was not something which appellant could be expected to raise. Appellant had the presumption of innocence, and was not required to establish any fact, essential or otherwise. Percy’s testimony on the issue in question, in addition to not being essential to the State’s case, would more likely have been a liability to the State, because, if impeached, it would weaken the balance of his testimony which was more important to the State.
The trial court abused its discretion in granting the motion to disqualify because: (1) the State failed to show the alleged violation of rule 3.08 by attorney Gonzalez would actually prejudice the State by depriving it of a fair trial or otherwise affect its substantial rights (See House, 947 S.W.2d at 253); and (2) the disqualification violated appellant’s constitutional right to have counsel of his choice. As the State did not demonstrate prejudice, it was not necessary for the trial court to decide whether attorney Gonzalez violated a disciplinary rule. That is the domain of the Texas State Bar Association. The disciplinary rules do not grant standing or some “systemic” right to complain about an opposing party’s alleged disciplinary rule violations that do not result in “actual prejudice” to the complaining party. *885House, 947 S.W.2d at 253. The court of criminal appeals held in the House case:
The rules should not be used as a tactical weapon to disqualify opposing counsel for their alleged disciplinary rule violations or to obtain a reversal of a conviction for alleged disciplinary rules violations by opposing counsel unless the defendant can show the alleged disciplinary rule violations by opposing counsel deprived him of a fair trial or otherwise affected his substantial rights.
House, 947 S.W.2d at 253 (emphasis added).
This holding applies equally to the State as well as to the defense. Appellant made this same point in his brief by substituting “State” for “defendant,” and argued the rule should be applied impartially, but was criticized by the majority for “clouding the standard of review issue.” Appellant’s argument is well taken, and I would hold that the House case applies as appellant argues it does. Therefore, since the State did not prove “actual prejudice” as required by the House case, it was and is unnecessary to decide whether attorney Gonzalez’s conduct violated a disciplinary rule. Appellant’s point one should be granted.
Rule 3.08(a) provides, in pertinent part:
A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to tne testimony;
Tex. Disciplinary R. Prof’l Conduct 3.08(a)(1) & (2), reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G app. A (Vernon 1998 & Supp.2001) (Tex. State Bar. R. art. X, § 9) (emphasis added).
The purpose of the rule is to protect a client from any harm resulting from his own attorney if he testifies and assumes the dual role of advocate-witness. See Harrison, 788 S.W.2d at 24(there is no violation of the rule where it is not obvious that defense counsel might be a witness prejudicial to his client). There is no indication in the record that attorney Gonzalez’s testimony would have been prejudicial to appellant had he testified.
United States v. Peng, 766 F.2d 82 (2d Cir.1985), cited by the majority, is not in point because the defense attorney in that case was shown to be a participant in an event relating to the alleged fraud perpetrated by the defendant on the victim which irreversibly injected his credibility as an issue in the trial. Whereas, in this case the defense attorney’s credibility versus Percy’s did not become an issue as the issue in question was of mere tangential importance to the ease itself. Harrison, 788 S.W.2d at 23.
The majority believes the trial court was or should have been concerned of possible confusion of the trier of fact if attorney Gonzalez testified. It is difficult to . see how the jury could have been confused. However, the jury could not have heard the testimony because the trial court excluded Percy’s and attorney Gonzalez’s testimony. See Tex.R. Evid. 403. By precluding this testimony, neither the State nor the appellant was unfairly prejudiced thereby.
Appellant claims the first and second exceptions to rule 3.08 are applicable to allow attorney Gonzalez’s testimony even if *886rule 3.08(a) is otherwise applicable. See Tex. Disciplinary R. Prof’s Conduct 3.08(a)(1) & (2). Rule 3.08(a)(1) allows an attorney to testify to an uncontested issue. The issue in question was a nonissue, as discussed above, because neither party needed nor wanted to inject the matter into the trial. As it turned out it was a nonissue and uncontested because neither Percy nor attorney Gonzalez testified about the issue in question. The tape recordings of the conversations effectively neutralized the issue in question and thus made it uncontested.
Appellant did not waive any argument or error on the basis of what was contained in the tapes not admitted into evidence. Attorney Gonzalez’s testimony and the tape that was admitted disclosed the content of the tapes and the trial court used the content of the tapes to disqualify attorney Gonzales. The content of the tapes is part of the record in this case. If the State had accepted attorney Gonzalez’s offer to not testify no one would have been harmed. In that event, the witness tampering issue would not have been raised and appellant’s right to an attorney of his choice would not have been violated. However, if Percy had testified as to that issue, attorney Gonzalez should have been allowed to testify in rebuttal. The hypothetical proposed by the majority that if attorney Gonzalez remained as appellant’s attorney, cross examined Percy forcefully, and 'then did not testify himself, the jury would believe attorney Gonzalez’s questions to Percy and his argument, to be attorney Gonzalez’s version of the facts is in material and unrealistic. If attorney Gonzalez did not testify after such cross examination of Percy, we can not assume the jury would give more weight to attorney Gonzalez’s version of the conversations, because he is an attorney. We could more likely assume the jury would not believe attorney Gonzalez if he did not testify because the State would have no doubt emphasized in argument his failure to testify. The State would not have been prejudiced to any degree even though attorney Gonzalez may not have been sworn and subjected to cross examination. And as the majority points out the State could have called attorney Gonzalez as a witness in the absence of an agreement to the contrary.
The second exception under rule 3.08(a)(2) allows an attorney to testify solely to a matter of formality, where there is no reason to believe that substantial evidence will be offered in opposition to the testimony. Appellant argues that attorney Gonzalez could have testified as a matter of formality to prove up a predicate for offering the conversation tapes into evidence, and there was no reason to believe that substantial evidence would have been offered in opposition thereto. If Percy refused to identify the voice on the tapes as his, appellant reasons that some person other than attorney Gonzalez familiar with Percy’s voice could have authenticated the recordings under rule 901(b)(5), Texas Rules of Evidence. The predicate for the admissibility of the tapes could have been heard by the trial court out of the hearing of the jury without limiting the right of a party to introduce the evidence relevant to weight or credibility under rule 104 Texas Rules of Evidence.
There could not have been anything unusually confusing if the trial court had applied either of these exceptions.
By disqualifying attorney Gonzalez, the trial court violated appellant’s constitutional right to counsel of his choice. The right of an accused in a criminal proceeding to the assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution, Article I, Section 10, of the Texas Constitution, and article 1.05, of the *887Texas Code of Criminal Procedure. The right includes the freedom of choice in the selection of counsel by the accused. See United States v. Sotelo, 97 F.3d 782 (5th Cir.1996); Ex Parte Prejean, 625 S.W.2d 731, 733 (Tex.Crim.App.1981); Childress v. State, 794 S.W.2d 119, 121 (Tex.App.— Houston[1st Dist.] 1990, pet. ref'd). Unreasonable or arbitrary interference with the right to choose counsel rises to the level of a constitutional violation. See Kozacki v. Knize, 883 S.W.2d 760, 762-763 (Tex.App. — Waco 1994, no pet.).
I would sustain appellant’s point one. Because the trial court error was of a constitutional dimension subject to harmless error review, we must reverse and remand because we cannot determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R.App. P. 44.2(a).