Monthly archive

November 2011

November 2011 SDR – Voice for the Defense Vol. 40, No. 9

Voice for the Defense Volume 40, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011); Reversed, remanded (5–4)

        Bullcoming was sentenced to two years in prison for felony aggravated DWI/DUI. The State introduced a blood draw taken from him under a search warrant issued following his refusal of the breath alcohol test. Bullcoming argued that the laboratory report of his blood draw results was testimonial evidence subject to the Confrontation Clause. COA affirmed the conviction and upheld the trial court’s ruling that the forensic report was a business record. The court ruled that a blood alcohol report is admissible as a public record and that it presented no issue under the Confrontation Clause because the report was non-testimonial. While the case was pending in the New Mexico Supreme Court, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (U.S. 2009), clarified that forensic laboratory reports are testimonial and therefore the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits. In applying Melendez-Diaz, the New Mexico Supreme Court held that the blood alcohol report was testimonial evidence but that was admissible even though the forensic analyst who performed the test did not testify.

        HELD: A blood-alcohol test admitted without the testimony of the person who prepared the results can violate a criminal defendant’s Sixth Amendment rights under the Confrontation Clause. “The Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported[.]”

Bond v. United States, 131 S. Ct. 2355 (U.S. 2011); Reversed, remanded (9–0)

        Bond was found guilty of trying to poison her husband’s mistress, Haynes, with toxic chemicals at least 24 times. A grand jury charged Bond with two counts of possessing and using a chemical weapon, in violation of a criminal statute implementing the treaty obligations of the United States under the 1993 Chemical Weapons Convention. Bond’s attorneys argue that the statute was intended to deal with rogue states and terrorists, and that their client should have been prosecuted under state law instead. Bond, a laboratory technician, stole the chemicals from the company where she worked. Haynes was not injured. Haynes had contacted police and postal authorities after finding the chemicals at her home. The Third Circuit held that Bond lacked standing to challenge the constitutionality of the statute under the Tenth Amendment to the U.S. Constitution.

        HELD: A defendant who has been convicted under a federal statute has standing to challenge the conviction on grounds that the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment. “Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.”

Davis v. United States, 131 S. Ct. 2419 (U.S. 2011); Affirmed (6–2)

        While conducting a routine vehicle stop, police arrested petitioner Davis, a passenger, for giving a false name. After handcuffing Davis and securing the scene, officers searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. But the Eleventh Circuit found that while the search was illegal under Arizona v. Gant, 556 U.S. 332 (2009), the evidence found in the vehicle was still admissible.

        HELD: The good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional. “Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Justice Breyer dissented: “The Court finds a new ‘good faith’ exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. . . . A new ‘good faith’ exception and this Court’s retroactivity decisions are incompatible.”

Fifth Circuit

United States v. Hernandez, 633 F.3d 370 (5th Cir. 2011)

        Defendant’s 97-month sentence—an upward departure from the Guideline range of 51 to 63 months—did not violate the Sixth Amendment as applied. Justice Scalia has continually recognized the possibility that even under an advisory Guideline scheme, a sentence could violate the Sixth Amendment if it could only be upheld as reasonable based on judge-found facts; that argument is, however, foreclosed by Fifth Circuit precedent. Moreover, the Fifth Circuit has repeatedly held that the sentencing court is entitled to find by a preponderance of the evidence all facts relevant to the determination of a sentence below the statutory maximum.

United States v. Doggins, 633 F.3d 379 (5th Cir. 2011)

        The Fair Sentencing Act of 2010, which lowered the statutory penalties for many crack cocaine offenses, does not apply retroactively to persons sentenced before its enactment date (August 3, 2010), notwithstanding the fact that their cases are still on direct appeal.

United States v. Caulfield, 634 F.3d 281 (5th Cir. 2011)

        District court did not err in ruling on defendant’s motion to reduce sentence under 18 U.S.C. § 3582(c)(2); particularly, defendant was not entitled to have the court consider only Amendment 706 to the Guidelines, without also considering Amendments 715 and 716, which were designed to correct anomalies in Amendment 706. Even though Amendment 706 was the only amendment in place at the time defendant brought his motion, there was no ex post facto violation in also applying Amendments 715 and 716, because these did not increase the possible punishment from those available at the time the offense was committed. That defendant might have been eligible for a greater discretionary reduction under Amendment 706 standing alone does not give rise to an ex post facto violation.

United States v. Burrell, 634 F.3d 284 (5th Cir. 2011)

        District court reversibly erred in denying defendant’s motion to dismiss under the Speedy Trial Act (STA), because defendant was not brought to trial within 70 days; particularly, the delay attributable to the alleged unavailability of a witness (a sheriff getting recertified) was not excludable under either 18 U.S.C. § 3161(h)(3) (dealing with the absence or unavailability of an essential witness) or 18 U.S.C. § 3161(h)(7) (the catch-all “ends of justice” exclusion) because the government failed to present any evidence to explain why the witness’ presence could not be obtained through reasonable efforts (for example, by working around the certification or by seeking rescheduling of the certification). The Fifth Circuit reversed defendant’s conviction and sentence and remanded to the district court for dismissal of the indictment with or without prejudice.

United States v. Jasso, 634 F.3d 305 (5th Cir. 2011)

        Where defendant was subject to a 10-year (120-month) statutory minimum sentence, district court reversibly erred in imposing a 70-month prison sentence; defendant was not eligible for the “safety valve” of 18 U.S.C. § 3553(f) and USSG § 5C1.2 be­cause he had more than one criminal history point. The greater discretion granted to sentencing courts in United States v. Booker, 543 U.S. 220 (2005), did not permit the district court to treat as advisory the Guideline provisions that are preconditions for the application of statutory “safety valve” relief under 18 U.S.C. § 3553(f). Because defendant had two criminal history points, the court had no discretion to do anything other than impose a sentence at or above the statutory minimum. The Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

United States v. Hoang, 636 F.3d 677 (5th Cir. 2011), on denial of reh’g, 636 F.3d 746 (5th Cir. 3/25/11)

        Agreeing with the Fourth, Sixth, Seventh, and Eleventh circuits but disagreeing with the Eighth and Tenth circuits, the Fifth Circuit held that the registration requirement of the Sex Offender Registration and Notification Act (SORNA) became effective against state-law-registered pre-SORNA sex offenders only on the date the attorney general issued the Interim Rule declaring SORNA retroactive (Feb. 28, 2007), not on the date SORNA was enacted (July 27, 2006). Because defendant traveled in interstate commerce and failed to register in his new jurisdiction after SORNA’s enactment but before the attorney general issued the Interim Rule, SORNA did not apply to him. The Fifth Circuit remanded for dismissal of the indictment.

United States v. Ortiz-Mendez, 634 F.3d 837 (5th Cir. 2011).

        Agreeing with the Seventh and Tenth circuits but disagreeing with the First, Eighth, and Ninth circuits, the Fifth Circuit held that the offense of marriage fraud under 8 U.S.C. § 1325(c) does not require the government to prove that the defendant did not intend to establish a life together with his or her spouse; rather, the government need only show that the defendant entered into the marriage with the purpose of evading immigration laws. Accordingly, the district court did not abuse its discretion in refusing defendant’s requested instruction on intent (or lack of intent) to establish a life together. Nor did the court abuse its discretion in refusing to instruct the jury not to find defendant guilty of marriage fraud simply because the putative spouse intended to commit marriage fraud; defendant was sufficiently protected from such an imputation of guilt by the requirement that the jury had to find beyond a reasonable doubt that she “knowingly” entered into the marriage for the purpose of evading immigration laws.

United States v. Miller, 634 F.3d 841 (5th Cir. 2011)

        (1) Even after United States v. Booker, 543 U.S. 220 (2005), supervised release revocation sentences should be reviewed on appeal under a “plainly unreasonable” standard. Under this standard, the appellate court evaluates whether the district court procedurally erred before the appellate court considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard; if the sentence is unreasonable, then the appellate court considers whether the error was obvious under existing law.

        (2) Agreeing with the Fourth and Ninth circuits but disagreeing with the Sixth Circuit, the Fifth Circuit held that in modifying or revoking a supervised release term, a district court may not rely upon 18 U.S.C. § 3553(a)(2)(A), which directs a court initially imposing sentence to consider the need for the sen­tence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” Accordingly, the district court erred by determining that defendant’s supervised release revocation sentence was appropriate due to the “seriousness of the offense” and defendant’s lack of “respect for the law.” Despite this mistake, the court’s error was not plainly unreasonable because when the court sentenced defendant, the Fifth Circuit’s law on this question was unclear. The Fifth Circuit affirmed the sentence.

United States v. Gutierrez, 635 F.3d 148 (5th Cir. 2011)

        In sentencing defendant on his conviction for escape from a halfway house, district court did not reversibly err in varying upward from a Guideline imprisonment range of 15 to 21 months to a sentence of 50 months; the court was not required to consider a departure under USSG § 4A1.3 (for underrepresentation of criminal history) prior to varying upward based on criminal history. Because the sentence was adequately explained, and because the length of the sentence was not unreasonable, the Fifth Circuit affirmed the sentence. Note: This holding seems contrary to USSG § 1B1.1 (Application Instructions), as amended on Nov. 1, 2010, which was not mentioned in this opinion.

Jones v. Joslin, 635 F.3d 673 (5th Cir. 2011)

        District court did not err in denying defendant’s 28 U.S.C. § 2241 habeas petition, challenging the Federal Bureau of Prisons’ (BOP’s) treatment of his federal sentence as consecutive to, rather than concurrent with, a previously imposed state sentence. When a sentencing court makes no mention of a prior state sentence, the federal sentence shall run consecutively to the state sentence. The federal judgment here, although inartfully worded and perhaps even ambiguous, never mentions the state sentence and therefore cannot be deemed to order the federal sentence to run concurrently with the state sentence. If the federal district court wanted to depart from the usual presumption of 18 U.S.C. § 3584(a) (that is, if it wanted the federal sentence to be concurrent), it should have discussed why this departure was justified with reference to the 18 U.S.C. § 3553(a) factors and the specific offenses for which defendant was convicted. Moreover, BOP fully complied with 18 U.S.C. § 3585(b) by crediting defendant with all his days in federal custody that were not credited toward the state sentence.

United States v. Curtis, 635 F.3d 704 (5th Cir. 2011)

        (1) District court did not err in refusing to suppress text messages uncovered as the result of a warrantless search of defendant’s cell phone. United States v. Finley, 477 F.3d 250 (5th Cir. 2007), established that police can search the contents of an arrestee’s cell phone incident to a valid arrest. Even if Finley was cast into doubt by Arizona v. Gant, 556 U.S. 332 (2009), suppression was not called for because the search was conducted in good faith reliance upon the pre-Gant precedent then in effect (i.e., Finley), which permitted such a search.

        (2) A defendant’s right to presence imposes two requirements on the exercise of peremptory challenges: First, the defendant must be present for the substantial majority of the jury-selection process; second, the defendant must be present when the court gives the exercise of peremptory challenges formal effect by reading into the record the list of jurors who were not struck. Under this rubric, defendant’s right to be present was not violated. He was present during voir dire and when the peremptory challenges were allotted; he was also present at the lunch recess when the defense’s peremptory challenges were submitted and when the challenges were given formal effect via the impaneling of the jury. He was absent only for a short time before the recess, apparently while his counsel was mulling over the peremptories; this did not constitute error, much less plain error (the standard applicable in the absence of an objection).

United States v. Jacobs, 635 F.3d 778 (5th Cir. 2011)

        Where district court sentenced defendant to 36 months’ imprisonment as an upward variance from the correct Guideline imprisonment range of 4 to 10 months, appeal of that sentence was barred by the appeal waiver provisions of defendant’s plea agreement, which allowed him to appeal only an upward departure not requested by the government. Sentencing departures are distinct from variances. If the parties had intended to allow defendant to appeal any sentence exceeding the high end of the Guideline range, they could have drafted the waiver of appeal to say so. Finding that the waiver barred defendant’s appeal, the Fifth Circuit granted the government’s motion to dismiss the appeal. The Fifth Circuit rejected the seemingly contrary decision in United States v. Manuel, 208 Fed. Appx. 713 (11th Cir. 2006) (unpublished).

Court of Criminal Appeals

Direct Appeal

Leza v. State, No. 76,157 (Tex.Crim.App. 10/12/11); Affirmed (9–0)

        Appellant was convicted of intentional murder committed in the course of a robbery, and the jury answered the statutory special issues in such a way that the trial court was obliged to assess the death penalty.

        HELD: CCA rejected Appellant’s 14 points of error, notably the following. Appellant claimed the trial court erred in failing to suppress his video-recorded oral statement. He argued that admission of the statement violated federal Miranda law and state law under Tex. Code Crim. Proc. art. 38.22. While Appellant was not made aware that the interrogation would be outside the scope of his initial traffic violation, was under the influence of heroin, and did not provide the police with an express waiver, the State met its burden of establishing that Appellant waived his Miranda rights.

        Appellant urged CCA to order a new punishment hearing, arguing that the court erred in failing to grant his request for a mistrial at that stage of trial. Having found that testimony of a prison guard was admitted erroneously, the court instructed the jury in no uncertain terms to disregard it; but Appellant argues that the testimony was so inflammatory that no instruction to disregard it could prove efficacious. The State responds that no instruction to disregard was called for because the testimony was properly admitted; CCA agreed.

        Appellant attached two letters that his appellate counsel received from an assistant district attorney, apparently in relation to another case and sent by mistake regarding a sheriff who was charged with aggravated perjury. CCA overruled this point of error without prejudice, so that Appellant may pursue any Brady claim that further investigation might turn up.

Writ of Habeas Corpus

Ex parte Medina, No. 75,835-01 (Tex.Crim.App. 10/12/11); Remanded (5–4)

        CCA received a document titled “Application for Writ of Habeas Corpus” in connection with this death-penalty case.

        HELD: The document was not in fact an “application for writ of habeas corpus” under Tex. Code Crim. Proc. art. 11.071 because it only contained a short list of conclusory statements and failed to plead specific facts upon which relief could be granted. Furthermore, counsel waited until the last day possible to file the document. Counsel said he knew what he was doing and thought it was a tactical advantage to proceed as such. “Under these unique and extraordinary circumstances, involving not habeas counsel’s lack of competence but his misplaced desire to challenge the established law at the peril of his client,” CCA concluded that under Article 11.071 § 4A(a), counsel failed to file a cognizable writ application. Thus, under Section 4A(b)(3), CCA shall appoint new counsel to represent applicant and establish a new date for the application to be filed in the convicting court. CCA dismissed applicant’s pro se Motion to Amend the Petition for State Habeas Corpus, held his original habeas counsel in contempt of court, and entered an order denying him compensation under Section 2A.

Court’s PDR

Geick v. State, No. 1734-10 (Tex.Crim.App. 10/5/11); Affirmed (9–0)

        Appellant was indicted for theft by deception. At trial, the jury charge allowed for a conviction without limiting the manner in which the theft was committed. The jury found Appellant guilty “as charged in the indictment” and sentenced him to 3 years in prison with a $10,000 fine. COA acquitted Appellant, finding no evidence of deception. CCA refused the State’s PDR, but granted review on its own grounds: Did COA err in requiring the State to prove theft by deception, where deception was alleged in the indictment?

        HELD: When the State unnecessarily pleads a statutory definition that narrows the manner and means in which an offense may be committed, that definition is “the law as authorized by the indictment,” and thus the allegation must be proved beyond a reasonable doubt. Because here the State unnecessarily pled that the theft was by deception but provided no proof of deception, the evidence was insufficient to support a conviction.

State’s PDR

State v. Davis, No. 0042-11 (Tex.Crim.App. 10/5/11); Reversed, remanded (9–0)

        Appellee pled guilty to burglary of a habitation with intent to commit aggravated assault and was sentenced to 15 years’ imprisonment. He subsequently filed a Motion for Reconsideration or Reduction of Sentence. The trial court granted his motion, without a hearing, and reduced the sentence to 12 years. Three days later, the trial court signed a second judgment reducing his sentence to 12 years. There is no record of an oral pronouncement of the modified sentence in the presence of all the parties. The State appealed, arguing that the trial court’s second judgment was void because the sentence was not pronounced in open court with the parties present. COA affirmed the order reducing Appellee’s sentence.

        HELD: While the trial court had authority to set aside the sentence because Appellee’s motion was timely filed and the effect of the order granting that motion was functionally equivalent to granting a new trial on punishment, Appellee was not properly sentenced because he was sentenced outside the presence of his attorney or the State. Thus, the trial court should resentence Appellee.

Appellant’s & Court’s PDRs

Adames v. State, No. 1126-10 (Tex.Crim.App. 10/5/11); Affirmed COA, remanded to trial court (9–0)

        In connection with an aggravated kidnapping, Appellant was charged with capital murder. The jury convicted Appellant of capital murder, and the trial court automatically sentenced Appellant to life imprisonment without parole. COA found that the evidence is legally sufficient to support Appellant’s conviction as a party to capital murder, but that the jury charge was erroneous as the application paragraph did not include instructions necessary for the jury to find Appellant guilty as a party. “The actual charge at trial charged him with that offense [capital murder] as a primary actor but, as a party, only with respect to the underlying aggravated kidnapping.”

        CCA granted Appellant’s PDR to determine whether COA erred in refusing to review Appellant’s issues regarding legal insufficiency under the Due Process Clause of the 14th Amendment to the U.S. Constitution, as required by Jackson v. Virginia, 443 U.S. 307 (1979). CCA granted an additional ground, on its motion, to decide whether COA erred in failing to distinguish between a sufficiency review under Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997), an independent state ground for review, and Jackson, a federal constitutional review.

        HELD: Both the state and federal standards measure the sufficiency of the evidence against the elements of the offense, as in a hypothetically correct jury charge; they diverge, however, in distinguishing between “substantive elements,” the only elements used in a Jackson analysis, and the Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App 2011), “elements of the offense as defined by the hypothetically correct jury charge.” The hypothetically correct jury charge may include elements that must be in the charging instrument under Texas procedural rules, such as the manner and means of an offense, but which lie outside the Texas Penal Code and are not “substantive elements as defined by state law” for a Jackson review.

        Malik and its progeny, including Gollihar, established that an appellate court should apply the Jackson standard to the hypothetically correct jury charge. As such, COA did not fail to distinguish between sufficiency reviews under Malik and Jackson. COA correctly applied the Jackson standard and found the evidence legally sufficient to support Appellant’s conviction.

Appellants’ PDRs

Tillman v. State, No. 0727-10 (Tex.Crim.App. 10/5/11); Reversed, remanded (9–0)

        Appellant was convicted of capital murder by a jury and given the automatic punishment of life in prison. COA affirmed. Appellant argues that the trial court improperly excluded testimony by Psychologist Malpass about the reliability of eyewitness identifications, because the testimony was relevant and reliable as it satisfied the three requirements of Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App. 1998), for “soft sciences.”

        HELD: Under Nenno, the proponent of the evidence must establish that (1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes the principles involved in that field. CCA believes that psychology is a legitimate field of study, and that the study of the reliability of eyewitness identification is a legitimate subject within the area of psychology. The third prong is satisfied by Malpass’ extensive experience in eyewitness research.

        As for the relevancy challenge, while jurors might have their own notions about the reliability of eyewitness identification, that does not mean they would not be aided by the findings of a trained psychologist on the issue. Furthermore, Malpass’ testimony is sufficiently tied to the facts of this case. CCA’s conclusion is not undermined by the fact that Malpass was not present during the testimony of several witnesses.

Rushing v. State, No. 0727-10 (Tex.Crim.App. 10/5/11); Affirmed (9–0)

        Appellant was convicted of aggravated sexual assault of a child and other sex offenses. The State successfully sought an automatic-life enhanced sentence using Appellant’s prior court-martial convictions under the Uniform Code of Military Justice (UCMJ) for carnal knowledge and indecent acts with a child. Tex. Penal Code § 12.42(c)(2)(B)(v) provides that if it is shown that the defendant convicted of aggravated sexual assault has previously been convicted “under the laws of another state containing elements that are substantially similar to the elements” of indecency with a child, sexual assault, aggravated sexual assault, or other enumerated offenses, the defendant shall be sentenced to life imprisonment. COA held that because the “UCMJ is subject to the legislative authority of the United States,” Appellant’s sentence was not unlawfully enhanced.

        HELD: Under the definition of “state” in Tex. Government Code § 311.005(7), Appellant’s sentence was properly enhanced to life imprisonment under Section 12.42(c)(2)(B)(v). Convictions “under the laws of another state” in Section 12.42(c)(2)(B)(v) includes prior convictions under the UCMJ, regardless of the serviceperson’s geographical location. Therefore, a prior UCMJ conviction constitutes “conviction[s] under the laws of another state” for purposes of Section 12.42(c)(2)(B)(v).

Soliz v. State, No. 0117-11 (Tex.Crim.App. 10/5/11); Affirmed (8–1)

        Appellant was indicted for continuous sexual abuse of a young child under Jessica’s Law (Tex. Penal Code § 21.01). Without objection from Appellant, the offense of aggravated sexual assault was submitted to the jury as a lesser-included offense. The jury found Appellant not guilty of continuous sexual abuse of a young child, but guilty of aggravated sexual assault.

        HELD: The trial judge makes an initial determination of whether, as a matter of law, an offense qualifies as a lesser-included offense; the judge then decides whether the lesser offense was raised by the evidence. Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007). Appellant claimed Jessica’s Law created an exception to this analysis and requires the jury to deliberate whether a submitted lesser offense is in fact a lesser-included offense of the crime charged; CCA disagreed. Subsection (e) of Jessica’s Law declares that “an offense listed under Subsection (c)” of the law “is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (b).” There­fore, to the extent that a continuous-sexual-abuse indictment alleges certain specific offenses, an “offense listed under Subsection (c)” of Jessica’s Law will always meet the first step of the Hall analysis. Unlike cases in which the lesser offense is not actually listed in the indictment (e.g., criminally negligent homicide in a murder indictment), continuous sexual abuse is, by its very definition, the commission under certain circumstances of two or more of the offenses listed in Subsection (c). The inclusion of “considered by the trier of fact to be” ensures that the lesser-included offense was actually submitted to the jury, considered by the jury, and found to be true.

Ouellette v. State, No. 1722-10 (Tex.Crim.App. 10/12/11); Affirmed (6–2)

        Appellant was charged by information with DWI “by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body” after rear-ending a car. The trial court’s charge repeated that language, and the jury convicted her. COA affirmed.

        CCA granted review to answer the following: “In a driving while intoxicated case, where the evidence is legally sufficient to support a conviction on the theory that the defendant was intoxicated by . . . alcohol . . . is it proper for the trial court, in its charge, to also authorize a conviction on an alternative theory that the defendant was intoxicated by . . . a drug, or a combination of alcohol and a drug . . . where the evidence merely shows that medications prescribed for the defendant were found in her car . . . ?”

        HELD: The jury charge reflected the law as it applied to the evidence produced at trial. Appellant appeared intoxicated, police found in her vehicle a drug that could have produced the observed symptoms of intoxication, and she refused a blood test. While there was no direct evidence that Appellant consumed the drug discovered by the officer, there was enough evidence from which a rational juror could have found that she did.

Sweed v. State, No. 0273-10 (Tex.Crim.App. 10/19/11); Reversed, remanded (8–0)

        Appellant was indicted for the felony offense of aggravated robbery, enhanced with two prior felony convictions. The trial court denied Appellant’s requested jury instruction on the offense of theft. The jury found Appellant guilty of aggravated robbery and assessed punishment at 38 years’ confinement. CCA granted Appellant’s PDR to review the application of the second step of the lesser-included-offense analysis. Tex. Code Crim. Proc. art. 37.09.

        HELD: CCA assumed that the first step of the analysis is satisfied (i.e., that the lesser-included offense of theft is included within the proof necessary to establish the charged offense of aggravated robbery)and held that the second step is also met as there was trial evidence that supported giving a theft instruction. To prove aggravated robbery, the State must prove robbery plus an aggravating factor, such as the defendant “uses or exhibits a deadly weapon.” The robbery element of “in the course of committing theft” is defined as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” If “in the course of committing theft” could not be proven at trial, then the theft and the assault were separate events, and Appellant could not be found guilty of robbery or aggravated robbery. Consequently, be­cause Appellant did not dispute that he committed theft, the central issue at trial was whether Appellant pulled a knife on the victim. CCA found that there is enough evidence from which the jury could have reasonably determined that theft is a valid, rational alternative to aggravated robbery.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Sanchez v. State, No. 01-10-00433-CR (Tex.App.—Hous­ton [1st Dist] 5/19/11)

        Judge of statutory county court, acting as a magistrate, did not have authority to issue a search warrant for drawing blood in a different county. “[U]nlike district judges, who may act for one another, with no geographical restrictions . . . no such grant of authority exists for statutory county court judges[.]”

Montgomery v. State, No. 14-09-00887-CR (Tex.App.—Houston [14th Dist] 6/2/11)

        D’s cell phone use at the time of auto accident insufficient to support conviction of criminally negligent homicide. “One of the State’s [expert witnesses] testified that he believed cell phone usage was a factor in a growing number of accidents and could have been a factor here, but he cited no data. . . . In addition to failing to present any evidence of an increased risk of death, the State also failed to present any evidence that such greater risk was generally known and disapproved of in the community. . . . Supported by additional scientific research and increased public awareness, Texans may one day determine that cell phone usage while operating a vehicle is morally blameworthy conduct that justifies criminal sanctions; however, the State failed to establish that such was the case in March 2008, at the time of this accident.”

Carmen v. State, No. 01-10-00124-CR (Tex.App.—Hous­ton [1st Dist] 6/30/11)

        State’s argument on punishment that “if [D] kills again, that is on you” permissible, despite D’s argument that it interjects new facts not on the record relating to D’s propensity to commit a future murder. “The State’s argument does not indicate the likelihood of such a future occurrence. It merely poses the hypothetical possibility that a person who has murdered once could do so again. The evidence at trial supports the State’s theory that [D] prepared for the murder by practicing firing the pistol, that [D] lay in wait in order to ambush his father when he arrived home after work, and that [D] showed no emotion or remorse after killing his father.”

Delacerda v. State, No. 01-09-00972-CR (Tex.App.—Hous­ton [1st Dist] 7/21/11)

        Officer’s testimony during murder prosecution regarding witness’ identification of person in photo array, as being the one present in the back of pickup truck involved in the shooting (this testimony occurred after witness’ testimony that he did not recall making such identification), fell within the hearsay exclusion for identifications. “We agree with the rationale of the Illinois Supreme Court and the District of Columbia Court of Appeals that limiting admissible testimony under the identification exclusion to the hearsay rule solely to the declarant’s naming of the identified individual and not allowing testimony regarding what the declarant identified the individual as doing is unduly restrictive.”

        Deemed proper was State’s commitment question during voir dire to determine whether venire could convict D in the absence of physical evidence if the State otherwise proved the elements of the offense beyond a reasonable doubt. “The questions did not attempt to commit the prospective jurors to a specific set of facts prior to the presentation of evidence at trial. Rather, the only fact that the questions included was the absence of physical evidence, such as DNA or fingerprinting evidence, and this fact was necessary to test whether a prospective juror possessed a bias against a phase of the law upon which the State was entitled to rely[.]”

State v. Dominguez, No. 01-10-00428-CR (Tex.App.—Houston [1st Dist] 7/28/11)

        An individual’s diet and cologne affects his odor; this finding was properly used to exclude, as unreliable, evidence of scent-discrimination lineup procedure in which three bloodhounds purportedly identified D’s scent on items from crime scene. Also deemed unreliable was dog handler’s opinion due, in part, to lack of oversight and verification of his test results. “[Dog handler] stated his task in interpreting the dogs’ alerts is subjective in nature. [State’s expert] stated it is up to the handler to decide whether the dog ‘alerted.’ Neither [State’s expert] nor [D’s expert] could discern the dog signals identifying an alert in a video demonstration of [dog handler’s] scent-discrimination lineup. . . . Finding 13 states that, unlike a dog’s alert to a bomb or to drugs, the matching of a scent in a lineup is not verifiable. Likewise, Finding 20 states that no laboratory analysis can verify the scent-discrimination lineup. The undisputed evidence at the hearing was that no analysis or instrument currently exists to verify the results of a scent-discrimination lineup, and that only the handler can verify that the dog has alerted to the correct scent.”

Hassan v. State, No. 14-10-00067-CR (Tex.App.—Hous­ton [14th Dist] 7/28/11)

        D raised inference of racial discrimination in jury selection, where State used its three strikes to remove two (of five) African-American venire members and one (of two) Asian venire members; State failed to rebut presumption of racial discrimination, despite the prosecutor’s testimony. “[T]he prosecutor testified that he exercised a strike on venire member 5, who is Asian, because she was a certified public accountant (CPA). The prosecutor stated that he never seats a person who works as a CPA on any jury. In his view, CPAs tend to overanalyze cases. . . . Therefore, the prosecutor offered a race-neutral reason for striking one of the two Asian venire members. . . . The prosecutor also testified at the Batson hearing that, in examining the 2005 trial record, he could not recall why he struck venire member 2 and venire member 8. . . . In response to cross-examination questions, the prosecutor likewise could not recall anything specific about these particular venire members, though he added, ‘I can tell you without a doubt that I never struck a [potential] juror for an improper reason including race or sex. While I cannot sit here and tell you today why they were struck, I can tell you with certainty they were not struck for any improper reason.’ A prosecutor may not rebut the presumption merely by denying that he had a discriminatory motive or by ‘affirming his good faith in individual selections.’”

Committee Reports

Young Lawyers Committee

The mission of the TCDLA Young Lawyers Committee is to advance the professional education and welfare of young lawyers, to involve young lawyers in serving the community, to promote fellowship among the members, to serve as a forum for the exchange of ideas while focusing on the specific needs of young lawyers, and to promote the goals and values of the Texas Criminal Defense Lawyers Association.

Five Tips for New Lawyers

WORK YOUR RESOURCES. Join TCDLA and/or your local criminal defense organization. The resources are limitless. These forums provide advice, answers to questions, transcripts, knowledge of judges and staff, etc.

WATCH AND LEARN. Go to the courthouse whenever you have time and watch as many trials and hearings as you can. Watching is a great way to learn what works and what doesn’t.

BE VULNERABLE. Ask questions, volunteer for projects, get up in seminars, give your all at breakout sessions, say hello to everyone, try the tough cases, don’t be afraid to be afraid.

BE BRAVE. Never be afraid to try a case to a jury. After all, as a young lawyer, you won’t win your spurs by pleading everything out.

BE NICE. When it comes to court coordinators, clerks, bailiffs, even the security guards working the courthouse door, kindness goes a long way.

DWI Committee

By Lawrence G. Boyd

The TCDLA DWI Committee is one of the most active committees within TCDLA. We collaborate on four annual seminars that have been some of our most well-attended and profitable ventures, including “Mastering Scientific Evidence (MSE),” “Top Gun,” “The [Dallas area] DWI Defense Project,” and “The Stuart Kinard Memorial Advanced DWI Seminar.”

      Other than our educational goals, we have also devoted our time and energies to fighting bad legislation and to participating in public rule-making hearings in “unit actions.” On March 29, 2011, a dozen of our members from throughout the State appeared to provide testimony concerning a bill that would have gutted the defense of ALR hearings in “refusal” cases. Our President, Gary Trichter, and our Chief Lobbyist, Allen Place, provided leadership for this highly successful unit action. At the end of that hearing, the author withdrew the bill.

      The DWI Committee has reviewed, discussed, and made recommendations to our Legislative Committee and lobbyists during every legislature for many years. I remember the year 1999 and the 76th Legislature as being a particularly tough year, when many of us attended “Senate DWI Day” and testified before a packed hearing room. In the very front of the room stood easels with the portraits of four lovely young female victims who had been senselessly killed in a tragic accident with a drunk driver. Their families sat behind us, many of them understandably sobbing out loud.

      Testifying in favor of sane DWI laws under such circumstances required a trained cadre of members who could truly feel the pain of those families while also being able to understand, and articulate, why the worst possible tragedy shouldn’t cause us to enact senseless laws as an overreaction to that tragedy.

      In 2006, the DWI Committee responded to a set of proposed regulations from SOAH and demanded a public rule-making hearing in Austin. In our opinion, the 2006 rule proposals were beyond SOAH’s rule-making power and would have effectively gutted ALR defense. The DWI Committee submitted a set of Comments opposing the changes and fielded a contingent of members to attend the public rule-making hearing on May 31, 2006. After a lengthy hearing, and a “wow” closing statement by committee stalwart, Troy McKinney, SOAH completely withdrew the proposed regulations.

      In 2010, SOAH again proposed a new set of regulations. After much internal discussion, the DWI Committee agreed that we were not opposed to the bulk of the proposed regulations, but that those regulations would be acceptable with certain modifications. On February 26, 2010, your DWI Committee again fielded a delegation to comment on the proposed regulations. Many of our comments found their way into SOAH’s official comments adopting the rules. We got much of what we wanted and a workable set of rules for ALR hearings.

      George Scharmen came up with our mission statement, displaying his usual flair and creativity: “Promoting excellence in ALR and DWI defense through legislation, education, and informed representation pursuant to the U.S. and Texas Constitutions.” Our goals for the coming year will consist of the following: 1. fighting back bad legislation and administrative rule-making; 2. reviewing and disseminating all appellate decisions relating to DWI and ALR in order to educate our members and determine the need to intervene and to assist other lawyers who are involved in appeals involving significant issues relating to the defense of DWI cases; and 3. better communication among Course Directors as to topics, dates, and speakers for DWI seminars.

            Members who volunteer for the DWI Committee should not have thin skins. You should be prepared to defend your ideas and to face tough questioning from your fellow committee members. However, the defense of a DWI is not for lightweights. If your legal and scientific theories can pass the crucible of your fellow committee members’ criticism, then you might be ready to present them to an appellate court. This is a “hot” committee, and we are always looking for new members who want to further our mission.

Changes to 46B: Harmonizing HB 748 and HB 2725 – Part II

Art. 46B.071. Options on Determination of Incompetency


(a)  Except as provided by Subsection (b), on [On] a determination that a defendant is incompetent to stand trial, the court shall:

(1)  commit the defendant to a facility under Article 46B.073; or

(2)  release the defendant on bail under Article 46B.072.

(b)  On a determination that a defendant is incompetent to stand trial and is unlikely to be restored to competency in the foreseeable future, the court shall:

(1)  proceed under Subchapter E or F; or

(2)  release the defendant on bail as permitted under Chapter 17.

The issue of lack of foreseeability impacts outcome upon such a finding by the court . In this circumstance, required is either civil commitment with charges pending under Subchapter E, or transfer with charges having been dismissed under Subchapter F. Art. 46B.071 would, however, apply only in those cases where the defendant has not yet served the combination of jail time plus any hospitalization equal to the maximum sentence for the act with which charged.

This section may be a section that will result in appellate review based upon Jackson v. Indiana, 406 U.S. 715 (1972). Jackson was a case of a mentally retarded deaf mute who the court held could not be committed indefinitely save under strictly civil statutes because of an equal protection challenge. The Supreme Court noted that he was subject to a more lenient standard for commitment and a more stringent standard for release than those in strictly civil circumstance, which was impermissible. Similarly, 46B.103—though it is a “civil” commitment—would invoke an indefinite commitment, and while procedurally under civil rules, this type of commitment has significant differences from commitments strictly civil: namely that release from 46B.102/.103 commitments is not effectuated by mere discharge by the attending physician as other civil commitments.

Rather, the criminal court has power to review and veto any proposed discharge. Thus, the revisions to 46B.071 might be subject to a Jackson challenge—though whether such would be successful is not at all clear. The contrary argument is that the criteria for commitment are civil, and that even under such a commitment, the person could not remain longer than the maximum period of time as described in 46B.0095. In any event, such a circumstance should precipitate consultation with one’s appellate section.

Consider the case of a defendant adjudicated incompetent and not restored, and then opined “not foreseeably likely to be restored”—subjected to either 46B.102/103 commitment or transferred under 46B.151—but ultimately released. In his next case, there is now a presumption of incompetency, i.e., there is an unvacated adjudication of incompetency. In this second case, absent any intervening conviction, the State bears the burden to prove competency “beyond a reasonable doubt.” Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). Whether there would be warrant to continue to pursue charges in such a circumstance is an interesting issue, as well as is whether to again seek restoration treatment. Both are well beyond the scope of this writing; but again, requiring collegial consultation. Careful review of 46B.073, however, reveals that a 46B.073 commitment requires treatment toward the “specific objective of regaining competency” and if the defendant is found unlikely to regain competency in the foreseeable future, then in the interests of economy, other alternatives might be considered.

Art. 46B.072. Release on Bail

Art. 46B.072. RELEASE ON BAIL. (a) This article applies only to a defendant who is subject to an initial restoration period based on Article 46B.071.

(a-1)       Subject to conditions reasonably related to assuring public safety and the effectiveness of the defendant’s treatment, if the court determines that a defendant found incompetent to stand trial is not a danger to others and may be safely a on an outpatient basis with the specific objective of attaining competency to stand trial and if an appropriate outpatient treatment program is available for the defendant, the court:

(1)  may release on bail a defendant found incompetent to stand trial with respect to a felony or may continue the defendant’s release on bail; and

(2)  shall release on bail a defendant found incompetent to stand trial with respect to a misdemeanor or shall continue the defendant’s release on bail.

(b)  The court shall order a defendant released on bail under Subsection (a-1) [(a)] to participate in an outpatient treatment program for a period not to exceed 120 days.

(c)  Notwithstanding Subsection (a-1) [(a)], the court may order a defendant to participate in an out­patient treatment program under this article only if:

(1)  the court receives and approves a comprehensive plan that:

(A)  provides for the treatment of the defendant for purposes of competency restoration; and

(B)  identifies the person who will be responsible for providing that treatment to the defendant; and

(2)  the court finds that the treatment proposed by the plan will be available to and will be provided to the defendant.

(d)  An order issued under this article may require the defendant to participate in:

(1)  as appropriate, an outpatient treatment program administered by a community center or an outpatient treatment program administered by any other entity that provides outpatient competency restoration services; and

(2)  an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086.

This article is, in some ways, only nominally useful. Persons adjudicated incompetent are uncommonly able to participate effectively in a truly “outpatient” program—which lacks the structure to provide food, clothing, shelter, as well as control of a defendant’s ingestion of alcohol or illegal substances. Nor is there means of ensuring medication compliance. If a defendant is adjudicated incompetent, given that competency is a very low standard to achieve, he/she more than likely needs inpatient treatment. This issue arouses little anxiety simply because in Harris County there are no outpatient programs, and very few existent within the state. Moreover, merely releasing a defendant to conventional mental health treatment is not the equivalent of providing restoration treatment: The two should not be confused, as the latter is highly structured, based upon a model accepted nationally, and includes an educational or cognitive component in addition to conventional treatment.

Article 46B.073. Commitment for Restoration


(a)  This article applies only to a defendant not released on bail who is subject to an initial restoration period based on Article 46B.071.

(b)  For further examination and treatment toward the specific objective of the defendant attaining competency to stand trial, the [The] court shall commit a defendant described by Subsection (a) to a mental health facility or residential care facility for the applicable [a] period as follows:

(1)  a period of not more than 60 days, if the defendant is charged with an offense punishable as a misdemeanor; or

(2)  a period of not more than 120 days, if the defendant is charged with an offense punishable as a felony [not to exceed 120 days for further examination and treatment toward the specific objective of attaining competency to stand trial].

(c)  If the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6), or the indictment alleges an affirmative finding under Section 3g(a)(2), Article 42.12, the court shall enter an order committing the defendant to the maximum security unit of any facility designated by the department, to an agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.

(d)  If the defendant is not charged with an offense described by Subsection (c) and the indictment does not allege an affirmative finding under Section 3g (a)(2), Article 42.12, the court shall enter an order committing the defendant to a mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.

As noted earlier, a restoration commitment is made for treatment “toward the specific objective of the defendant attaining competency to stand trial.” The radical change in this article, however, has to do with the reduction in the period of commitment from 120 days to 60 days for an initial restoration period—applying only to misdemeanants and not to felony defendants. Note that if a defendant had a pending felony and was committed for restoration, in order to ensure that the restoration period was 120 days with a possible 60-day extension, the commitment would need to be related to the felony case and not the misdemeanor only.

While it was pointed out earlier that a local restoration program in Harris County effectuated restoration in less than 60 days, the average restoration period in Rusk State Hospital is slightly less than 100 days. This is because at least 60 days of that period is devoted to initial stabilization—and while not necessary for defendants from Harris County who have 24/7 psychiatric services in the jail, the larger number of smaller counties have no similar services. Thus, their defendants arriving at the state hospital with a psychiatric condition are far less stable than defendants from Harris County who have been treated since booking. But, unless the state hospital dramatically changes their structure for delivery of restoration services, the Class B misdemeanants—if sent—will likely not be restored in 60 days.

Article 46B.0755. Procedures on Credible Evidence of Immediate Restoration


(a)  Notwithstanding any other provision of this subchapter, if the court receives credible evidence indicating that the defendant has been restored to competency at any time after the defendant’s incompetency trial under Subchapter C but before the defendant is transported under Article 46B.075 to a mental health facility, residential care facility, or outpatient treatment program, as applicable, the court may appoint disinterested experts to reexamine the defendant in accordance with Subchapter B. The court is not required to appoint the same expert or experts who performed the initial examination of the defendant under that subchapter.

(b)  If after a reexamination of the defendant the applicable expert’s report states an opinion that the defendant remains incompetent, the court’s order under Article 46B.072 or 46B.073 remains in effect, and the defendant shall be transported to the facility or outpatient treatment program as required by Article 46B.075. If after a reexamination of the defendant the applicable expert’s report states an opinion that the defendant has been restored to competency, the court shall withdraw its order under Article 46B.072 or 46B.073 and proceed under Subsection (c) or (d).

(c)  The court shall find the defendant competent to stand trial and proceed in the same manner as if the defendant had been found restored to competency at a hearing if:

(1)  both parties agree that the defendant is competent to stand trial; and

(2)  the court concurs.

(d)  The court shall hold a hearing to determine whether the defendant has been restored to competency if any party fails to agree or if the court fails to concur that the defendant is competent to stand trial. If a court holds a hearing under this subsection, on the request of the counsel for either party or the motion of the court, a jury shall make the competency determination. For purposes of the hearing, incompetency is presumed, and the defendant’s competency must be proved by a preponderance of the evidence. If after the hearing the defendant is again found to be incompetent to stand trial, the court shall issue a new order under Article 46B.072 or 46B.073, as appropriate based on the defendant’s current condition.

This article is a new article and but provides a procedure with which to deal with the case that either spontaneously, or with treatment, restores in the jail prior to being transported for restoration under 46B.075. Allowed is re-examination either by the same examiner, or another. Note that the article appears to permit the court to find a defendant competent if the parties agree—or after a hearing—regardless of the expert’s opinion. That is, while the expert’s opinion is necessary, it is not solely a matter for the expert to conclude. This is reminiscent of the court’s language in Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978), in which the court stated pithily (though about sanity):

The issue is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate issue, are not capable of dictating determination of that issue. Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. That ultimate issue of criminal responsibility is beyond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.

Art. 46B.077. Individual Treatment Program

This section includes a minor addition that the restoration program to which the defendant is committed has a duty to assess and evaluate whether the defendant is likely to be restored in the foreseeable future.

Art. 46B.079


(a)  The head of the facility or the provider of the outpatient treatment program, as appropriate, not later than the 15th day before the date on which the initial [a] restoration period is to expire according to the terms of the order or under Article 46B.0095 or other applicable provisions of this chapter, shall notify the applicable court that the [restoration] period is about to expire.

(b)  The head of the facility or outpatient treatment program provider shall promptly notify the court when the head of the facility or outpatient treatment program provider believes that:

(1)  the defendant has attained competency to stand trial; or

(2)  the defendant is not likely to [will not] attain competency in the foreseeable future.

(c)  When the head of the facility or outpatient treatment program provider gives notice to the court under Subsection (a) or (b), the head of the facility or outpatient treatment program provider also shall file a final report with the court stating the reason for the proposed discharge under this chapter and including a list of the types and dosages of medications prescribed for [with which] the defendant [was treated for mental illness] while the defendant was in the facility or participating in the outpatient treatment program. To enable any objection to the findings of the report to be made in a timely manner under Article 46B.084(a), the court shall provide copies of the report to the attorney representing the defendant and the attorney representing the state.

(d)  If the head of the facility or outpatient treatment program provider notifies the court that the initial restoration period is about to expire, the notice may contain a request for an extension of the period for an additional period of 60 days and an explanation for the basis of the request. An explanation provided under this subsection must include a description of any evidence indicating a reduction in the severity of the defendant’s symptoms or impairment.

This modification places a duty on the facility to notify the court within 15 days before the restoration period is to expire “according to the terms of the order or under Article 46B.0095 or other applicable provisions of this chapter”—which might well be before the 60/120 period of restoration or the 60-day extension has expired. As well, the facility shall submit a report whenever the facility has reason to believe that the defendant has attained competency or is not likely to attain competency in the foreseeable future.

Art. 46B.080. Extension of Order


(a)  On a request of the head of a facility or a treatment program provider that is made under Article 46B.079(d) and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period for an additional period of 60 days.

(b)  The court may enter an order under Subsection (a) only if the court determines that [, on the basis of information provided by the head of the facility or the treatment program provider]:

(1)  the defendant has not attained competency; and

(2)  an extension of the initial restoration period will likely enable the facility or program to restore the defendant to competency within the period of the extension.

(c)  The court may grant only one 60-day extension under this article in connection with the specific offense with which the defendant is charged [for a period of restoration ordered under this subchapter].

As mentioned at several points, a facility may request an additional 60 period for restoration, but only if it is believed that the defendant will regain competency during the extension period.

Art. 46B.084. Proceedings on Return of Defendant


(a)  On the return of a defendant to the court, the court shall make a determination with regard to the defendant’s competency to stand trial. The court may make the determination based [solely] on the report filed under Article 46B.079(c) and on other medical information or personal history information relating to the defendant. A[, unless any] party may object [objects] in writing or in open court to the findings of the report not later than the 15th day after the date on which the court received notification under Article 46B.079. The court shall make the determination not later than the 20th day after the date on which the court received notification under Article 46B.079, regardless of whether a party objects to the report as described by this subsection and the issue is set for hearing under Subsection (b).

(b)  If a party objects under Subsection (a), the issue shall be set for a hearing. The hearing is before the court, except that on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury.

(b-1) If the hearing is before the court, the hearing may be conducted by means of an electronic broadcast system as provided by Article 46B.013. Notwithstanding any other provision of this chapter, the defendant is not required to be returned to the court with respect to any hearing that is conducted under this article in the manner described by this subsection.

(c)  Repealed by Acts 2007, 80th Leg., R.S., Ch. 1307, Sec. 21, eff. September 1, 2007.

(d)  If the defendant is found competent to stand trial, criminal proceedings against the defendant may be resumed.

(e)  If the defendant is found incompetent to stand trial and if all charges pending against the defendant are not dismissed, the court shall proceed under Subchapter E.

(f)   If the defendant is found incompetent to stand trial and if all charges pending against the defendant are dismissed, the court shall proceed under Subchapter F.

This section again clarifies that the court is not dependent solely upon the report of the examiner in order to determine competency. Objections to the content of the report, however, must be made within 20 days of the notification to the court concerning the defendant’s status.

Art. 46B.086. Court-ordered Medications


(a) This article applies only to a defendant:

(1)  who is determined under this chapter to be incompetent to stand trial;

(2) who either:

(A)  remains confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting transfer to an inpatient mental health facility, a residential care facility, or an outpatient treatment program;

(B)  is committed to an inpatient mental health facility or a residential care facility for the purpose of competency restoration;

(C)  is confined in a correctional facility while awaiting further criminal proceedings following competency restoration treatment; or

(D)  is subject to Article 46B.072, if the court has made the determinations required by Subsection (a-1) [(a)] of that article;

(3)  for whom a correctional facility that employs or contracts with a licensed psychiatrist, an inpatient mental health facility, a residential care facility, or an outpatient treatment program provider has prepared a continuity of care plan that requires the defendant to take psychoactive medications; and

(4)  who, after a hearing held under Section 574.106, Health and Safety Code, if applicable, has been found to not meet the criteria prescribed by Sections 574.106(a) and (a-1), Health and Safety Code, for court-ordered administration of psychoactive medications.

(b)  If a defendant described by Subsection (a) refuses to take psychoactive medications as required by the defendant’s continuity of care plan, the director of the correctional facility or outpatient treatment program provider, as applicable, shall notify the court in which the criminal proceedings are pending of that fact not later than the end of the next business day following the refusal. The court shall promptly notify the attorney representing the state and the attorney representing the defendant of the defendant’s refusal. The attorney representing the state may file a written motion to compel medication. The motion to compel medication must be filed not later than the 15th day after the date a judge issues an order stating that the defendant does not meet the criteria for court-ordered administration of psychoactive medications under Section 574.106, Health and Safety Code, except that, for a defendant in an outpatient treatment program, the motion may be filed at any time.

(c)  The court, after notice and after a hearing held not later than the 10th day after the motion to compel medication is filed [fifth day after the defendant is returned to the committing court], may authorize the director of the correctional facility or the program provider, as applicable, to have the medication administered to the defendant, by reasonable force if necessary. A hearing under this subsection may be conducted using an electronic broadcast system as provided by Article 46B.013.

(d)  The court may issue an order under this article only if the order is supported by the testimony of two physicians, one of whom is the physician at or with the applicable correctional facility or outpatient treatment program who is prescribing the medication as a component of the defendant’s continuity of care plan and another who is not otherwise involved in proceedings against the defendant. The court may require either or both physicians to examine the defendant and report on the examination to the court.

(e)  The court may issue an order under this article if the court finds by clear and convincing evidence that:

(1)  the prescribed medication is medically appropriate, is in the best medical interest of the defendant, and does not present side effects that cause harm to the defendant that is greater than the medical benefit to the defendant;

(2)  the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

(3)  no other less invasive means of obtaining and maintaining the defendant’s competency exists; and

(4)  the prescribed medication will not unduly prejudice the defendant’s rights or use of defensive theories at trial.

(f)   A statement made by a defendant to a physician during an examination under Subsection (d) may not be admitted against the defendant in any criminal proceeding, other than at:

(1)  a hearing on the defendant’s incompetency; or

(2)  any proceeding at which the defendant first introduces into evidence the contents of the statement.

(g)  For a defendant described by Subsection (a)(2)(A), an order issued under this article:

(1)  authorizes the initiation of any appropriate mental health treatment for the defendant awaiting transfer; and

(2)  does not constitute authorization to retain the defendant in a correctional facility for competency restoration treatment.

Modifications to this section but extend the period of time in which to hold a hearing on a motion to compel from five to ten days.

The issue of court-ordered medications is, however, very cumbersome—requiring a two-step process of seeking authorization in a civil court; only after failure in such a proceeding may 46B.086 be invoked. Discussion of that issue is beyond the scope of this writing. However, it is important to add that HB 748 amends the Health & Safety Code in a significant manner:

Section 574.110(b), Health and Safety Code, is amended to read as follows:

(b)  An order issued under Section 574.106 for a patient who is returned to a correctional facility, as defined by Section 1.07, Penal Code, to await [awaiting] trial in a criminal proceeding continues to be in effect until the earlier of the following dates, as applicable:

(1)  the 180th day after the date the defendant was returned to the correctional facility;

(2)  [expires on] the date the defendant is acquitted, is convicted, or enters a plea of guilty; or

(3)  the date on which charges in the case are dismissed. [An order continued under this subsection shall be reviewed by the issuing court every six months.]

The foregoing section is not included in HB 2725 whatsoever, but has helpful implications for management of a defendant who needs, but is refusing, psychoactive medication. The section referenced is Tex. Health & Safety Code § 574.106—which is the statute delineating procedures for pursuit of court-ordered medications through the Probate Courts. With this modification, should the state hospital seek a court order to authorize administration of psychoactive medications to a person adjudicated incompetent and receiving restoration treatment, then, if granted, that order would “follow” the defendant back to Harris County and remain valid for 180 days. The impetus for this modification are the cases in which persons are stabilized on medication while receiving restoration treatment but then refuse medication upon return to the county, virtually ensuring that the person would again decompensate and become incompetent. And given that there is but one opportunity for restoration (see art. 46B.085), such would delay proceedings unnecessarily, if not provoke dismissal.

Art. 46B.101. Applicability (Relating to Civil Commitment with Charges Pending)

Art. 46B.101. APPLICABILITY. This subchapter applies to a defendant against whom a court is required to proceed according to [under] Article 46B.084(e) or according to the court’s appropriate determination under Article 46B.071.

This section references the criteria for civil commitment by the criminal court as delineated in 46B.084(e) or 46B.071. Art. 46B.084(e) reads:

If the defendant is found incompetent to stand trial and if all charges pending against the defendant are not dismissed, the court shall proceed under Subchapter E.

On the other hand, Art. 46B.071, as earlier described, permits reliance on this subchapter for persons found incompetent but unlikely to be restored in the foreseeable future—and authorizes civil commitment (albeit under the procedures of the Health & Safety Code).

Art. 46B.151. Court Determination Related to Civil Commitment


(a)  If a court is required by Article 46B.084(f) or by its appropriate determination under Article 46B.071 to proceed under this subchapter, or if the court is permitted by Article 46B.004(e) to proceed under this subchapter, the court shall determine whether there is evidence to support a finding that the defendant is either a person with mental illness or a person with mental retardation.

(b)  If it appears to the court that there is evidence to support a finding of mental illness or mental retardation, the court shall enter an order transferring the defendant to the appropriate court for civil commitment proceedings and stating that all charges pending against the defendant in that court have been dismissed. The court may order the defendant:

(1)  detained in jail or any other suitable place pending the prompt initiation and prosecution by the attorney for the state or other person designated by the court of appropriate civil proceedings to determine whether the defendant will be committed to a mental health facility or residential care facility; or

(2)  placed in the care of a responsible person on satisfactory security being given for the defendant’s proper care and protection.

(c)  Notwithstanding Subsection (b), a defendant placed in a facility of the department pending civil hearing under this article may be detained in that facility only with the consent of the head of the facility and pursuant to an order of protective custody issued under Subtitle C, Title 7, Health and Safety Code.

(d)  If the court does not detain or place the defendant under Subsection (b), the court shall release the defendant.

This is a minor modification permitting art. 151 transfers to a court having civil mental health jurisdiction of persons with reference to whom all charges were dismissed. There is a clause in 46B.004 that 151 transfers are possible only if “there is evidence to support a finding of the defendant’s incompetency.” The importance of this clause is as follows: First, a 151 transfer creates a rare exception to the authority of a court to order a defendant held in jail—with no charges pending—for a reasonable period pending transfer to a court with probate (i.e., mental health) jurisdiction. Second, then, in a case wherein a defendant was restored, pled out, or received a sentence of time served, but was mentally ill, and necessity existed for continued court-ordered mental health services, no authority would exist for the person to be held in jail after dismissal of the charges—as is the case in 151 transfers. Rather, careful management of release would involve filing an application for court-ordered mental health services and timing the dismissal to coincide with the person’s being transported to a mental health facility.

IV. Conclusion

First, harmonization of HB 748 and HB 2725 appears quite possible as there are no obviously irreconcilable sections.

Second, the most fundamental changes have to do with reduction of the number of days permitted for restoration commitments, and the requirement that even with a combination of jail and restoration treatment, a person may serve no period of time greater than the maximum sentence for the act with which charged. This issue, however, will have effect largely, if not solely, in Class B misdemeanor cases.

Click Here to Read Part I

Faith in the Law – A War Story

 As an attorney, Democrat, and Episcopalian, I am characteristically reluctant to talk openly about my faith. But here, in the “Bible Belt,” people bring their faith into the courtroom, admittedly or not. Judges do it; jurors do it; parties do it; the lawyers do it too. Even so, as trial lawyers, we’re often afraid to discuss religion because of the perceived risk that we may offend and alienate jurors. I’m no longer afraid. Texas is home to some of the largest churches and highest church-attendance rates in the country. Texans are very comfortable talking about their faith—and yours too, if you let them.

        Rather than avoid matters of faith in trial, I embrace them, and incorporate scripture that intersects with the law or facts of my case into voir dire. Two matters, in particular, have a frequent place in my criminal trials—the Ninth Commandment’s prohibition against bearing false witness and the beatitude of mercy. But how I overcame my fear and found the strength to first discuss the Ninth Commandment in voir dire may have been the result of divine intervention.

        I began thinking about using the Ten Commandments in trial after a conversation with a friend who has labored for years to erect memorials to the Ten Commandments at courthouses around the country. One day on the phone, he asked what I thought about his work. I told him they were going about it wrong and should focus on having plaques of the Ninth Commandment placed in every courtroom in America, because witnesses in cases about the others lied all the damn time. He said he’d stick with all ten.

        A few weeks later I was preparing for voir dire in a case where the facts did not allow me to argue that the police, while sincere in their beliefs, were mistaken. As any lawyer who has been to a David Burrows seminar may recall, reasonable doubt is more frequently found when jurors have the option of believing someone is mistaken rather than lying. But, for my client’s defense to be plausible, the police had to be lying—a tough sell to a very red Harris County jury. So, I took a hard right turn. I find that to earn credibility with conservative jurors, one often has to take a page from Alcibiades and out-Spartan the Spartans. My sponsor was the rabbi on the panel.

        As I looked at the dozens of venirepersons on the benches before me, I saw a familiar face. In the middle of the second row was a rabbi who had taught one day of my Jewish Law class at the University of Houston Law Center eight years before. I promptly called on him, and said, “Rabbi, when I was in law school, Yale Rosenberg brought you in to teach a day of our class, and you said something I’ve never forgotten.”

        His face lit up, and he recalled: “Yes, I remember that. It was a lot of fun.” I had him, and, as I was soon to learn—he had everyone else on the panel. And I found the courage to bring faith into the courtroom.

        After he spoke, I chose another person and asked what they thought about the controversy overhanging the Ten Commandments in courthouses. They thought it was a good idea because people needed to know where the law came from and what was important. Other jurors nodded their head, and gave similar views.

        Smelling blood, I bit and said I thought it was a good idea, too, but for a little different reason. I, then, turned back to the rabbi and asked him what the Commandments said about witnesses. And he reminded us that there was a prohibition against bearing false witness against others. I claimed I couldn’t hear and had a couple of people, who I thought hadn’t been paying attention, repeat it back to me.

        Another venireman answered a question about what the other nine things were. I listed them, and asked what it said to them—that bearing false witness was so important that of all the things the ancients and the Almighty (a nod to the skeptical on the panel) could’ve written down, they picked false witness to be one of the ten—that it was as important as telling people not steal, kill, have false idols, and covet? That stirred some thoughts, but not a lot of talk.

        With a little prompting, the rabbi said that maybe it was because saying false things about people can cause them a lot of trouble, yet was easy to do compared to the others, one just talked. That made sense to the panel. After all, as another juror pointed out, not everyone has the tools to fashion a golden calf in the garage.

        I then told them what I told my friend, that I thought that the Ninth Commandment needed to be in all Courtrooms because it was the one most likely to be broken in courtrooms whereas the others were usually broken before anybody got there. That seemed to make sense to everyone but the judge and the prosecutors, as usual. No doubt they knew their own sins best. Focusing on a juror who had yet to speak, I asked him to tell us a story of a time when he was accused of doing something he didn’t do. He said he’d been accused of cheating in high school by another student. I asked if the person was lying or mistaken. He said the guy was lying and it was his word versus the other guy’s because it was a week after the test had been taken. I asked him how it felt, and he said frustrating and powerless. He didn’t know why the guy “lied on him.” I asked others to tell their stories. Many had one to tell. Some of them didn’t know why it happened to them, either.

        I inquired of each, considering their own experience, whether they needed to know why a witness might be lying to know that they were lying. Some said it was helpful, but as with many things in life, you may never know why. One man said, “sh%$ happens.” Everyone but the judge laughed. I found a way to strike the few people who needed to know why. As a safety, I used a scaled question that asked people their level of agreement with the statement, “A police officer is just as likely to be mistaken or dishonest as any other witness, including a defendant who testifies.”

        To my amazement, at the conclusion of voir dire, when it came time to make challenges for cause and peremptories, the state failed to strike the rabbi. At trial, the police were accused, by me, of lying (they were) about the circumstances of my client’s arrest. Then the Defendant and his brother-in-law both testified, convincingly. The rabbi was elected foreman of the jury. Less than an hour later, they returned an acquittal. They didn’t believe the police and didn’t like the prosecutors.

        Of the two assistant district attorneys on the case, one now hates my guts and the other became a close friend—introducing me to the woman I would later marry, yet another prosecutor. After the trial I asked my friend why they didn’t strike the rabbi. They said: “Why would we? We thought he would see your client was the one lying.” My personal rapport with him apparently didn’t bother them. I knew neither to be church­going folk.

        As we were all packing up to go home, one of the other jurors asked me what the rabbi had said in class that I had never forgotten. I told them he said: “People are always coming to me saying Rabbi, I never see God in my life. It seems like in the Torah he’s behind every bush and talking people’s ears off, but I don’t see him at all. I tell them that God has taught us in the same way one teaches a child to walk: At first you hold the child up, then by his hand, and then you step away and let the child come to you.”

        The other five jurors looked at him with wonder, and he addressed them: “I don’t know. I say so much it’s hard to remember, but it sounds like something I would say”—words I remember as well as his original statement.

            My client was acquitted, in part because I was able to harness our shared Judeo-Christian values to my client’s defense. No, God didn’t tell the jury to acquit. But the words of the Ninth Commandment reminded jurors that witnesses, in fact, lie. They didn’t need to take my word for it; they had it on higher authority.

November 2011 Complete Issue – PDF Download



22 | Five Tips for New Lawyers – By TCDLA Young Lawyers Committee
23 | The DWI Committee – By Lawrence G. Boyd
24 | Changes to 46B: Harmonizing HB 748 and HB 2725, Part II – By Floyd L. Jennings
32 | Faith in the Law: A War Story – By Q. Tate Williams
43 | Motion to Exclude Service Dog Accompanying the State’s Witness Before the Jury – By Jason D. Cassel

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: Our TCDLA Minutemen and Minutewomen – By J. Gary Trichter


It was on April 19, 1775, at places called Lexington and Concord, a shot was heard around the world that changed it forever. It was then and there that ordinary citizens, but not so ordinary men, chose to openly defy an unjust government by standing in defense of others. Having been forewarned by Paul Revere and Billy Dawes of the British Army’s plan to seize their arms and munitions, select members of the colonial partisan militia immediately responded as a strike force to stop the Red Coat advance. These patriots, who were both highly mobile and quick to deploy, were the “minutemen.”

TCDLA has its minutemen and minutewomen, too. They are our volunteer Strike Force, and just like the colonial minutemen, they have and will unselfishly interrupt their personal lives and promptly come to the aid of a TCDLA member in just need. Your TCDLA Force members have pre-committed to respond to an unjust threat to any of our membership.

Recently, our minutemen and minutewomen responded to requests for help against government threats to members in Beaumont and San Antonio. Our Strike Force leader, Mike Heiskell, authorized Houston committee members Joanne Musick and Robb Fickman to make Amicus appearances in Beaumont Municipal Court, where prosecutors were wrongly demanding contempt sanctions against one of our own. Joanne and Robb rearranged their schedules so they could be present at the scheduled contempt hearing. Being great lawyers, they spent many hours doing legal and factual research and in writing a brief in opposition to the government’s position. In the end, our Beaumont member’s request to have TCDLA stand with him was not only answered “yes”; but also the Strike Force carried the day as the court denied the government’s request for sanctions.

The San Antonio Strike Force matter was a more serious abuse of governmental power. There, the district attorney’s office offended both justice and our member. The short story is that the State executed a search warrant for records in a white-collar prosecution and seized boxes and boxes of documents. It also left and/or abandoned boxes and boxes of records deemed of no value to the prosecution. Our member retained the discarded records and very effectively utilized them in cross-examination of the government’s witnesses during the jury trial. Indeed, so effective was the impeachment that the prosecutors there asked the trial judge to order defense counsel to give them the records—that court denied the request. Not dismayed, the State then presented a disingenuous search warrant affidavit to another judge and received authorization to seize our lawyer’s trial file. The affiant alleged our member was a co-conspirator in the very case being tried, and was not forthcoming about the trial court judge’s previous denial of their records request. Shockingly, the State executed the warrant during the jury trial and took our member’s file.

Again, a request for Strike Force assistance was made and granted. This time your minutewomen was Cynthia Orr, another great lawyer and past president of both TCDLA and NACDL. She immediately began her factual and legal investigation and put together an outstanding Amicus brief. Along with legendary Gerry Goldstein, also past president of TCDLA and NACDL and who was Amicus for NACDL, Cynthia assembled a dream team of defense experts (past president of the National District Attorney’s Association, law professor, nationally noted lawyers). Another of our members, Michael Gross, was there as Amicus for the San Antonio Criminal Defense Lawyers Association (SACDLA). Interestingly, the motion for mistrial/new trial hearing was not a short one but went on for days. Indeed, it was continued and not yet scheduled when this article needed to be sent in to our editor for publication. That said, having watched part of the hearing and knowing the sand that these minutemen and minutewoman have, I predict that the great wrong done by the government will be corrected.

And so, our Strike Force members, like the original colonial minutemen, are real life HEROES! They are our HEROES! They have already volunteered to be ready in a minute to stop their work to help you! Do you know who they all are? Take a minute to look them up in the Voice or on line so you can thank them for their generosity and dedication to you—and to justice. Let them know you appreciate them! Remember, our STRIKE FORCE means you will never have to stand alone!

J. Gary Trichter
Your President

Executive Director’s Perspective: Giving Thanks – By Joseph A. Martinez


Very special thanks to our course directors, Troy McKinney (Houston) and Doug Murphy (Houston), and associate course directors John Fox (San Antonio) and George Scharmen (San Antonio) for the 8th Annual Stuart Kinard Memorial Advanced DWI Seminar held in San Antonio. Thanks to their efforts we had 127 attendees.

Special thanks to George Altgelt (Laredo), President of the Webb County Bar and TCDLA member. George asked TCDLA to co-sponsor the Criminal Defense seminar held in Laredo. George also served as course director for the event. There were 37 attendees.

Special thanks to course directors Philip Wischkaemper (Lubbock), Larry Renner (Albuquerque), Rob Cowie (Lubbock), Rick Wardroup (Lubbock), and E. X. Martin (Dallas) for the 9th Annual Forensics seminar. This year’s event started with an actual crime scene re-creation with Detective Robert Quirk and Andra Lewis-Krick, Crime Scene Specialist, both of the Dallas Police Department.

Special thanks to Michael Gross (San Antonio) and the San Antonio Criminal Defense Lawyers Association for allowing TCDLA/CDLP to co-sponsor their annual Jim Greenfield Memorial Nuts and Bolts seminar held in San Antonio at the Bexar County Central Jury Room. Thanks to everyone’s efforts we had 223 attendees.

The 36th Annual Texas Criminal Trial College will be held in Huntsville March 18–23, 2012. We encourage lawyers with fewer than 5 years of criminal trial experience to make application. There will be 80 lawyers accepted. Lydia Clay-Jackson, Dean of Students, will make the admission decisions. Tim Evans, Dean of Faculty, determines who is chosen to be a faculty member. The Texas Criminal Trial College application is on the TCDLA website and in this issue of the Voice. The deadline is noon, January 20, 2012.

TCDLA has purchased Droid phone apps that are available for judges in Texas. Please ask the judge to call the home office, and we can walk the judge through the process.

We had a meeting with the Court of Criminal Appeals related to the recent grant award from the Department of Justice, Capital Case Litigation Initiative. We anticipate a three-day seminar to be held in Houston sometime in fall 2012 and a second CLE on the web in 2013. More details to follow.

TCDLA would like to congratulate James Bethke, Executive Director of the Texas Indigent Defense Commission and member of TCDLA. The commission had its annual Indigent Defense Symposium at the State Capitol. This is the 10th year of the symposium.

John Ackerman (Sunrise Beach) is our course director for TCDLA’s first four-day Psychodrama Program at the Round Top Festival Institute January 11–14, 2012, with attendance limited to 60 spots. Tuition is $750 per person. Public Defenders registration is covered by the CDLP grant. TCDLA, CDLP, and TCDLEI are all providing funds for this unique training event. There will be no onsite registration. Please see our website for more information.

All TCDLA members are cordially invited to attend your next TCDLA Board of Directors Meeting, to be held in downtown Houston on Saturday morning, 10:15 am, December 3, 2012, at the Crowne Plaza Hotel, 1700 Smith Street.

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. The theme will be “Ridin’ for Justice—Celebrating 25 Years,” a cowboy theme. A fun run and other healthy lifestyle options will be available.

As we approach the Thanksgiving holiday, we want to give thanks to our TCDLA members, who have consistently supported their association over the last year. TCDLA is a strong, effective advocate for justice in Texas. We also thank our leadership, Gary Trichter, President, the TCDLA officers, and board members for their guidance.

The very best to each of you and your family. Have a safe and enjoyable Thanksgiving holiday.

Good verdicts to all.

Editor’s Comment: What Life Is – By Greg Westfall


Yes, I am a pirate
Two hundred years too late.
The cannons don’t thunder, there’s nothin’ to plunder.
I’m an over forty victim of fate;
arriving too late, arriving too late.

          Jimmy Buffett, “A Pirate Looks at Forty”

In seven months, I will turn 49. Which means in a year and seven months, I will turn 50. Which really means that in what will seem like about three weeks, I will be 50 years old. That’s how fast everything goes these days. And the older I get the more I come to believe that youth really is wasted on the young.

I have been told many times that life is a marathon, not a sprint. What does that even mean? Life is long? You have to be in really good shape? You have to pace yourself? This doesn’t work for me. And besides, I hate running.

I have also been told that life is a journey, not a destination. That fits me a little better. No running at least. But if life is a journey, then death would, I guess, be a destination. So we are on a journey to death. Well, that’s kind of depressing.

Two years ago this December, our family bought a little ranch just outside of Dublin, Texas, and for the last two years I have participated in an activity that could loosely be referred to as “deer hunting.” I sit in a blind twice a day and watch for deer to come to my feeders. Or not. Mostly not.

I never hunted deer before 2 years ago. But I remember 15 or so years ago I had some buddies I regularly played cards with. They were all big deer hunters. They wore camouflage shirts in the off-season and had those big “Trophy Hunters” stickers on the back windows of their pickup trucks. I used to rib them that they had set up a petting zoo with their feeders and their blinds and one day they show up at the petting zoo with a .45.

Well, this must have gravely upset the karmic balance in the world—like walking around the courthouse the week before a trial talking about how you are going to kick some prosecutor butt. I have now spent so many days in a blind staring at an empty feeder that I want to call those guys and apologize to them. The only thing that keeps me from doing it is the firm belief they would just think I was an idiot all over again.

I wonder, given that the “days hunting” versus “days getting” ratio is so bad, why in the world it even appeals to me. In the city, I think the only thing that could come close to that palpable frustration might be a round of golf. Most times after leaving the blind never having laid eyes on a deer, I am really pissed. I swear I’ll never do it again. But then it gets to be late afternoon, and there I am, in the blind, silently watching while birds carry off the corn I spread on the ground until it gets dark enough for the raccoons to take over.

The truth is I am beset with an affliction that causes me to expect success when failure is the norm. The upshot is that I focus almost entirely on results. And that, I am beginning to realize, is no way to enjoy life.

So my thought is that life is a process, not a result. Everything that is important really kind of is a process. Friendship. Love. Marriage. Relationships. They are all processes. And I spend a hell of a lot more time in the process than realizing the result—if indeed I realize it at all. So the process is the thing. The point of the exercise is the exercise itself. Wow.

Now, when I am sitting in the blind this weekend with my son, I am going to try not to focus so much on results and try to enjoy the process. You might call it a journey without a destination. But, hopefully, not another damned hunt without a deer. (No, really, I’m very zen about this now. Really.)

Everybody have a great holiday and thank you for supporting TCDLA and Voice for the Defense this year.

Ethics and the Law: Shine a Light


We are getting an excellent response to the ethics hotline. Please be assured that no matter where you are in the great State of Texas, the ethics committee is here to help you. For those of you who practice in Houston, Austin, San Antonio, Dallas, and Fort Worth, there is a whole different legal world in some of the other 254 counties. Growing up in West Texas, I saw many injustices done to the underdogs in our society. It still happens. Once many years ago, one of my Houston clients had a son in trouble in Palo Pinto County and hired me to defend him. I got Ron Goranson and Norman Maples to help me. The judge in Palo Pinto County was a snuff-dipping judge who asked me what all those books on the counsel table were. I told him, “Judge, it’s the code of Criminal Procedure,” and he said, “I don’t care what it is, get it off the jury table.” I did what he told me because I did not want to spend the night in Palo Pinto. Norman Maples was cross-examining the officer straight out of a TCDLA book. The judge was not impressed. He revoked our client’s probation and gave our client 4 years. Ron and I were happy just to leave town. This was before any strike force, hotline, or anything of the sort. Now there are 3,193 people to help. Do not be afraid to ask for help. You are not alone.

In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest. The Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral judgment. 

Under Rule 3.09 of the Texas Rules of Professional Conduct, if you see unethical behavior, report it. If a prosecutor is unethical, report it. Last year in Houston alone, three jurists were convicted and two went to jail. Even as this article is being written, several judges in the Houston area are under investigation. A lawyer is under indictment for taking money for allegedly telling clients he could fix their case, and two Houston prosecutors are in danger of being held in contempt of court. In Shelby County, the district attorney is being looked at for taking money instead of prosecuting.

We all want to be on the six o’clock news, but be careful when you have a high-publicity case. Read Rule 3.07 of the Texas Rules of Professional Conduct on trial publicity. This is especially true in small towns where the case will be tried. If it is a case where there is no doubt of your client’s guilt, or if it is a close call, get your client to express remorse publicly as long as you do it according to Rule 3.07. Potential jurors will see this on television or in the newspaper. Even if your client does not testify, viewers will remember what your client said, not what you said. Remember, the famous Russian philosopher Robb Fickman said, “Don’t let your alligator mouth overload your hummingbird ass.”

Remember, wherever you can get help (Rule 1.01—Competent & Diligent Representation) to make sure your client is getting a fair deal, use it. To keep myself out of trouble, I will not mention some of those counties where to see the district attorney, you have to wait hours and then watch him swat flies while talking to you. The judge does what the district attorney wants because he was the district attorney before he ascended to the bench. To read the Motion to Disqualify the District Attorney by Lawyer William “Dangerfield” McCoy, please click on the link below. He is a man of courage and is taking his oath seriously, the way we all should.

Motion to Disqualify the District Attorney (PDF)

Federal Corner: FRE 403 Trumps FRE 414. The Defendant Wins. – By F. R. Buck Files Jr.


Federal Rule of Evidence 403 can be the barrier that keeps the government from introducing that evidence against your client that will virtually guarantee a conviction.

Roger Loughry was convicted of advertising, distributing, and conspiring to advertise and distribute child pornography through an online depository called the “Cache.” Because Judge William T. Lawrence of the United States District Court for the Southern District of Indiana abused his discretion by failing to review videos that were challenged by the defense and to conduct a Rule 403 balancing test before they were admitted into evidence, a panel of the Seventh Circuit (Manion, Wood, and Williams, Circuit Judges) reversed Loughry’s conviction and remanded the case for further proceedings. United States v. Loughry, ____F.3d____, 2011 WL 4790540 (7th Cir. 2011).

Judge Williams authored the opinion of the Court which includes, in part, the following:

[The Cache]

The Cache had 536 users, about 100 of whom used the site to advertise and distribute child pornography to each other and to other users. Most of the remaining users (be­tween 400 and 450, according to the government’s estimate) viewed, but did not post, child pornography. In addition to pornography, the Cache also featured online games. Loughry joined the Cache the day after it went online, on November 12, 2005, using the name “Mayorroger.”

      Cache participants were separated into tiers. The top tier had two administrators, “Das” and “Devil.” The next tier was composed of co-administrators, which the government contends included Loughry as “Mayorroger, and two other people, “Dublhelix” and “Aurthurgery.” The five administrators had access to the administrative control panel and could admit, promote, or demote other members, as well as control content on the Cache. Lower in the hierarchy were moderators, masters, and trusted members.

      The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into “18 and over nude,” “13–18 nude,” and “under 13 nude” categories. The Cache’s rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.

[The Search of Loughry’s Home]

In early September 2008, law enforcement agents executed a search warrant of Loughry’s home. The agents seized Loughry’s computer and various CDs. The computer’s primary hard drive was registered to Loughry and contained a user account under the name “Mayorroger.” There were also multiple “bookmarks” or “favorites” to provide expedited access to specific pages on the Cache, including a link to the administrative control panel. The government also found files containing child pornography in the computer’s Mayorroger account, in other folders within the computer, and on the CDs.

[The Indictment]

On September 9, 2008, a federal grand jury indicted Loughry on charges of advertising and conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(d)(1)(A), and of distributing and conspiracy to distribute child pornography in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2252(b)(1). A superseding indictment charged sixteen counts, one of conspiracy to advertise child pornography, one of conspiracy to distribute child pornography, twelve of advertising child pornography, and two counts of distribution of child pornography. Loughry was not charged with possession of child pornography.

[The Trial]

During trial, the government introduced evidence that Loughry responded to several postings on the Cache. For example, the link to a series called “Little Virgins” stated “by Das, on May 17, 2006, with a huge thanks to Mayorroger.” Several months later, after a series of replies thanking both “Das” and “Mayorroger” for the set of images, Loughry posted, “I can’t take any credit here. Das did it all. I love to give.” Another example was Loughry’s response to a “school passion” posting by Cache member “Loman 16,” where Loughry wrote, “totally awesome, guys. Great work. Many, many thanks for these cuties.” There were other similar replies from Loughry thanking other members for their postings. Loughry also posted a message saying that he was interested in images of prepubescent girls. But none of the images Loughry was charged with distributing or advertising were posted by him.

      The government also introduced evidence that Loughry performed several administrative activities within the Cache. These included making “Dublhelix” a co-administrator, promoting and deleting members, and creating multiple new member accounts. One witness testified that Loughry discussed demoting one member for failing to maintain a sufficiently active level of participation in the Cache.

[The “Hard Core” Pornography]

During the testimony of its final witness, the government introduced several photographs and videos of child pornography discovered on Loughry’s home computer. Some of the images were similar to those displayed in the Cache. But others, including videos of girls being forced to engage in sexual acts with one another and of adult males raping prepubescent girls, were more inflammatory and were prohibited by Cache “rules.” The government did not charge Loughry with distributing, advertising, or possessing any of that pornography. Over Loughry’s objection, the court admitted the evidence from Loughry’s home computer.

[The Verdict and Sentence]

The jury eventually returned a guilty verdict on all sixteen counts, and Loughry was sentenced to concurrent prison terms of 360 months on each advertising-related count and 240 months on each distribution-related count.

[The Appeal]

Loughry now appeals the district court’s decision to admit the “hard core” pornography the government discovered on his home computer.

      The district court found that the pornography discovered in Loughry’s home computer was admissible under Federal Rule of Evidence 414. The government’s stated reason for introducing the pornography found in Loughry’s home computer was that it anticipated Loughry would argue that he was “only an administrator of an adult porn game board.” The government wanted to show that Loughry had a “long-standing persistent pattern of collecting [pornography]” and was not “operating by mistake or lack of knowledge” but “actually [had] the intent and motive” to join the conspiracy to distribute child pornography through the Cache. Loughry’s counsel objected on relevance and Rule 403 grounds because, he argued, the government was trying to convince the jury that Loughry “is a bad guy, and so, he has got to be guilty of this other stuff as well.” Loughry now argues that the district court committed several errors when it admitted the evidence, including not reviewing the “hard core” pornography found in Loughry’s home computer before admitting it, not articulating its reasoning under Rule 403, and ultimately striking the wrong balance in its Rule 403 ruling.

      Rule 414(a) provides that, “in a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense . . . of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.’” Fed.R.Evid. 414(a). The term “child molestation” encompasses prior or different conduct involving the distribution, advertising, or possession of child pornography. See Fed.R.Evid. 414(d).

      Rule 403 requires the exclusion of relevant evidence when its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .” Fed.R.Evid. 403. “Unfair prejudice . . . means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Advisory Committee’s Notes on Fed.R.Evid. 403, cited approvingly in Old Chief v. United States, 519 U.S. 172, 184-85, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).


There should therefore be no question that although evidence cannot be excluded under Rule 403 simply because it tends to show that the defendant has a propensity to commit a sex offense, Rule 403 continues to rigorously apply to Rule 414 evidence. [Emphasis added.]

[Loughry’s Contention and the Court’s Response]

Loughry contends that it was error for the district court to fail to review the videos discovered in his home before admitting them into evidence. The court acknowledged that not having first-hand knowledge of the contents of the contested evidence was problematic. The court stated: “I guess I am at somewhat of a disadvantage not knowing exactly what items and depictions, if you will, are on Government’s [exhibits].” But instead of examining the photographs and videos for itself, the court relied on the government’s description of the contested evidence in making its decision under Rule 403.

      At least one circuit has held that a district court’s failure to review challenged evidence when considering whether such evidence should be excluded under Rule 403 is error as a matter of law. See United States v. Curtin, 489 F.3d 935, 958 (9th Cir.2007) (en banc) (“[W]e hold as a matter of law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh [referring to stories of adults engaging in sexual acts with children found on the defendant’s computer]. Relying only on the descriptions of adversary counsel is insufficient to ensure that a defendant receives due process and fair trial to which he is entitled under our Constitution.”) [Emphasis in original.]

      Our cases also emphasize that a district court, in exercising its discretion under Rule 403, must carefully analyze and assess the prejudicial effect of challenged evidence. United States v. Williams, 216 F.3d 611, 614–15 (7th Cir. 2000)


There may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice to the defendant substantially outweighs any probative value the evidence might have.


The safest course, however, is for the court to review the contested evidence for itself. In this case, relying on the parties’ descriptions was insufficient. Few, if any, details were provided to the court when it was deciding whether to admit the evidence. The government’s only description of the various challenged exhibits was that some of them depicted pornography that was similar to that on the Cache and that others depicted “hard core” pornography. Based on that vague description, the court could not have properly weighed the prejudicial impact of the challenged evidence against whatever probative value the court believed the evidence had.

      Contrary to the government’s contention at oral argument, the slightly more detailed narrative description provided by the government’s witness before the videos were shown to the jury (and after the court had already decided to admit the evidence) did not suffice either. For example, the government’s witness stated that one of the videos depicted “[an] adult male performing a sex act on [a] female minor.” That explanation does not tell the court which acts are shown in the video. While all depictions of an adult engaging in sexual acts with a young child are bound to be repulsive, the impact on the jury will depend upon the nature and severity of the acts depicted.

      The challenged videos include the kind of highly rep­rehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence’s probative value. See Curtin, 489 F.3d at 958 (“One cannot evaluate in a Rule 403 context what one has not seen or read”). We therefore hold that, in light of the evidence in this case, the district court abused its discretion under Rule 403 when it failed to review the challenged videos before they were admitted in evidence.

The Rest of the Story

  • In his opinion, Judge Williams goes on to discuss the inadequacy of Judge Lawrence’s Rule 403 explanation;
  • That the probative value of the videos objected to were sub­stantially outweighed by the risk of unfair prejudice; and,
  • That the admission of “hard core” pornography was not harmless error.

My Thoughts

  • Loughry was a lucky defendant with a good lawyer. Why would the Government not include a possession count in the indictment when it had all the evidence it needed to sup­port a conviction? Why would a judge not view the evi­dence and conduct a balancing test before ruling on a Rule 403 objection?
  • The case is instructive on the tension between FRE 414 and 403. The lesson: Always make the Rule 403 objection.
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