concurring and dissenting.
During the punishment phase of appellant’s trial, the State called thirteen witnesses who testified appellant’s reputation for being a peaceful and law-abiding citizen was bad. Two of the witnesses were prosecutors employed by the Harris County District Attorney’s Office, the office prosecuting appellant in the instant case. Appellant objected on ethical grounds to the testimony of the two prosecutors. The trial judge overruled the objection and permitted their testimony. On appeal, appellant contended the testimony of the two prosecutors violated Texas Disciplinary Rules of Professional Conduct 3.08. The Court of Appeals affirmed. House v. State, 909 S.W.2d 214, 216 (Tex.App. — Houston 14th Dist.1995)1
I.
The preamble of Texas Disciplinary Rules of Professional Conduct, “A Lawyer’s Responsibilities,” reads:
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. (Emphasis added.)
ST RPC Preamble, A Lawyer’s Responsibilities.
Lawyers owe a duty of scrupulous honesty, forthrightness and the highest degree of ethical conduct, and inherent in these duties is compliance with both the spirit and the express terms of established rules of conduct and procedure. Matter of J.B.K, 931 S.W.2d 581 (Tex.App. - El Paso 1996). Respect for the canons of ethics is important to ensure the respect and the authority the Judicial system earns from the public. The preamble *255and the cannons do not depend upon which side of the bar the lawyer sits; prosecutors are not immune from the cannons of professional conduct. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 7 (Tex.Cr.App.1990).2
II.
Rule 3.08 prohibits an attorney, or another attorney in the same firm, from acting as an advocate and a witness in the same adjudicatory hearing. The rule treats the actual attorney and his/her associates as one. The intent of the rule is to prevent confusion resulting when an attorney appears at trial as both an advocate for a party and a witness. See, TEX. DISCIPLINARY R. PROF. CONDUCT 3.08 emt. 4 (1989); and, Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex.1996) This confusion is based on the different rolls played by the advocate and the witness.
A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
TEX. DISCIPLINARY R. PROF. CONDUCT 3.08 cmt. 4 (1989). Additionally, there is a fear that a jury may give undue weight to the attorney’s testimony, see, Warrilow v. Norrell, 791 S.W.2d 515, 522-523 (Tex.App. — Corpus Christi 1989, writ denied), which may hamper the opposing party in challenging the attorney’s credibility. Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex.1996) (Phillips, C.J., dissenting). In her concurring opinion in Brown v. State, 921 S.W.2d 227, 231 (Tex.Cr. App.1996), Judge Keller recognized the danger in blurring of the line between the State as an advocate and as a witness:
The concepts of due process and fundamental fairness require a separation between the State’s advocates and its witnesses. The prosecutor who tries a ease should not testify as a witness in regard to a contested matter absent a showing that his testimony is necessary. Such necessity generally involves a showing that the testimony is important to the State’s case or required to rebut the defendant’s case and that the need for the testimony could not reasonably have been anticipated. A prosecutor who tries the case must take reasonable precautions to prevent himself from becoming entangled in the trial as a witness. If, during the middle of trial, the prosecutor’s testimony becomes necessary, and the prosecutor does not withdraw from participation, he should never argue his credibility to the jury.
A prosecutor’s failure to follow the above principles seriously jeopardizes a defendant’s right to a fair trial. This conclusion is grounded upon the “recognition of the power and influence [the prosecutor] exerts” in a criminal prosecution. Moreover, in addition to the danger that the prosecutor’s position may artificially enhance the credibility of his testimony, the 'prosecutor’s participation in closing arguments after the testimony may generate confusion among the jury about whether the prosecutor is speaking as an advocate or as a witness. (Citations omitted.)
Brown, 921 S.W.2d at 231.
Other jurisdictions have dealt with this issue and have looked upon it with disfavor. E.g., United States v. Trapnell, 638 F.2d 1016, 1025 (7th Cir.1980) (observing that appearance of prosecutor as witness is improper except in extraordinary circumstances); United States v. Birdman, 602 F.2d 547, 552-553 (3rd Cir.1979) (noting courts and especially federal courts universally frown on practice of prosecutor testifying), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980); United States v. Torres, 503 F.2d 1120, 1126 (2nd Cir.1974) (prosecutor should not be used as witness unless all other sources of testimony exhausted); Robinson *256v. United States, 82 F.2d 505, 510 (8th Cir. 1928) (practice of prosecutor acting as witness should be disapproved except in most extraordinary circumstances). Rarely should such testimony be permitted and, if the prosecutor testifies, he should then withdraw from any further participation in front of the jury. E.g., United States v. Johnston, 690 F.2d 638, 644 (7th Cir.1982). Several reasons have been advanced for this rule:
First, there is the risk that the prosecutor will not be a fully objective witness[.] ... Second, it is feared that the prestige of a Government attorney’s office will artificially enhance his credibility.... A third consideration is that the prosecutor’s testifying might “create ... confusion on the part of the jury as to whether he [is] speaking in his capacity of prosecutor or witness.” Such confusion ... may result in the fact-finder according testimonial credit to the prosecutor’s closing arguments .... [Finally,] the most frequently cited justification for the rule reflects a broader concern for public confidence in the process of justice.
Birdman, 602 F.2d at 553-54. See generally, State v. Rosenbaum, 852 S.W.2d 525 (Tex.Cr. App.1993) (D.A. disqualified himself because he could be called to testify); State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 472 (TexApp. — San Antonio 1994) (prosecutor should recuse himself if going to be an interested witness); Jacobs v. State, 787 S.W.2d 397, 407 (Tex.Cr.App.1990) (defendant moved to have the district attorney disqualified, but it was harmless because the State never called him to testify during trial); and, Ethics Committee Opinion 454 (if D.A. was to be called as a material witness then a special prosecutor should be appointed).
III.
The majority recognizes the practice of the prosecutor, or an attorney from that prosecutor’s office testifying may constitute a due process violation. However, the majority holds that in order to require a reversal, actual prejudice must result from the violation, “[I]f a defendant can make a showing of actual prejudice, then he will be entitled to relief on appeal.” Ante at 253. However, actual prejudice is not the appropriate standard.
In Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 811, 107 S.Ct. 2124, 2140, 95 L.Ed.2d 740 (1987), the United States Supreme Court held that a “concern for actual prejudice ... misses the point, for what is at stake is the public perception of the integrity of our criminal justice system.” Therefore, in the case where a prosecutor is pushing the ethical envelope, we look not to the actual prejudice but to the appearance of injustice. The Court went on to hold “justice must satisfy the appearance of justice.” Ibid, (citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). The error is fundamental if “... it undermines confidence in the integrity of the criminal proceeding.” Id., 481 U.S. at 810, 107 S.Ct. at 2139 (citing Rose v. Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 3105-3106, 92 L.Ed.2d 460 (1986)).
Therefore, the majority errs in adopting the actual prejudice standard. The effect of doing so is two fold: first it demonstrates to the bench and bar that the majority is not aware of controlling authority on this point; and, second, it tells the public that lawyers do not have to follow their own ethical canons.
IV.
Nevertheless, there may be instances where necessity requires either the prosecutor or an attorney from her office to testify. See e.g., Brown, 921 S.W.2d at 232 (testimony of prosecutor necessary because unable to locate witness). In such instances the alleged due process violation must be viewed in a different light. Id. However, there was no such necessity in the instant case. As noted earlier, eleven other witnesses were avilable and did testify as to appellant’s reputation. Therefore, the instant case presents a ease where calling the prosecutors was optional. In such cases the following standard applies:
In the face of a timely due process objection, the prosecutor can opt to not call herself or another attorney in her office as a witness. However, if the prosecutor insists on such testimony and the trial judge *257permits the testimony, the prosecutor’s office is required to withdraw from the case and the trial judge must appoint a special prosecutor to continue the prosecution.
V.
In the instant case, appellant did not lodge a timely due process objection. Because he did not, the error was not preserved. With these comments, I join only the judgment of the Court.
MEYERS, J., joins this opinion.. Rule 3.08 Lawyer as Witness
(a)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 the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5)the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.
(c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.
. In Eidson v. Edwards, 793 S.W.2d at 10, Judge Teague, in dissent, wrote:
... [Cannon of Ethics] exists simply because public confidence in law and lawyers must not be eroded by irresponsible or improper conduct of a lawyer, or which to a lay person might appear to be irresponsible or improper conduct, even though in reality it may not be improper conduct, but simply have the appearance that it is, which can be just as harmful to the Bench and Bar of this State as a showing of actual improper conduct.