Monthly archive

August 2011

July/August 2011 SDR – Voice for the Defense Vol. 40, No. 6

Voice for the Defense Volume 40, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Sossamon v. Texas, 131 S. Ct. 1651 (U.S. 2011); Affirmed: Thomas (6–2)

Texas inmate Harvey Sossamon sued the State of Texas and various state officials in their official and individual capacities in a Texas federal district court. In part, he argued he was denied access to the prison’s chapel and religious services in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court dismissed the claim. The Fifth Circuit held that Sossamon could not sue Texas officials in their individual capacities under RLUIPA.

HELD: A person cannot sue a state official in his individual capacity for damages under RLUIPA. “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.” Justice Sotomayor dissented: “Our precedents make clear that the phrase ‘appropriate relief’ includes monetary relief.”

Bobby v. Mitts, 131 S. Ct. 1762 (U.S. 2011); Reversed: Per curiam

Harry Mitts drank until he became intoxicated and then shot and killed an African-American man while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed one police officer and wounded two before being apprehended. At trial, Mitts did not contest the evidence that he had killed two men, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

COA affirmed the convictions and sentences, and the Ohio Supreme Court affirmed and denied rehearing, ruling that the trial court should have instructed the jury to merge duplicative death penalty specifications, but holding that the error did not influence the jury and was resolved by re-weighing on appeal. Mitts filed a petition for a writ of habeas corpus. A federal judge affirmed the sentence, but the Sixth Circuit decided to vacate.

HELD: The jury instructions given at the penalty phase of trial were in line with clearly established law for purposes of the Antiterrorism and Effective Death Penalty Act. The Court summarily reversed the appellate court.

Kentucky v. King, 131 S. Ct. 1849 (U.S. 2011); Reversed, remanded: Alito (8–1)

Police officers entered an apartment building in pursuit of a suspect who sold crack cocaine to an undercover informant. The officers lost sight of the suspect and mistakenly assumed he entered an apartment from which they detected the odor of marijuana. After police knocked on the door and identified themselves, they heard movements, which they believed indicated evidence was about to be destroyed. Police forcibly entered the apartment and found Hollis King and others smoking marijuana. They also found cash, drugs, and paraphernalia. King entered a conditional guilty plea, reserving his right to appeal denial of his motion to suppress evidence obtained from what he argued was an illegal search.

COA affirmed the conviction. The Kentucky Supreme Court reversed the lower court, finding the entry was improper. The court held that the police were not in pursuit of a fleeing suspect when they entered the apartment, since there was no evidence that the original suspect knew he was being followed by police.

HELD: The exclusionary rule, which forbids the use of illegally seized evidence except in emergency situations, applies when the emergency is created by lawful police actions. “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” Justice Ginsburg dissented: “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”

Brown v. Plata, 131 S. Ct. 1910 (U.S. 2011); Affirmed: Kennedy (5–4)

The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit in 2001 on behalf of Marciano Plata and several other prisoners, alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans “cruel and unusual punishment.” Following a lengthy trial, a special panel of 3 federal judges determined that serious overcrowding in California’s 33 prisons was the “primary cause” for violations of the Eighth Amendment. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounts to between 38,000 and 46,000 inmates being released.

HELD: A court order requiring California to reduce its prison population to remedy unconstitutional conditions does not violate the Prison Litigation Reform Act. “The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.” Justice Scalia filed a dissenting opinion in which he admonished the majority for affirming “what is perhaps the most radical in­junction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Justice Alito dissented that the “Constitution does not give federal judges the authority to run state penal systems.”

Fifth Circuit

United States v. Cashaw, 625 F.3d 271 (5th Cir. 2010)

District court did not err in denying minor-role adjustment, under USSG §3B1.2, to defendant sentenced as a “career offender” under the Guidelines. The only Chapter Three adjustment permitted for career offenders is the adjustment for acceptance of responsibility under USSG §3E1.1. Thus, career offenders are categorically ineligible for mitigating role reductions under USSG §3B1.2.

United States v. Allen, 625 F.3d 380 (5th Cir. 2010)

District court did not reversibly err in denying defendant’s motion to suppress evidence (child pornography) seized pursuant to a search warrant; although the search warrant was not sufficiently particularized and although the attachment detailing the items to be seized was not incorporated by reference in the warrant, the fruits of the search were admissible under the good-faith exception to the exclusionary rule. Under Herring v. United States, 129 S. Ct. 695 (2009), the particularity defects in the warrant did not merit application of the exclusionary rule. Furthermore, the information in the search warrant affidavit was not stale (though it was 18 months old when the warrant was issued).

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

(1) In prosecution for possession and receipt of child pornography, defendant was not impermissibly tried beyond the 70 days prescribed by the Speedy Trial Act (STA); the district court satisfied the STA’s reasons requirement for an “ends of justice” continuance by stating its reasons for the continuance and by stating that those reasons affected its decision. Moreover, although the first continuance was open-ended, the court may continue a trial indefinitely when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of a justified continuance. Finally, a second continuance, granted at the behest of the State based on the unavailability of a witness, likewise resulted in excludable time under the STA. The requirement to set out ends-of-justice findings did not apply because the continuance was granted under 18 U.S.C. §3161(h)(3) based on the “absence or unavailability of . . . an essential witness” and was not granted under 18 U.S.C. §3161(h)(7).

(2) District court did not err in admitting images of putative child pornography retrieved from defendant’s computer, notwithstanding the fact that no expert testified that these were unaltered images of actual minors actually engaged in the conduct depicted. The question of whether images depict actual minors may be decided by laypersons without expert testimony. Case law supports the admission of these images, especially in the absence of any evidence that the images were not of actual children or that the state of technology is such that the images could have been of “virtual” children.

(3) District court did not err in denying defendant’s motion to dismiss the indictment for failure to receive a fair trial; the alleged pornography was, at all times, “reasonably available” for inspection by the defense, as required by 18 U.S.C. §3509(m)(2). Any concerns about prosecution of a defense expert for possession of child pornography could have been allayed by obtaining a protective order. Finally, defendant did not identify any expert he wished to consult but was prohibited from doing so.

(4) District court did not err in finding that the State’s destruction of defendant’s computer (done after civil forfeiture proceedings) was not done in bad faith. Even though defendant indicated that he intended to contest the forfeiture, and even though the State was negligent in failing to provide defendant with adequate notice of the forfeiture proceedings, there was no evidence that the destruction of the computer was done to im­pede defendant in the criminal case. Moreover, it appears highly likely that all relevant evidence was preserved in forensic images.

United States v. Jackson, 625 F.3d 875 (5th Cir. 2010)

District court violated defendant’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator dis­tributed to defendant. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared them and under what circumstances. There was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated to admit them under the co-conspirator-statement exception. The court’s error in admitting the ledgers was not harmless beyond a reasonable doubt; given the State’s reliance on the notebooks in its closing argument, the State could not show that the notebooks did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including opportunity for a new trial.

United States v. Houston, 625 F.3d 871 (5th Cir. 2010)

Where defendant received a 25-year sentence under 18 U.S.C. §924(c) for brandishing a firearm in connection with one Hobbs Act robbery and a 7-year consecutive sentence under the same statute for brandishing a firearm in connection with another Hobbs Act robbery, the 7-year consecutive sentence was not barred by the first clause of §924(c)(1)(A)(i), “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law. . . .” The statute’s “greater minimum sentence” exception refers only to another, greater sentence for the same, specific crime of firearm possession. The Fifth Circuit noted, but rejected, the Second Circuit’s different rule, namely, that the “except” clause applies to conduct arising from the same criminal transaction or set of operative facts as the crime yielding the greater mandatory minimum sentence.

United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010)

(1) In prosecution for bribery, conspiracy to commit bribery, and money-laundering conspiracy, defendants’ objection to the definition of the “corruptly” element of bribery did not preserve their claim that the indictment was constructively amended by the proof adduced at trial. On plain-error review, it was questionable whether there was clearly or obviously a constructive amendment of the indictment. In any event, neither the third nor the fourth prong of plain-error review was satisfied. It was defendants who first touched upon the areas of evidence that they claimed on appeal should not have been before the jury. Moreover, the evidence of bribery was strong, and it was improbable that the jury would have acquitted if only the evidence had been excluded.

(2) Assuming, without deciding, that the jury instructions for the money laundering conspiracy count (a violation of 18 U.S.C. §1956(h)) incorrectly instructed the jury on the mens rea for that offense, the error was harmless beyond a reasonable doubt because, given the overwhelming evidence, no jury could fail to find the defendants guilty of money-laundering conspiracy under the correct standard; a fortiori, there was no plain error (the standard applicable in the absence of an objection to the instructions).

(3) In bribery case, district court erred in calculating the value of the bribe for purposes of USSG §2C1.1. Particularly, it was error to ascribe to defendant a portion of the value of two yachts he was permitted to use when he had no ownership interest in those yachts. However, the error was harmless because, including the fair rental value of comparable yachts as part of the value of the bribe to defendant, the same 14-level Guideline enhancement would have applied; thus, the Guideline range would have been unchanged.

United States v. Marquez, 626 F.3d 214 (5th Cir. 2010)

Defendant’s prior conviction for possession of a deadly weapon by a prisoner (in violation of N.M. Stat. Ann. §30-22-16) was one for a “crime of violence” under the “residual clause” of USSG §4B1.2(a)(2); therefore, defendant was properly treated as a “career offender” under the Guidelines.

United States v. Juarez, 626 F.3d 246 (5th Cir. 2010)

District court did not clearly err in applying a four-level increase under USSG §2K2.1(b)(5) (for “engag[ing] in the traf­ficking of firearms”); there was considerable evidence from which the court could infer that defendant knew, or had reason to believe, that her conduct would result in the transport, transfer, or disposal of a firearm to a person who intended to use or dispose of the firearm unlawfully. Nor did the court err in applying a four-level increase under USSG §2K2.1(b)(6) (for knowledge, or constructive knowledge, that the firearm “would be used or possessed in connection with another felony offense”). Amendments to the Guidelines make clear that another firearms offense may be “another felony offense” if that other offense is not the one that serves as the basis for defendant’s instant federal conviction.

Henderson v. Thaler, 626 F.3d 773 (5th Cir. 2010)

Where death-sentenced Texas defendant was authorized to file a successive federal habeas petition raising a claim that he was mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002), the Fifth Circuit vacated the district court’s order finding the mental-retardation claim time-barred and remanded for the court to reconsider, in light of the intervening decision in Holland v. Florida, 130 S. Ct. 2549 (2010), whether defendant was entitled to equitable tolling of the AEDPA limitations period. The Fifth Circuit also held that there was no exception to the AEDPA’s limitation period for person who are “actually innocent” of the death penalty. Accordingly, the Fifth Circuit remanded for reconsideration of whether defendant’s successive petition was timely and, if it was found to be timely, whether the Atkins claim succeeded on the merits. (Judge Wiener filed a dissenting opinion, in which he opined that the AEDPA’s statute of limitations was never meant to apply, and never should be applied, to claims that a person is categorically ineligible for the death penalty under Atkins or similar rules.)

Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010)

Texas state death-sentenced defendant was not entitled to federal habeas relief under Brady v. Maryland, 373 U.S. 83 (1963), that the State withheld material impeaching evidence about one of the investigating detectives (namely, his relationship with the sister of a State’s witnesses and a disciplinary record). The evidence did not create a reasonable probability of a different outcome, and hence was not material under Brady. Furthermore, defendant was not entitled to a certificate of appealability on the questions of whether the State violated his rights (as a Mexican citizen) under the Vienna Convention and whether such a violation requires suppression of his confession. On initial consideration, the panel held that under Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), withdrawn by 626 F.3d 842 (5th Cir. 2010), defendant had at least a colorable argument that his ineffective-counsel claim (based on the failure to investigate/produce mitigation evidence) was denied by CCA on the merits, not as the result of an adequate and independent state law procedural ground; the panel initially granted a certificate of appealability on this claim. However, on denial of rehearing, the panel held that under a proper view of the law (also reflected in the substituted opinion in Balentine), the state court’s decision on this issue had to be viewed as rested on an adequate and independent state law procedural bar, thus precluding federal habeas relief.

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010), with­drawing 609 F.3d 729 (5th Cir. 2010)

In its initial opinion, the Fifth Circuit panel had held that in light of Ex parte Campbell, 226 S.W.2d 418 (Tex.Crim.App. 2007), and Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the district court should have, pursuant to Fed. R. Civ. P. 60(b), set aside its judgment denying Texas death-sentenced defendant federal habeas relief due to a supposedly adequate and independent state procedural default. Accordingly, the Fifth Circuit initially reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of defendant’s ineffective-counsel claim, including any necessary evidentiary hearing. However, in the substituted opinion, the panel held that it erred in interpreting Ruiz to mean that uncertainty about the basis of a state-court decision should give rise to a presumption that the state court reached the merits rather than relying upon a state procedural bar. In light of this correct understanding of Ruiz, the district court did not err in denying defendant’s Rule 60(b) motion because the district court did not err in concluding that the state-court decision on defendant’s ineffective-counsel claim was grounded on an adequate and independent state procedural bar; the Fifth Circuit affirmed the district court’s denial of defendant’s Rule 60(b) motion. On petition for rehearing en banc, the poll for rehearing en banc failed by a vote of 11–4. Judges Dennis, Benavides, and Haynes dissented from the denial of rehearing en banc.

United States v. Hoeffner, 626 F.3d 857 (5th Cir. 2010)

The State’s abandonment of the honest-services theory dur­ing the first trial meant the Double Jeopardy Clause barred retrial on the honest-services theory where (1) defendant was indicted for mail and wire fraud under alternative theories of deprivation of honest services and deprivation of money and property, (2) the State abandoned the honest-services theory during trial, and (3) the jury failed to reach a verdict, resulting in the declaration of a mistrial. However, retrial was not precluded on the money-and-property-fraud theory; the district court did not err in denying defendant’s double-jeopardy-based motion to dismiss the indictment filed following the mistrial.

United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010)

District court committed reversible plain error in finding an adequate factual basis to support defendant’s guilty plea to bringing an alien to the United States, in violation of 8 U.S.C. §1324(a)(1)(A)(i) and 18 U.S.C. §2; “bringing to the United States” under this statute contemplates that the defendant actually accompanied the alien, or arranged to have him accompanied, across the border into the United States, or at least lead them to or meet them at the border. Defendant did not commit this offense by his stipulated conduct of obtaining a fraudulent immigration stamp for the alien’s Mexican passport and telling the alien the stamp would not work to accomplish entry at the border, but would allow the alien to work once he came over illegally on his own power. The error was clear and obvious; it affected defendant’s substantial rights.

United States v. Thomas, 627 F.3d 146 (5th Cir. 2010).

(1) The evidence was sufficient for a rational jury to find defendants guilty of numerous bank robberies and related offenses; circumstantial evidence that is not incriminating standing alone may recur in a pattern, from which jurors can reasonably infer that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern. Under this rubric, a reasonable inference is that the defendants committed all the robberies: four of them shared a number of common characteristics. Although the evidence was weaker as to one defendant on the fifth one, the jury could reasonably infer that the other defendant had the same partner on that robbery.

(2) Where two defendants (half-brothers) were charged with numerous bank robberies and related offenses, district court did not abuse its discretion in refusing to sever the two defendants’ trials; the defendants failed to demonstrate, even on appeal, any prejudice that could not be cured by the limiting instructions given.

(3) Defendant’s 1,435-month conviction (151 months for conspiracy and bank robbery, and 1,284 months for firearms offenses) did not constitute cruel and unusual punishment under the Eighth Amendment, because it was not grossly disproportionate to the violent crimes.

(4) District court did not abuse its discretion in denying defendant’s motion for a new trial, or for an evidentiary hearing, on defendant’s allegations that by withholding information during voir dire, a biased juror sat on his jury. A party seeking a new trial on this basis must demonstrate that a juror failed to answer honestly a material question on voir dire, and must further show that a correct response would have provided a valid basis for a challenge for cause. Here, defendant failed to show even that the juror lied, much less any actual or implied bias.

Court of Criminal Appeals

Direct Appeal

Ex parte Gutierrez, 337 S.W.3d 883 (Tex.Crim.App. 2011); Affirmed

Appellant was convicted of capital murder and sentenced to death for his participation in the robbery and murder of 85-year-old Escolastica Harrison. Appellant raised 5 issues on appeal.

HELD: (1) appellant is not entitled to appointed counsel because “reasonable grounds” do not exist for the filing of a motion for post-conviction DNA testing; (2) appellant’s second issue is without merit because appellant was “at fault” in not seeking DNA testing at trial; (3) appellant has not shown that “the single loose hair” that he would like to have tested exists or could be delivered to the convicting court; (4) the trial judge acted within his discretion in finding that identity was not and is not an issue in this case; (5) appellant has failed to establish, by a preponderance of evidence, that he would not have been convicted of capital murder if exculpatory results had been obtained through DNA testing. In sum, granting DNA testing would “merely muddy the waters.” Appellant does not seek testing of biological evidence left by a lone assailant, and a third-party match to the requested biological evidence would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder.

State’s PDRs

Ex parte Garza, 337 S.W.3d 903 (Tex.Crim.App. 2011); Affirmed

After the jury was empaneled and sworn but before trial commenced in this misdemeanor DWI case, one juror became at least temporarily indisposed and the trial was continued for a few days. Ultimately, the trial court declared a mistrial over appellant’s objection. When the case was reset, appellant filed a pretrial application for writ of habeas corpus arguing that because a manifest necessity for the mistrial was lacking, his re-prosecution violated double jeopardy. The convicting court denied relief but COA reversed and remanded, presumably so that the convicting court might dismiss the information against appellant.

HELD: CCA rejects the State’s arguments that there was manifest necessity for a mistrial. Under circumstances in which appellant’s counsel at least suggested a willingness to waive his constitutional right to a full complement of jurors, the failure of the trial court even to explore that option cannot be attributed to appellant, whether or not he obtained an express ruling on his suggested alternative or actually executed a formal waiver.

Meekins v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0261-10, 5/4/11); Reversed COA, affirmed trial court

An officer stopped appellant for a traffic offense and, during that stop, asked if he could search the car. In appellant’s pocket, officer found a pill bottle containing marijuana. Appellant filed a motion to suppress the evidence, arguing that he did not voluntarily consent to the search of his car. The trial judge denied the motion and appellant pled guilty to possession of marijuana. COA reversed.

HELD: Careful listening of the audio recording of officer and appellant’s interaction supports an implied finding that appellant replied “yes” to officer’s sixth and final request to search appellant’s car. At a minimum, the recording fails to clearly rebut the officer’s testimony that appellant said “yes.” But even if the trial judge concluded that appellant said “I guess,” that phrase could reasonably be interpreted as a positive response, a colloquial equivalent of “yes.”

Regardless of whether appellant said “yes” or “I guess,” the trial judge was also required to decide what an objectively reasonable person standing in the arresting officer’s shoes would conclude that response meant. Both officer’s and appellant’s actions immediately after the response supports the trial judge’s implicit finding that appellant intended to consent. While appellant’s response of “yes” or “I guess” may be open to interpretation, there can be little doubt that officer believed appellant consented because he immediately asked appellant to step out of the car so that he could search it. If appellant intended to refuse consent, it seems reasonable that he would have objected, complained, or refused to get out of his car. Instead, he complied.

Griego v. State, 337 S.W.3d 902 (Tex.Crim.App. 2011); Vacated & remanded COA

A jury convicted appellant of evading arrest or detention, and assessed punishment at confinement of ten years. COA found the evidence legally insufficient to support a third-degree felony offense level because the State failed to present proof of a prior conviction at the guilt/innocence stage of trial. Additionally, COA remanded the case for a new trial having determined the evidence was factually insufficient to prove appellant evaded arrest or detention.

The State contends, among other things, that the case should be remanded to COA in light of CCA’s recent opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), in which CCA overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and set aside its factual sufficiency standard of review, holding that the Jackson v. Virginia, 443 U.S. 307 (1979), standard for legal sufficiency is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”

HELD: CCA remands this case for reconsideration in light of Brooks.

Archie v. State, __S.W.3d__ (Tex.Crim.App. No. 0189-10, 6/8/11); Reversed & remanded

A jury convicted appellant of murder, and the trial judge assessed punishment at 40 years’ imprisonment. COA reversed the conviction and remanded the cause to the trial court, concluding that the trial court abused its discretion by denying appellant’s motion for a mistrial. The State argues that COA erred when it found the prosecutor improperly commented on appellant’s failure to testify during his closing argument. Moreover, even assuming the prosecutor’s argument was improper, the State contends, it was within the trial court’s discretion to deny the motion for mistrial.

HELD: COA did not err in holding that at least two of the rhetorical questions posed by the prosecutor directly to appellant during his final argument constituted improper comment on his failure to testify. However, the prejudice caused by the prosecutor’s two improper questions was not so great that a jury would necessarily have discounted the trial court’s firm instructions to disregard them. It is unlikely that the jury would have ignored the court’s explicit instructions and convicted appellant, not on the compelling evidence introduced against him, but because he failed to take the witness stand to explain himself. Under these circumstances, it was well within the trial court’s discretion to deny appellant’s motion for mistrial.

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 0845-10, 6/8/11); Vacated & remanded

A jury convicted appellant of felony escape; he escaped the Dallas County Jail while being treated at Parkland Hospital, stole a taxicab, and drove to Oklahoma, leading lawmen on a protracted high-speed chase. On appeal, appellant argued that the State failed to bring him to trial within the time limits of the Interstate Agreement on Detainers Act (IADA), and that the trial court therefore erred in failing to dismiss the indictment with prejudice in accordance with the terms of that statute. COA agreed and ordered the trial court to dismiss the indictment with prejudice. The State argues that the trial court committed an error that prohibited the proper presentation of the case for appeal, and, therefore, COA should have remanded the cause to the trial court, under Tex. R. App. P. 44.4, to remedy that error. The State maintains that, upon a proper presentation of the record for appeal, it should be evident to COA that the IADA was not violated.

HELD: CCA agrees with appellant that there is nothing in IADA Article IV that imposes a burden on the trial court, expressly or by necessary implication, to ensure that any proffer of good cause (though it must be made in open court) is memorialized by the court reporter. If no such burden exists by virtue of the IADA, then Rule 44.4 cannot be invoked to require COA to remand the cause for remedial action without first identifying some other provision of law that assigns a burden exclusively to the trial court to secure the presence of a court reporter.

However, as the appealing party, appellant had an obligation to present a record to COA that demonstrated he was entitled to appellate relief. In the IADA context. This meant he had to show that the State did not satisfy its trial-level burden to present good cause for the continuance, and that the trial court therefore abused its discretion to grant it. On the state of the record, the appellate court could not say that the trial court abused its discretion to find that the continuance was necessary or reasonable for purposes of Article IV. It appears that the State proffered the re-indictment as its good cause.

Writs of Habeas Corpus

Ex parte Evans, 338 S.W.3d 545 (Tex.Crim.App. 2011); Granted

Applicant contends that the Texas Department of Criminal Justice-Parole Division improperly and without due process placed “Special Condition X” (sex-offender conditions) on him after he had been released on mandatory-supervision parole. Based on the evidence in the record, the habeas judge entered findings that applicant had not been convicted of a sex offense, and that his conviction for injury to a child did not involve evidence of sexual abuse. The habeas judge further found that applicant was not afforded constitutional due process before the sex-offender conditions were imposed.

HELD: CCA agrees with the habeas judge that applicant is entitled to immediate reinstatement of his release on mandatory supervision and removal of “Special Condition X” from the terms of his parole.

Ex parte Kerr, __S.W.3d__ (Tex.Crim.App. No. 62,402-03, 4/28/11); Dismissed

In 2003, a jury convicted applicant of capital murder. The jury answered the special issues submitted pursuant to Tex. Code Crim. Proc. art. 37.071, and the trial court, accordingly, set applicant’s punishment at death. CCA affirmed applicant’s conviction and sentence on direct appeal. In 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. CCA denied relief. Applicant filed his first subsequent application in the trial court in 2006. CCA dismissed that application because it failed to meet the dictates of Tex. Code Crim. Proc. art. 11.071, §5. This, his second subsequent application, was filed in the trial court on April 27, 2011. Applicant presents a single allegation that his initial state habeas counsel rendered ineffective assistance, which denied applicant a proper review of his ineffective assistance of trial counsel claims.

HELD: CCA simply said it reviewed the application and finds that applicant failed to meet the requirements of Article 11.071, § 5. CCA dismisses the application and denies the stay of execution. Judge Price dissented: “The applicant presents a more-than-colorable claim of ineffective assistance of counsel at the punishment phase of his capital murder trial[.]”

Ex parte Bohannan, __S.W.3d__ (Tex.Crim.App. No. 76,363, 5/11/11); Dismissed

In 1983, applicant was convicted of aggravated rape and sentenced to 25 years’ imprisonment. He did not appeal. In this writ, applicant contends he was denied a timely preliminary hearing to determine whether there is probable cause to believe he violated his parole. Although applicant has received a preliminary hearing, he argues that this case is not moot because the issues involved herein are clearly capable of repetition, yet evading review, due to the fact that when a writ of habeas corpus is filed seeking to ensure the constitutional right to a preliminary hearing, the Texas Department of Criminal Justice (TDCJ) now convenes a late preliminary hearing.

HELD: Applicant’s claim is not justiciable under the “capable of repetition, yet evading review” doctrine of Weinstein v. Bradford, 423 U.S. 147 (1975), because CCA cannot assume applicant will again be held in custody facing the prospect of a preliminary hearing to determine whether there is cause to believe he violated a condition of his parole. And, applicant has already received such a preliminary hearing on the instant alleged violation. CCA notes that TDCJ must conduct preliminary hearings, as required by Tex. Gov’t Code § 508.2811 and Morrissey v. Brewer, 408 U.S. 471 (1972), within a time frame that meets the demands of due process so that releasees will not be required to seek CCA’s intervention to enforce these rights.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Glenn v. State, No. 11-09-00099-CR, 2011 WL 322451 (Tex.App.—Eastland 1/27/11)

The following exchange was deemed sufficient to constitute D’s consent to search. In response to officer’s request for permission to search the vehicle, D asked the officer: “You want to have a look inside?” Then D asked the officer: “You want me to open the trunk?”

Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR, 2011 WL 339213 (Tex.App.—Houston [1st Dist] 1/31/11)

Lack of specific dates in search warrant affidavit was not fatal to search warrant because the affidavit “includes several direct and indirect references to the timing of the controlled buy. First, [officer] described his contact with the first confidential informant as having occurred ‘recently.’ . . . The investigation culminated in the controlled buy forming the basis for probable cause, which was described as occurring ‘after’ [officer] ‘recently’ met with the first confidential informant.”

Sosa v. State, No. 06-10-00161-CR, 2011 WL 346215 (Tex.App.—Texarkana 2/4/11)

The following was insufficient to give rise to RS: D was present just outside a storage facility after its normal business hours, D failed to pass through the gate in 30 or 40 seconds of observation, and the storage facility is occasionally broken into. “‘The fact that a car is parked in close proximity to a business that is [closed], is not, in and of itself, suspicious; instead, it is only a factor to consider in deciding whether there is reasonable suspicion.’ . . . In addition, the time of day is not sufficient. . . . All the facts indicate is that [D] was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into.”

In re A.M., 333 S.W.3d 411 (Tex.App.—Eastland 2011)

The main issue in this appeal is whether it is a 5th Amendment violation for the State to subject a juvenile to a polygraph exam as a condition of probation, and then to use statements made in the exam as evidence in a subsequent criminal proceeding. The probation officer said the examination was “voluntary,” even though it was a condition of probation. The trial court, as fact finder, and COA agreed that it was voluntary.

Miles v. State, No. 11-09-00090-CR, 2011 WL 494885 (Tex.App.—Eastland 2/11/11)

Officer’s observation of D in the act of “talking to a known cocaine addict” deemed a partial basis for RS as to D. “[Officer] testified that there had been at least two robberies in the recent past involving the convenience store where the incident occurred. He also testified that the owner of the convenience store had requested that the police provide extra patrolling in the area due to the high-crime activity. [Officer] observed [D] talking to a known cocaine addict, and he also observed [D] and the known cocaine addict acting suspiciously when he drove up. These facts provided [officer] reasonable suspicion to detain [D] for a Terry stop.”

Carlson v. State, No. 01-09-01030-CR, 2011 WL 649682 (Tex.App.—Houston [1st Dist] 2/17/11)

Minor victim took possession of videotapes containing her nude image with intent to turn them over to police, and, thus, said evidence was not subject to suppression under criminal procedure provision forbidding the admission of evidence seized by any person or officer when that evidence has been obtained in violation of state or federal law. Also, the minor victim, unlike D, had a lawful ownership interest in the images. The court observed that the minor victim filed a police report within 48 hours of retrieving the videotapes from D’s home. In addition, the minor victim had ownership interest in possessing the images, even though the images were illegal, because she did so to preserve her own privacy and to prevent further publication of the images.

Hughes v. State, 337 S.W.3d 297 (Tex.App.—Texarkana 2011)

Interaction between officer and D was a mere “encounter” rather than an investigative detention, because officer activated squad car’s white overhead lights rather than the red and blue lights. Also, the position of the car relative to D’s vehicle did not entirely prevent D from leaving. “[Officer] observed [D’s] car in a parking lot of [a park] legally parked with the headlights on. As [officer] approached, the headlights of [D’s] vehicle turned off. . . . [Officer] parked his marked police jeep at an angle to [D’s] car and turned on the vehicle’s bright overhead white lights. [Officer] then illuminated the front of [D’s] vehicle with his spotlight. [Officer] testified he did not observe any illegal activity, but testified the [the park] area has a high incidence of drug and prostitution activity. . . . [T]he lights activated by the police officer in this case were not his overhead emergency lights which flash red and blue, but rather the overhead white safety or ‘take-down’ lights. We believe this distinction to be extremely important. . . . [U]nder some circumstances, overhead ‘take-down’ lights could be sufficient along with other circumstances to indicate a sufficient demonstration of authority[.]”

Tijerina v. State, 334 S.W.3d 825 (Tex.App.—Amarillo 2011)

After D told officers to leave his property, actions taken by eyewitness at officer’s behest, in approaching D’s residence and peering through a window, constituted a “search” for Fourth Amendment purposes. Because the officers no longer enjoyed the implied authority to approach D’s residence, neither did the eyewitness acting at officer’s behest.

State v. Molder, 337 S.W.3d 403 (Tex.App.—Fort Worth 2011)

While trooper’s testimony established that DPS has a general policy to inventory vehicles following arrest, the testimony was deficient in that it related nothing about the scope of said policy and how it affects closed containers such as D’s cloth bag; D’s motion to suppress deemed properly granted. “We recognize that courts have held that an officer does not need to specifically mention ‘closed containers’ to establish a policy regarding them. . . . But we hold that in this case, [trooper’s] testimony, as the sole evidence at the suppression hearing, was too barren to show any particular standardized criteria or routine concerning the scope of the inventory; the testimony is therefore insufficient for us to infer the extent of DPS’s policy regarding closed containers. Also, we conclude that we cannot infer DPS’ policy to open closed containers from the mere fact that [trooper] did so; such an inference would eviscerate the requirement described in [Florida v. Wells, 495 U.S. 1 (1990)].”

Wise v. State, No. 02-09-00267-CR, 2011 WL 754415 (Tex.App.—Fort Worth 3/3/11)

Evidence that D knowingly possessed the child porn discovered on his computer deemed insufficient because D bought the computer second-hand at a flea market, the computer contained viruses capable of covertly placing images on the computer, and it was impossible to determine when the images were placed on, accessed, or deleted from, the computer.

Dissent: “[T]he majority holds that when defendants possess illegal pornographic images on their computers but delete them and send them to their hard drives’ free space before the police discover them, the State cannot prove intentional or knowing possession of the images. . . . The majority mischaracterizes the evidence about the viruses on [D’s] computer. [The] State’s digital forensic examiner testified that the computer had several viruses and then said that some viruses, hypothetically, are capable of remotely accessing a computer and storing images on it. [The forensic examiner] did not say that the viruses found on [D’s] computer served such a purpose. She did explain, however, that the probability of a malicious outsider using a virus to store child pornography in the free space of another computer is low. . . . [A] lack of direct evidence and the existence of alternative hypotheses will be common features of many cases in which illegal images have been deleted[.]”

Miller v. State, 335 S.W.3d 847 (Tex.App.—Austin 2011)

D was without a reasonable expectation of privacy as to thumb drive (containing child pornography) that he left in a computer at his place of employment (a police station) and thus lacked standing to challenge search of the thumb drive because D had previously left the thumb drive in an area accessible to others, the drive did not contain any marks identifying D, and D did nothing to prevent others from accessing the drive (e.g., password) even though he possessed advanced computer knowledge.

Reading the Declaration of Independence

When I was young, I loved the 4th of July. I was raised in Roswell and Midland. Being a Jewish kid, there were a few holidays, like Christmas and Easter, where I felt downright left out. But that was never the case with the 4th of July. My father, the son of a Russian immigrant, embraced the 4th as if my family had been here since 1776. As a kid I remember the fireworks, the flag waving, and the sense of pride in being an American. Paul Revere and Thomas Jefferson were childhood heroes.

In 1999 the “powers that be” built the Harris County Criminal Justice Center. They were quick to have their names plastered on the front of the building. They were almost as quick to display a crime victims’ memorial plaque in the foyer. In 2006, as President of HCCLA it dawned on me that the Declaration of Independence , the Constitution, and the Bill of Rights were all missing from the foyer of the courthouse. HCCLA remedied that by making a gift of beautiful replicas that now grace our courthouse foyer.

When I was married, like many families, we divided up the holidays. The 4th of July was celebrated at my house. Each year I would cook up giant platters overflowing with ribs, chicken, sausage, the works. The kids and adults could not wait to eat. I would bring in the platters with much fanfare. Before I would let anyone so much as touch a chicken wing, I would have one of the younger kids read the first and last paragraphs of the Declaration. Not until those words were uttered did anyone get to eat. I wanted my family to remember why we celebrated the 4th.

Last year, I thought it might be nice for HCCLA members to publicly read the Declaration of Independence. About 20 of us gathered in front of the Courthouse. As we read the Declaration aloud, I think we were all a little surprised at our own reactions. We were stirred. This was not just some reading of a historic document; this was a public declaration of our own opposition to tyranny. One after another, our voices grew louder and read with more passion. Everything we stood for, everything we fought for, came out in the few minutes we stood reading together. Not a one of us had foreseen the visceral reaction we would have. Yet immediately we recognized that we had experienced something unique. Individually and as a group the public reading had empowered us. In reading the Declaration on the steps of the Courthouse, we invoked the spirit of our Founding Fathers and sent a public message to all that we were united in our fight for liberty and against tyranny. We sent a clear message to the courthouse powers that our fight against tyranny did not stop at the door to the courthouse.

A few months ago I had lunch with Gary Trichter. Gary asked me about the Reading. Gary had the idea to take what we started last year in Houston and spread it across Texas. I thought it was a great idea. He wanted TCDLA to encourage criminal defense lawyers across the state to read the Declaration so that people across Texas might remember the true meaning of the 4th.

Gary’s idea was a huge success. At over 30 courthouses this year lawyers read the Declaration of Independence out loud (see below). In Houston , HCCLA President Earl Musick lead over 100 lawyers and friends in a reading of the Declaration.

No doubt in years past the public reading of the Declaration of Independence was an annual tradition. It’s a tradition that has been lost to the media age. I am proud of HCCLA and TCDLA for rekindling the flame and bringing these words back to life. Perhaps, NACDL will follow HCCLA and TCDLA and bring the Declaration of Independence back to life on the steps of courthouses across this country. Only good can come from people hearing criminal defense lawyers reading the Declaration of Independence.


Big Changes to the Texas Rules of Appellate Procedure

On April 14th, 2011, the Judges of the Texas Court of Criminal Appeals signed an order amending the Texas Rules of Appellate Procedure. These changes were published in the May 2011 issue of the Texas Bar Journal, and comments from the public were accepted until June 30, 2011. The Rules discussed below are those approved after expiration of the public commentary period, and are therefore the final version. The biggest change, spurring most of the revisions to the Rules, is the requirement that a Petition for Discretionary Review must now be filed in the Court of Criminal Appeals instead of the Courts of Appeals. These changes are currently posted to the Court’s website and were ordered published in the Texas Bar Journal. They will become effective September 1, 2011.

1. Rule 50. Reconsideration on Petition for Discretionary Review: deleted in its entirety.

Rule 50 allowed a Court of Appeals, upon receipt of a Petition for Discretionary Review (“PDR”), to “reconsider and correct or modify the court’s opinion or judgment.” If the original opinion is corrected or modified, the Court would withdraw said opinion and issue a new one. According to the commentary the rule was deleted because a motion for rehearing serves the same purpose.

Rule 50 gave an appellate court one more chance to modify its decision or issue a new opinion upon the filing of a PDR. The court did not lose jurisdiction after a PDR was filed; rather, the court had 60 days after the filing, but no more, to issue a modified opinion. State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). See also Garza v. State, 896 S.W.2d 192, 194 (Tex. Crim. App. 1995) (construing former Rule 101). A party could then file a new PDR from the modified judgment, but the old one was not dismissed by operation of law unless a party did file a new one. In the latter situation the new opinion was attached as an appendix to the PDR. The court of appeals could not issue another opinion, however, upon filing of a new PDR. Now, presumably, the court loses jurisdiction after a PDR is filed, except for staying or recalling the mandate, or other such routine matters.

2. Rule 68.2, entitled “Time to File Petition,” is amended as follows:

First Petition. The petition must be filed within 30 days after either the day the court of appeals’ judgment was rendered or the day the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by the court of appeals.

The commentary states: “The amendment to Rule 68.2 resolves timely filing questions concerning motions for en banc reconsideration by including those motions in calculating time to file.”

This amendment is a long-needed change, and involves the interplay of two other appellate rules: Rules 49.1 and 49.7. Previously, the filing of a motion for reconsideration en banc pursuant to Rule 49.7 was not counted towards the time to file a PDR. If the appellant filed an en banc motion, it did not matter when the court of appeals ruled on it, or whether it ruled at all. The only motion that mattered was a “regular” panel motion for rehearing filed pursuant to Rule 49.1. The appealing party was required to file the PDR within 30 days after the “regular” motion for rehearing was overruled by the court of appeals. Rule 49.7 became a trap for the unwary party who waited to file a PDR until 30 days after his motion for reconsideration en banc was ruled on, only to have his PDR dismissed as untimely filed. Franks v. State, 97 S.W.3d 584 (Tex.Crim.App. 2003) (Cochran, J., concurring)(only an explicit reference to Rule 49.1 will toll the time for filing a PDR); Ex parte Sierra, 122 S.W.3d 202 (Tex. Crim. App. 2003) (Johnson, J. concurring) (same). Now both motions will toll the time. The Court is to be commended for clarifying these rules and eliminating this unnecessary and unfair trap.

3. Rule 68.3. Where to File the Petition. In the Court of Criminal Appeals

This amendment is a major change and should be a welcome one. Interestingly, it was not included in the original version of these amendments, but was perhaps an afterthought by the Court or a suggestion by a member of the public because of the deletion of Rule 50. Whatever the reason, parties are now required to file their PDRs in the Court of Criminal Appeals instead of the appellate court that issued the decision. Now that Rule 50 no longer exists, and courts of appeal may no longer modify their judgments after filing of a PDR, there is no logical reason to keep the filing requirement in the appellate courts.

The Rule also, with the addition of Subsection (b), now prevents a PDR erroneously filed in the Court of Appeals from being dismissed as untimely.

(a) The petition and all copies of the petition must be filed with the clerk of the court of appeals, but if the State’s Prosecuting Attorney files a petition, the State’s Prosecuting Attorney may file the copies of the petition—but not the original—with the clerk of the Court of Criminal Appeals instead of with the court of appeals clerk.

b. Petition Filed in Court of Appeals. If a petition is mistakenly filed in the court of appeals, the petition is deemed to have been filed the same day with the clerk of the Court of Criminal Appeals, and the court of appeals clerk must immediately send the petition to the clerk of the Court of Criminal Appeals.

The Court of Criminal Appeals ends up summarily dismissing PDRs because of untimeliness. A number of these filings are no doubt done by pro se litigants, or by lawyers who don’t generally practice appellate law and are unfamiliar with the Rules. This change is self-explanatory, with the new requirement of filing the PDR in the high court. As the commentary states, subsection (b)’s purpose is “to address and prevent the untimely filing of petitions for discretionary review that are incorrectly filed in the court of appeals rather than in the Court of Criminal Appeals.”

4. Rule 68.7. Court of Appeals Clerk’s Duties

The appellate court clerk now has no duty, aside from sending the record and other necessary documents to the high court when a PDR is filed. The Rule is substantially amended to conform to this new filing requirement:

(a) On Filing of the Petition. Upon receiving the petition, the court of appeals clerk must file the original petition and note the filing on the docket.

(b) Reply. The opposing party has 30 days after the timely filing of the petition in the court of appeals to file a reply to the petition with the clerk of the court of appeals. Upon receiving a reply to the petition, the clerk for the court of appeals must file the reply and note the filing on the docket.

(c) Sending Petition and Reply to Court of Criminal Appeals.
Unless a petition for discretionary review is dismissed under Rule 50, Within 15 days of receiving notice of the filing of petition for discretionary review from the clerk of the Court of Criminal Appeals, the clerk of the court of appeals must, within 60 days after the petition is filed, send to the clerk of the Court of Criminal Appeals the petition and any copies furnished by counsel, together with the record, copies of the any motions filed in the case, and copies of any judgments, opinions, and orders of the court of appeals. The clerk need not forward any nondocumentary exhibits unless ordered to do so by the Court of Criminal Appeals.

The original version of this amendment only deleted the reference to Rule 50, as noted in the commentary: “Rule 68.7 is amended to delete reference to Rule 50, which is abolished.” However, after the public commentary period, Subsections (a) and (b) were deleted as well.

5. Rule 68.8. Court of Criminal Appeals Clerk’s Duties on Receipt of Petition.

Here is another rule that was amended in response to the change in filing requirements.

Upon receipt of the record from the court of appeals, the clerk of the Court of Criminal Appeals will file the record and enter the filing on the docket. The clerk of the Court of Criminal Appeals will receive a petition for discretionary review, file the petition and the accompanying record from the court of appeals, note the filing of the petition and record on the docket, and notify the parties by U.S. Mail of the filing. The Court may dispense with notice and grant or refuse the petition immediately upon its filing.

As the commentary notes: “Rule 68.8 is amended to reflect changes consistent with filing the petition in the Court of Criminal Appeals.”

6. Rule 68.9. Reply.

This is a new Rule added “so that any reply will be filed in the Court of Criminal Appeals since the petition is also filed in the Court of Criminal Appeals” (quoting the commentary).

The opposing party has 15 days after the timely filing of the petition in the Court of Criminal Appeals to file a reply to the petition with the clerk of the Court of Crim­inal Appeals.

7. Rule 68.10. Amendment.

This Rule has also been substantially amended to conform with the new filing rule:

Upon motion Tthe petition or a reply may be amended or supplemented within 30 days after the original petition was filed in the court of appeals or at any time when justice requires. The record may be amended in the Court of Criminal Appeals under the same circumstances and in the same manner as in the court of appeals.

The commentary says: “This rule is changed to reflect the filing of the petition and any reply in the Court of Criminal Appeals. Thus, the rule is also changed to require a motion and to delete a time frame because the petition will be filed in the Court of Criminal Appeals.”

8. Rule 68.11. Service on the State Prosecuting Attorney.

This Rule, requiring service of a PDR, a reply, and any amendment or supplementation of a petition or reply, on the State Prosecuting Attorney (“SPA”), is simply amended to delete the address of the SPA, as the address “has changed and may change again.” (quoting the commentary)

Note: the SPA’s current address is P.O. Box 13046, Capitol Station, Austin, Texas 78711. Presumably, future changes to contact information will be posted on the SPA’s website:

9. Rule 79.2. Contents.

The Court has amended subsection (c) as follows:

(c) A motion for rehearing an order that refuses or dismisses a petition for discretionary review may be grounded only on substantial intervening circumstances or on other significant circumstances which are specified in the motion. Counsel must certify that the motion is so grounded and that the motion is made in good faith and not for delay.

Commentary: “Rule 79.2(c) is amended so that it applies only to petitions for discretionary review that are refused. Additionally, the certification requirement is changed to encompass a broader basis for rehearing.”

This Rule has been in existence for a long time and requires the movant to certify that his motion was grounded on intervening circumstances, which usually meant a new decision by another appellate court, the Court of Criminal Appeals, or the U.S. Supreme Court was handed down after the time the PDR was filed, and somehow impacted the law, requiring the PDR to be reconsidered. Or perhaps a statute changed, or another PDR was granted on the same or similar issue. The Rule now precludes the filing of a motion for rehearing after the petition has been disposed of in a way other than refusal.

The Rule also changes the requirement that the circumstances for rehearing be intervening—that is, after the PDR was filed but before it was refused. What those are is anybody’s guess. The commentary refers to this change as encompassing “a broader basis for rehearing.” Perhaps if a statutory amendment became effective or a significant case was issued after the PDR was refused, those would constitute other significant circumstances. Of course, they would need to occur within 15 days after the PDR was refused, or the motion would be untimely. Rule 79.1. These motions are rarely granted, so this change will probably have little impact.

Miscellaneous Form 11-004: Affidavit Required in Habeas Corpus Proceedings.

The Court has made a new form to be used in habeas corpus applications, which are required to be verified by either the inmate, a non-lawyer filing the writ on the inmate’s behalf, or a lawyer filing on behalf of his client. The inmate is the “Applicant.” All others filing on an inmate’s behalf are designated “Petitioner.” On its website, the Court explains this form is Miscellaneous Rule 11-004, which is to be included with the form for filing a post-conviction writ pursuant to Tex.Code Crim. Proc. 11.07 §2, and notes it supersedes Miscellaneous Rule 11-002. Download this form from the Court’s website.



This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is a person filing the application on behalf of an applicant, for example, an applicant’s attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration” without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and then complete “Petitioner’s Information.” A non-inmate applicant must sign the “Oath Before a Notary Public” before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the “Oath Before a Notary Public” before a notary public and must also complete “Petitioner’s Information.” An inmate petitioner must sign either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration” without a notary public and must also complete the appropriate “Petitioner’s Information.”



COUNTY OF _______________

________________________________, being duly sworn, under oath says: “I am the applicant / petitioner (circle one) in this action and know the contents of the above application for a writ of habeas corpus and, according to my belief, the facts stated in the application are true.”


Signature of Applicant / Petitioner (circle one)



Signature of Notary Public


Petitioner’s printed name: __________________________________

State bar number, if applicable: ______________

Address: _____________________________



Telephone: ___________________________

Fax: ________________________




I, ______________________________________, am the applicant / petitioner (circle one) and being presently incarcerated in _______________________________, declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct.

Signed on ____________________, 20_____.


Signature of Applicant / Petitioner (circle one)


Petitioner’s printed name: __________________________________

Address: _____________________________



Telephone: ___________________________

Fax: ________________________

Signed on ____________________, 20_____.


Signature of Petitioner

Depositions in Criminal Cases

Duty to Interview State Witnesses

Deposing State witnesses. The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. There is more law supporting your right to take depositions than you might realize.

Duty to interview State witnesses. The Court of Criminal Appeals has repeatedly held that defense counsel “has a responsibility to seek out and interview potential witnesses . . . and failure to do so is to be ineffective, if not incompetent. . . .”1 Witnesses include peace officer investigators, victims, and eyewitnesses. The Fifth Circuit says “counsel’s failure to interview eyewitnesses to a charged crime constitutes constitutionally deficient representation.”2 The State “opening its file” is an inadequate substitute for interviews.3 The duty to investigate applies even when the defendant may plead guilty.4 You cannot determine that a witness would lack credibility until you interview the witness.5

Ineffective assistance of counsel. “Bad Lawyer—Bad Judge—Bad 11.07” (Voice, June 2009) told of habeas corpus relief granted by the Fifth Circuit for ineffective assistance where the defense lawyer failed to interview State witnesses, among other things. The Fifth Circuit said the bad lawyer should have interviewed the State’s witnesses, but they did not say how to obtain interviews with uncooperative witnesses despite the lawyer having testified: “it was nearly impossible to interview them before the day of trial. . . .”6

Protect yourself. Regardless of how the trial judge ruled, the “bad lawyer” would have avoided the ineffective assistance finding by filing an application to take depositions of the State witnesses. The lawyer would have deposed the witnesses if the judge granted the applications; all blame would have been transferred to the judge if the applications were denied. The Fifth Circuit might still have granted habeas corpus, but they would have attributed the deficiencies to the trial judge who denied the applications instead of the defense attorney.

Deposition procedure. Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough.7 You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.8 Sample applications, affidavits, related motions, orders, and brief are available at TDCLA or WRC websites.

Good reason as a matter of law. The Texarkana Court of Appeals has held the “refusal of a witness who possesses information critical to a significant factor at trial, or who has information exclusively within that witness’ knowledge, to talk to the defendant’s counsel (or investigator) constitutes good reason for ordering such witness’ deposition under Art. 39.02.” The “victim of an offense obviously possessed information critical to a significant factor at trial.”9 They noted that a judge can implement safeguards to protect fragile witnesses.

Attempt to obtain a voluntary interview. You must prove the witness is unwilling to participate in a voluntary interview.10 File a Discovery Motion to obtain the names, address, and phone numbers of State witnesses. Send letters asking them to call you or your investigator. Call them if they do not respond. There is no need to beg, plead, or pressure them. Your letters and calls lay the foundation for requesting their deposition.

Record your calls/interviews. Witnesses can be uncooperative and even discourteous. You must be polite. They may refuse to speak with you. They may answer some questions and decline to answer others, leaving you with an incomplete interview that justifies a deposition. Stearnes11 instructs that you record the calls/interviews and that you have a third-party present. The recording will protect you from allegations that you were rude or hostile, and it holds the witness to their story for anything they say.

Subpoena the witness to the hearing. The judge can rule against your application, but you are entitled to a hearing.12 Subpoena the witness(es) whom you seek to depose to the hearing. Their testimony will establish the facts that establish good reason for the deposition—that they possess knowledge and information critical to factors that will be significant at trial; that they have information concerning the case that is exclusively within their knowledge (or within the knowledge of the State’s witnesses as a group); the general subject of their knowledge; and that they refuse to participate in an interview with you.

The judge and prosecutor share your problem. Judges and prosecutors have a duty to assure effective assistance of counsel to the defendant, and a responsibility to take remedial or corrective action to avoid ineffective assistance.13 Your client will be deprived of effective assistance of counsel unless you interview the witnesses. Any argument against authorizing depositions effectively dismisses a whole litany of cases from the United States Supreme Court, the Fifth Circuit, and the Texas Court of Criminal Appeals as wrongly decided.14 Prosecutors are prohibited from asking witnesses to refrain from voluntarily giving information to you by Rule 3.04(e), Texas Professional Conduct Code. A prosecutor who opposes your application fails in his/her duty to assure effective assistance of counsel to the defendant, and asks the judge to fail in his/her duty as well by empowering the witness to withhold information.

Collateral impact. Granting depositions will not impose overwhelming burdens on the criminal justice system:

1)Depositions create a time-saving method for defense attorneys to conduct interviews already required by law.

2)Prosecutors have no obligation to attend or to participate in depositions.

3)Judges will not spend any time on depositions because they do not preside over them.

Any minimal burdens that depositions may impose are purposeful and necessary.

Courts do not exist to conserve judicial resources. Courts exist to expend judicial resources, and they should cheerfully do so to protect constitutional rights, such as the right to counsel. If courts cannot do that, then judicial resources are not worth conserving. Constitutions create rights. The people count on judges to enforce them. The Texas Legislature commands us to do so. We have sworn to do so. Nobody else can do so. If we choose to conserve our judicial resources instead of using them to protect the United States and Texas constitutional and statutory right to counsel, then what better use, exactly, are we conserving them for?

Concurring opinion of Justice Cohen. Jack v. State, 64 S.W.3d 694, 698 (Houston 1st, 2002).

Harm factors. The “harm” of not interviewing witnesses is incomplete knowledge of the facts of the case, which:

1)limits formulation of defense strategy and tactics;

2)precludes knowing where and how to attack the State’s case;

3)prevents pretrial preparation for an effective attack on the deficiencies in the State’s case;

4)causes an incoherent/disjointed defense that results in blindly poking holes in the State’s case instead of mounting an effective defense;

5)limits knowledge of potentially applicable statutory defenses;

6)prevents giving a complete opening statement;

7)impairs and restricts cross-examination;

8)limits impeachment and rebuttal evidence;

9)allows surprise evidence inconsistent with your plan of defense;

10)impedes formulation of appropriate jury selection questions,

11)precludes intelligent exercise of peremptory jury challenges and pursuit of legitimate challenges for cause;

12)causes loss of opportunity to accept plea offer.

Preserving harm. Do not announce “Ready.” At trial, on the record outside the presence of the jury, reassert your request to depose the State witnesses. Announce “not ready by reason of incomplete knowledge of the facts because of the denial of depositions of State witnesses, and the resulting inability to provide effective assistance of counsel.” Tell the judge you are prevented from making an opening statement because of the denial of the depositions, or that you are involuntarily compelled to give an incomplete opening statement. Following the testimony of each witness, assert that you were required to limit cross-examination because you did not know how the witness would answer some questions, and that you were denied the opportunity to fully confront and cross-examine the witnesses. The harm factors (listed in the paragraph above) should be re-asserted on the record at every opportunity: at pretrial hearings, at announcement, during jury selection, at opening statements, following cross-examination of each witness, at the conclusion of trial, and in Motions for New Trial. Suggestions for developing, demonstrating, and preserving harm are available at TDCLA or WRC websites.

Be positive; be resilient. You are seeking to assure a fair trial, and are asking only for the tools and resources necessary to provide effective assistance of counsel. You are creating a win-win situation for yourself and your client. The trial judge can deny your application,15 but look on the positive side—you won’t have to write an Anders brief; your judge will take the blame when ineffective assistance is raised on appeal or by habeas corpus; you won’t feel like you have been run over by a truck when you get that letter from your client at TDC asking for copies of your witness interview notes; and you won’t have to give an embarrassing explanation for not attempting to interview the State witnesses at the habeas corpus hearing.


Interviews with State witnesses are essential to provide effective assistance of counsel. If the Texas Appellate Courts do not act to assure these interviews, then the Fifth Circuit will likely do so by readily finding harm and granting relief in habeas proceedings where depositions were requested and denied in the underlying trial court. Defense counsel has everything to gain by applying for witness depositions, and much to lose in not doing so.

Download Sample Motions (MS Word Document)


1. Stearnes, 780 S.W.2d 216, 224 (CCA 1989); Duffy, 607 S.W.2d 507, 517 (CCA 1980); Ybarra, 629 S.W.2d 943, 946 (CCA 1982); see also Welborn, 785 S.W.2d 391, 393 (CCA 1990). Client’s inability to pay does not justify failure to investigate. Briggs, 187 S.W.3d 458, 467 (CCA 2005).

2. Richards, 566 F.3d 553, 571 (5th Cir. 2009) [578 F. Supp. 2d 849 (N.D. Tex., 2008)]; Anderson, 338 F.3d 382, 391 (5th Cir. 2003); see also Sullivan, 819 F.2d 1382 (7th Cir., 1987). All reference Strickland, 466 US 668 (1984), for the inherent proposition that failure to interview witnesses constitutes ineffective assistance.

3. Duffy, 607 S.W.2d 507, 518 FN19 (CCA 1980).

4. Bratchett, 513 S.W.2d 851 (CCA 1974); Harris, 596 S.W.2d 893 (CCA 1980). While it is the client’s decision to plead guilty, it is the attorney’s duty to investigate the facts of the case and to give advice concerning the defendant’s decision.

5. Harrison, 496 F.3d 419, 571 (5th Cir. 2007). Strategic choices concerning whether to call a witness require investigation. Deciding not to call a witness who has never been interviewed is not a strategic choice.

7. Bryant, 685 S.W.2d 472 (Fort Worth 1985); Gonzales, 822 S.W.2d 189 (Corpus Christi 1991); James, 546 S.W.2d 306 (CCA 1977).

8. Langston, 416 S.W.2d 821 (CCA 1967).

9. Morrow, 139 S.W.3d 736, 743 (Texarkana 2004). Denial of deposition was error, but harmless under the circumstances. Nothing in record indicated surprise, harm, or adverse affect.

10. Janecka, 937 S.W.2d 456 (CCA 1996).

11. Stearnes, supra, 780 S.W.2d at 216.

12. Art. 39.02, TCCP. “[T]he judge shall hear the application and determine if good reason exists for taking the deposition.”

13. Ewing, 570 S.W.2d 941, 944 (CCA 1978); Fitzgerald, 505 F.2d 1334, 1337 (5th Cir. 1974, en banc).

14. See FN 1, 2, and 12 for citations.

15. Or perhaps not. Mandamus was granted with analogous legal Stearns, supra, 780 S.W.2d at 225–6. Art. 39.02 affords discretion in determining whether “good reason” exists for deposing a witness, but there may be no discretion to deny a deposition where the accused is thereby certain to be denied effective assistance of counsel, with a cat-and-mouse game then ensuing to see if harm can be established for reversal on appeal. Of all reported cases concerning Art. 39.02, only Morrow, supra, 139 S. W. 3d at 743, raised or asserted effective assistance of counsel as the “good reason” for the deposition. Morrow seemingly would have held it was an abuse of discretion to deny the deposition if harm had been established.

July/August 2011 Complete Issue – PDF Download




22 | Reading the Declaration of Independence – By Robb Fickman
24 | Big Changes to the Texas Rules of Appellate Procedure – By Cynthia L. Hampton
30 | Depositions in Criminal Cases – By William R. Copeland
43 | Defendant’s Motion for Recall of Capias Pro Fine Warrant Issued for Non-Payment of Indigent Court Costs – By Sarah Roland

8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Ethics and the Law
16 | Federal Corner
20 | Said & Done

5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
34 | Significant Decisions Report

President’s Message: President’s Page No. 1 – By J. Gary Trichter


TCDLA Brothers and Sisters:

I have been writing and rewriting this first President’s page for one year. Many thoughts as to what I wanted to say have come and gone, but many have stayed. I now begin with those that have remained. First, I want to especially thank our outgoing President, Bill Harris, for being an insightful, dedicated, and effective leader. His boot will be difficult to fill.

Second, I am humbled, honored, and thankful that a majority of you voted me your President. I am equally appreciative to those who voted against me, because by doing so, you validated and gave meaning to our Association’s election process.

Clearly, this presidency is a change from those of the recent past because we have not had a truly elected president since 1966–97. It was then that David Botsford was so honored by an earlier majority that wanted change. That said, I acknowledge that being elected does not make this presidency better than those of the intervening periods, but in the same way, it does it make it any less. All that it means is that a majority of those who voted were ready for a change and that I am part of that change. At 60 years of age and with 31 years of practice experience behind me, I accept this challenge to explore changes that will leave TCDLA in a better position that I found it.

It has now been one year since that election ended. During that time, I have worked hard to not disappoint those who voted for me and to convince those who did not that I am their president, too. I remain committed to the principles that, as your president, each member is just as important as the next, that TCDLA is not me, nor the officers or board, and nor is it the staff. Rather, TCDLA is the membership and that we, who you put in charge, ought to be working for and with you! The Lakota, a Great Sioux Native American Nation, have a saying—“mitahuye oyasin.” It translates “all our relatives” and means “we are all related.” As a criminal defense lawyer and your president, I believe that mitahuye oyasin applies to our Association, for all of us within TCDLA are related in both spirit and purpose. If anything can be said of our membership, it is that we police the police and defend “life, liberty and the pursuit of happiness” every day!

Some have suggested that an incoming president having an agenda is a bad thing. Indeed, I believe that as your President, it would be a bad thing if I did not. In a larger sense, my plan is to carry out and further the successes made by my predecessors. It cannot be a bad thing to build on past legacies and accomplishments of our Association’s earlier leaders.

My plan includes you, the membership, to work on separate and distinct committees. Your committees presently are made up of 33 women and 116 men who have volunteered to give their time, effort, and good will to you. All of these committees and their mission statements are listed online and will be listed in our membership directory too. In regard to new committees, the Judicial Integrity, Prosecution Integrity, Minority/Diversity, and List Serve Committees will be of particular import for each of our members.

Being mindful of fortunate opportunities, I am happy to announce that our Association is strengthening its ties to our State Bar of Texas. President-Elect Buck Files has already been very helpful to us in that he committed to have the State Bar share its online voting and video conferencing technology with TCDLA. These advances will allow all our committees to video conference and to give each of our members a meaningful and convenient vote. We are also pleased to announce our continued partnership with the National College for DUI Defense in presenting MSE and in certifying our DWI program hours for use by college members. Finally, I am especially pleased to announce our new alliance with Gerry Spence’s Trial Lawyer College. We are bringing psychodrama to Texas Here; credit needs to be given to board member and vice chair of the Criminal Defense Lawyers Project, John Ackerman, for making this happen.

The list serve committee has made part of its mission to get a majority of our membership online. Today, fewer than one-third of our members can be reached online. Our goal is to get at least 95 percent of our membership online. Our legislative committee, led by Allan Place, was successful in getting a courthouse access bill passed, and our courthouse access lawyer badge committee, led by Chairperson Lori Botello, will be working hard at getting us one badge for access to every courthouse in the state. Incidentally, this was an item I had promised to pursue when I ran for president elect. Finally, our new ethics committee, led by Robert Pelton, will be accessible 24/7 through our “ethics hot line” (512-646-2734).

My hope is to be a good president for you, and, as God allows me to see what is right, I will always strive to do right by you. Thank you for giving me the privilege of serving with you.

J. Gary Trichter,

Your President

Executive Director’s Perspective: Summer Breeze – By Joseph A. Martinez


Very special thanks to TCLDA outgoing president, Bill Harris (Fort Worth). Because of Bill, TCLDA is a stronger, more active, and robust organization. Thanks to his leadership, TCDLA ‘s current membership is 3,100 and growing, he has successfully provided high quality CLE to over 5,000 lawyers in the past 12 months, and lobbied for a successful Texas Legislative Session. TCDLA wished Bill the best as he now moves into his new role as a past president.

Special thanks to our course directors, Jeanette Kinard (Austin), Bobby Lerma (Brownsville), Mark Snodgrass (Lubbock), Sheldon Weisfeld (Brownsville), and David Moore (Longview) for Trial Tactics: The Art of War seminar held in South Padre Island. Thanks to our speakers, most of whom had spoken in cities across Texas for the Trial Tactics: Art of War seminar. These speakers were Mark Snodgrass, Sam Bassett, Jani Maselli, Michael Gross, Oscar Pena, Susan Anderson, Kelly Pace, and Mark Thiessen.

Very special thanks to Bobby Lerma (Brownsville) and Bill Trantham (Denton) who coordinated and cooked for the 7th Annual Island Beach Bar-B-Que. We had over 70 attendees. Also helping out were Rick Wardroup and John Cantu.

Special thanks to Jay Norton, President of the San Antonio Criminal Defense Lawyers Association, for allowing TCDLA to co-sponsor the DWI—No Means No: How to Scientifically Defend the No Refusal Case seminar held in San Antonio on July 8. Over 150 attendees heard an outstanding lineup of speakers.

Lydia Clay Jackson, President Elect and chair of the TCDLA Nominating Committee, has selected the 2011 Nominating Committee. She is encouraging TCDLA members to submit their applications for the TCLDA board. The application can be downloaded from the TCDLA website or please call the Home Office and a copy will be sent to the member. Members can also contact the nominating committee member from their district for an application. TCDLA will be sending the application to the presidents of all local criminal defense bars and Public Defender offices as well as all TCDLA members.

There are a total of 15 board and 16 associate board slots that need to be reappointed or filled. There is also the position of secretary of the board that will need to be filled. The deadline for submitting an application is 12:00 pm on Tuesday, November 1, 2011. The nominating committee will meet on Saturday, December 3, 2011, in Houston to determine who will be the 2012–2013 nominees. The TCDLA members present will vote on the nominees at the TCDLA Annual Board Meeting on Saturday, June 9, 2012, in San Antonio.

TCLDA wants to recognize David Moore (Longview), who for the last year has served as Chair of the Criminal Defense Lawyers Project (CDLP). David was chair of the committee who had responsibility for oversight of the more than $1 million in grants from the Court of Criminal Appeals. David oversaw the coordination of course directors, speakers, topics, and more than 28 seminars and close to 3,000 lawyers trained in the past year. David was invaluable in his commitment to training excellence. David will remain on the CDLP Committee.

TCDLA has received notice from the Court of Criminal Appeals of its FY 2012 awards of $926,628.00 for CDLP and $28,334.00 for the Public Defenders Travel Stipends. The announcement on the grant awards for the Innocence grant should be announced by late August 2011. TCDLA is appreciative of the trust and confidence the Court has in our association shown by its significant financial commitment.

The TCDLA Executive Committee approved a special recognition of Justin McShane (Pennsylvania). Gary Trichter, President of TCDLA, presented the resolution to Justin at the 9th Annual Top Gun seminar in Houston.

Special acknowledgement to Brian Wice, who spoke at the 9th Annual Top Gun seminar on August 11 and then spoke at the “Innocence Work” in the Real World for Real Lawyers: A Practical Seminar on Representing the Innocent After Conviction seminar on August 12. TCLDA thanks Brian for his commitment to justice.

Joseph Martinez attended the biannual meeting of the Executive Director of Criminal Defense Lawyer State Associations. This year the meeting was held in Denver in conjunction with NACDL’s summer seminar and board meeting.

All TCDLA members are cordially invited to attend the next TCDLA Board of Directors Meeting to be held in Austin on Saturday, September 24, at 10:00 am at the Wyndham Hotel on South I-35 and Woodward St., across from the IRS.

Please save the date to join us at the 25th Annual Rusty Duncan Advanced Criminal Law Course June 7–9, 2012. Our course directors will be Troy McKinney, Stephanie Stevens, and Doug Murphy, with associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman.

Good verdicts to all.

Editor’s Comment: It’s Sausage Time! – By Greg Westfall


Well, as September 1 rapidly approaches, carrying with it the product of our duly elected representatives, I am reminded of some words by Grant Gilmore:

Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven, there will be no law and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.

Gilmore, The Ages of American Law, 110–11 (1977)

Ethics and the Law: Introducing…


Robert Pelton, the former President of the Harris County Criminal Lawyer’s Association (HCCLA), Associate Di­rec­tor for TCDLA, and Feature Articles Editor of the Voice, will be writing a regular column on ethics and the law.

Texas Criminal Defense Lawyers Association (TCDLA) President Gary Trichter has recognized the need for an ethics committee to help members. One of the top priorities for the committee was to establish an ethics hotline for criminal defense lawyers. Protocol is as follows: Call the hotline at 512-646-2734 and leave a message. It will then be routed to me, or to a co-chair. You will get a call or several calls within 24 hours. If it is an emergency, you can call me at my office at 713-524-8471 or on my cell at 713-829-0678. The hotline has already received numerous calls and all questions have been answered. The job of a lawyer is serious business, and the committee’s goal is to help members if they have ethical questions. We are in the job of enforcing the U.S. Constitution and Texas law. It is important for a lawyer to know the law and how to ethically practice the law. Having a grievance filed or a writ for ineffective assistance can be a disastrous event.

It is very important to set up a file properly with copies of the complaint, information, indictment, statute, punishment range, and all notes or reports. Keep a log of each time you talk with the client. When you first get hired, remember the attorney-client privilege. Do not discuss the case with any of the client’s family or friends without a waiver. Always get the waiver in writing, even if it is something as short as “I waive attorney-client privilege as to _______. I fully understand the consequences” (signed by client). Many times the client’s wife, husband, or best friend can turn out to be the worst enemy.

The TCDLA Ethics Committee is made up of the following members:

Robert Pelton, Chairman, , 713-524-8471, 713-829-0678 cell

Jack Zimmerman—Houston,, 713-552-0300

Robyn Harlin—Houston, , 713-697-5900

Ray Fuchs—San Antonio, , 210-226-5757

David Sheppard—Austin, , 512-478-9483

David Zavoda—Odessa, 432-580-8266

Joe Pelton—Abilene, , 325-676-9100

Greg Velasquez—El Paso, , 915-546-8185

Joseph Connors—McAllen, , 956-687-8217

Don Davidson—Bedford, , 817-355-1285

Doug Barlow—Beaumont, , 409-838-4259

No one is immune from client complaints. Sooner or later, no matter what you do, a client may claim you have done something wrong. If that happens, be prepared to defend yourself. Many lawyers have been accused of misconduct. F. Lee Bailey, part of the O. J. Simpson Dream Team and one of the most famous lawyers in America, wrote a book, The Defense Never Rests. Bailey was disbarred for misconduct while defending one of his clients. At last account he finally rested and is living in Florida.

Future topics will include the following:

  1. How to get business ethically
  2. How to set and collect fees
  3. Contracts or letter of acknowledgment
  4. Contempt
  5. Conflict of interest
  6. Attorney/client privilege
  7. Gifts to judiciary
  8. Ex-parte communications
  9. Grievance process
  10. How to set up a file
  11. Investigators, polygraph operators
  12. Tape-recording rules
  13. Motions to withdraw
  14. Pretrial publicity
  15. What to say and not say to the media
  16. Personal habits—alcohol-drug problems
  17. How to act like a lawyer
  18. Books that will help
  19. Seminars
  20. Board Certification
  21. College of State Bar
  22. Advertising
  23. Closing practice
  24. Selling your practice
  25. Social networking, Facebook, Twitter
  26. Blogs
  27. Website

Federal Corner: Who Are The People? – By F. R. Buck Files Jr.


We all know those first words of the Constitution of the United States: “We the people of the United States . . .” But who are the people? Would the people—or a group of the people—be entitled to the same constitutional guarantees under the Second Amendment and/or Fourth Amendment and/or the Fifth Amendment?

Just recently, a panel of the United States Court of Appeals for the Fifth Circuit was confronted with this issue on a Second Amendment analysis and could not agree as to the meaning of the people. United States v. Portillo-Munoz, ___F.3d___, 2011 WL 2306248 (5th Cir. 2011) [Panel: Circuit Judges Garwood, Garza, and Dennis (dissenting)]. This is a case of first impression—not only in the Fifth Circuit but in all the Circuits.

The Facts in Portillo

Portillo was an illegal alien who was arrested by a city police officer in Dimmit, Texas, for unlawfully carrying a weapon and for possession of a controlled substance (cocaine). The weapon was a .22-caliber pistol Portillo said that he used to protect the chickens from coyotes at the ranch where he worked. He had been employed at this ranch for six months.

What Occurred in the District Court

This must have appeared to be a “fish-in-the-barrel” case to the government. Portillo was indicted for one count of an alien, illegally and unlawfully present in the United States, being in possession of a firearm [18 U.S.C. § 922 (g)(5)]. Portillo’s attorneys viewed the case in a different light. They filed a motion to dismiss, alleging that a conviction under the statute would violate Portillo’s rights under the Second Amendment and the Fifth Amendment (Due Process Clause). United States District Judge Mary Lou Robinson of the Northern District of Texas denied relief.

Portillo then entered a conditional guilty plea. During the plea hearing, he admitted that he was a Mexican citizen who was illegally present in the United States, and that he had knowingly possessed a firearm in or affecting commerce which had been shipped or transported in interstate commerce. Judge Robinson sentenced Portillo to ten months imprisonment to be followed by three years of supervised release. He timely appealed.

What Occurred at the Court of Appeals

A divided panel affirmed the judgment of the District Court. [Note: All the judges agreed that Portillo was not entitled to relief on his Fifth Amendment claim, and I have omitted those portions of the Court’s opinion and the dissenting opinion having to do with that issue.] Judge Garwood authored the opinion for the Court, which reads, in part, as follows:

[The Statute]

Under the laws of the United States, “[i]t shall be unlawful for any person . . . who, being an alien . . . illegally or unlawfully in the United States . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(5). There is no question that Portillo’s conduct violated this statute.

[The Issue Before the Court]

We are only asked to decide if Portillo’s conviction un­der this statute violates the United States Constitution. Whether the protections contained in the Second Amendment extend to aliens illegally present in this country is a matter of first impression in this circuit. Sev­eral district courts have previously considered the constitutionality of this statute, but none of our sister circuits have done so.

[The Second Amendment]

The text of the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [Emphasis added.]

[The Court’s Reasoning Under Heller]

In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment guarantees an individual right to possess and carry weapons. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The individual laying claim to the Second Amendment’s protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821. However, the Court’s language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment. The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 2790–91. The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not “law-abiding citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.

[The Court’s Reasoning Under Verdugo-Urquidez]

Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment. In United States v. Verdugo-Urquidez, the Court held that its analysis of the Constitution “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 494 U.S. 259, 110 S.Ct. 1056, 1061, 108 L.Ed.2d 222 (1990). Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.

[Second Amendment v. Fourth Amendment
v. Fifth Amendment]

Moreover, even if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people. The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right. The Second Circuit laid out compelling reasons for why an illegal alien could not claim that a predecessor statute to section 922(g)(5) violated the Fifth Amendment right to equal protection by saying that “illegal aliens are those who . . . are likely to maintain no permanent address in this country, elude detection through an assumed identity, and—already living outside the law—resort to illegal activities to maintain a livelihood.” United States v. Toner, 728 F.2d 115, 128–29 (2d Cir.1984). The court went on to approvingly quote the district court’s statement that “one seeking to arrange an assassination would be especially eager to hire someone who had little commitment to this nation’s political institutions and who could disappear afterwards without a trace . . .” Id. at 129 (internal quotation marks omitted).

[Citizens v. Aliens]

Additionally, the Supreme Court has long held that Con­gress has the authority to make laws governing the con­duct of aliens that would be unconstitutional if made to apply to citizens. In Mathews v. Diaz, the appellees were lawful resident aliens challenging a federal law that limited eligibility to Medicare Part B to aliens who had been admitted for permanent residence and had also resided in the United States for at least five years. 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The Supreme Court upheld both conditions as constitutional against a challenge under the Due Process Clause. The Court pointed out in its opinion that the crucial question was whether discrimination among different types of aliens was permissible, as contrasted with discrimination between aliens and citizens and held that “[n]either the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Id. at 1891 (emphasis in original). The Court went on to say that
“[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Id.

[Lawful Aliens v. Unlawful Aliens]

The Court, in several cases striking down state laws restricting otherwise lawful activities in which aliens could engage, has emphasized that the rights thus protected were those of aliens who were lawful inhabitants of the states in question. In 1915, the Supreme Court held in Truax v. Raich that the complainant, a native of Austria admitted for residency in the United States, was entitled to equal protection under the 14th Amendment because he was “lawfully an inhabitant of Arizona.” 239 U.S. 33, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). See also id. at 10 (states cannot “deny to lawful inhabitants . . . the ordinary means of earning a livelihood.”). See also Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 477 & n. 5, 97 L.Ed. 576 (1953); Torao Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 68 S.Ct. 1138, 1142, 1143, 92 L.Ed. 1478 (1948). This court noted in Lynch v. Cannatella that “the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally.” 810 F.2d 1363, 1373 (5th Cir.1987).

The Rest of the Story

Judge Dennis dissented and his opinion reads, in part, as follows:

[The People]

. . . I respectfully dissent from the majority’s dismissal of Portillo-Munoz’s Second Amendment claim. The majority concludes that Portillo-Munoz, a ranch hand who has lived and worked in the United States for more than 18 months, paid rent, and helped supported a family—but who committed the misdemeanor of illegally crossing the border—is not part of “the people.” Supreme Court and Fifth Circuit precedent recognize that the phrase “the people” has the same meaning in the First, Second, and Fourth Amendments. The majority’s determination that Portillo-Munoz is not part of “the people” effectively means that millions of similarly situated residents of the United States are “non-persons” who have no rights to be free from unjustified searches of their homes and bodies and other abuses, nor to peaceably assemble or petition the government. In my view, Portillo-Munoz clearly satisfies the criteria given by the Supreme Court and our court for determining whether he is part of “the people”: he has come to the United States voluntarily and accepted some societal obligations. See United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir.2006) (“[A]liens with substantial connections are those who are in this country ‘voluntarily and presumably [have] accepted some societal obligations’” (second alteration in original) (quoting Verdugo-Urquidez, 494 U.S. at 273, 110 S.Ct. 1056).

[Suggestion for Remand]

Of course, whether 18 U.S.C. § 922(g)(5) violates the Second Amendment is a separate question from whether Portillo-Munoz is part of “the people” who have First, Second, and Fourth Amendment rights. I would remand for the district court to consider in the first instance the applicable level of scrutiny under the Second Amendment, and whether the provision passes muster under that level of scrutiny.

My Thoughts

I find this case to be very thought provoking. I can appreciate the logic of both the Court’s opinion and the dissenting opinion. The question that I have is whether this case will move to the en banc Court or, possibly, to the Supreme Court. It is certainly one that we will want to watch.

Judge Dennis’ dissenting opinion is worth reading in its entirety. His analysis of Heller differs from that of Judge Garwood. Unfortunately, I only had space for the first two paragraphs of his dissent. Once again, we see a case in which good defense lawyers have looked beyond the obvious, raised issues of Constitutional dimension, and zealously represented their client. These cases are such a joy to read.


Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.