Monthly archive

November 2011 - Page 2

Said & Done



Bonehead gaffe for the ages: In the October issue of the Voice, a column written by Stanley Schneider was mistaken for the monthly submission by editor Greg Westfall—and run as Greg’s column. The online version has been corrected to accurately reflect Stan’s authorship. But for this inexcusable blunder, we are profoundly sorry and hope that Stan can forgive us.


On October 26 in the 28th District Court of Nueces County, Randy Mack heard the two-word verdict. His client was acquitted of aggravated assault and aggravated robbery. Way to go, Randy.

Stan Schneider scored another win on a Padilla case. Stan’s client, a citizen of Mexico legally residing in Texas, was sentenced to 12 years in a plea bargain agreement for a second-degree felony possession case. Stan persuaded the court that trial counsel had been ineffective for failing to inform his client of the probability of deportation as a result of the plea. The court determined that the failure to disclose rendered the plea involuntary. Stan’s client stated that trial counsel told him repeatedly not to worry because he would get probation and that because he would get probation, he would not be deported. Good work, Stan.

Pat Metze sends along word that a former student of his, Gail Schroeter, a solo in Del Rio, had her very first jury trial—a misdemeanor criminal mischief. Took the jurors 2½ hours to come back with a “not guilty.” All right, Gail! That’s starting off on the right foot.

Lubbock lawyer Kris Espino heard the two-word verdict after the trial of a hotly contested burglary of a vehicle case. The State’s key witness knew the accused and claimed to have caught Espino’s client in the course of the burglary. To his credit, the witness later disclosed that the other State’s witnesses were so stoned that he was surprised that they had been able to remember anything of the offense. The other witnesses denied smoking marijuana and the key witness was impeached by the others, who had, by now, been given immunity from prosecution for possession of marijuana and tampering with evidence. The defense presented alibi witnesses who said that the accused had been at a revival during the time of the offense. Espino was able to persuade the court that another burglary of a vehicle allegedly committed by his client shortly before this one and in close proximity to where this offense was committed was inadmissible as an extraneous offense.

October 2011 SDR – Voice for the Defense Vol. 40, No. 8

Voice for the Defense Volume 40, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

DePierre v. United States, 131 S. Ct. 2225 (U.S. 2011); Affirmed (9–0)

DePierre was indicted for distribution of 50 grams or more of cocaine base under 21 U.S.C.S. §841. The district court declined DePierre’s request that the jury be instructed that, in order to find DePierre guilty of distribution of “cocaine base,” it must find that his offense involved crack cocaine. DePierre was convicted, and the court sentenced him to the 120 months in prison mandated by the statute. The First Circuit affirmed, adhering to its precedent that “cocaine base” refers to all forms of cocaine base. The opinion also notes that the Second, Third, Fourth, Fifth, and Tenth Circuits interpret the statute the same way.

HELD: “‘[C]ocaine base,’ as used in § 841(b)(1), means not just ‘crack cocaine,’ but cocaine in its chemically basic form.”

Sykes v. United States, 131 S. Ct. 2267 (U.S. 2011); Affirmed (6–3)

Sykes pleaded guilty to being a felon in possession of a firearm. A district court enhanced Sykes’ sentence under the Armed Career Criminal Act (ACCA) after determining that he had previously been found guilty of three violent felonies. The Seventh Circuit affirmed, noting that “fleeing police in a vehicle in violation of Ind. Code §35-44-3-3(b)(1)(A) is sufficiently similar to ACCA’s enumerated crimes in kind, as well as the degree of risk posed, and counts as a violent felony under ACCA.”

HELD: “Felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA.” Justice Thomas concurred: “[T]he majority errs by implying that the ‘purposeful, violent, and aggressive’ test may still apply to offenses ‘akin to strict liability, negligence, and recklessness crimes.’” Justice Scalia dissented and chastised the majority for an “ad hoc judgment that will sow further confusion.” Justice Kagan also dissented: “Vehicular flight comes in different varieties, and so too the statutes that criminalize the conduct. . . . Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a ‘violent felony’ under ACCA.”

Flores-Villar v. United States, 131 S. Ct. 2312 (U.S. 2011); Affirmed (4–4)

A federal district court convicted Flores-Villar under the Immigration and Nationality Act (INA) of being a deported alien in the United States. On appeal to the Ninth Circuit, Flores-Villar argued that the relevant provisions of the INA violated the Equal Protection Clause of the Fifth Amendment on the basis of age and gender. The provisions impose a five-year residency requirement, after age 14, on U.S. citizen fathers but not mothers whose residency requirement is merely one year. The Ninth Circuit applied the holding in Nguyen v. INS, 533 U.S. 53 (2001), which did not deal precisely with the provisions before the court, but held that other more onerous residency requirements for fathers but not mothers in the INA did not violate the Equal Protection Clause. The court concluded that the provisions challenged by Flores-Villar also did not violate the Equal Protection Clause and affirmed the district court.

HELD: Without deciding whether Nguyen v. INS permits gender discrimination that has no biological basis, the Court affirmed the lower court.

Tapia v. United States, 131 S. Ct. 2382 (U.S. 2011); Reversed, remanded (9–0)

Tapia was convicted of bringing illegal aliens into the United States and of jumping bail after being charged with immigration crimes. Following the jury trial, a district court judge sentenced Tapia to 51 months in prison, noting that one factor in giving her a longer sentence was to make sure she remained confined long enough to take part in a drug rehab program. Tapia appealed the sentence, arguing that the district court committed plain error by basing her sentence on speculation about whether and when she could enter and complete the Bureau of Prison’s 500-hour drug abuse treatment program. But the Ninth Circuit affirmed the lower court.

HELD: “[18 U.S.C. §] 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation.”

J.D.B. v. North Carolina, 131 S. Ct. 2394 (U.S. 2011); Reversed, remanded (5–4)

J.D.B. was a 13-year-old special education student in 2005 when the police showed up at his school to question him about a string of neighborhood burglaries. The police had learned that the boy was in possession of a camera that had been reported stolen. The boy was escorted to a school conference room, where he was interrogated in the presence of school officials. J.D.B.’s parents were not contacted, and he was not given any Miranda warnings. J.D.B. confessed to the crimes, but later sought to have his confession suppressed on the basis that he was never read his Miranda rights. He argued that because he was effectively in police custody when he incriminated himself, he was entitled to Miranda protections. The North Carolina Supreme Court held that it could not consider the boy’s age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings.

HELD: Courts should consider the age of a juvenile in deciding whether he or she is in custody for Miranda purposes. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.” The Court remanded to the state court to determine whether the youth was in custody when he was interrogated.

Fifth Circuit

United States v. Oliver, 630 F.3d 397 (5th Cir. 2011)

(1) In mail fraud/aggravated identity theft prosecution, district court did not err in denying defendant’s motion to suppress the contents of a box in his girlfriend’s apartment that she searched prior to turning it over to police. Where a private individual examines the contents of a closed container, a subsequent search of the container by government officials is not an unlawful Fourth Amendment search as long as the government search does not exceed the scope of the private search. The lawfulness of the subsequent police search does not depend on the police’s knowledge of the private search. The initial private search, which was reasonably foreseeable, and the searcher’s act, later that day, of voluntarily giving authorities the box, in which no reasonable expectation of privacy remained, rendered the police search permissible. Judge Garza dissented that Fifth Circuit case law did not support the proposition that a private search could validate subsequent police action even if the police did not know about the private search.

(2) District court did not err in denying defendant’s motion to suppress his statements to law enforcement; under the circumstances, defendant validly waived his Miranda rights by voluntarily speaking to police, notwithstanding his refusal to sign a written waiver form.

Hernandez v. Thaler, 630 F.3d 420 (5th Cir. 2011)

Where the district court applied the then-controlling rule of Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004), to deny defendant’s federal habeas petition as untimely under the AEDPA’s 1-year statute of limitations, but Salinas was later overruled in Jimenez v. Quarterman, 555 U.S. 113 (2009), that change in the law was not the sort of extraordinary circumstance warranting relief under Fed. R. Civ. P. 60(b)(6). Defendant could not use Rule 60(b)(6) to circumvent the principle that when the Supreme Court announces a new rule of law and applies it to the parties before it, the new rule is given retroactive effect only in cases that are still open on direct review.

United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011)

District court did not err in applying an 8-level enhancement under USSG §2L1.2(b)(1)(C) on the ground that defendant was deported following an “aggravated felony” conviction. Defendant’s prior felony conviction for evading arrest or detention with a motor vehicle (in violation of Tex. Penal Code §38.04(b)(1)) was a “crime of violence” under 18 U.S.C. §16(b) (and hence an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F)) because it presented a substantial risk that physical force would be used in the course of committing the offense, in the form of a confrontation.

United States v. Rodriguez-Juarez, 631 F.3d 192 (5th Cir. 2011)

Although, under Fifth Circuit precedent, a sex offense committed with assent that did not amount to legally valid consent was not a “forcible sex offense” under USSG §2L1.2, that precedent was abrogated by the 2008 amendment to USSG §2L1.2 which explicitly provided that “forcible sex offenses” included ones where the consent was not legally valid. This amendment was specifically meant to abrogate cases like the Fifth Circuit’s where courts had excluded offenses without assent in fact, but no legally valid consent; because this amendment scuttled defendant’s challenge to the 16-level “crime of violence” enhancement under USSG §2L1.2(b)(1)(A)(ii), and because defendant had no other nonfrivolous challenge on appeal, the Fifth Circuit granted defense counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967).

Cantu v. Thaler, 632 F.3d 157 (5th Cir. 2011)

In Texas capital murder prosecution where defendant was sentenced to death, trial counsel did not provide ineffective assistance at the sentencing phase by failing to discover and present evidence of defendant’s bipolar disorder. Trial counsel made a reasonable strategic decision not to investigate defendant’s mental health problems, which would have been inconsistent with the strategy used at trial and which would have opened the door to a state psychiatrist’s examination—which could have strengthened the State’s position that defendant was a psychopath and thus a future danger. With respect to defendant’s ineffective assistance claim during the guilt/innocence phase, this claim was procedurally defaulted because the claim had not been raised in state post-conviction proceedings, and Texas state courts would not consider it if raised in a successive state petition. Nor could defendant show cause and actual prejudice, or a fundamental miscarriage of justice, that would allow defendant to overcome the procedural bar and secure federal habeas review of that claim. Finally, even assuming, arguendo, that freestanding actual innocence may in some circumstances be cognizable in federal habeas, defendant did not meet the “extraordinarily high” standard that would be necessary for such a claim.

United States v. Dickson, 632 F.3d 186 (5th Cir. 2011)

(1) For purposes of 18 U.S.C. §2252(a)(4)(B), images of child pornography are “produced” when they are copied or downloaded onto hard drives, disks, or CDs; therefore, because the government presented sufficient evidence that defendant possessed a CD onto which images of child pornography had been downloaded, and because that CD was manufactured in the Republic of China (thereby satisfying the interstate or foreign commerce element of the statute), the Fifth Circuit affirmed defendant’s conviction.

(2) Where defendant was convicted of one count of possession of child pornography and one count of production of child pornography, the district court plainly erred in calculating the Guidelines when it failed to compute the total offense level for each offense and then apply the Guidelines’ grouping rules; the district court instead applied the base offense level for production and then applied an enhancement for sadistic or masochistic images that applied only to the possession offense. The error resulted in a Guidelines range of 360 months to life, rather than the correct range of 235 to 293 months. Nevertheless, while the lack of an overlap usually means that a defendant’s substantial rights were affected by a Guidelines calculation error, that was not true here; the district court’s selection of the statutory maximum sentence of 840 months (240 months on the possession count and a consecutive 600-month sentence on the production count) for the stated purpose of incapacitating defendant from further crimes against children for the rest of his life, indicated that there was not a reasonable probability that defendant would receive a lower sentence but for the error. Moreover, the sadomasochistic content of the photos underlying the possession count could have been considered by the district court in imposing the sentence, albeit not in the way the district court did here.

United States v. Flores, 632 F.3d 229 (5th Cir. 2011)

The Fifth Circuit “wr[o]te in this case to signal a change in th[at] court’s approach to” cases in which counsel filed a brief, and moved to withdraw, under Anders v. California, 386 U.S. 738 (1967). The Fifth Circuit indicated that it would no longer independently scour the record for any possibly nonfrivolous point that could support an appeal; rather, it would henceforth follow the approach of the Third and the Seventh Circuits and would be guided in reviewing the record by the Anders brief itself, provided that the brief is adequate on its face. Here, the Anders brief was adequate on its face; after review of the brief and the portions of the record referenced therein, the Fifth Circuit accepted counsel’s assessment that defendant had no non-frivolous issues to raise on appeal. The Fifth Circuit granted defendant’s motion to withdraw and dismissed the appeal as frivolous.

United States v. Garland, 632 F.3d 877 (5th Cir. 2011)

In a companion case to United States v. Flores, 632 F.3d 229 (5th Cir. 2011), the Fifth Circuit outlined what it required for an adequate Anders brief: “Anders requires counsel to isolate possibly important issues and to furnish the court with references to the record and legal authorities to aid it in its appellate function.” Although counsel has broad discretion in the preparation of his brief, and no particular form is required, the Fifth Circuit noted that a brief that covers the points raised in the guidelines and checklist for Anders briefs contained on the Fifth Circuit’s website will ordinarily be found to be adequate; if counsel submits such a brief, the Fifth Circuit, as it held in Flores, will no longer independently scour the record looking for appellate issues. Here, however, counsel’s Anders brief fell short of the guidelines and the checklist in several respects; hence, it was not adequate. Accordingly, the Fifth Circuit denied counsel’s motion to withdraw and instructed him to file either a compliant Anders brief or a brief on the merits of any nonfrivolous issue he deemed appropriate.

United States v. Johnson, 632 F.3d 912 (5th Cir. 2011)

Assuming without deciding that defendant had prudential standing to raise the issue, the Fifth Circuit held that the Sex Offenders Registration and Notification Act (SORNA) did not violate the Tenth Amendment. The Tenth Amendment does not forbid conditioning federal funding on a state’s implementation of a federal program, which is what SORNA does; the sex offender registry bargained for is a valid exercise of Congress’ spending power. Assuming without deciding that defendant had standing to challenge the Attorney General’s adoption of an Interim Rule implementing SORNA, the Fifth Circuit, disagreeing with the Second, Third, Eighth, and Tenth Circuits, held that Congress delegated to the Attorney General the decision whether to apply SORNA to pre-enactment offenders, and that SORNA did not apply to offenders with pre-enactment convictions until the Attorney General issued the Interim Rule. Moreover, in promulgating the Interim Rule, the Attorney General violated the notice and opportunity-to-comment requirements of the Administrative Procedures Act (APA). Disagreeing with the Fourth and Eleventh Circuits, the Fifth Circuit found the Attorney General’s reasons for bypassing those provisions unpersuasive and held that they did not constitute “good cause.” However, the Attorney General’s APA violations were harmless error.

United States v. Hampton, 633 F.3d 334 (5th Cir. 2011)

The introductory language in 18 U.S.C. §3583(e)(3) (allowing a court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release”) does not limit the aggregate amount of revocation imprisonment to the length of the supervised release term authorized for the underlying offense. Accordingly, even though the maximum supervised release term for defendant’s underlying offense was three years, and even though she had previously received a 24-month revocation prison sentence, it did not violate the statute, on defendant’s second revocation of supervised release, to impose another 24-month prison sentence.

Court of Criminal Appeals

Direct Appeals

Lucio v. State, No. 76,020 (Tex.Crim.App. 9/14/11); Affirmed (9–0)

Appellant was convicted for the capital murder of her two-year-old daughter and was sentenced to death pursuant to the jury’s answers to the special issues.

HELD: CCA rejected Appellant’s 14 points of error, mostly because Appellant failed to preserve the claims or adequately brief them. CCA mainly addressed three points. In point one, Appellant claimed CCA should remand the case to the trial court to determine whether “the proof has failed on future dangerousness” since the trial court did not “think” it had “discretion to determine that the proof has failed on future dangerousness.” Appellant asked the trial court to enter a judgment notwithstanding the verdict. A trial court has no such authority in a criminal case. In addition, having decided in point of error four that the evidence is legally sufficient to support the affirmative answer to the future-dangerousness issue, CCA did not find it necessary to remand the case to determine whether the proof failed on future dangerousness.

In point two, Appellant claimed she is entitled to a new trial under Tex. R. App. P. 34.6(f)(4) because the “audio of the defendant’s statement to the police is inaudible.” This does not mean these portions of the court reporter’s record are “lost or destroyed” for purposes of Rule 34.6(f). There is nothing missing from the reporter’s record.

In point three, Appellant claimed the trial court erred to admit her recorded statement into evidence. However, the State introduced Appellant’s recorded statement through Detective Cruz and Appellant’s only non-general, specific objection was that “all voices on the recording” were not identified.

Gonzales v. State, No. 76,176 (Tex.Crim.App. 9/28/11); Affirmed (7–2)

In 1995, Appellant was convicted of capital murder and, based on the jury’s answers to the special issues, was sentenced to death. His conviction and sentence were affirmed on direct appeal. Appellant’s state application for habeas corpus relief was denied. Appellant’s federal petition for habeas corpus relief was denied as to his conviction but granted as to punishment, and the case was remanded for a new punishment hearing. The Fifth Circuit affirmed the federal district court. The trial court held a new punishment hearing in 2009, and based on the jury’s answers to the special issues, the judge sentenced Appellant to death.

HELD: CCA rejected Appellant’s five points of error. Most notably, in points two and three, Appellant claimed the trial court erred when it denied his challenges for cause to venire persons Sarah Murdock and Randall Phillips. The issue is whether the trial court’s rulings on Appellant’s challenges for cause harmed Appellant by depriving him of one of his statutorily allotted peremptory challenges. Appellant argues that Murdock, based on her answers, could not afford Appellant the right to remain silent and would shift the burden of proof to Appellant on the issue of future dangerousness. The record supports that Murdock was not challengeable on these bases, and point of error two is overruled. Because Appellant has not shown that the trial court improperly denied his challenges to at least two venire persons, he cannot show reversible error. Therefore, CCA need not address Appellant’s third point of error regarding Phillips.

Writs of Prohibition and Mandamus

State v. Creuzot, Nos. 76,594-95 (Tex.Crim.App. 7/27/11); Conditionally granted (8–1)

Defendant in a pending capital-murder retrial is seeking a declaratory judgment that if he goes to trial and is found guilty, then it would violate his constitutional rights for the State to seek the death penalty. His claim is based solely on unique facts: He did not obtain relief in the appellate courts for 30 years, and, because of this lengthy delay, he has lost access to witnesses and documents that may have assisted him in a punishment mitigation case regarding race-based peremptory challenges. After several evidentiary hearings, trial judge Creuzot granted defendant’s motion. The State filed writs of mandamus and prohibition to require Creuzot to vacate his order.

HELD: Defendant has failed to offer legal authority supporting a pretrial declaratory judgment that the State should be forbidden from seeking the death penalty when some potentially useful evidence is no longer available. The U.S. Supreme Court held that to succeed on a similar pretrial challenge, the defense must show at trial that the delay did, in fact, cause substantial prejudice to his right to a fair trial; and second, the defense must show that the government intentionally delayed its indictment for the purpose of gaining a tactical advantage. Here, defendant failed to show any actual and substantive prejudice to his mitigation case because he has not yet presented that case. Additionally, as a matter of law, defendant cannot demonstrate that the State intentionally or purposely delayed the appellate process to gain a tactical advantage in a retrial. It was defendant who invoked those appellate procedures, and there has been no showing that the State acted in bad faith in its appellate duties. Finally, it cannot be persuasively argued that the State could have, or should have, predicted the dramatic changes in the law concerning peremptory challenges between 1983 and 2005.

Writ of Habeas Corpus

Ex parte Warren, No. 76,435 (Tex.Crim.App. 9/28/11); Denied (9–0)

Applicant alleges that because he has never been convicted of a sex offense, he was entitled to the requisite due process procedures when the Texas Department of Criminal Justice-Parole Division placed sex-offender conditions on his parole.

HELD: No process was due to applicant because his computerized criminal history file, maintained by the Texas Department of Public Safety, which was corroborated by police agency records, establishes that applicant had prior sex-offense convictions from Illinois. The elements of the Illinois offense are sufficiently similar to the elements of the Texas offense of In­decency with a Child, which is a qualifying offense for the imposition of sex offender conditions.

State’s PDRs

Cosio v. State, No. 1435-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellant was indicted for four counts of sexual assault of a child. During trial, Appellant requested the State elect as to the counts that it would proceed under. The jury charges coincided with the State’s election and generally instructed the jury, at the end of each charge, that its verdicts must be unanimous. Appellant did not object to the charges on the basis that they allowed for non-unanimous verdicts. The jury found Appellant guilty on all counts.

On appeal, Appellant challenged the sufficiency of the evidence and alleged that the jury charges contained egregious error because they permitted non-unanimous verdicts. COA held that the evidence was insufficient for one of the convictions and that the jury charges were erroneous.

HELD: The jury instructions were erroneous because there were several instances of sexual criminal conduct that could have satisfied the charged offenses, and the judge failed to instruct the jury that it must be unanimous about which instance satisfied each charge. Appellant requested elections; therefore, the State was forced to prove, beyond a reasonable doubt, the incidents of criminal conduct that it elected to rely upon. A jury charge error is not forfeitable by a defendant’s failure to object at trial; this failure only controls the applicable harm analysis. CCA disagreed with COA and held that Appellant was not egregiously harmed because it is logical to suppose that the jury unanimously agreed that Cosio committed all of the separate instances of criminal conduct during each of the four incidents. CCA reversed and remanded to COA to address Appellant’s remaining points of error as they relate to the three convictions not overturned by COA.

Snowden v. State, No. 1524-10 (Tex.Crim.App. 9/28/11); Reversed, remanded (8–1)

At the end of the prosecutor’s summation at the guilt phase of trial, the prosecutor said, “[Appellant] doesn’t give two hoots about the mother of his baby or his baby because he looks her in the eye and punches her in her 38-week-old stomach without remorse, just like he is today.” Appellant immediately objected that this argument constituted a comment on his failure to testify, but the trial court overruled the objection.

Appellant was subsequently convicted by a jury of family-violence assault of a woman who was pregnant with his child. The jury assessed punishment at two years’ imprisonment. COA reversed Appellant’s conviction and remanded the cause to the trial court for a new trial, holding that the trial court erred in overruling Appellant’s objection to the State’s improper jury argument commenting on his failure to testify. COA was unable to conclude beyond a reasonable doubt that the trial court’s error did not contribute to Appellant’s conviction or punishment.

HELD: Beyond a reasonable doubt that the error in allowing the prosecutor to comment on Appellant’s lack of in-court remorse was simply unimportant in relation to everything else the jury considered on the issue of whether Appellant was previously convicted of family-violence assault. Furthermore, Appellant received a two-year sentence and no fine—the minimum punishment he could have received for this third-degree conviction.

State v. Weaver, No. 1635-10 (Tex.Crim.App. 9/28/11); Affirmed (6–3)

Four police officers came to Weaver’s welding shop looking for someone wanted in another county. Weaver gave the officers consent to search for that person. The officers, over Weaver’s objection, ended up searching a van on his property and finding drugs in it. The trial judge granted Weaver’s motion to suppress because he found that the search of the van exceeded the scope of Weaver’s consent. COA, over a dissent, affirmed. The State’s PDR asked: “May police conduct a dog sniff of the exterior of an unoccupied vehicle in the parking lot of a business without the permission of the owner of the business?”

HELD: The trial court did not abuse its discretion in granting Weaver’s motion to suppress. The evidence shows that when the officers’ search for “Bear” ended, they had not observed anything suspicious. Because the trial judge could have determined that Weaver’s consent to search for Bear had ended, the trial court could reasonably find that the officers, without establishing probable cause, were not entitled to search for other purposes unrelated to that of their initial search. The record supports an implicit fact finding that the van was parked in a protected, non-public area of the business premises. The record also supports the trial judge’s legal conclusion that the officers had worn out their welcome and lingered beyond the scope of Weaver’s consent before the initiation of the dog sniff. CCA recognizes that this case is a close call, but it is in the “close call” cases that the need for giving discretion to the trial judge and deferring to his factual findings is greatest, especially when the State must prove positive consent by clear and convincing evidence.

Appellants’ PDRs

Coronado v. State, No. 0644-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (7–2)

CCA granted review to determine whether the videotape procedures in Tex. Code Crim. Proc. art. 38.071 §2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under the Crawford v. Washington, 541 U.S. 36 (2004), line of cases. In this aggravated-sexual-assault-of-a-child prosecution, COA found no error in the trial court’s decisions to allow cross-examination through written questions only, and to admit the child’s videotaped interviews with a child-abuse forensic examiner instead of requiring live testimony.

HELD: Although CCA agreed that there must be balance between a defendant’s right to confrontation and a societal need to protect fragile and traumatized child victims, that balance cannot constitutionally be struck by the method set out in Article 38.071 § 2. On federal constitutional matters, CCA is obliged to follow the dictates of the U.S. Supreme Court regardless of its own notions. Therefore, COA erroneously held that constitutionally adequate cross-examination could be done using written interrogatories posed by a “neutral” forensic interviewer more than a year after the initial interview.

Alonzo v. State, No. 1494-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellant was convicted of manslaughter for the death of a fellow inmate in a prison fight. On appeal, Appellant argued that the trial court erred by instructing the jury that the justification of self-defense does not apply to the lesser-included offense of manslaughter. COA held that the trial court’s instructions were correct and overruled this point of error. COA arrived at its conclusion by first observing, “Texas courts have routinely noted that an individual cannot recklessly act in self-defense.” A person commits murder if he “intentionally or knowingly causes the death of an individual.” Because self-defense is a justification to murder, an acquittal of murder based on self-defense necessarily implies that the jury believed that the defendant intentionally or knowingly caused the death of an individual. Tex. Penal Code §19.04 provides that a person commits manslaughter “if he recklessly causes the death of an individual.” Intentional or knowing conduct is distinct from reckless conduct, and an individual cannot simultaneously act intentionally and recklessly.

HELD: COA erred by holding that a defendant can be convicted for a lesser-included offense when a fact-finder has acquitted the defendant for the greater offense based on a justification defense, and by holding that a defendant cannot raise the justification of self-defense when charged with manslaughter.

Mayes v. State, No. 1633-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (8–0)

A jury found Appellant guilty of the second-degree felony of sexual assault. At the punishment phase, the trial judge properly instructed the jury concerning the punishment range (two to twenty years in prison) and the possibility of community supervision. The jury returned a verdict sentencing Appellant to two years in prison and recommending community supervision. The judge told the jury that its verdict was illegal because the minimum period of community supervision for sexual assault is five years. She told them to deliberate again, and the jury then assessed a sentence of five years and once more recommended community supervision. The issue in this case is whether the initial verdict was in fact illegal. COA held that it was.

HELD: A jury sentence of two years confinement with a recommendation of community supervision is not an illegal or improper verdict.

Pena v. State, No. 0852-10 (Tex.Crim.App. 9/28/11); Reversed, remanded (9–0)

Appellant was indicted for felony possession of marijuana. A jury found him guilty and sentenced him to life imprisonment as a habitual offender. COA affirmed, and rejected Appellant’s argument that Brady v. Maryland, 373 U.S. 83 (1963), applied when the State failed to disclose to Appellant the audio portion of a videotape containing exculpatory statements that he made to police. CCA granted Appellant’s PDR to determine if Brady is applicable.

HELD: Because the audio portion of the videotape is favorable evidence that would be material to Appellant’s case and the State failed to disclose such evidence to Appellant, the State violated Appellant’s constitutional right as expressed in Brady. The State failed to disclose the audio portion when the videotape evidence was initially requested by defense counsel and again failed to disclose it after a second inquiry by the defense that addressed the lack of sound on the copy previously provided. Both prosecutor and defense counsel confirmed that no copy with audio was tendered. Additionally, the audio evidence was unknown to Appellant since the State consistently represented that the videotape contained no audio.

Ex parte Garcia, No. 1658-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellee claims her guilty plea to felony theft 23 years ago was involuntary. After a hearing at which Appellee testified, the trial court granted relief. COA disagreed: “the only ‘evidence’ in the record regarding appellee’s claim is her own sworn testimony, which is insufficient by itself.”

HELD: An applicant’s live, sworn testimony can be a basis for upholding a trial court’s decision to grant relief in a Tex. Code Crim. Proc. art. 11.072 habeas proceeding. While sworn pleadings provide an inadequate basis upon which to grant relief in habeas actions, it is beyond dispute that relief may be granted on the basis of testimony that supports the pleadings if that testimony is believed by the habeas court. There is no sound reason to hold this rule inapplicable in the present case where the witness is herself the habeas applicant. CCA need not decide whether Appellee’s testimony was in fact a sufficient basis for upholding the trial court’s decision; nor did CCA decide the State’s laches issue.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Wilson v. State, No. 14-09-01040-CR (Tex.App.—Hous­ton [14th Dist] 4/12/11)

Police officer’s statements during interrogation did not render confession involuntary; officer “never promised any deal for the defendant.” Officer told D: “You got to explain something. . . . It’s the right . . . thing to do . . . then I can call the district attorney and say hey this is what really happened this guy didn’t mean for this stuff to go on. Do you understand, there’s consequences regardless for your actions . . . but it’s either you’re gonna be looked at with the eyes of justice, this guy deserves the worst . . . or the eyes of mercy[.]” Such statements would be unlikely to induce an innocent person to confess to murder.

Additionally, officer’s statements that D’s mother would “lose everything” to assist D’s defense did not render confession involuntary. “Police officers are permitted to suggest that suspects decline legal counsel to ‘save himself or his family the expense’ despite the constitutional requirement that suspects be informed that they have a right to appointed counsel. [T]he inquiry into whether such statements by the police overcame the will of the defendant requires a factual determination.”

St. Clair v. State, 338 S.W.3d 722 (Tex.App.—Amarillo 2011)

Inventory search of vehicle was conducted properly, such that dope found inside purse was admissible, even though officer did not itemize contents of vehicle. “[Officer] testified to searching the vehicle in accordance with departmental policy, that the only items of value found were the purse and the [money] contained in it, and that those items were included in his report. He also described the reasons for conducting the search (i.e., to protect the possessions of the person that owns or controls the vehicle and to avoid liability issues). Furthermore, the policy in question was admitted into evidence. And, [D] did not attack the legitimacy of that particular policy at trial.”

Also, no reasonable alternative to impoundment was shown, even though D told officer that her boyfriend could retrieve the vehicle. “[N]othing within the record illustrates that [her boyfriend] was available at the time, that he would agree to retrieve the vehicle, or that he had a driver’s license. Also missing was evidence that she owned the vehicle[.]”

In re M.A.C., 339 S.W.3d 781 (Tex.App. Eastland 2011)

In juvenile delinquency proceeding, the presence of armed police detective during judge’s entire warning and interview process did not violate procedural requirements governing the admissibility of a child’s statement. M.A.C. contends that the provisions of Tex. Fam. Code §51.095(a)(1)(B)(i) were violated because “[detective] was present during the entire warning and interview process and was armed during this process with his firearm visible at all times. Given [judge’s] testimony that he requested the presence of [detective], we focus our attention to the presence of [detective’s] weapon during the interview process. The critical inquiry is whether or not the weapon prohibition applied to the taking of [D’s] recorded statement. . . . [B]y its express terms, the weapon prohibition applies when the juvenile executes a written statement in the presence of a magistrate.”

Hodson v. State, No. 04-10-00060-CR (Tex.App.—San Antonio 5/11/11)

D was not in custody for Miranda purposes during police interview, when he climbed out of a police station window, because (1) no guard was stationed outside the interview room, (2) D had voluntarily gone to police station, (3) interview began promptly and lasted about an hour, and (4) D waited 26 minutes before he fled.

D’s admission, during police interview, to being present during a robbery and murder did not, by itself, render interview custodial. “Even though a suspect may implicate himself in an offense, unless the circumstances are unique . . . ‘this alone does not trigger custody.’ . . . Here, [officer] testified [that D] admitted to being present during the robbery and murder. Other than this admission, there were no other circumstances present to lead a reasonable person to believe he was under arrest. . . . We hold the trial court correctly concluded [D] was not in custody when he made the statements in question.”

Cooksey v. State, No. 04-10-00424-CR (Tex.App.—San Antonio 5/11/11)

Unfenced backyard deemed “curtilage” because D’s home was in a wooded area and there were no neighbors within several hundred yards. Also, there was an absence of “no trespassing” signs posted on property, the home was not visible from the main road, and D’s backyard and back steps were not visible from the driveway or neighboring properties. Lastly, the back steps on which officer observed potted marijuana plants were physically attached to the home.

D’s written consent to search his property, which was given after officers made an illegal entry into his backyard and observed the marijuana plants, was not voluntary, even though there was no flagrant police misconduct. D did not volunteer his consent but was asked for it, D was not told he could decline consent, and officer testified that D was not free to leave. In addition, the officers failed to reveal to D that they were not legally authorized to be in the backyard.

Crawford v. State, No. 01-10-00559-CR (Tex.App.—Hous­ton [1st Dist] 5/12/11)

RS shown where officer’s in-car computer indicated that the insurance policy covering D’s vehicle had lapsed, despite the undisputed fact that Texas law allows methods other than insurance to satisfy the financial responsibility requirement. “[T]he mere fact that alternate methods exist to satisfy the Transportation Code’s financial responsibility requirement does not render the stop unreasonable. . . . [Officer] could reasonably sus­pect from the fact that the vehicle previously had liability insurance coverage—by far the most common means of satisfying the financial responsibility requirement—that the policy’s lapse meant that it no longer complied with the law. . . . [D] relies on [Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex.App.—Amarillo 2010, pet. ref’d),] for the proposition that the MDT insurance database cannot support a finding of reasonable suspicion. [However, Gonzalez-Gilando] hinged on the fact that the computer database search result stated that the insurance information was ‘not available’ or the status was ‘undocumented.’”

Kirvin v. State, No. 05-09-00734-CR (Tex.App.—Dallas 5/13/11)

Prosecutor’s comment that D “has never taken responsibility for any of his actions” during punishment stage was not impermissible comment on D’s failure to testify. “[W]e conclude the State’s argument was invited by, and made in response to, [D’s] argument.” D had argued essentially that he sympathized with both victims.

The Dismissal of Writs by the Court of Criminal Appeals

Where I messed up was that my Ground for Review Number Three began half of the way down the same page where the facts from my Ground of Review Number Two ended.

—a dismayed colleague

The Court of Criminal Appeals requires all applications for writs of habeas corpus to be filed on a prescribed form.1 The Court has a practice of dismissing these applications for any “violation” or “deviation” from the form’s designated format. Recently, a colleague filed an application for writ of habeas corpus. Unfortunately, she strayed from the form’s ordained format (as described in the quotation above), and her client’s application was dismissed.

Item 17 of the form contains the following direction:

Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use page 10 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence.

The foregoing charge at least implies that each ground of review should be detailed on a separate page. Consistent with this command, page six is labeled as Ground One, page seven is denominated as Ground Two, page eight is marked as Ground Three, page nine refers to Ground Four, and page ten allows for further grounds of review—one ground per page, of course. So as my colleague readily admits, when she set out two grounds of review on a single page, she “did violate an instruction.”

But the resultant dismissal of her client’s habeas application by the Court of Criminal Appeals seems out of proportion to her transgression. As my colleague lamented, “I am simply blown away that this ecologically friendly, space-saving, very de minimis problem would result in the dismissal of my client’s application.”

Beyond the issues of whether dismissing the application was befitting such a minor transgression, a question arises as to whether the Court of Criminal Appeals has the legal authority to dismiss a habeas application for such an error in the first place. For several reasons, I believe the answer is no.

The Court of Criminal Appeals Statutory Authority to Promulgate Rules

The Court of Criminal Appeals has been given limited rulemaking authority by the Legislature. The key statute is Section 22.108(a) of the Government Code, which provides:

The court of criminal appeals is granted rulemaking power to promulgate rules of post trial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.

The statute, passed in 1987, was amended into its current form in 1989. Also significant is an act of the Legislature from 1995 that did not get codified, but is still the law. See Acts of 1995, 74th Leg., R.S., Ch. 319 §6. The enactment elaborates on the Court of Criminal Appeals’ rule-making authority in regard to writs of habeas corpus:

The rulemaking authority granted to the court of crim­inal appeals under Section 22.108, Government Code, is withdrawn with respect to rules of appellate procedure relating to an application for a writ of habeas corpus, but only to the extent the rules conflict with a procedure under Article 11.071, Code of Criminal Procedure, as added by this Act, or Article 11.07, Code of Criminal Procedure, as amended by this Act.


Thus, while the Court of Criminal Appeals clearly has power to establish rules relating to applications for writs of habeas corpus, the rules cannot abridge the rights of an applicant under other law.

Application of the “Rules”

Pursuant to its rulemaking authority, the Court of Criminal Appeals has promulgated the Texas Rules of Appellate Procedure (TRAP) 73.1 and 73.2. Rule 73.1 states that in a non-death-penalty case, an application for a post-conviction writ of habeas corpus must be made in the form prescribed by the Court of Criminal Appeals. Accordingly, the Court of Criminal Appeals has prescribed just such a form.

Rule 73.2 speaks to noncompliance with the requirement to use the form:

The clerk of the convicting court will not file an application that is not on the form prescribed by the Court of Criminal Appeals, and will return the application to the person who filed it, with a copy of the official form. The clerk of the Court of Criminal Appeals may, without filing an application that does not comply with this rule, return it to the clerk of the convicting court, with a note of the defect, and the clerk of the convicting court will return the application to the person who filed it, with a copy of the official form.

Significantly, noncompliance is described as “fil[ing] an application that is not on the [prescribed] form.” Noncompliance is not described as some deficiency in completing the form. The rules do not envision the Court of Criminal Appeals returning applications due to an imperfection in completing the required form. Rejecting my colleague’s application for a flaw on the form goes well beyond the rule’s charge to return applications that are not on the form at all.

In addition to the rules, the Court of Criminal Appeals has placed instructions on the form itself regarding situations in which applications will be returned to filers. The instructions say “[i]f any pages are missing from the form, or if the form has been downloaded and the questions have been renumbered or omitted, [the] entire application will be returned as non-compliant.” As an initial matter, whether the “instructions” can dictate when an application is non-compliant is questionable. It is not unreasonable to think only the rule could do that. But even if the instructions can dictate when an application is non-compliant, my colleague submitted a form with no missing pages, no re-numbered questions, and no omitted questions. Her application should not have been rejected for not complying with the form’s instructions.

More importantly, Rule 73.2 does not say a noncompliant application for writ of habeas corpus is to be “dismissed.” Rather, the rule states the application is to be “returned” with a copy of the official form.2 “Returning” a writ is far different than “dismissing” a writ. A dismissal gives rise to serious statute-of-limitations concerns for §2254 writs of habeas corpus in federal court. The dismissal of the state writ would not toll the strict one year federal statute-of-limitations and could potentially render federal habeas review unattainable.3 Rule 73.2’s directive that the application be returned to the applicant “with a copy of the official form” suggests that the application be resubmitted using the required form. Indeed, the rule seems to envision a course of action by the Court similar to that employed in regard to noncompliant petitions for discretionary review. Noncompliant petitions for discretionary review are not “dismissed” or “returned.” Rather, they are “struck” and the petitioner is invited to “redraw” the petition.4

Even if the Court of Criminal Appeals were authorized to dismiss applications under Rule 73.2, the rule abridges the substantive rights of the applicant. An applicant’s substantive rights are not to be abridged by a rule promulgated by the Court of Criminal Appeals. See Acts of 1995, 74th Leg., R.S., Ch. 319 §6., supra. Section 5 of Article 11.07 of the Code of Criminal Procedure states that “[u]pon reviewing the record, the [Court of Criminal Appeals] shall enter its judgment remanding the applicant to custody or ordering his release, as the law and facts may justify.” The Court of Criminal Appeals is statutorily foreclosed from dismissing applications for writs of habeas corpus without reviewing the law and the facts.5 No law and facts are reviewed when an application is rejected on the basis of deficient form.

The Texas Constitutional Guarantee

Even if there is some question as to whether Texas Code Crim. Proc. Art 11.07 prohibits the Court of Criminal Appeals from dismissing applications on the basis of form, such a question should be resolved in favor of a prohibition. This is because
“[e]very provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the remedy, and protect the rights of the person seeking relief under it.” See Texas Code Crim. Proc. Art. 11.04. Moreover, dismissals of habeas applications for deficiencies in form seems to contravene the spirit of the Texas Constitution’s guarantee that “[t]he writ of habeas corpus is a writ of right, and shall never be suspended.”


The best solution would be for the Court of Criminal Appeals to reconsider its dismissal policy. A form that is deemed “noncompliant” should be returned and given 30 days to correct any errors, as petitions for discretionary review are routinely han­dled. A new policy would better protect the constitutional right of persons to obtain habeas review. If the Court of Criminal Appeals believes that dismissal for noncompliance is the only option, then a legislative mandate addressing that action would be appropriate.

Final Note: On October 12, 2011, the Court of Criminal Appeals granted relief for Michael Morton on an 11.07 writ based upon actual innocence. This high-profile case was based upon the wrongful conviction and incarceration of an innocent man for over 25 years. The Innocence Project prepared a brilliant application for writ of habeas corpus, and it was filed along with agreed findings that relief be granted. However, the writ form was not properly filled out. The Court of Criminal Appeals granted relief, noting,

This application for writ of habeas corpus is non-compliant with the appellate rules because it contains more than one ground per page. TEX. R. APP. P. 73.1. However, because it is apparent from the face of the record that Applicant is entitled to relief, the State has not moved to dismiss the application as non-compliant, and the State agrees with the recommendation to grant relief, this Court will exercise our inherent jurisdiction in this matter and address the application on its merits. Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999).

Ex parte Morton, AP 76,663 (Tex. Crim. App. October 12, 2011). Mr. Morton got the relief he deserved. In the case of my colleague, and several other cases I have personal knowledge of, the State never objected to the “non-compliant” form. What is apparent is that inmates who do not possess the same high profile as Mr. Morton, are not afforded the same “exercise” from the Court.



2. “Return” is not defined in Black’s law dictionary. The Merriam-Webster online dictionary defines it as “to go back or come back again.” 0&t= 1311017737

Black’s law dictionary defines dismiss as “to terminate (an action or claim) with­out further hearing, esp. before the trial of the issues involved.”

3. In federal habeas law, the statute of limitations is tolled and not counted toward any period of limitation when “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . 28 U.S.C.A. §2244 (d)(2). (West). The time between the “dismissal” and any “re-filed” writ would be counted against the applicant. And that is presuming an applicant has the funds or abil­ity to re-file the writ at all.

4. The typical Court of Criminal Appeals order on noncompliant petitions for discretionary review states:

The petition for discretionary review violates Rule of Appellate Procedure 9.3(b) and 68.4(i) because the petition is not accompanied by 11 copies and the petition does not contain a complete copy of the opinion of the court of appeals. The petition is struck. See Rule of Appellate Procedure 68.6. The petitioner may redraw the petition. The redrawn petition and copies must be filed in the Court of Criminal Appeals within thirty days after the date of this Order.

5. In Ex parte Kerr, the Court of Criminal Appeals detailed a portion of the original thinking behind the “one writ” rule:

Representative Pete Gallego, in presenting the same habeas bill to the Texas House of Representatives stated:

And we tell individuals that everything you can possibly raise the first time, we expect you to raise it initially, one bite of the apple, one shot. . . . What we’re attempting to do here is to say “raise everything at one time.” You get one bite of the apple. If you have to stick the kitchen sink in there, put it all in there, and we will go through those claims one at a time and make a decision. But none of this “every week you file a new petition” which is currently basically what happens. . . . The idea is this: you’re going to be able to fund counsel in these instances and we are going to give you one very well-represented run at a habeas corpus proceeding. And unless you meet a very fine-tuned exception, you’re not going to be able to come back time after time after time.

Ex parte Kerr, 64 S.W.3d 414, 418–19 (Tex. Crim. App. 2002)(explaining the rationale behind S.B. 440, Acts 1005, 74th Leg., codified at Tex.Code Crim. Proc. Art. 11.071 (Presentation by Representative Pete Gallego at second reading of S.B. 440 on the floor of the House of Representatives, May 18, 1995)).

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

I. Overview

Tex. Code Crim. Proc. art. 46B, having to do with competency, was amended by the 82nd Legislature. In the following, those changes effective September 1, 2011 will be reviewed.

II. Principles as Predicates

Review of the changes to this statute may seem less obtuse if the reader recalls three basic principles:

First, the frequency with which events occur is inversely proportional to the time and energy required to manage them. Dealing with infrequent events—in part because they are infrequent—requires many resources and reflection.

This is no less the case than with issue of competency to stand trial. Harris County sees roughly 140,000 arrests in any given year. Out of that number, slightly more than 1%, or 1800, orders for competency and/or sanity examinations are received. Of that number, roughly 25% are opined to be incompetent to stand trial—and of that number, roughly half to two-thirds are adjudicated incompetent; in short, about 200 defendants more or less. Thus, less than one-quarter of 1% of all defendants will be adjudicated incompetent.

There is no question, however, but that the amount of energy, thought and discussion about these cases is significantly out of proportion to the total number of cases. Competency issues are infrequent events, but require knowledge of Article 46B, which is procedurally intensive.

Second, the Nineveh principle may be helpful: An old descriptor (actually appearing in the book of Jonah 4:11, referring to the citizens of Nineveh), is that some people don’t seem “to know their right hand from their left.” Indeed, that has occurred from time to time with the Texas Legislature which—as in this most recent session—passed two pieces of legislation modifying Tex. Code Crim. Proc. art. 46B in differing fashion. On May 26, 2011, HB 2725 was passed; followed by HB 748 on May 28, 2011. Both were signed by the Governor on June 17, 2011.

Third, and related to the second, the Legislature has also contemplated such circumstance and has created the code construction act, codified in Tex. Gov’t Code § 311.025. The content of this section provides rules for how acts passed in the same session, modifying the same statutes, are to be interpreted.

The basic rule in § 311 is that if two acts are passed in the same session, modifying the same act, “the amendments shall be harmonized, if possible, so that effect may be given to each.” But, “if irreconcilable, the latest in date of enactment prevails.”

Fortunately, although HB 2725 overhauls a significant portion of article 46B, HB 748 was far more modest in scope. Each section, however, will be reviewed in turn.

III. Comparison of HB 748 and HB 2725

Art. 46B.003. Incompetency; Presumptions

The standard for competency and an exception deserves comment: Texas has long adopted the Dusky standard for competency, i.e.

(a) A person is incompetent to stand trial if the person does not have:

(1)sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational un­der­standing; or

(2)a rational as well as factual understanding of the proceedings against the person

In Dusky, the Supreme Court held that: “It is not enough for the district judge to find that ‘the defendant is oriented to time and place and has some recollection of events,’ but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” (p.402). Dusky v. United States, 362 U.S. 402 (1960).

In Godinez v. Moran (1993), the United States Supreme Court specified that the standard for the various types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be considered the same. Justice Thomas wrote for the majority:

The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for “reasoned choice” among the alternative available to him. How this standard is different from (much less higher than) the Dusky standard—whether the defendant has a “rational understanding” of the proceedings—is not readily apparent to us. . . . While the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial. Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.

Godinez v. Moran, 509 U.S. 389 (1993).

In Texas, while there is ordinarily a single standard for competency, an exception exists, not on the basis of the capacity to waive Miranda rights, stand trial, or plead guilty, but specifically whether the defendant wishes to proceed pro se. Citing Indiana v. Edwards, 554 U.S. 164 (2008), the Chadwick court acknowledged that competency to be pro se requires a higher standard than that of competency generally. Chadwick v. State, 277 S.W.3d 99 (Tex. App.—Austin 2009), aff’d 309 S.W.3d 558 (Tex. Crim. App. 2010).

Art. 46B.004. Raising the issue

The “bona fide doubt” standard to raise the issue of competency was long accepted in Texas, Townsend v. State, 427 S.W.2d 55 (Tex. Crim. App. App. 1968); Wilborn v. State, 491 S.W.2d 432 (Tex. Crim. App. 1973); Dinn v. State, 570 S.W.2d 910 (Tex. Crim. App. 1978); Mata v. State, 632 S.W.2d 355 (Tex. Crim. App. 1982); cf., discussion in Alcott v. State, 51 S.W.3d 596, 599 (Tex. Crim. App. 2001), wherein a “bona fide doubt” is a “real doubt in the judge’s mind as to the defendant’s competency.”

Evidence to raise the issue of competency is sufficient if it shows “recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.” McDaniel v. State, 98, S.W.3d 704, 710 (Tex. Crim. App. 2003). Mata is generally cited as the controlling case.

The changes to 46B in 2004, however signaled a move away from the bona fide doubt standard,1 a move which is now quite clear with the modifications to art. 46B.004 made by HB 2725:

(c-1) A suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant. Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors described by Article 46B.024 or on any other indication that the defendant is incompetent within the meaning of Article 46B.003.

Heretofore, only in Greene v. State did the court identify that the terms “suggest” and “suggestion” represented a softening of that quantum of evidence necessary to raise the issue of competency. Greene v. State, 225 S.W.3d 324, 328 n.3 (Tex. App.—San Antonio 2007, no pet.). The changes imposed by HB 2725, however, are clear and unequivocal: Evidence from “any credible source” suggesting the defendant may be incompetent is sufficient to trigger a competency evaluation. And, “the court is not required to have a bona fide doubt about the competency of the defendant.” In short, the bona fide doubt standard is no more. The likely effect is that more requests for competency evaluations will ensue, inasmuch as failure to do so, which would be reviewed under an abuse of discretion standard, would now tend to result in more cases being sent back—since the “bona fide doubt” standard was a fairly high standard and the “suggestion” standard is a low standard indeed.

The quantum of evidence to raise the issue of competency, however, is but one of five evidentiary standards in 46B: A mere suggestion of incompetency is sufficient to raise the issue. A preponderance of the evidence is necessary to establish incompetency and commit a person for restoration. Yet, clear and convincing evidence is necessary to initiate civil commitment under 46B.102 and a beyond a reasonable doubt standard applies in mental retardation commitments under 46B.103. Finally, “evidence to support a finding that a person is mentally ill or a person with mental retardation” is sufficient to initiate a civil transfer under 46B.151.

Art. 42.03 & Art. 46B.009. Time credits

Art. 42.03 was modified both by HB 748 and HB 2725, using identical language:

(a) In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant has spent:

(1)in jail for the case, including confinement served as described by Article 46B.009 and excluding [other than] confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court; [or]

(2)in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or another court-ordered residential program or facility as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility; or

(3) confined in a mental health facility or residential care facility as described by Article 46B.009.

Then art. 46B.009 was modified identically by both acts:

Art. 46B.009. TIME CREDITS. A court sentencing a person convicted of a criminal offense shall credit to the term of the person’s sentence each of the following periods for which [the time] the person may be [is] confined in a mental health facility, residential care facility, or jail:

(1) any period of confinement that occurs pending a determination [trial] under Subchapter C as to the defendant’s competency to stand trial; and

(2) any period of confinement that occurs between the date of any initial determination of the defendant’s incompetency under that subchapter and the date the person is transported to jail following a final judicial determination that the person has been restored to competency.

The modifications to this point are only nominally different from the existing statute and but clarify that both jail confinement and a criminal commitment for restoration count in determining the maximum period of time a person may be confined. Art. 46B.0095, however, institutes a new wrinkle—or at the very least clarifies the existing statute.

Art. 46B.0095. Maximum Period of Commitment or Outpatient Treatment Program Participation Determined by Maximum Term for Offense

In this article, the language of HB 748 and HB 2725 is slightly different (see the table on the page following).

HB 2725 makes it very clear that a person may not be confined in a jail setting, or committed to a restoration program, for a period of time that would exceed the maximum sentence he or she could have received had they been convicted on day one. Moreover, harmonizing HB 748 and HB 2725 would lead to the conclusion that that subsequent confinement must be by a court having probate jurisdiction and conducted under the rules of the Health & Safety Code. This is not at all troublesome in the vast majority of counties in Texas, but in counties such as Harris, with statutory probate courts, the court having criminal jurisdiction is not the court having jurisdiction over strictly civil commitment of the defendant (noting that 46B.102/.103 commitments are a different entity with special application).

The effect of this change will apply—in practice—only to Class B misdemeanants and occasionally a Class A misdemeanant, as evident in the following scenario:

  • Day 1 Defendant is booked on a Class B charge
  • Day 60 Defendant is adjudicated incompetent
  • Day 120 Defendant is released from jail and sent to a state hospital for restoration under Tex. Code Crim. Proc. art. 46B.073.
  • Day 165 State hospital requests a 60-day extension

The alternatives are now very limited, inasmuch as granting an extension would subject the defendant to a potential period of confinement of 225 days—exceeding the maximum possible period of confinement of 180 days. This issue would not be problematic for most Class A misdemeanants, or in felony cases where the maximum period of confinement is far longer.

Nonetheless, in such a circumstance—and given that the defendant was adjudicated incompetent (and not restored)—a 46B.151 transfer for purposes of civil commitment is permissible.

Attend to the fact that HB 2725 inserts the phrase into .0095 prohibiting future commitments, subsequent to a commitment for restoration—applying to a defendant who has served that period of time which would constitute the maximum possible sentence—under “Subchapter D or E or any other provision of this chapter.” This would appear to specifically prohibit what is frequently a most useful alternative for mentally ill misdemeanor defendants: namely a 46B.102 or 46B.103 civil commitment by the criminal court. More about that will be said later.

There are periods of confinement which would courts may consider viz. time credits:

(1)the period between arrest and adjudication of incompetency;

(2)the period between adjudication of incompetency and transfer for restoration treatment,

(3)the period of restoration treatment; and

(4)the period upon return from restoration treatment and disposition.

The single area of some conflict between HB 748 and HB 2725 occurs in 46B.0095(d), where HB 758 says the court “may” and HB 2725 says the court “shall” give credit for the period between arrest and adjudication of incompetency. However, Art. 42.03 earlier directs the courts to give credit for this period and Texas has a plethora of caselaw on the necessity to give time credits at sentencing for a period of incarceration, excepting discretionary credit for time served as a condition of community supervision. See Ex parte Walker, 150 S.W.3d 429 (Tex. Crim. App. 2004); Ex parte Jasper, 538 S.W.2d 782 (Tex. Crim. App. 1976); Ex parte Kuban, 763 S.W.2d 426 (Tex. Crim. App. 1989). Consequently, though HB 748 would technically supersede HB 2725, the weight of authority is significantly toward granting mandatory time credits for that period of incarceration prior to adjudication of incompetency.

As an aside this statute would have no special effect upon “local restoration,” i.e., an inpatient restoration program geographically housed locally, as opposed to a state hospital program some distance away. A pilot project from May–November 2010 in Harris County was established to provide restoration as statutorily permitted for all misdemeanants and felony cases not meeting the criteria of Article 17.03(a)(6), or an affirmative finding under 3(g)(a)(2) Article 42.12, which demonstrated that persons could be restored in one-third the amount of time Rusk State Hospital has required (37 days vs. 99), and with two-thirds the costs ($25k vs. $37k) and having the same restoration rate (over 80%).

Art. 46B.010. Mandatory Dismissal of Misdemeanor Charges

This section was modified—save for a minor exception—identically in both bills. (See table on top of next page.) This modification extends to inpatient treatment the rule that charges may be dismissed if the defendant is not tried before the expiration of the period described in .0095. However, the most interesting feature of the modification of this section is to suggest that—in contrast to virtually all other circumstances (with limited exceptions)—a misdemeanor case may be dismissed without the consent of the State. See discussion in State v. Johnson,821 S.W.2d 609 (Tex. Crim. App. 1991). The statute appears to permit the defense to move that a matter be placed on the docket and the court is granted authority to dismiss—see Sec. 2. This may result in appellate review, though it clearly applies only to the lowest-level case.

From this point forward in the document, only HB 2725 applies.

Art. 46B.022. Experts: Qualifications

Art. 46B. Experts: Qualifications (a) To qualify for appointment under this subchapter as an expert, a psychiatrist or psychologist must:

(1)as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and

(2)have the following certification [or experience] or training:

(A)as appropriate, certification by:

(i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or

(ii) the American Board of Professional Psychology in forensic psychology; or

(B)[experience or] training consisting of:

(i) at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations; and

(ii) at least [for an appointment made before January 1, 2005, at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts; or]

[(iii) for an appointment made on or after January 1, 2005, at least five years of experience before January 1, 2004, in performing criminal forensic evaluations for courts and] eight [or more] hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment [and documented with the court].

The issue of expert qualifications has been troubling across the state, despite a Legislative Council letter dated October 24, 2003, part of which read: “Apparently an attorney in Harris County has opined that the lack of a conjunction between items 46B.022(a)(2)(B)(i) and (ii) means that a psychiatrist or psychologist seeking court appointment as an expert for determining the competency of a defendant before January 1, 2005, needs both 24 hours of specialized training and 5 years of experience in performing criminal forensic examinations. This is incorrect.” And, as Brian Shannon pointed out in his book, Texas Criminal Procedure and the Offender with Mental Illness, supra, there has been confusion by some experts “and even a few courts . . .” (p. 72) on the matter. This amendment, however, clearly lays to rest the issue that experience is a qualification, as experts must be qualified by board certification or training, and have regular continuing education.

As an aside, it may be unfortunate that art. 46C.102—which deals with the qualifications of examiners conducting sanity examinations—was not modified so as to be clearly consistent with 46B. However, 46C.102 does unequivocally permit psychiatrists or psychologists qualified alternatively by board certification, or training, or experience to conduct such examinations and perhaps there will be less confusion than the writer fears.

Art. 46B.024. Factors Considered in Examination.

Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an examination under this subchapter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:

(1)the capacity of the defendant during criminal proceedings to:

(A)rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;

(B) disclose to counsel pertinent facts, events, and states of mind;

(C) engage in a reasoned choice of legal strategies and options;

(D) understand the adversarial nature of criminal proceedings;

(E) exhibit appropriate courtroom behavior; and

(F) testify;

(2)as supported by current indications and the defendant’s personal history, whether the defendant:

(A) has a [diagnosable] mental illness; or

(B) [or] is a person with mental retardation;

(3)whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from [impact of] the mental illness or mental retardation, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

(5) [(4)] if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant’s competency; and

(B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

A discussion of how to read competency examinations, or to conduct either direct or cross-examination of experts on these issues is beyond the scope of this writing. However, be aware that very specific issues must be addressed in competency examinations, six capacity issues (rational understanding, disclosure of facts, events and states of mind, capacity to engage in reasoned choice, understanding the adversarial nature of proceedings, exhibit appropriate behavior and testify), plus presence or absence of mental illness or mental retardation, the duration of such a condition—if existing—as well as degree of impairment, medications prescribed, and effects thereof. Historically, certain advocacy interests—believing that psychoactive medications would be harmful to all persons—pressed for the insertion of a phrase inquiring as to the “effect, if any, of the medication on the defendant’s appearance . . . etc.” In point of fact, psychoactive agents virtually never interfere with a defendant’s ability to exhibit appropriate courtroom behavior, but only aid in ensuring that to be the case.

In Harris County, a contract exists between MHMRA of Harris County and the sheriff’s office to provide competency or sanity examinations, and while in the distant past there was great variability among examiners as regards the nature of the reports, now all examiners use the same structured inventory to conduct competency examinations and generally follow the TACOOMI template for reports to the courts. Some provide more historical information than others.

A comment about mental health diagnoses: A diagnosis—by a competency examiner—that a defendant is a person with mental retardation, however, does not require that the examination meet the Health & Safety Code standards for such determinations. In Rodriguez v. State the court held that competency and mental retardation are very different concepts such that “the language of the code does not compel mental retardation determinations be governed by the Health Code.” Moreover, mental retardation is not dispositive of competency. Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995). See also Grayson v. State, 438 S.W.2d 553 (Tex. Crim. App. 1969)—neither mental retardation nor psychosis are sufficient in and of themselves to defeat the presumption of competency. And, for that matter, incapacity under the guardianship code does not constitute incompetency. Koehler v. State, 830 S.W.2d 665, 666 (Tex. App.—San Antonio 1992, no pet.).

Art. 46B.025. Expert’s Report

Art. 46B.025. EXPERT’S REPORT. (a) An expert’s report to the court must state an opinion on a defendant’s competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:

(1)identify and address specific issues referred to the expert for evaluation;

(2)document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;

(3)in specific [general] terms, describe procedures, techniques, and tests used in the examination, [and] the purpose of each procedure, technique, or test, and the conclusions reached; and

(4)state the expert’s clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert’s diagnosis, and state specifically any issues on which the expert could not provide an opinion.

(a-1) The expert’s opinion on the defendant’s competency or incompetency may not be based solely on the defendant’s refusal to communicate during the examination.

(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:

(1)the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant’s mental illness or mental retardation, if any, and the [that] impact of the identified condition on the factors listed in Article 46B.024[, contributing to the defendant’s incompetency]; [and]

(2) an estimate of the period needed to restore the defendant’s competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and

(3) prospective treatment options, if any, appropriate for the defendant.

(c)An expert’s report may not state the expert’s opinion on the defendant’s sanity at the time of the alleged offense, if in the opinion of the expert the defendant is incompetent to proceed.

(d) The court shall direct an expert to provide the expert’s report to the court and the ap­pro­priate parties in the form approved by the Texas Correctional Office on Offenders with Med­ical or Mental Impairments under Section 614.0032(b), Health and Safety Code.

This article was modified to require that experts provide greater specificity both in terms of the procedures, techniques, or tests used in the examination—as well as the conclusions reached. The courts have long eschewed brief, conclusory reports (City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009)); however, the present modification requires examiners to provide greater detail as both as to the materials relied upon as well as the conclusions reached.

In addition, an issue that not uncommonly appears in reports was also addressed by the legislature: namely, providing a report based solely upon a defendant’s refusal to communicate. While a competency opinion may be offered in cases wherein a defendant is non-communicative, the examiner is now required to identify the bases of his/her opinion—and specifically the collateral sources upon which the examiner relied, such as deputies observing the defendant, medical rec­ords, family members, etc.

Finally, this section reinstituted a term that was in the preceding competency article, i.e., art. 46.02—“unlikely to be restored to competency in the foreseeable future”—but was removed from 46B. This phrase is now required to be addressed by examiners; and about this issue more will be said in reference to 46B.071.


1. For a discussion see Brian D. Shannon and Daniel Benson, Texas Criminal Procedure and the Offender with Mental Illness, 4th Ed. National Alliance on Mental Illness, Austin, Texas 2008. As well, Alan Curry, Appellate Division Chief of the Harris County District Attorney’s Office pointed out in a personal communication that in Montoya v. State, 291 S.W.3d 420 (Tex. Crim. App. 2009), the Court of Criminal Appeals refused to abandon the “bona fide doubt” standard, even under the newer statute. See also Gonzales v. State, 313 S.W.3d 840 (Tex. Crim. App. 2010); Rodriguez v. State, 329 S.W.3d 74 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

The conclusion of this article will appear in the November issue of the Voice.

Mitigation of Defendants in Federal Court

I first began writing presentence reports in 1983, pre-guideline. Psychological and social histories were important to the investigation of defendants and their offenses. Our “motto” was “investigate, question, probe.” Many do not know that in actuality there were sentencing statistics issued by the Administrative Office of the U.S. Courts every year. Judges and probation officers often referred to those statistics as a gauge for sentencing, but they were not the controlling factor.

Then in 1987 came the Sentencing Guidelines. Many social history issues that had been considered in sentencing were thrown out the window. Probation officers were told to determine sentences based upon a mathematical calculation, with little to no regard for the defendants and their histories. As a U.S. Probation Officer who worked in a district fortunate enough to staff with judges, I can tell you the mandatory nature of the guidelines did not go over well. Judges always did—and still do—want to know who is this person, why did (s)he commit this offense, what happened to the money?

I know there are probation officers who consider themselves “guideline purists.” My response is poppycock! The sentencing of defendants never has been and never should be all about the numbers. Especially when so many guidelines are mandated by Congress and not based upon scientific facts. That is why Booker was so huge. After many years of judges looking for reasons to depart from the guidelines and not be reversed, Booker in essence said, “Ok, after 18 years we’ve decided that social history is important after all.”

It is not easy to find issues of mitigation. You have to have an ability to know what to ask, reading between lines, which takes a special kind of investigator. When probation officers receive presentence report assignments, they are inundated with information from the government, the investigative agent, and, sometimes, victims. In order to determine which 18 U.S.C. §3553(a) factors apply to a defendant, probation officers need to conduct hours of interviews with offenders, family members and close friends to gain this insight. In this time of budget cuts, insufficient staff, and high caseloads, this is not going to happen. That is why it is incumbent upon defense attorneys to provide this information.

Have you ever said, “This guy is nuts”? Well, maybe he is and a psychological evaluation would be your key. The most recent study by the Department of Justice indicated that more than half of all prison and jail inmates—including 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of local jail inmates—were found to have a mental health problem. Female inmates had even higher rates of problems than male inmates—in state prisons, 73 percent of females and 55 percent of males; in federal prisons, 61 percent of females and 44 percent of males; and in local jails, 75 percent of females and 63 percent of males (“Mental Health Problems of Prison and Jail Inmates,” Doris J. James and Lauren E. Glaze, BJS Statisticians, September 2006). In 2009, Sentencing Commission statistics show only 2.9% of defendants receiving a downward departure for “mental and emotional conditions,” while 11.9 percent were given downward departures for “general mitigating circumstances” (U.S. Sentencing Commission’s Sourcebook of Federal Sentencing Statistics 2009). Clearly mental health issues are underutilized as mitigation for defendants.

If childhood experiences were extreme (and I have successfully used being raised in a drug-infested area of Dallas with no role models as justification), if the defendant suffered trauma or abuse, these situations can be used to show why the defendant makes poor choices/decisions and engages in risky behavior, and can be used as a reason for variance from the guidelines.

In complex white-collar cases, meeting with the probation officer early on and submitting the defense view of the case, the loss amount, etc., can be helpful. Sometimes putting this in a concise written form for the probation officer is helpful.

The pendulum is swinging back. As advocates for your defendants, it is incumbent upon you to either take the time to flesh out these mitigation issues for your client or hire someone to do it for you. By and large, the probation officers are not going to do it for you. Before I retired, I viewed myself as a neutral “eyes and ears of the court.” Subsequent work for defense attorneys has shown me how very prosecutorial probation officers actually are. It is not out of malice; it is more from a “corporate mentality.” That is why it is so important for attorneys to be proactive. It has to start as soon as you are hired, not when the presentence report is disclosed. It is up to you to push that pendulum back toward the defendants and away from the perspective of the prosecution. Think “creative advocacy.”

October 2011 Complete Issue – PDF Download




22 | The Dismissal of Writs by the Court of Criminal Appeals – By Jani Maselli
26 | Changes to 46B: Harmonizing HB 748 and HB 2725, Part I – By Floyd L. Jennings
34 | Mitigation of Defendants in Federal Court – By Sharon Valenti
44 | Motion for Waiver of DPS Surcharge – By Stephen L. Hamilton

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

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

The Sniff Test

In my May 2010 President’s Message in the Voice, I shared my view of forensic science in this state. I lamented the abysmal history of forensic science and that innocent individuals who have been incarcerated and that our Court of Criminal Appeals has been non-responsive. In my column, I stated:

It is a credibility problem. It is a problem caused by a lack of leadership. I believe that the Court has a duty to instill in the people confidence in the integrity of our judicial system. I believe that this Court must assume its ultimate role as the super gatekeeper of forensic science.

A lot has happened since that column was written. The Court of Criminal Appeals has, in a series of cases, acted in its “super” gatekeeper role. First, in Coble v. State, 330 S.W. 3d 253 (Tex. Crim. App. 2010), and Winfrey v. State, PD-0987-09 (Tex. Crim. App. 2010), the Court explained why trial courts should not have allowed experts to testify based on the methodology used to formulate their opinions. In Coble, supra at 279–280, the Court scrutinized the record and the scientific problems with the testimony of Dr. Richard Coons regarding future dangerousness in a death penalty case and stated:

Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coon’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeeping hearing in this particular case.

The Court clearly emphasized the importance that an expert’s methodology be scientifically sound and subject to peer review.

In Winfrey, supra, the Court determined that dog sniff lineup identification evidence, in which a dog handler placed the accused at the scene of a murder, was insufficient to support a murder conviction. There, the Court stated:

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. “Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.” Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L. J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that “[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.” Loucks, 656 P.2d at 482. To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the courtroom is merely supportive.

(Slip opinion at p.7)

In both Coble and Winfrey, the Court of Criminal Appeals clearly told trial courts that they most review the methodology of experts before opening the gate to the courtroom. Simply because a witness wears a white coat and is proffered by the State does not mean that the expert’s testimony is admissible.

Most recently, in Tillman v. State, PD-0727-10 (October 5, 2011), a unanimous Court of Criminal Appeals, in an opinion written by Judge Barbara Hervey, held that a trial court erred in prohibiting Dr. Roy Malpass, a defense expert on eyewitness identification, from testifying in a capital murder case. After reviewing the trial record and arguments presented, Judge Hervey clearly stated that the proponent of an expert witness must satisfy two things: (1) that the testimony is based on a reliable scientific foundation, and (2) that it be relevant to the issues in the case. Hartman v. State, 946 S.W.2d 60, 62 n. 4 (Tex.Crim.App.1997).

The opinion emphasized that:

the focus of the reliability analysis is to determine whether the evidence has its basis in sound scientific meth­od­ol­ogy such that testimony about “junk science” is weeded out. Jordan, 928 S.W.2d at 555. Expert testimony in the field of psychology pertaining to the reliability of eyewitness identifications is a “soft science.” See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). Consequently, to establish its reliability, the proponent 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.” Id.; Nenno, 970 S.W.2d at 561. This analysis is “merely an appropriately tailored translation of the Kelly test to areas outside of hard science.” Nenno, 970 S.W.2d at 561.

The Court also made two additional points. Specifically, that expert testimony becomes relevant when the expert makes an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony. And of more import, the Court noted that under TRE Rule 702, the question is not whether the jurors know something about this subject, but whether the expert can expand their understanding in a relevant way.

But the true importance of the opinion is that it points out the conflict between science and law. Our Court pointed out that since the Supreme Court’s decision United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” The Court stated that:

Since then, eyewitness identification has continued to be troublesome and controversial as the outside world and modern science have cast doubt on this crucial piece of evidence. As Malpass pointed out in his testimony, eyewitness identification that is not properly conducted is a major factor behind wrongful conviction. The Supreme Court of New Jersey has articulated its concern for the current state of eyewitness identification:

[A] vast body of scientific research about human mem­ory has emerged. That body of work casts doubt on some commonly held views relating to memory. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. Henderson, 2011 N.J. LEXIS 927, at *14–16.

The Tillman decision sets the ground work for a challenge to the test for admissibility of eyewitness testimony.

The real value of Coble, Winfrey, and Tillman is that they highlight methodology, reliability, and relevance as preconditions to admissibility. Scientific testimony is not admissible unless the proponent of the expert testimony proves (1) that the field of expertise involved is a legitimate one, (2) that the subject matter of the expert’s testimony is within the scope of that field, and (3) that the expert’s testimony properly relies upon or utilizes the principles involved in that field. It is now abundantly clear that trial courts have a duty to even-handedly apply these principles no matter who sponsors the expert. Coble and Winfrey involved testimony of experts testifying for the State, whereas Dr. Malpass was a defense expert in Tillman. It appears change is on the horizon in Texas. The “super” gatekeeper appears awake, alive, and well. We will now have to wait and see if our trial courts understand the lessons the Court of Criminal Appeals has now given them.

President’s Message: Being a Defense Lawyer: Taking the Constitutional High Road—Winning Is Not Everything – By J. Gary Trichter


“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

With these words, John Adams, Dr. Benjamin Franklin, Roger Livingston, Roger Sherman, Robert R. Livingston, and Thomas Jefferson set the stage in our Declaration of Independence for the Bill of Rights and our job as criminal defense lawyers. Two of those inalienable Rights, and maybe the two most important in the Bill of Rights, are the Sixth Amendment’s rights to “an impartial jury . . . and to have the Assistance of Counsel for his defense.” Of the two, it is the right to counsel that is arguably the most important because it is that one which protects all of the others.

The role of defense counsel was best summed up in Justice White’s concurring opinion, joined by Justices Harlan and Stewart, in the landmark 1967 case of United States v. Wade. There, the concurring Justices said:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but more often than not, defense counsel will cross examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for the truth.

Interestingly and importantly, the defense lawyer has no ethical obligation to win the client’s case. Absent having an innocent client, the good, or even great, defense lawyer knows not to put winning the case as the exclusive priority. Rather, the lawyer’s ethical and constitutional focus must be on protecting the client’s right to a fair trial. Like it is said in sports, it’s not whether you win or lose, but how you play the game. For the defense lawyer, it must not be all about winning, but how the justice system played—was the trial fair?

My 31 years as a criminal defense lawyer have taught me that far too many prosecutors and defense lawyers (and judges) unthinkingly get caught up in the competiveness of our adversary system. Sadly, they are of the wrong mindset: “It is all about the win.” Such thinking does a grave disservice to our justice system and to lawyers and judges who perpetuate it because the mindset ought to be “it is all about system working correctly and being fair.”

With an innocent client, it is morally just and expected that the defense lawyer would want the client to be exonerated. With the guilty client, however, is it right to have the same want? There is no black-and-white answer to this question for all situations or clients. For example, in some circumstances, a conviction’s label, punishment and/or collateral consequences can yield too great an injustice for it to be just. In other circumstances, the client may already be truly repentant and rehabilitated so that justice does not require a conviction. But yet, in other circumstances, where a client is actually guilty and then found guilty, if there was a fair trial, defense counsel ought to be satisfied and proud that justice was done. In this last example, if the trial was fair, then both the criminal justice system and defense counsel win. Indeed, when this happens, society and America wins. Clearly, there is no glory in freeing the guilty but there is great honor in standing up and defending that person’s right to a fair trial.

I am a diehard history buff. Our American History has been and is important to me. In my view, the 2.5 million U.S. Soldiers who died or were wounded protecting our country since its birth ought to have an everlasting value that can and should be related to what we do. I believe these honored military men and women have consecrated our rights with their blood, making those rights sacred and in need of unceasing protection. Being a good defense lawyer is hard and demanding work. It takes a special vision, a lot of courage, and heightened constitutional understanding to properly do our job. The responsibility of protecting the rights of another is awesome. Without a doubt, done right and for the right reasons, being a defense lawyer is a most honorable profession. Like the soldier, our mission is pure and patriotic when we battle for others, and not for ourselves.

And so, I say to you as your president that your fundamental duty is not to the truth, nor is to win a “not guilty” for your client, but rather, it is to police the government to make sure constitutional rights are honored, respected, and protected – as much for the guilty as for the innocent. I am proud to be part of this Association because the members of this group are the true spirit and champions of fairness and justice. Absent you constitutional fighters, there would be no constitution! Thank you for your courage and patriotism.

—J. Gary Trichter
Your TCDLA President

Executive Director’s Perspective: Board Business – By Joseph A. Martinez


Special thanks to our course directors, E. G. “Gerry” Morris (Austin), Sam Bassett (Austin) and Marjorie Bachman (Austin), for TCDLA “Defending Those Accused of Sexual Assault” seminar held in Austin. Thanks to their fine efforts, we had 173 attendees. This seminar will be held again in Houston on December 6–7, 2012. Please plan on joining us.

Special thanks to our course directors, Mark Kelly (Texas City), David Moore (Longview), and Jeanette Kinard (Austin), for our CDLP “Wining Trial Tactics” seminar held in Galveston. Thanks to their fine efforts we had 83 attendees. The next “Winning Trial Tactics” seminar will be held in Waco on April 5, 2012. Please plan on joining us.

Special thanks to Eric Willard (El Paso County Public Defender Office), course director for the “4th Annual El Paso County Mental Health Law Conference” held in El Paso. Thanks to his fine efforts we had 174 attendees.

The Court of Criminal Appeals in Texas has been awarded a Department of Justice Capital Case Litigation Initiative grant in the amount of $249,840. This two-year award will support capital case training for both criminal defense attorneys representing indigent defendants and prosecutors. TCDLA is appreciative of the Court of Criminal Appeals (CCA) for including TCDLA/CDLP in the grant submission. TCDLA/CDLP will be involved in the training of defense attorneys. With CDLP facing a 16 percent reduction in their (CCA) grant funding, the Capital Case Litigation Initiative grant is a welcome resource during these challenging economic times. The grant promises to have a substantial impact on capital litigation throughout the state of Texas.

The TCDLA Board of Directors met in Austin on September 24, 2011. The following is a summary of the board meeting.

  • Gary Trichter (President) started a new item at the board meeting. He asked for board volunteers to read an inspirational passage. The purpose of these readings is to begin the board meeting with positive and uplifting thoughts. Gary hopes that these readings will be embraced by everyone, and that the practice will become a board tradition. The following passages were read (the full text is available at
    • Gary Trichter read a letter by Charlie Butts, TCDLA Past President (San Antonio), speaking about TCDLA and what TCDLA has meant to him.
    • Benny Ray (Austin), “We All Need a Parachute”
    • Rob Fickman (Houston), “The Best Fights Are the Ones We Fight Together” and “It Is Important to Remember Those that Have Gone Ahead of Us”
  • A moment of silence was observed for our Fallen Heroines and Heroes: William “Bennie” House (McKinney), Pat Barber (Colorado City), Elaine M. Ferguson (Abilene), and Robert Kahn (San Antonio). Past President Stan Schneider’s mother, Mrs. Sadie Schneider, also passed away.

The following were Informational items.

  • Gary presented a summary of TCDLA membership and TCDLA and CDLP seminar training this past fiscal year, FY 2011 (September 1, 2010, through August 31, 2011):
  1. TCDLA membership is 3,149 as of September 1, 2011. This is a 9.53% increase from 2009.
  2. The following were the top four providers of CLE hours in Texas for September 1, 2010, through August 31, 2011:
    a)State Bar of Texas 278,128.25 hrs
    b) University of Texas Law School 77,314.25 hrs
    c) TCDLA and CDLP 39,888.25 hrs
    d) Dallas Bar 27,175.50 hrs
  3. TCDLA and CDLP combined to train 6,473 lawyers (TCDLA 2,881/CDLP 3,592).
  • Gary thanked the board members, course directors, speakers, TCDLA members, and staff for their work and dedication.
  • Gary congratulated Kameron Johnson, Juvenile Public Defender (Austin), and the Travis County Juvenile Public Defender’s Office on its Thirty-Year Anniversary.
  • Melissa Schank, Assistant Executive Director, gave an update on technology . TCDLA will work with Grant Scheiner, Chair of the Technology Committee, on the following items this year:
  1. Updating the TCDLA application for the iPhone and Droid platforms (overall feedback from members has been positive)
  2. Developing an organization app for TCDLA’s website, which will allow for paying dues, registering for a seminar, or purchasing publications
  3. Having web videos available for online CLE
  4. Top five TCDLA legal publications sellers will be available on Amazon for eBooks
  5. Looking at different options for committee meetings: one- and two-way video conferences

The following are motions passed by the board:

  • Motion to approve minutes from June 10, 2011, TCDLA Board Meeting and June 11, 2011, TCDLA Annual Meeting, both held in San Antonio, along with the following two electronic votes:
  1. Deandra Grant to replace Russell Wilson on the board
  2. PDF Membership Directory emailed to all members
  • Motion to approve the TCDLA FY 2012 Budget ($1,374,075)
  • Motion to approve TCDLA Affiliation for the Galveston County Criminal Defense Lawyers Association.

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, limited to 60 spots. Tuition is $750 per person (includes lodging and meals). Stipends are available for Public Defenders 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, December 3, 2011, at the Crowne Plaza Hotel, located at 1700 Smith St.

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 our associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman. The theme will be “Ridin’ for Justice—Celebrating 25 Years,” a cowboy theme. There will be a fun run, and healthy lifestyle options will be available. Register now to take advantage of the early-bird registration rate, and book your hotel.

Good verdicts to all.

Ethics and the Law: Following the Law


Since the beginning of American history, there has been a fight for democracy and freedom. We, as Americans, have the Constitution and Bill of Rights to guide us. Thousands of men and women have died on the battlefield, or have been emotionally or physically wounded to defend our way of life. Criminal defense lawyers are in the law enforcement business, just as are police officers, deputies, federal agents, and all other members of the constabulary. Our job as criminal defense lawyers is to make sure the state and federal laws are followed. When cases are dismissed because of legal errors, some people claim they got off on legal technicalities. That is not true. They got off because someone did not follow the law. Many of the cases we win are not because we are legal geniuses but because the judge, prosecutor, or constabulary did not follow the law. When these individuals lie, cheat, or hide evidence, they are dishonoring all the veterans who served this great country. It should make you mad when they do these dishonorable acts. There was a high profile case in Houston a few weeks ago where the prosecutor took it upon himself to tell a jury, after a not guilty verdict, of all the bad acts he could not present during trial because of the judge’s ruling. There were allegations that the prosecutor violated Texas Disciplinary Rules of Professional Conduct Rule 3.06. The following motion, shared with me by a fellow attorney, should be filed if you have concern:

CAUSE NO. 1745634


  1. §AT LAW NO. 5 OF




  1. The Defendant in this case has a prior criminal history which will not be admissible in the guilt/innocence part of this criminal trial absent the Defense opening the door; which it will not do. Defense Counsel is concerned, should this case end in a “not guilty” verdict or with a discharge of a hung jury, that the prosecutors may improperly attempt to share their knowledge of the Defendant’s prior criminal history with discharged jurors in an attempt to adversely influence future actions against other defendants. A prosecutor can easily do so by telling discharged jurors defendant’s prior criminal history; that during the guilt/innocence part of the trial a jury cannot be told of that criminal history; that the defendant’s history shows a disrespect for the law; that defendant shows a predisposition to break the law; and defendant this predisposition is evidence that committed the crime he was charged with. Of course, the fear here is that the discharged jurors will leave believing that all criminal defendants have hidden prior criminal histories. In support hereof, Counsel for the Defendant would show:
  2. Texas Disciplinary Rule 3.06 of Professional Conduct is entitled “Maintaining Integrity of Jury System.” Section 3.06(d) provides in pertinent part:

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not . . . make comments to a member of that jury that are calculated merely to harass or embarrass a juror or to influence his actions in future jury service [emphasis added].

  1. Comment 1 of Rule 3.06 provides, in pertinent part, that:

[to] safeguard the impartiality that is essential to the judicial process, . . . jurors should be protected against extraneous influences . . . after the trial, communication by a lawyer with jurors is not prohibited by this Rule so long as he refrains from . . . making comments that intend to harass or embarrass a juror or to influence action of the juror in future cases [emphasis added].

  1. Comment 1 for Rule 3.09 provides in pertinent part that:

special responsibilities of a prosecutor provides first and foremost that “a prosecutor has a responsibility to see that justice is done and not simply to be an advocate. This responsibility carries with it a number of specific obligations among these is . . . [that] a prosecutor is obliged to see that the Defendant is accorded procedural justice [and] that the Defendant’s guilt is decided upon the basis of sufficient evidence . . . [and not evidence of predisposition].”

  1. Accordingly, where a case ends in a not guilty finding or where a jury is discharged because it is hung, and, where a Defendant had a prior criminal history, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a prosecutor to disclose, intentionally or recklessly, that a defendant had a criminal history because it will create a presumptive predisposition in the minds of those jurors that any future criminal defendant likely has a criminal history too, and, that the future defendant was likely pre-disposed to commit the crime in issue.
  2. Comment 4 to Section 3.06(d) is clear that a violation of the aforementioned rule is a serious matter. It says, in pertinent part, that:

[b]ecause of the extremely serious nature of any actions that threaten the integrity of the jury system, the lawyer who learns of improper conduct . . . towards . . . a juror . . . should make a prompt report to the court regarding such conduct. If such improper actions were taken by . . . a [prosecuting] lawyer, either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings [emphasis added].

  1. Hence, it is equally clear that where a prosecutor makes such a disclosure that both the defense lawyer and the judge are obligated to initiate a disciplinary proceeding. Here it is far more comfortable to avoid the problem all together by having the court issue a precautionary order to maintain the integrity of the jury system by protecting future jurors. Moreover there is no harm to the State by the issuance of the requested order.


  1. WHEREFORE PREMISES CONSIDERED, should this case end in a “not guilty” or discharge of a hung jury, this Honorable Court is respectfully asked to instruct the prosecutors herein not disclose the Defendant’s prior criminal history. The Court is also asked to order the prosecutors to instruct their fellow prosecutors, agents, and employees not to make this same disclosure.

Respectfully Submitted,


By: _____________________________


SBN 24042025
Heights Boulevard

Houston, Texas

Tel: (713) 864-9000

Fax: (713) 864-9006

We have had several calls through the TCDLA hotline where members were faced with prosecutors threatening to file additional charges if the defendant did not plead. When faced with this situation, remember Rule 3.09, which forbids a prosecutor from threatening to prosecute a charge where the prosecutor knows it is not supported by probable cause. Have these rules handy to show them when you get these threats.

Remember these few tips to help yourself be a good lawyer:

  1. Remember your oath is to zealously defend your client, not to be buddies with the judge or the district attorney.
  2. All conversations in jail or conference rooms at the courthouse may be taped—they will probably not be admissible as evidence, but may be used by your opponent.
  3. If relevant, have your client sign releases for you to obtain their information. HIPPA, business records, school, military, etc. These records can help your case. It takes time to get these records, so start as soon as possible after you identify the need for them.
  4. Keep a log of all jail visits and have your client sign waivers allowing you to discuss the client’s case with the client’s family and friends.
  5. Always investigate and interview witnesses immediately. Tape-record all of your conversations with witnesses—do not assume anything.