Monthly archive

May 2013

April 2013 SDR – Voice for the Defense Vol. 42, No. 3

Voice for the Defense Volume 42, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Establishing the defense of withdrawal from a conspiracy is a burden that rests firmly on the defendant even if the withdrawal took place after the statute-of-limitations period. Smith v. United States, No. 133 S. Ct. 714 (2013).

        Petitioner was convicted of charges that included conspiracy to possess and distribute narcotics, in violation of 21 U.S.C.S. § 846, and Racketeer Influenced and Corrupt Organizations Act conspiracy under 18 U.S.C.S. § 1962(d). Petitioner claimed that the conspiracy counts were barred by a five-year statute of limitations because he spent the last six years of the charged conspiracies in prison. The trial court instructed the jury that the burden was on D to prove withdrawal from the conspiracy by a preponderance of the evidence. D appealed that once he presented evidence supporting a withdrawal defense, the government had the burden to prove beyond a reasonable doubt that he did not withdraw outside the limitations period. The D.C. Circuit court affirmed the conspiracy convictions. The Supreme Court affirmed.

        Establishing individual withdrawal was a burden that rested on D regardless of when the purported withdrawal took place. Allocating to D the burden of proving withdrawal did not violate the Due Process Clause, as the defense of withdrawal did not negate an element of the charged conspiracy crimes. Although union of withdrawal with a statute of limitations defense could have freed D of criminal liability, it did not place upon the prosecution a burden to prove D did not withdraw.

Fifth Circuit

In sentencing D convicted of attempted illegal reentry and false personation, district court reversibly erred in applying a 16-level crime of violence enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s Oklahoma kidnapping conviction. United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012).

        The statutory subsection under which D was previously convicted, Okla. Stat. tit. 21, § 741, could be violated in a way that was outside the generic definition of “kidnapping.” Nor did the offense qualify as a “crime of violence” under the residual, “has as an element” portion of the “crime of violence” definition because the term “forcibly” in the Oklahoma statute did not necessarily equate to the “physical force” required for this enhancement. The Fifth Circuit remanded for resentencing.

D’s appeal of the district court’s denial of his motion to modify supervised release conditions was barred by D’s plea agreement; the agreement barred D from appealing his conviction or sentence and from contesting his sentence in any post-conviction proceeding. United States v. Scallon, 683 F.3d 680 (5th Cir. 2012).

        The Fifth Circuit left open the question of whether an appeal waiver would bar an appeal from an order modifying or revoking supervised release where that modification or revocation was sought by the government in a 18 U.S.C. § 3583(e)(2) motion.

District court did not err in denying child-pornography D’s motion to suppress; the search warrant did not lack sufficient particularity simply because it authorized the search of all “electronic devices” and “electronic memory devices.” United States v. Triplett, 684 F.3d 500 (5th Cir. 2012).

        The law permits an affidavit incorporated by reference to amplify particularity. When viewed alongside the affidavit and its stated goal of finding items relevant to locating a missing person, the warrant’s list of items to be seized was reasonably focused. Furthermore, the warrant was not so lacking of indicia of probable cause to render official belief in its existence entirely unreasonable, thus shielding the officers’ actions pursuant to that warrant under the good-faith doctrine.

The public interest in disclosure of D’s redacted PSR to the immigration judge outweighed his remaining privacy interest and his interest against the dissemination of inaccurate information. United States v. Iqbal, 684 F.3d 507 (5th Cir. 2012). 

        Despite the confidentiality normally attaching to presentence reports in federal criminal cases, district court did not err in allowing disclosure of a redacted version of the PSR pre­pared in D’s structuring case to immigration officials. The immigration officials had a compelling, particularized need for the PSR in connection with proceedings to remove D from the United States. D’s interest in preventing the use of misleading or inaccurate information was obviated by the fact that the district court’s favorable rulings on D’s PSR objections were a matter of public record. Likewise, any privacy concerns were obviated by redactions of personal information from the PSR. Finally, Department of Homeland Security attorneys did not behave contumaciously in attempting to introduce the PSR to the immigration judge without the district court’s permission, based on their interpretation of a limited redisclosure authorization in the PSR.

The two-level sentencing enhancement of USSG § 2D1.1(b)(5) applies when “the offense involved the importation of… methamphetamine,” even if the defendant did not know that the meth he possessed was imported. United States v. Serfass, 684 F.3d 548 (5th Cir. 2012). 

        Because the district court did not clearly err in finding that the meth possessed by D was in fact imported, the Fifth Circuit affirmed the enhancement.

The government’s plain breach of the plea agreement did not affect D’s substantial rights because the district court based its loss decision on the presentence report, the Guidelines, and D’s failure to articulate an alternative method of calculating loss. United States v. Hebron, 684 F.3d 554 (5th Cir. 2012).

        The government did plainly breach the plea agreement by advocating for a Guideline loss amount of $320,000 when, in the plea agreement, it agreed to a loss calculation of under $200,000. There was no indication that the government’s specific argument in favor of the higher loss calculation affected the sentence. Even if the error had affected D’s substantial rights, this was not one of the rare cases where COA should ex­ercise its discretion to correct the error even on plain-error review.

        Nor did the district court reversibly err in calculating the loss attributable to D convicted of FEMA fraud in connection with hurricane relief provided to the town of which he was the mayor. Although the government generally bears the burden of proving that the alleged intended loss was garnered by fraudulent means, where the government has shown that the fraud was so extensive and pervasive that separating legitimate benefits from fraudulent ones is not reasonably practicable, the burden shifts to D to make a showing that particular amounts are legitimate.

Like supervised-release-revocation sentences, sentences imposed upon revocation of probation are reviewed under the plainly unreasonable standard. United States v. Kippers, 685 F.3d 491 (5th Cir. 2012). 

        Although the district court originally announced its intention of extending D’s probation rather than revoking it, the court changed its mind when D accused his daughter—the victim of the assault triggering the revocation—of being a liar. Nevertheless, the sentence was not procedurally unreasonable because the district court considered the 18 U.S.C. § 3553(a) factors at least implicitly, did not select a sentence based on clearly erroneous facts, and did not fail to adequately explain the sentence.

        Nor was the 48-month revocation sentence unreasonable (notwithstanding that the Chapter 7 Guidelines suggested a range of 3 to 9 months) in light of the district court’s leniency in originally sentencing D and the gravity of the crime triggering revocation.

Indictment against Army Lieutenant Colonel on November 12, 2010, charging him with fraud between December 1, 2003, and May 16, 2004, was timely; the statute of limitations for certain crimes is suspended during wartime. United States v. Pfluger, 685 F.3d 481 (5th Cir. 2012). 

        The Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, suspends the statute of limitations for certain crimes when the United States is at war. Section 3287 was triggered by the Authorization for the Use of Military Force of September 18, 2001, and the Authorization for the Use of Military Force against Iraq of October 11, 2002. The question was only when hostilities had been terminated. Although D argued that hostilities terminated May 1, 2003, based on President Bush’s declaration that “[m]ajor combat operations in Iraq have ended,” the Fifth Circuit rejected this “functional approach” to the question (which was supported by United States v. Prosperi, 573 F. Supp. 2d 436 (D. Mass. 2008)) and adopted a more formal approach requiring an official declaration by Congress or the President. Because neither Congress nor the President met the formal requirements for terminating § 3287’s suspension of limitations as of May 2004 (“nor yet to this date”), § 3287 applied to D.

District court plainly erred in the procedure of D’s for­fei­ture order, but D failed to show that the errors affected his substantial rights. United States v. Marquez, 685 F.3d 501 (5th Cir. 2012).

        District court plainly violated the mandatory requirements of Fed. R. Crim. P. 32.2 by failing to make a forfeiture determination as soon as practicable after D’s guilty plea was accepted, and by failing to enter a preliminary order of forfeiture setting forth the amount of the money judgment ultimately ordered ($2 million). Nevertheless, D was not entitled to relief on plain-error review because he failed to show that the errors affected his substantial rights, i.e., that there was a reasonable probability that the result of the proceedings would have been different had the district court followed the procedures. The Fifth Circuit affirmed the judgment.

District court abused its discretion in finding that D un­timely filed his motion to dismiss for a Speedy Trial violation; however, taking into account the excludable time, there was no Speedy Trial violation. United States v. Hale, 685 F.3d 522 (5th Cir. 2012).

        Furthermore, in prosecution of former police officer accused of escorting drug transports, district court did not err in excluding out-of-court statements made by co-defendant, who became the government’s chief witness. D did not satisfy the predicates of Fed. R. Evid. 613(b) for allowing extrinsic evidence of a prior inconsistent statement, and the exclusion of these statements did not violate the Confrontation Clause because D was allowed to ask the co-defendant about his statements. Nor were the statements of co-defendant’s deceased father admissible under Fed. R. Evid. 804(b)(3); the statements were not clearly against the declarant’s interest, and there were no corroborating circumstances that clearly indicated the state­ments’ trustworthiness.

        Court did not plainly err in failing to fully instruct the jury on the substantive crime underlying the conspiracy, actual possession with intent to distribute cocaine. The instructions were sufficient to apprise the jury of the definition and character of the substantive crime, and the use of actual cocaine was not necessary for D to be guilty of conspiracy (these were dummy runs set up by an undercover agent). Nor did court abuse its discretion in rejecting D’s requests for instructions on the public-authority defense or entrapment by estoppel. Finally, the court’s response to a jury note, which primarily referred the jury to the original instructions, was not an abuse of discretion.

Court of Criminal Appeals

The error D alleged was not properly preserved; his motion for continuance was oral and unsworn. Blackshear v. State, 385 S.W.3d 589 (Tex.Crim.App. 2012).

        D was found guilty of possession of a controlled substance enhanced by two prior convictions. The jury was unable to reach a verdict on punishment, and the trial court granted D’s motion for a mistrial as to the punishment phase. The rec­ord contained no written and sworn motion for continuance. After a new trial on punishment that same day, a sentence was imposed. On appeal, D claimed the trial court erred in denying his motion for a continuance following the mistrial. COA agreed, finding that because the State presented the same witnesses at the retrial on punishment as it presented at the guilt phase of trial, D could have used those transcripts to impeach the witnesses on retrial. CCA found that the issue was not properly preserved for appeal. The motion in question was oral and unsworn, and no due process exception existed to the written-and-sworn requirement. CCA reversed COA and reinstated the trial court.

An applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim. Ex parte Parrott, No. AP-76,647 (Tex.Crim.App. Jan 9, 2013).

        D raised an illegal-sentence claim based on the State’s improper use of a prior conviction for enhancement purposes. CCA denied relief. The habeas record established that D was previously convicted of offenses that supported the punishment range within which he was sentenced; therefore, he failed to demonstrate harm.

Even if there is no pending habeas corpus application, COA has jurisdiction to rule on mandamus petitions regarding access to material that could be used in a future habeas application. Padieu v. Ct. App. of Texas, Fifth Dist., No. AP-76,727 (Tex.Crim.App. Jan 9, 2013).

        CCA conditionally granted mandamus and directed COA to rescind its decision dismissing relator’s petitions for writ of mandamus for want of jurisdiction and to consider the merits of the issues raised. This writ of mandamus would issue only if COA did not comply within thirty days.

CCA directly reformed the judgment to remedy an im­properly stacked sentence. Sullivan v. State, Nos. PD-1678-11 & PD-1679-11 (Tex.Crim.App. Jan 9, 2013).

        D was convicted of the sexual assault of three inmates at the Texas Youth Commission facility. One of the inmates, A.S., was 17 years old. The other two, N.P. and C.C., were under age 17. D was convicted of two counts of sexual assault against N.P. and one count each for A.S. and C.C. On each count, the jury assessed punishment of confinement for 18 years.

        The trial judge pronounced that the two N.P. sentences would run concurrent with each other; the A.S. and C.C. sentences would run consecutively with each other; and the N.P. sentences would run consecutively to the others. As a result, there would be “three consecutive 18-year terms.” The judge then said that the concurrent N.P. sentences would be the last in the stacking series. For each indictment, the judge entered a written cumulation order that said the N.P. sentences would be the first in the series.

        As both parties agree, the judge erred in cumulating the A.S. sentence with the other sentences. Because A.S. was not under 17, that sentence must run concurrent with all sentences from the same criminal action, i.e., for the N.P. and C.C. sentences. But the N.P. and C.C. sentences fall within an exception to chapter 3 of Texas Penal Code because those victims were younger than 17; those sentences could run consecutive to each other. CCA also reformed the sequence of stacking to conform to the judge’s oral pronouncement.

A law-enforcement officer seeking a search warrant need not swear out the supporting affidavit in the phys­ical presence of the magistrate; he may do so telephonically. Clay v. State, 391 S.W.3d 94 (Tex.Crim.App. 2013).

The State’s failure to prove that D secured the performance of the contract with a “worthless check” was failure to prove an essential element of theft of service by deception. Daugherty v. State, No. PD-1717-11 (Tex.Crim.App. Jan 9, 2013).

        D signed a construction-service contract and wrote a $1,657 check as a deposit. The $48,000 contract price was not due until the project was completed. At that time, D no longer had the money to pay the debt. She gave the contractor an insufficient-funds check. A jury convicted her of theft of services for obtaining the contractor’s service by deception when she gave him the insufficient-funds check. COA reversed and rendered an acquittal because it determined the evidence was legally insufficient to support the conviction. CCA affirmed COA.

        Under the theft-of-services statute, Tex. Penal Code § 31.04(a), the State is required to prove all the elements occurred at the same time; the defendant must have “secured” the victim’s services by an act of deception. The proof must be that (1) contractor relied upon D’s prior act of deception when he performed his services, and (2) D had no intent to pay contractor for his services at the moment that she committed that deceptive act. The deception must occur before the service is rendered, and that deceptive act must induce the other person to provide the service. This routine civil breach of contract case does not give rise to a criminal conviction for theft of services.

D did not explain why he was unable, through reasonable diligence, to discover the factual basis of his current habeas writ in his initial post-conviction writ. Ex parte Sledge, 391 S.W.3d 104 (Tex.Crim.App. 2013).

        D was placed on deferred adjudication for sexual assault. The convicting court later adjudicated D’s guilt and sentenced him to five years’ imprisonment because he allegedly committed two new offenses. D filed an initial post-conviction habeas application in which he claimed that there was insufficient evidence to support his conviction. CCA denied the initial writ without written order. This is a subsequent post-conviction habeas application in which D alleged that the trial court lacked jurisdiction to revoke his deferred adjudication because the capias for his arrest did not issue until three days after his community supervision period expired. CCA dismissed the writ.

        A trial court loses jurisdiction to adjudicate a defendant’s guilt when the district clerk fails to issue a capias before his probation expires; however, because this is a subsequent post-conviction writ application, CCA is barred by the abuse of the writ doctrine, Tex. Code Crim. Proc. art. 11.07, § 4, from reaching the claim’s merits. Section 4 contains three exceptions to the rule that bars consideration of a subsequent post-conviction writ application, but the current application contains no “sufficient specific facts establishing” any of the enumerated exceptions. The application fails to establish either new law, new facts, or actual innocence.

The State was entitled to the broadest submission of its theories of liability that were authorized by the charging instrument and supported by the evidence. In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013).

        This mandamus action arose from a capital-murder trial that had reached the jury-charge portion of the guilt phase. The State sought to require the judge of Walker County to submit the “intent to promote or assist” theory of the law of par­ties, and the “conspiracy” theory of the law of parties without any manner-and-means restriction. The judge’s proposed charge would submit the conspiracy theory but not the intent to promote or assist theory and would require the State to prove that D should have anticipated the manner and means by which his co-conspirator killed the victim. CCA ordered COA to grant mandamus relief directing the trial judge to submit the Tex. Penal Code § 7.02(a)(2) theory of party liability and the § 7.02(b) theory without requiring the State to show that D should have anticipated the particular method of the murder.

        By focusing on the credibility and weight of the State’s evi­dence, the trial judge converted a matter-of-law determination based on the existence of some evidence to support a liability theory into a factual finding on the reasonableness of the State’s theory. This was contrary to established law that required the judge to instruct the jury on the law applicable to the case, including all theories of liability requested by the State for which there was some evidence in the record.

The evidence was legally sufficient to support D’s murder conviction. Temple v. State, No. PD-0888-11 (Tex.Crim.App. Jan 16, 2013).

        D was convicted for the murder of his wife and sentenced to life in prison. COA and CCA affirmed that the evidence was sufficient to support D’s conviction: (1) D was unhappy with his marriage and was having an extramarital relationship; (2) D had the opportunity to commit the crime, as there were 18 to 33 minutes on the afternoon of the murder during which his location was unaccounted for; (3) there were several inconsistencies in D’s story; (4) the burglary of D’s home appeared to be staged, including the facts that it occurred when the neighborhood was busy and neighbors did not see anything unusual or hear D’s loud and aggressive dog barking; (5) D lacked emotion after discovering that his wife had been shot; (6) shortly after his wife’s murder, D resumed his extramarital relationship; and (7) D had a history of shotgun use.

The evidence failed to show that D violated the no-contact condition of his probation. Hacker v. State, 389 S.W.3d 860 (Tex.Crim.App. 2013).

        D was convicted for assaulting his wife and placed on deferred-adjudication probation with a no-contact condition. Probation was revoked based on violation of that condition. COA affirmed. CCA reversed and ordered that the State’s motion to revoke probation be dismissed.

        The evidence failed to show that D violated the no-contact condition. The condition allowed contact by telephone regarding issues of child custody. In addition, D and his wife had ar­ranged for him to babysit the children at his wife’s home while she was at work. D’s phone conversations with his wife for the purpose of avoiding physical contact with her while he obtained and relinquished custody over the children were not prohibited communications because they related to the timing of his custody over the children. D’s admission that he talked to his wife on the phone frequently for the purpose of child custody was not an admission that he engaged in conduct that violated his probation. Occupying his wife’s home when she was not there and having his belongings in her home did not establish prohibited communications with his wife or proximity to her. And evidence of D’s motive or opportunity to violate the no-contact condition was not probative, absent evidence that conduct occurred that would be a violation.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Polygraph examiner had no obligation to stop exam upon D’s request to have counsel present, even though investigator—gratuitously—had informed D of Miranda rights. State v. Howard, 378 S.W.3d 535 (Tex.App.—Fort Worth 2012, pet. ref’d).

Officer lacked an objectively reasonable basis for believing D failed to stop at a clearly marked stop line; the traffic light was six car lengths past the stop line, and the line was faint and encountered at dusk. State v. Hummel, No. 05-11-00833-CR (Tex.App.—Dallas Aug 17, 2012, pet. ref’d).

        “The trial court stated the faint stop line at dusk was not sufficiently legible to an ordinarily observant person. The trial court further found an ordinarily prudent driver would not have anticipated the stop line because the traffic light was at least six car lengths past the stop line and there was no sign to alert a driver to the stop line. The court also found the red light had changed to green simultaneously with [D] reaching the stop line, and he was therefore not required to stop[.]”

“An officer may request consent to search a vehicle even after the purpose of a stop is complete.” Salinas v. State, No. 05-11-00048-CR (Tex.App.—Dallas Aug 20, 2012).

Vehicle’s crossing yellow line considered in RS determination, even though it did not occur until after officer turned on his emergency lights. Myers v. State, No. 03-11-00078-CR (Tex.App.—Austin Aug 28, 2012).

        “‘[E]vents occurring after the show of authority by the officers, i.e., when the emergency lights were activated, until appellant finally pulled over, are relevant to a determination of reasonable suspicion.’ Gilbert v. State, 874 S.W.2d 290, 295 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d). [D] ‘was not seized or detained until [s]he complied with the officers’ signal to pull over,’ id., and that did not occur until after [officer] observed Myers straddle the yellow marker.”

D lacked standing to challenge search of third-party’s cell phone including text messages sent by D to that phone. Contreras v. State, No. 02-11-00252-CR (Tex.App.—Fort Worth Aug 30, 2012, pet. ref’d).

        “[D] presented no evidence showing that he had any ownership interest in the messages he sent to [girlfriend] or that he took any steps to keep the messages private once he sent them to her phone.”

D had no reasonable expectation of privacy that was invaded by officer pressing alarm button on D’s car keys. Wiley v. State, 388 S.W.3d 807 (Tex.App.—Houston [1st Dist] 2012, pet. ref’d). 

        Vehicle was parked on public street and D had no reasonable expectation of privacy in identity of his vehicle and officers did not attempt to discover encrypted code used in the alarm.

Protective sweep of attic proper. Richert v. State, No. 01-10-00901-CR (Tex.App.—Houston [1st Dist] Aug 30, 2012).

        “[D] argues that the warrantless search of his attic cannot be justified under the protective-sweep exception because [officer] ‘did not articulate any reasonable suspicion that the attic area harbored any individual posing a threat to those on the arrest scene.’… Although the officers could see into most of the attic by using a mirror, the attic was dark and the officers could not see behind the chimney or the air conditioning unit.”

Enhancement of Punishment Under Texas Law, Part 2

I. Introduction

This is a continuation of a previous article on Texas enhancement law. Because enhancements are governed by many different areas of law, this article’s theme is to provide an organized framework to evaluate the issues raised by enhancement. The first part focused on an overview of enhancement law, pretrial issues, and admissibility of evidence proving enhancement allegations. This second part moves to evidentiary sufficiency, a discussion of collateral attacks targeted on enhancement issues, appellate remedies available for successful post-trial challenges.

Again, as mentioned in part one, it is important to remember there are two basic types of enhancements. The first type is a general enhancement that only increases the penalty range.1 The second type is a prior conviction that actually becomes an element of the charged offense and creates a new statutorily defined crime with its own penalty range.2 While both types of enhancements share many common characteristics, procedural difference do sometimes arise.

II. Sufficiency of the Evidence to Support Enhancement Findings

a. General Considerations Concerning Sufficiency

There is a distinct difference between admissibility and sufficiency of evidence to prove the issue upon which it is offered.3 Even though the evidence was properly admitted, a sufficiency review must still be made.4 For instance the “presumption of regularity,” discussed below, is often addressed by reported cases both in terms of admissibility and sufficiency; however, the regularity of the document does not always make it sufficient to prove the object fact at issue.5

Prior convictions offered for enhancement must meet the legal sufficiency standard of proof beyond a reasonable doubt.6 Direct appeal challenges to the legal sufficiency of enhancement evidence need not be preserved by objection.7 Nor are findings of insufficient evidence subject to a harm analysis.8

Pleas of true and testimonial admissions will normally waive any sufficiency challenge.9 Stipulations operate like a plea of true.10 As judicial admissions, these acknowledgments satisfy the State’s burden of proof.11 The only exception is when the “the record affirmatively reflects” the prior conviction cannot be used for enhancement.12 This means the defendant must demonstrate any deficiency or the defect must be apparent from the evidence offered to prove the prior conviction.13 When not conceded by the defendant, sufficiency challenges are reviewed in relation to the two basic elements necessary to prove enhancement: i.e., proof the conviction exists and showing the defendant’s identity as the person convicted.14 These elements will be discussed separately detailing certain aspects essential to prove the object facts.

b. Showing a Conviction Exists

1. Presumption of Regularity Accorded to Governmental Records

      Governmental records are the most typical manner of proving a prior conviction exists. These records are accorded a “presumption of regularity.”15 This presumption supports a finding the records are correct unless shown otherwise.16

To rely upon the initial presumption, the proponent must make a “prima facie” case that the documents are not only authenticated as actual records but also the recitals within those records appear regular in their terms.17 A prima facie case is “the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.”18 This presumption can be rebutted.19 Evidence necessary to rebut the presumption can come from the records themselves.20 It can also come from a comparison with the original records.21 The opponent may also offer evidence to show the records do not properly prove the facts asserted.22 In that regard, it is advisable for any practitioner to examine the original records, as discrepancies do occur and certified copies of those records could rebut the presumption or prima facie case.

2. Component Proof of Prior Conviction

      Proof of a prior conviction requires both a judgment of conviction and a sentence.23 The judgment demonstrates a factual finding of guilt for a particular offense.24 Proof of a proper “sentence” is required because a sentence implements the judgment.25 The judgment and sentence may be in the same instrument.26

Essentially, documentary proof, whatever its form, must be the “functional equivalent” of a judgment and sentence.27 For documents other than a formal judgment and sentence to serve as a functional equivalent, those instruments must actually prove the terms of the prior conviction. These other records must at least show the name of the offense, the sentence imposed, and proof the sentence was executed.28 There is no requirement to present the underlying charging instrument unless it is necessary to prove the name of offense or the date it was committed.29 The date of a prior offense typically becomes important when multiple prior convictions are alleged and the sequence must be proved.30

c. Finality: A Sentence Must Be Imposed

Any prior conviction alleged for enhancement must be a final conviction.31 There is no statutory definition of “final conviction” in relation to enhancements under the Penal Code32 or the Code of Criminal Procedure.33 Nor has caselaw directly defined the term; it is defined negatively. A conviction is not final for enhancement purposes under two circumstances. First, unless otherwise provided by statute, a conviction with a suspended sentence is not final until the probation is revoked.34 Second, appealed convictions become final only after the judgment of conviction is affirmed.35 Like all other elements of enhancements, each of these aspects of finality must be proved beyond a reasonable doubt.36

1. Probated Sentences

      Because there is no executed “sentence,” a probation case typically only becomes final upon revocation.37 This rule is based on two principles. First, there is a procedural need for a sentence to execute the judgment of conviction.38 Second, the Texas Constitution expressly permits suspended sentences.39 For the purposes of enhancement, a “‘[j]udgment’ and ‘sentence’ are not the same thing; the two are distinct and independent.”40 Since the judge must pronounce sentence to execute the judgment, “the sentence is in fact the final judgment in the case.”41 If there is no executed sentence, the conviction is not final.42

Despite the general rule, suspended sentences can be final. One situation is where an initially suspended sentence is proved final by a judgment revoking probation and imposing sentence.43 The statute defining the prior offense can also specifically provide that a probated sentence is a final conviction.44 Probated sentences from other jurisdictions are also final if the law of that jurisdiction considers suspended sentences to be final convictions.45

2. Disposition of Appeal

      A sentence is not final until any appeal is concluded.46 An appeal is jurisdictionally perfected upon filing a written notice of appeal.47 If the records offered to prove the prior conviction contain any evidence of a notice of appeal, there must be additional proof to show the appeal’s result.48 An appealed conviction becomes final on the date the mandate issues.49 Finality must be proved at trial; an appellate court may not take judicial notice of a mandate issued in another proceeding.50

d. Proof of Identity

Proof a final conviction is irrelevant unless it is demonstrated the defendant is actually the person previously convicted.51 Like other aspects of enhancement, identity must also be proved beyond a reasonable doubt.52 Evidence proving the conviction itself can be offered before identification evidence, but a further objection or motion to strike should be made if the identification evidence is incomplete.53

Documents showing a conviction and bearing the same name as the defendant are insufficient by themselves to connect the accused to that conviction.54 More than a similarity of names must be shown.55 “Independent evidence” is necessary to show the defendant is actually the person previously convicted.56

This independent evidence can take many forms.57 Long recognized methods include testimony by a witness who identifies the defendant as the person previously convicted, use of a fingerprint expert to link conviction documentation to the accused, and stipulation or judicial admission.58 Other examples of additional independent evidence include statements attributable to the accused,59 photos in the conviction records,60 and records showing a defendant’s address and drivers license number.61 If the identity evidence requires special knowledge, such as fingerprints or handwriting, expert testimony may be required.62 These fact-specific examples reveal an overall theme that proof of identity is established by the aggregate of all evidence in the record.63

e. Sequential Convictions

Some statutes permit multiple enhancement if the qualifying prior convictions are “sequential.”64 Sequential means the prior offense first must have been committed, and become final, before the later offense was committed and became final.65 When the prior convictions must be sequential, both the dates of commission and finality must be proved beyond a reasonable doubt.66

Proof of the sequence typically comes from the records themselves.67 However, because an underlying charging instrument is not normally required to prove a prior conviction,68 sometimes an indictment or other evidence is required to show the date a prior offense was committed.69 Any challenge to proof of sequence should be should be made at trial or on direct appeal because challenges to the sufficiency of sequencing evidence on habeas corpus are quite limited.70

f. Variance

Although often raised in as sufficiency challenges,71 variance issues are not typically matters entailing the legal sufficiency of the evidence to prove the required elements of enhancement. “Variance” has rarely been defined in Texas caselaw, but an older dissent cited secondary authorities to define it as follows: “A disagreement between the allegation and the proof in some matter which in point of law is essential to the charge or claim.”72 Variance complaints are in essence a challenge to whether the proof at trial established the particulars of a specific pleading.

Because variance claims focus on the specificity of the plead­ing, review has been liberalized to examine whether any dif­ference between the pleaded allegation and the proof supporting the finding hampered the defendant’s ability to prepare a defense to the charge.73 The current view is that any sufficiency claim based on a difference between the charging instrument and the evidence must first be evaluated to determine if there was a “material” difference between pleading and proof.74

 A material difference between the charging allegations and the proof at trial occurs when the variation “(1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense.”75 As a result, even when variance claims are raised as sufficiency challenges, these issues are not typically reviewed under the legal sufficiency standard76 and error is only shown when the pleadings did not provide proper notice.77

III. Collateral Attack and Habeas Corpus

Collateral attack and habeas corpus are such broad topics that a full rendition is not practical here. In any event, a brief illustration of some aspects unique to enhancement may still be instructive. Initially, two vital concepts should be understood. First is “void” versus “voidable.” Second is “collateral attack.”

a. Void vs. Voidable

A void judgment has been defined as one “in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner.”78 Voidable judgments are those subject to “irregularities” that could result in reversal on direct appeal but do not in and of themselves render the judgment illegal.79 The void vs. voidable classification is not finite because an offer of proof can sometimes demonstrate a judgment that appears only facially voidable is actually void.

 To demonstrate that a judgment is void, “the record must leave no question about the existence of the fundamental defect.”80 As a result, judgments are actually void under very few circumstances.81 Habeas corpus relief is limited to jurisdictional defects or denials of fundamental or constitutional rights.82 The general rule is that a void conviction can be challenged at any time.83

A principal difference between void judgments and voidable ones are that errors leading to voidable convictions can be waived.84 This means the record must show the defect was called to the attention of the court in the prior proceeding. Moreover, a sole voidable defect will not render an entire judgment void.85 Any defects like imposition of an improper cumulation order, unauthorized fine, or imposing an invalid probation that can be remedied by nunc pro tunc order or by appellate reformation to delete the illegal provision do not render a judgment void.86

At least one significant case, Ex parte Patterson, has required a pretrial objection to a void judgment stated in the charging instrument.87 This case may be limited to its particular procedural posture—i.e., no direct appeal was taken and the challenge was by habeas corpus to the validity of the primary indictment.88 Nevertheless, if evidence is necessary to demonstrate voidness, caution would dictate challenging voidness by pretrial motion and at least offering any necessary documentary proof.89

b. Collateral Attack

Generally, a “collateral attack” is a challenge to a prior judgment in a later proceeding.90 The Court of Criminal Appeals does not appear to have formally defined the term for Texas criminal jurisprudence. In civil law, a collateral attack is the attempt to limit use of a prior judgment in a proceeding unrelated to the original lawsuit.91 In contrast to the civil definition, Texas criminal courts seem to characterize all post-conviction challenges to prior judgments as collateral attacks, even those instituted for the sole purpose of overturning the judgment itself.92 Part of the dichotomy stems from the lack of a clear civil procedure to overturn otherwise final judgments as is found in the habeas corpus remedy under criminal law.93

As a working definition in relation to enhancements, a “col­lateral attack” appears to encompass any challenge to the va­lidity of a prior judgment as opposed to issues concerning proper proof of that judgment. Collateral claims are limited to issues that could not, or were not, asserted at trial or on direct appeal from the challenged conviction itself.94 As a result, the terminology of collateral attack includes both objections to the validity of a prior judgment used in a later independent prosecution and independent actions aimed solely at overturning the original judgment through habeas corpus relief.

c. Procedure to Assert Voidness Claims

A collateral attack on enhancement, can be raised at trial, on appeal, and by post-conviction writ. To entirely vacate the original judgment, the proceeding must be asserted in the original court of conviction.95 Challenges to use of prior judgments in a later trial are asserted in the proceeding where enhanced pun­ishment is sought.96 In either procedural context, any defect not already shown by the record must be preserved by proper objection and demonstrated by an offer of proof showing the defect.97

Because it is a challenge to the validity of the judgment, a collateral attack must demonstrate a prior conviction is improper because of a jurisdictional or fundamental constitutional defect.98 Jurisdictional challenges address the power of the court to act either on the subject matter or the person subject to the judgment,99 including convictions for offenses outside of the court’s jurisdiction, such as a misdemeanor in felony court,100 or an illegal sentence.101 A jurisdictional challenge can also include objecting to use of a non-qualifying prior conviction alleged as an element of the offense in the prior conviction.102 Constitutional challenges include such fundamental issues as denial of counsel,103 non-waiver of jury trial,104 and incompetency to stand trial.105 Challenges to underlying indictments or information are no longer cognizable by collateral attack,106 nor are other matters that could have been asserted on direct appeal.107

As discussed above, if the judgment is not void on its face, then evidence is necessary to prove the infirmity. Proof of any defect must be sufficient to overcome the presumption of regularity and shift the burden back to the State.108 Initially, the defendant must present sufficient proof to show the defect exists.109 Testimony that the defendant does not remember if certain rights were asserted or denied is insufficient.110 Nor will unsupported assertions by the convicted person support a finding of fact necessary to invalidate the conviction.111 A finding that any defect exists must be supported by credible evidence.112

A sentence can be overturned if a conviction used for enhancement is vacated by a later habeas corpus proceeding.113 Error in using that judgment must be preserved by objection in the trial where the conviction was used.114 This preservation of error concept is linked to the rule that charging instrument allegations vest the trial court with authority to act even if there is a defect in the procedure bringing about the prior conviction.115 An exception to the preservation of error requirement is a constitutional claim of ineffective assistance of counsel where proper investigation or objection would have preserved the error and there is no proper reason why counsel did not act.116

IV. Appellate Remedies

Appellate remedies for improper enhancement are primarily governed by whether the prior conviction was alleged as a general enhancement increasing punishment only or as an element raising the offense level. For non-reformable errors relating to the punishment stage only, the remedy is remand for a new sen­tencing hearing.117 If a prior judgment was insufficient to prove an element of the offense, then the remedy is acquittal of the higher offense under the legal sufficiency standard.118

Acquittal of a greater offense does not always result in a wholly new trial. When appropriate, the reviewing court can reform the judgment to show a lesser offense and remand for re-sentencing.119 Appellate reformation to a lesser included offense is, however, limited to cases where the jury was charged on the lesser offense120 and bench trials.121

Under current law, double jeopardy does not bar use upon re-trial of an insufficiently proved general enhacement alleged only for increased penalty.122 Nor does remand for evidentiary or procedural errors bar the appropriate proof of the alleged convictions.123 The State is permitted another opportunity to prove the prior conviction properly.

V. Conclusion

Prior convictions can often be the most important matter affecting punishment. The rules governing notice, admissibility, evidentiary sufficiency, and procedural remedies have been applied in a piecemeal fashion. This approach often makes an all-encompassing view of the matter difficult. Nevertheless, as an important part of Texas criminal justice, these issues will continue to present themselves and must be addressed. Hopefully, this attempt to draw together those disparate yet interrelated legal principles will help others address the issues as they arise.


1. Ford v. State, 334 S.W.3d 230, 234–235 (Tex.Crim.App. 2011)(statutory language stating an offense “shall be punished as” a greater offense increases the applicable penalty range while the grade of the primary offense remains the same).

2. Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999)(“prior intoxication offenses are elements of the offense” of felony DWI, and because “they define the offense as a felony,” they are part of the State’s proof in the “guilt-innocence state of the trial”).

3. See Moff v. State, 131 S.W.3d 485, 490 (Tex.Crim.App. 2004)(“Both litigants and reviewing courts should be careful to distinguish claims of improperly admitted evidence (trial error) from legal insufficiency of all admitted evidence—even improperly admitted evidence. This Court has not always been sufficiently careful in that regard . . .”); Zone v. State, 118 S.W.3d 776, 778 (Tex.Crim.App. 2003)(Meyers, J., concurring)(noting that admissibility and sufficiency are interrelated but reviewed differently—i.e., abuse of discretion for the decision to admit and de novo to determine if the evidence proves the fact beyond a reasonable doubt); Zimmer v. State, 989 S.W.2d 48, 51 (Tex.App.—San Antonio 1998, pet. ref’d)(“Documents such as booking slips, or penitentiary packets, while admissible, are generally insufficient alone to prove prior convictions”).

4. See, e.g., Moff, supra, at 492 (failure to object to admissibility did not waive sufficiency claim).

5. This distinction is often blurred because of the different remedies applied when the prior conviction affects only the penalty assessed as opposed to a conviction that is an element of the offense. If the evidence is insufficient to raise the penalty range, the remedy is simply a remand for a new punishment hearing. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007). On the other hand, if a prior conviction is an element of the offense, the remedy is acquittal of the greater offense. Cuellar v. State, 40 S.W.3d 724, 729 (Tex.App.—San Antonio 2001, affirmed 70 S.W3d 815).

6. Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1987); Williams v. State, 980 S.W.2d 222, 226 (Tex.App.—Houston [14th Dist.] 1998, pet. ref’d).

7. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007); Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App. 1986); but see Ex Parte Brown, 757 S.W.2d 367, 368 (Tex.Crim.App. 1988)(“may not in habeas corpus proceedings inquire into questions of the sufficiency of the evidence upon which the judgment was rendered”).

8. Ex parte Miller, 330 S.W.3d 610, 624 (Tex.Crim.App. 2009); Jordan v. State, 256 S.W.3d 286, 292 (Tex.Crim.App. 2008).

9. Griffin v. State, 181 S.W.3d 818 (Tex.App.—Houston [14th Dist.] 2005, pet. ref’d)(defendant acknowledged conviction during his testimony in guilt-innocence phase of trial).

10. Bryant v. State, 187 S.W.3d 397, 402 (Tex.Crim.App. 2005)(by stipulating to enhancements defendant waived “his right to put the government to its proof of that element”); Ford v. State, 243 S.W.3d 112, 117 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d)(plea and stipulation to indictment containing enhancement paragraphs supported finding of true).

11. Smith v. State, 158 S.W.3d 463, 464–65 (Tex.Crim.App. 2005)(stipulation to a conviction waived sufficiency claim that it was too remote to serve as a jurisdictional predicate for a felony DWI); Ex Parte Girnus, 640 S.W.2d 619, 621 (Tex.Crim.App. 1982)(prior convictions offered as impeachment in guilt-innocence); Griffin, supra at 821 (defendant’s testimony during guilt-innocence sufficient).

12. Ex Parte Rich, 194 S.W.3d 508, 513 (Tex.Crim.App. 2006); see also Mikel v. State, 167 S.W.3d 556, 559 (Tex.App.—Houston [14th Dist.] 2005, no pet.)(plea of true did not bar direct appeal challenge that first prior conviction was not final before second conviction because defect shown in the conviction records).

13. See Williams v. State, 309 S.W.3d 124, 130–131 (Tex.App.—Texarkana 2010, pet. ref’d)(despite plea of true when prior judgment reflected a notice of appeal and no mandate admitted, the evidence was insufficient).

14. Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007).

15. Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000)(records of court proceedings are generally regarded as accurate).

16. Id.; see also Montgomery v. State, 876 S.W.2d 414, 415–16 (Tex.App.—Austin 1994, pet. ref’d)(because defendant failed to object to proof of prior conviction by information contained in pre-sentence investigation, that documentation was sufficient to show the conviction).

17. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007).

18. Tennard v. State, 802 S.W.2d 678, 681 (Tex.Crim.App. 1990)(quoting Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim.App. 1987), aff’d, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989)); see also Ham v. State, 313 S.W.3d 450, 453 (Tex.App.—Amarillo 2010, pet. ref’d)(“Prima facie evidence is that quantum of proof on which the fact finder may find the matter in issue established unless rebutted by other evidence”).

19. Thompson v. State, 108 S.W.3d 287, 292 (Tex.Crim.App. 2003)(presumption of finality “disappears” where sentencing language in judgment contradicted by other evidence in record).

20. Fletcher v. State, 214 S.W.3d 5, 6 (Tex.Crim.App. 2007)(records showed notice of appeal so mandate required to prove finality); Magic v. State, 217 S.W.3d 66, 71 (Tex.App.—Houston [1st Dist.] 2006, no pet.)(booking sheet offered to prove conviction showed appellant gave notice of appeal).

21. See McGinnis v. State, 746 S.W.2d 479, 482 (Tex.Crim.App. 1988)(defect in original record from clerk but not in pen pack).

22. See Acosta v. State, 650 S.W.2d 827, 828 (Tex.Crim.App. 1983)(burden of proof to show otherwise regular judgment is on defendant); Schneider v. State, 9 S.W.3d 466, 468 (Tex.App.—Fort Worth 1999, no pet.)(must make an offer of proof if defect in prior judgment not apparent on face); see also Fluellen v. State, 104 S.W.3d 152, 168 (Tex.App.—Texarkana 2003, no pet.)(“it is not enough to argue [appellant] might have appealed; he must affirmatively present evidence of such an appeal”)(emphasis in original).

23. Ex Parte Evans, 964 S.W.2d 643, 647 (Tex.Crim.App. 1998)(“conviction” means “a judgment of guilt and the assessment of punishment”).

24. Art. 42.01 (1)(8), Tex. Code Crim. Proc. (2012)(judgment shall reflect any finding of guilt).

25. Stokes v. State, 688 S.W.2d 539, 541 (Tex.Crim.App. 1985).

26. Art. 42.02, Tex. Code of Crim. Proc. (Supp. 2012).

27. Langston v. State, 776 S.W.2d 586, 588 (Tex.Crim.App. 1989).

28. Petruccelli v. State, 174 S.W.3d 761, 771 (Tex.App.—Waco 2005, pet. ref’d)(Massachusetts “commitment order” identifying offense, sentence accompanied by parole certificate); Blank v. State, 172 S.W.3d 673, 674 (Tex.App.—San Antonio 2005, no pet.)(“Case Synopsis” from Illinois was not the functional equivalent of a judgment because it listed only the name of the offense, plea, and a “fine” with no amount); Gentile v. State, 848 S.W.2d 359, 360 (Tex.App.—Austin 1993, no pet.)(drivers license abstract alone does not prove the terms of any judgment).

29. See Johnson v. State, 725 S.W.2d 245, 246–47 (Tex.Crim.App. 1987)(pen pack without indictment sufficient); but see Renshaw v. State, 981 S.W.2d 464, 465 (Tex.App.—Texarkana 1998, pet. ref’d)(no proof of date offense committed within 10-year DWI rule).

30. Ex parte Miller, 330 S.W.3d 610, 626 (Tex.Crim.App. 2009)(ineffective assistance by appellate counsel to not challenge failure of pen pack to show se­quence of prior convictions); Renshaw v. State, 981 S.W.2d 464, 465–466 (Tex.App.—Texarkana 1998, pet. ref’d)(since limitations can be waived, docket sheet that showed when cases filed but not date of commission did not satisfy DWI 10-year rule); Williams v. State, 837 S.W.2d 759, 764 (Tex.App.—El Paso 1992, no pet.)(conviction records showed first prior felony committed previous to second becoming final so did not prove proper sequence).

31. See Sec. 12.42, Tex. Penal Code Ann. (2012)(raising felony punishment if defendant “previously has been finally convicted”); Sec. 12.35 (c), Tex. Penal Code Ann. (2012)(state jail punishment raised if defendant “previously has been finally convicted”). It is important to note that several other enhancement statutes omit the word “finally.” See, e.g., Sec. 12.43, Tex. Penal Code Ann. (2012)(enhancing misdemeanor if defendant “has been before convicted”); Sec. 22.01 (b)(2), Tex. Penal Code Ann. (2012)(“previously convicted” of family violence); Sec. 31.03 (e)(4)(D), Tex. Penal Code Ann. (2012)(theft punishment elevated if “previously convicted”); Sec. 38.04 (b)(2)(A), Tex. Penal Code Ann. (2012)(“previously convicted” of evading arrest). Despite the fact that some statutes do not specifically require “final” convictions, the caselaw history of the term, and the legislature’s awareness of that history, has lead the courts to apply a finality requirement to those provisions. See Jordan v. State, 36 S.W.3d 871, 873–874 (Tex.Crim.App. 2001); State v. Newsom, 64 S.W.3d 478, 481 (Tex.App.—El Paso 2001, no pet.).

32. Cuellar v. State, 70 S.W.3d 815, 827 (Tex.Crim.App. 2002, Keasler, J., dissenting).

33. Travis County Attorney v. J.S.H., 37 S.W.3d 163, 166 (Tex.App.—Austin 2001, no pet.).

34. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992)(“It is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked”).

35. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(mandate must be issued).

36. Henry v. State, 331 S.W.3d 552, 556 (Tex.App.—Houston [14th Dist.] 2011, no pet.)(where records showed notice of appeal and no mandate admitted, “no rational trier of fact could have found the second enhancement paragraph true beyond a reasonable doubt”); Williams v. State, 309 S.W.3d 124, 131 (Tex.App.—Texarkana 2010, pet. ref’d)(even though defendant pleaded true, judgment stating notice of appeal given was legally insufficient to prove finality).

37. Ex parte White, 211 S.W.3d 316, 319 (Tex.Crim.App. 2007); Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992).

38. See Art. 42.02, Tex. Code Crim. Proc. (2012)(“The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law”).

39. See Art. IV, Sec. 11a, Tex. Const., provides that courts “having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.”

40. Ex parte Hayden, 215 S.W.2d 620, 622 (Tex.Crim.App. 1948)(citing art. IV, Sec. 11a, supra).

41. Hayden, supra, at 622.

42. Ex Parte Evans, 964 S.W.2d 643, 647 (Tex.Crim.App. 1998)(“conviction” means “a judgment of guilt and the assessment of punishment”); Stokes v. State, 688 S.W.2d 539, 541 (Tex.Crim.App. 1985)(proof of a proper “sentence” is required because a sentence implements the judgment); White v. State, 353 S.W.2d 229, 230 (Tex.Crim.App. 1962)(“pronouncement of sentence . . . essential to a final judgment of conviction”).

43. Jordan v. State, 36 S.W.3d 871, 873 (Tex.Crim.App. 2001)(where judgment shows probation, there must be proof of a revocation and resolution of any appeal from that revocation to demonstrate finality); Wilson v. State, 857 S.W.2d 90, 97 (Tex.App.—Corpus Christi 1993, pet. ref’d)(where documentation showed probation revoked on May 31, 1988, and nothing indicated any appeal, the “presumption” is that the conviction was final).

44. See, e.g., Sec. 42.12 (c)(2), Tex. Penal Code Ann. (Supp. 2012)(providing for automatic life imprisonment for probated prior convictions of listed sexual offenses); Sec. 49.09(d), Tex. Penal Code (Supp. 2012)(certain intoxication offenses occurring after September 1, 1994, considered final even if probated).

45. Skillern v. State, 890 S.W.2d 849, 883 (Tex.App.—Austin 1994, pet. ref’d)(federal law provides probated sentences are final); see also Barela v. State, 180 S.W.3d 145, 148 (Tex.Crim.App. 2005)(under Arizona law, a person “is ‘convicted’ when there has been a determination of guilt by verdict, finding, or acceptance of a guilty plea”).

46. Jordan v. State, 36 S.W.3d 871, 873, 875 (Tex.Crim.App. 2001).

47. Rule 25.2(b), Tex. R. App. Proc. (2012); see also Espinoza v. State, 843 S.W.2d 729, 731–732 (Tex.App.—Austin 1992, pet. ref’d)(because silence of the record will support finding that there was no jurisdictional notice of appeal, notation of clerk that “notice of appeal was not given and that an appeal was perfected” did not overcome presumption of finality).

48. See Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App. 1986)(where sentence recited notice of appeal, “[i]t then became the State’s further duty to show the final disposition of such appeal”).

49. Jordan v. State, 36 S.W.3d 871, 873, 875 (Tex.Crim.App. 2001)(“A conviction from which an appeal has been taken is not considered final until the appellate court affirms the conviction and issues its mandate”); see also Beal v. State, 91 S.W.3d 794, 795–976 (Tex.Crim.App. 2002)(records showing new offense committed after judgment signed but before mandate in prior case were insufficient to show final conviction); but see Williams v. State, 899 S.W.2d 13, 15 (Tex.App.—San Antonio 1995, pet. ref’d)(accepting “judgment affirming appeal” in pen pack because mandate defined as a command of the court, which the court is authorized to give and which must be obeyed,” citing Black’s Law Dictionary, p. 867 (5th ed. 1979)).

50. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(deprives defendant of the right to contest the evidence); Magic v. State, 217 S.W.3d 66, 71 (Tex.App.—Houston [1st Dist.] 2006, no pet.)(could not rely on pre-sentence report where it did not describe disposition of appeal).

51. Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007).

52. Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1987).

53. See, e.g., Beck v. State, 719 S.W.2d 205, 214 (Tex.Crim.App. 1986)(unsworn testimony of identification witness waived by failure to object before jury argument); Davis v. State, 268 S.W.3d 683, 716 (Tex.App.—Fort Worth 2008, pet. ref’d)(because admission of prior conviction record conditional on proving identity of person convicted, motion to strike should be granted if no connection shown); Smith v. State, 998 S.W.2d 683, 688 (Tex.App.—Corpus Christi 1999, pet. ref’d)(if the evidence does not “in the aggregate” support a finding of identity, a “motion to strike should be granted”).

54. Zimmer v. State, 989 S.W.2d 48, 51 (Tex.App.—San Antonio 1998, pet. ref’d)(although documents showing convictions may be admissible for that purpose, they “are generally insufficient alone to prove prior convictions”).

55. Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986)(documentation alone insufficient “even if the name on the judgment and sentence in the pen packet is the same as the defendant in trial”).

56. Griffin v. State, 866 S.W.2d 754, 756 (Tex.App.—Tyler 1993, pet. ref’d)(“Even if the name on the judgment or other document is the same as that of the defendant on trial, it is incumbent on the State to go forward and show by other independent evidence that the defendant is the same person convicted”); but see Benton v. State, 336 S.W.3d 355, 359–60 (Tex. App.—Texarkana 2011, pet. ref’d)(holding it was “unlikely” that there were two different persons named “Courtney Antoine Benton” convicted in Harris County during a short time period).

57. Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App. 2007)(colorfully noting “there is more than one way to skin a cat”); Littles v. State, 726 S.W.2d 26, 31 (Tex.Crim.App. 1987, on reh’g)(no exclusive manner to show identity).

58. Gollin v. State, 554 S.W.2d 683, 686 (Tex.Crim.App. 1977). It should be noted that Gollin was overruled in Littles v. State, 726 S.W.2d 26 (Tex.Crim.App. 1984), but only to the extent it could be interpreted as establishing exclusive methods. Id. at 32.

59. Paschall v. State, 285 S.W.3d 166, 175 (Tex. App.—Fort Worth 2009, pet. ref’d)(jail phone calls referring to the convictions by city name);

60. Williams v. State, 946 S.W.2d 886, 895 (Tex.App.—Waco 1997, no pet.)(“Photographs made available to the jury for comparison with the accused can provide the independent evidence necessary to prove the accused was previously convicted as alleged”).

61. Flores v. State, 139 S.W.3d 61, 64 (Tex.App.—Texarkana 2004, no pet.)(despite lack of physical description and thumb print on DWI records, certified drivers license history provided sufficient connection where officer testified they bore defendant’s address and drivers license number).

62. Menefee v. State, 928 S.W.2d 274, 278, nt. 1 (Tex.App.—Tyler 1996, no pet.)(“comparison by the jury of handwriting samples alone, without the aid of expert testimony, is insufficient to establish identity”); see also Smith v. State, 489 S.W.2d 920, 922 (Tex.Crim.App. 1973)(expert testimony required for comparison of signatures).

63. See, e.g., Flowers v. State, 220 S.W.3d 919, 923 (Tex.Crim.App. 2007)(trier of fact permitted to decide from “totality of the evidence”); Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1984, on rehearing)(fingerprints in one pen pack proved conviction and another pen pack referenced the proved conviction and contained a photo of defendant—though “unorthodox” the aggregate evidence was sufficient to prove identity in the second conviction); Rios v. State, 557 S.W.2d 87, 92 (Tex.Crim.App. 1977)(difference between name in indictment and conviction record is irrelevant if fingerprint evidence shows the person named in the records and defendant on trial are the same person); Hood v. State, 705 S.W.2d 844, 845 (Tex.App.—Austin 1986, no pet.)(combination of pen pack from one county, transport records from another county, police officer’s testimony as to “normal process,” identity of names, and prison numbers were sufficient when “taken together”).

64. There are two types of statutes governing enhancement with multiple prior convictions. One type requires require proof of the convictions’ sequence. See, e.g., Sec. 12.42(a)(2) & (d), Tex. Penal Code (Supp. 2012)(proof of two se­quential prior convictions will raise a state jail felony penalty to that of a second-degree felony and other felonies to a penalty range of 25 years to life if the second previous felony conviction is for an offense that occurred subsequent to the first conviction having become final”). A second type permits use of multiple convictions but does not require any proof of sequence. See, e.g., Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999)(because not specified in statute, DWI convictions to raise misdemeanor grade to felony not required to be in sequence); Gowan v. State, 18 S.W.3d 305, 307 (Tex.App.—Beaumont 2000, pet. ref’d)(state jail felony convictions to raise state jail offense grade to third-degree felony need not be sequential and can be final on same day); Clark v. State, 751 S.W.2d 917, 918 (Tex.App.—Tyler1988, no pet.)(prior thefts not required to be sequential to enhance misdemeanor to felony).

65. See Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App. 1987), stating:

The sequence of events must be proved as follows: (1) the first conviction becomes final; (2) the offense leading to a later conviction is com­mitted; (3) the later conviction becomes final; (4) the offense for which defendant presently stands accused is committed.

Accord Jordan v. State, 256 S.W.3d 286, 290–91 (Tex.Crim.App. 2008), quoting Tomlin, supra, with approval.

66. Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App. 1987)(“This Court has consistently held that where there is no evidence to show the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced”).

67. Ponce v. State, 89 S.W.3d 110 (Tex.App.—Corpus Christi 2002, no pet.)(“recital in the judgment of conviction specifying the date of the offense constitutes evidence of that date”).

68. Johnson v. State, 725 S.W.2d 245, 246–247 (Tex.Crim.App. 1987)(pen pack need not contain indictment to be sufficient).

69. Ex parte Benavidez, 696 S.W.2d 582, 583 (Tex.Crim.App. 1985)(judgment did not reflect date offense committed and no charging instrument admitted); Ex parte Girnus, 640 S.W.2d 619, 621 (Tex.Crim.App. 1982)(that offense committed prior to other enhancement could be inferred from statute of limitations); but see Ex parte Klasing, 738 S.W.2d 648, 650 (Tex.Crim.App. 1987)(when jury assesses punishment, they must be instructed on the proper statute of limitations).

70. Ex Parte Brown, 757 S.W.2d 367, 368 (Tex.Crim.App. 1988)(may not raise challenge to sequence proof by habeas corpus); see also Ex parte Miller, 330 S.W.3d 610, 626 (Tex.Crim.App. 2009)(failure to raise proof of sequence was cognizable because that omission was ineffective assistance by appellate counsel).

71. See Rogers v. State, 200 S.W.3d 233, 326 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d)(sufficiency challenge that charging instrument did not allege “bodily injury” proved at trial and included in the charge, was reviewed as a variance claim).

72. Cochran v. State, 30 S.W.2d 316 (Tex.Crim.App. 1930, on reh’g, Lattimore, J., dissenting).

73. Id.; see also Cochran v. State, 107 S.W.3d 96, 99 (Tex.App.—Texarkana 2003, no pet.)(variance claim based on lack of formal pleading for enhancement allegation held harmless where defendant had notice and admitted conviction in his testimony).

74. Fuller v. State, 73 S.W.3d 250, 252–253 (Tex.Crim.App. 2002)(allegation of victim’s name not “material” because the victim’s identity is not a statutory element of the offense against which the evidence must be measured to evaluate legal sufficiency); Derichsweiler v. State, 359 S.W.3d 342, 349–350 (Tex.App.—Fort Worth 2012, pet. ref’d )(variance claim based on fact that indictment alleged a 2003 conviction “final” before a 1998 conviction rejected because sequence of enhancement offenses need not be alleged and sufficient information provided to permit defendant to find and investigate prior convictions, thus the allegation was not “material”).

75. Id., citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001)(challenge to evidentiary sufficiency should be made against a “hypothetically correct” jury charge representing the indictment allegations and the statutory elements).

76. Rogers v. State, 200 S.W.3d 233, 326 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d).

77. Absent a showing of surprise, variance challenges concerning prior con­victions will not result in reversal. See, e.g., Freda v. State, 704 S.W.2d 41, 42–43 (Tex.Crim.App. 1986)(name of offense); Cole v. State, 611 S.W.2d 79, 82 (Tex.Crim.App. 1981)(cause number); Plessinger v. State, 536 S.W.2d 380, 381 (Tex.Crim.App. 1976)(style of case); Reese v. State, 905 S.W.2d 631, 635 (Tex.App.—Texarkana 1995, pet. untimely filed)(number of convicting court); Davis v. State, 684 S.W.2d 201, 209 (Tex.App.—Houston [1st Dist.] 1984, pet. ref’d)(date of conviction).

78. Ex parte McCain, 67 S.W.3d 204, 209 (Tex.Crim.App. 2002). This also includes denials of fundamental guarantees as “claims that are cognizable on a writ of habeas corpus [are] those which raise either jurisdictional defects or constitutional claims.” Id. at 210.

79. Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App. 2001)(discussing “void v. voidable” and concluding that “while a judgment is merely ‘voidable for irregularity,’ it is ‘void for illegality,’” quoting Ex parte White, 98 S.W. 850, 851 (Tex.Crim.App. 1906)).

80. Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App. 2001)(missing reporters record showing denial of counsel prevented raising issue on direct appeal and judgment presumed regular).

81. See Nix v. State, 65 S.W.3d 664 (Tex.Crim.App. 2001), which stated as follows:

A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complain) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court, (3) the record reflects there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel when such has not been waived, in violation of Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is very nearly so.

Id. at 668.

82. Ex parte McCain, 67 S.W.3d 204, 210 (Tex.Crim.App. 2002).

83. Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)(prior conviction shown to have been reduced to misdemeanor could be raised on habeas corpus because illegal sentence can be challenged at any time); Ex parte Black, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996)(sentence exceeded statutory minimum); LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992)(improper cumulation order); Fullbright v. State, 818 S.W.2d 808, 809 (Tex.Crim.App. 1991)(void sentence); but see Ex parte Patterson, 969 S.W.3d 16, 19–20 (Tex.Crim.App. 1998), discussed below.

84. See, e.g., Ex parte McCain, 67 S.W.3d 204, 207 (Tex.Crim.App. 2002)(violation of statute requiring appointment of counsel in prior conviction should have been raised on direct appeal and not cognizable by habeas corpus); Espinosa v. State, 115 S.W.3d 64, 66 (Tex.App.—San Antonio 2003, no pet.)(could not challenge lack of judicial oath in prior conviction where not raised on direct appeal from that conviction); Tamez v. State, 27 S.W.3d 668, 671 (Tex.App.—Waco 2000, pet. ref’d)(lack of objection in prior conviction to return of indictment in a different court than conviction waived “right to challenge this irregularity in a subsequent proceeding”).

85. Rhodes v. State, 240 S.W.3d 882, 888 (Tex.Crim.App. 2007)(there is a difference between an entire judgment being “void” and a portion of a judgment being “void”).

86. Id. (“a judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void,” quoting Ex parte King, 240 S.W.2d 777 (Tex.Crim.App. 1951)).

87. See Ex parte Patterson, 969 S.W.3d 16, 19–20 (Tex.Crim.App. 1998)(Art. 1.14(b), Tex. Code Crim. Proc., requires that defects of substance of form be asserted prior to trial).

88. Patterson, supra, at 17, 19.

89. The blanket statement in Ex parte Patterson concerning preservation of error seems to contradict the rule that challenges to void judgments “can be raised at any time.” See Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006). The pretrial motion requirement should likely not be overstated since evidentiary issues may not normally be raised by a motion to quash. See Meadows v. State, 170 S.W.3d 617, 620 (Tex.App.—El Paso 2005, no pet.). However, a proponent of the motion “may offer evidence to prove the allegations in the motion . . .” Perez v. State, 948 S.W.2d 362, 364 (Tex.App.—Eastland 1997, pet. ref’d). Hence, if proof supporting a defect is available, it should be asserted at the earliest opportunity.

90. See Black’s Law Dictionary, p. 261 (6th Ed. 1990)(“an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment”).

91. The Supreme Court of Texas has defined collateral attack in a civil context as follows:

A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment stands as a bar against.

Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005).

92. See Ex parte Rieck, 144 S.W.3d 510, 516 (Tex.Crim.App. 2004)(eschewing civil labels and noting “a habeas proceeding is considered in Texas to be separate from the criminal prosecution—being a collateral, rather than direct, attack on the judgment of conviction”)(emphasis added); Ex parte Goodman, 816 S.W.2d 383, 386 (Tex.Crim.App. 1991)(Clinton, J., concurring)(“Under our current caselaw, post conviction collateral attack is available under Article 11.07, V.A.C.C.P., to raise errors of federal constitutional dimension”).

93. See Arts. 11.07, 11.072, and 11.09, Tex. Code Crim. Proc. (2012)(al­low­ing challenges to final judgments on constitutional grounds of unlawful con­finement).

94. See generally Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App. 1979)(collateral attack barred for “lesser infirmities” like evidentiary sufficiency and irregularities in the judgment or sentence even it they “might have resulted in a reversal had they been presented by an appeal”).

95. Felony post-conviction writs are filed in the trial court, Ex parte Burgess, 152 S.W.3d 123, 124–124 (Tex.Crim.App. 2004), but are eventually returnable to the Court of Criminal Appeals. Art. 11.07 § 3, Tex. Code Crim. Proc. (2012). The trial court can make recommendations on a felony writ action but has no jurisdiction to set aside the judgment. Board of Pardons and Paroles v. Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex.Crim.App. 1995)(any relief order from trial court void). Challenges to misdemeanor judgments are also filed in the court of conviction, which unlike felony cases may grant relief. Art. 11.09, Tex. Code Crim. Proc. (2012)(not made returnable to Court of Criminal Appeals). Either party to a misdemeanor writ action may appeal the trial court’s ruling on requested relief. Ex parte Okere, 56 S.W.3d 846, 850 (Tex.App.—Fort Worth 2001, pet. ref’d).

96. A judgment arising from an independent collateral attack in the original court of conviction can be asserted in a later prosecution. See Ex parte Har­rington, 310 S.W.3d 452, 459 (Tex.Crim.App. 2010)(can assert order from another court declaring judgment void).

97. See State v. Wilson, 324 S.W.3d 595, 600 (Tex.Crim.App. 2010)(defendant successfully proved enhancement was not final by showing probated sentence rendering guilty plea to primary offense involuntary); see also Nix v. State, 65 S.W.3d 664, 669 (Tex.Crim.App. 2001)(discussing the need for evidence to demonstrate a non-record claim).

98. Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App. 1979)(“A prior conviction that was alleged in a later offense may be collaterally attacked if it is void or if it is tainted by a constitutional defect”).

99. Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App. 2001)(lack of “jurisdiction over a case renders the judgment void and it may always be collaterally attacked” whereas lack of “authority” to act may “either be void or voidable” depending on whether the error is “illegal” or “irregular”)(emphasis in original).

100. Ex parte Jones, 682 S.W.2d 311, 313 (Tex.Crim.App. 1984)(two prior thefts required to raise misdemeanor theft to felony so district court had no jurisdiction where only one conviction alleged).

101. Ex Parte Pena, 71 S.W.3d 336, 337 nt. 2 (Tex.Crim.App. 2002)(issue that sentence exceeds statutory maximum can be raised at any time); Fluellen v. State, 104 S.W.3d 152, 169 (Tex.App.—Texarkana 2003, no pet.)(trial court lacked jurisdiction to modify and reduce sentence by order outside 15-day limit of statute so resulting sentence proved to support enhancement was void).

102. Ex parte Roemer, 215 S.W.3d 887, 889–890 (Tex.Crim.App. 2007)(prior conviction for “involuntary manslaughter” did not qualify as a conviction for “intoxication manslaughter” under Sec. 49.09 (b)(1), Tex. Penal Code Ann., so resulting conviction should have been a misdemeanor); Ex Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App. 2007)(involuntary manslaughter conviction improperly used to raise misdemeanor DWI to felony because that type of conviction did not qualify as an element of the offense under the felony DWI statute); Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)(felony conviction used to enhance punishment later discovered to have been reduced to misdemeanor).

103. Ex parte Olvera, 489 S.W.2d 586, 589 (Tex.Crim.App. 1973)(“There can be no question that where an accused is indigent, without counsel, and does not waive the same, his conviction is void and it cannot be used for enhancement of punishment for another offense”); Ex parte Scott, 485 S.W.2d 921, 922 (Tex.Crim.App. 1972)(denial of counsel in prior conviction rendered it unavailable to support enhanced sentence in challenged conviction); but see Ex parte McCain, 67 S.W.3d 204, 207 (Tex.Crim.App. 2002)(violation of statute requiring appointment of counsel a “voidable claim” so not cognizable on a writ of habeas corpus) and Hill v. State, 633 S.W.2d 520, 525 (Tex.Crim.App. 1982, on reh’g)(trial objection required to assert on direct appeal).

104. Ex parte Lyles, 891 S.W.2d 960, 962 (Tex.Crim.App. 1995)(since right to a jury is “not extinguished by inaction alone,” the absence of written or oral waiver combined with defendant’s testimony he desired and did not waive a jury trial warranted setting aside the conviction); Ex parte Felton, 815 S.W.2d 733, 736 (Tex.Crim.App. 1991)(trial counsel ineffective by not objecting to improper jury waiver); State v. Garcia, 905 S.W.2d 7, 9 (Tex.App.—San Antonio 1995, pet. ref’d)(lack of required jury waiver merely voidable because statutory; if accompanied by proof he never waived right then it would be error constitutional dimension and “could” render void).

105. Bell v. State, 814 S.W.2d 229, 233 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d)(order adjudicating incompetent rendered later convictions void absent showing of judicial finding that competency regained).

106. See Art. 1.14 (b), Tex. Code Crim. Proc. (2012)(defect of “form or substance in an indictment or information” must be asserted pre-trial or defendant “may not raise the objection on appeal or in any other post-conviction proceeding); but see Huynh v. State, 901 S.W.2d 480, 481 (Tex.Crim.App. 1995)(because language of statute mentions only indictments and informations, it did not apply to “complaints” in municipal court).

107. Wilson v. State, 44 S.W.3d 602, 605 (Tex.App.—Fort Worth 2001, pet. ref’d)(refusing to review sufficiency of the evidence or irregularities of prior conviction offered as enhancement).

108. See Tatum v. State, 798 S.W.2d 569, 572, (Tex.Crim.App. 1990)(“concise statement” by counsel that evidence would prove failure to admonish defendant on range of punishment in prior conviction sufficient to shift burden); Fluellen v. State, 104 S.W.3d 152, 168 (Tex.App.—Texarkana 2003, no pet.)(prima facie showing of regularity even though the words “notice of appeal” appeared in judgment because followed by blank space for further entry that was not filled in).

109. See Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App. 1993)(no testimony by defendant that he did not intend to waive a jury).

110. Robinson v. State, 739 S.W.2d 795, 799 (Tex.Crim.App. 1987)(defendant’s lack of recollection as to whether he signed waivers or received admonishments did not defeat presumption of regularity).

111. Disheroon v. State, 687 S.W.2d 332, 334 (Tex.Crim.App. 1985)(“appellant must show that he was without counsel by some evidentiary vehicle other than simply his own testimony”).

112. See Ex Parte Rich, 194 S.W.3d 508, 510 (Tex.Crim.App. 2006)(proof felony enhancement conviction was reduced to a misdemeanor); Ex Parte Lyles, 891 S.W.2d 960, 962 (Tex.Crim.App. 1995)(affidavits from defendant and counsel showed client wanted a jury so lack of written waiver rendered judgment from bench trial invalid); Bell v. State, 814 S.W.2d 229, 233 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d)(judgment of incompetency prior to trial combined with no subsequent order finding competency re-established).

113. Ex parte Harrington, 310 S.W.3d 452, 459 (Tex.Crim.App. 2010)(failure of defense counsel to investigate prior conviction defendant claimed was based on another using his identity was ineffective warranting new sentencing hearing in the later case where the prior conviction was used for enhancement); but see Ex parte Jimenez, 361 S.W.3d 679, 683–684 (Tex.Crim.App. 2012)(Tex.Crim.App. Feb. 8, 2012)(“status” as a felon at time possession of firearm offense committed not affected by vacation of felony conviction after the offense).

114. Ex parte Deitzman, 851 S.W.2d 304, 305–306 (Tex.Crim.App. 1993)(vacation of enhancement conviction in separate later habeas proceeding required new punishment hearing in case where enhancement used because objection lodged at trial and supported by a record complete with statement, transcript, briefs, and opinion from the challenged conviction).

115. See generally State v. Duke, 59 S.W.3d 789, 792–792 (Tex.App.—Fort Worth 2001, pet. ref’d)(improper to dismiss felony DWI indictment because prior convictions alleged for enhancements were based on non-final misdemeanors; any objections should have been raised at those prior proceedings and prior judgments could be reformed to misdemeanors and still qualify for enhancement), compare Ex Parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)(reduction of prior conviction to misdemeanor upon motion for new trial was not apparent from records available to trial or appellate counsel, so later assertion of voidness to support felony enhancement not waived).

116. Ex parte Harrington, 310 S.W.3d 452, 459 (Tex.Crim.App. 2010)(counsel should have investigated defendant’s allegation he was not the person previously convicted); Ex parte Miller, 330 S.W.3d 610, 626 (Tex.Crim.App. 2009)(failure to raise fact that pen packs did not establish date of second offense to prove committed after first final was ineffective assistance by appellate counsel); Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992)(ineffective to not discover prior was “shock” probation rendering prior conviction non-final).

117. Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(lack of finality required new hearing on punishment even where State attempted to show appellate court a mandate not offered at trial); Mendez v. State, 212 S.W.3d 382, 388 (Tex.App.—Austin 2006, pet. ref’d)(proper remedy for failure to read enhancement paragraphs and accept plea was remand for new punishment trial); Fortier v. State, 105 S.W.3d 697, 700 (Tex.App.—Amarillo 2003, pet. ref’d)(remand for punishment required where trial court expressly considered state jail prior conviction as third degree even though sentence imposed was within range of punishment for single enhancement).

118. Cuellar v. State, 40 S.W.3d 724, 729 (Tex.App.—San Antonio 2001, affirmed 70 S.W.3d 815)(where prior judgment alleged as element of the offense was not a final conviction, insufficient evidence required acquittal).

119. See generally, R. 43.2, Tex. R. App. Proc. (2012)(types of appellate judgments); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993)(reviewing court could reform judgment to lesser included offense and remand for re-assessment of punishment).

120. See Haynes v. State, 273 S.W.3d 183, 191 (Tex.Crim.App. 2008)(where neither party requests a lesser included offense charge, the only appellate remedy for insufficient evidence to prove an element of the offense is acquittal).

121. See generally Shute v. State, 877 S.W.2d 314, 314 (Tex.Crim.App. 1994)(trial court in bench trial is authorized to find any lesser offense proved at trial); accord Mello v. State, 806 S.W.2d 875, 877 (Tex. App.—Eastland 1991, pet. ref’d)(request for finding on lesser included offense not required in bench trial); see also Getts v. State, 155 S.W.3d 153, 155 (Tex.Crim.App. 2005)(in a bench trial upon plea of guilty proper to reform felony DWI to misdemeanor and remand for sentencing where jurisdictional prior conviction did not qualify under statute).

122. Monge v. California, 524 U.S. 721, 734, 118 S.Ct. 2246, 2248–2253, 141 L.Ed.2d 615 (1998)(double jeopardy principles generally not applicable to non-capital sentencing proceedings); Jordan v. State, 256 S.W.3d 286, 292 (Tex.Crim.App. 2008)(“When a reviewing court determines that the State’s evidence fails to show that an enhancement allegation is true, the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on punishment”); Mendez v. State, 212 S.W.3d 382, 388 (Tex.App.—Austin 2006, pet. ref’d)(no “double jeopardy implications” from failure to join issue by reading allegations and entry of plea so “the state may seek an enhanced punishment upon remand”); but see York v. State, 342 S.W.3d 528, 560, 561 (Tex.Crim.App. 2011, Womack, J., concurring)(noting that Apprendi v. New Jersey, 530 U.S. 466, 494–495, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that a punishment-phase issue increases the maximum possible punishment becomes “an element of the offense and its relitigation may be barred by double jeopardy”).

123. McNatt v. State, 188 S.W.3d 198, 204 (Tex.Crim.App. 2006)(reversal for untimeliness of enhancement notice does not bar use at re-trial).

Two Deaths and a Crossroad of Justice

The year of our Lord 2012 saw the passing of two gifted men, each of whom practiced their craft in the criminal law courts of Bexar County, Texas. More often than I would have thought, these past months I have reflected much on my experience with each man. I realize that it is likely that most of you never worked with or come to know either of these men. Unfortunately for those who never did, it is also as likely that had you been around and worked with either man, you would have felt something special in the experience. Surprisingly, though, the impact on me has assumed a different and much more meaningful character than merely fond memories of a colleague now gone.

Each man lifted the spirit of the room they occupied; each earnestly advocated his position with integrity, passion, and a unique set of skills; each exemplified so many traits of what an attorney should be. I give thanks for Jimmy Parks Jr. and Charles “Chip” Rich III. For me and on behalf of our community, I am thankful for their existence. As I have pondered about their lives, however, I began to realize that I received an unexpected gift . . . a different perspective on justice. More than a pleasant remembrance of two very special people, what has surprisingly unfolded is a different way I now think about our adversarial sys­tem. Unexpectedly, I continue to walk away from their funerals toward a new vision of justice. 

As we know, the adversarial system of justice in which we live and work is said to be the best in the world. Often in jury selections our judges speak to the panel about how our system is the best (it’s funny how we always want to think we are the best). Contrary to an inquisitorial system, where one or more judges are tasked with investigation and decision, adversarial litigants face off in battle before an ostensibly impartial judge or jury. But, contrary to its assumed crown of superiority, our system is not without its critics. Some have traced our system to the medieval mode of trial by combat, where superior force and ingenuity were determinative factors. Legal scholars continue to question whether justice is truly served in our current system by pointing out that the system is more concerned with resolving controversies rather than finding the ultimate truth. All too often, added fuel for such criticism is the inequitable resource that one side often has over the other. This is particularly true in our criminal justice system, where the weight of the government’s advantage is in manpower, funds, and authorized secrecy. But such becomes the game in winning and losing, where superior force and ingenuity again rule the day. Indeed, truth be told, does not lady ethics also suffer a blow where the higher value is placed on winning rather than the search for truth?

The passing of my two colleagues spurred me to focus on the justice of our adversarial system of justice. Much was written and said about each man after their respective passing: each life commendable, memory of each well deserved. Though each worked in the same courthouse and the same area of law, however, their lives did not often intersect. They were not social friends, insofar as I know; they did not attend the same church or share the same close friends. What they did share were remarkable good qualities in their strident passion for law and justice; they were both outstanding advocates; they both loved their children and families immensely; they both were strong in their faith; they both demonstrated remarkably pleasant and charismatic personalities; and they both carried the name of their respective fathers.

What struck me, however, is neither the differences nor similarities of their lives. That is, I came to realize that it is not their personalities or advocacy skills that have had the greatest impact on my life. Rather, I have been enlightened and intrigued by the crossroad that the proximity of their deaths has brought me to. To me, the most enlightening aspect of their coexistence in our courts and my life (and indeed, the interesting temporal proximity of their deaths) is the fascinating juxtaposition that I discovered.

To clarify, a bit more explanation of each is necessary.

Jimmy Parks Jr. was 61 years old when he passed away. As a criminal defense attorney, Jimmy was a warrior extraordinaire. He took the defense of citizens-accused to a form of art. Having fought alongside him in many battles and shared many conversations about life, I saw, felt, and knew the fiery passion within him for constitutional principles of fairness, burden of proof, and presumption of innocence. His very existence constantly called out for justice.

Charles “Chip” Rich III was 46 years old when he passed away. By all accounts, he too was a warrior extraordinaire. As a felony prosecutor in the district attorney’s office, he passionately and tirelessly argued on behalf of victims and against the ravages of crime. Having worked against him and listening to similar stories of others, I saw clearly that Chip held an unbreakable conviction for righteousness, fairness, and the rule of law. Similar to Jimmy, Chip’s very existence constantly called out for justice.

I attended the funeral services of each of these good men. Central to my new line of thought, it was evident that each was a faithful man, passionately devoted to living the word of God. They each gave of themselves to our community outside of law, truly living out the type of life God desires of all of us. When I shared offices with Jimmy, I came to know him as a Christian man who daily studied the Bible. We discussed the meaning and breadth of chapters 61 and 56 of the Book of Isaiah, where scripture teaches that God “loves justice” and we are to “maintain justice and do what is right.” I later learned the same was true of Chip, as he was a devoted reader of the Bible and an active and involved member of his church community. How did they interpret these Biblical calls for justice in the context of their profession? How do I and others respond? Interestingly, these two devoted followers of Christ chose diametrically opposed tracks in their search for justice.

And therein lies what I see as a juxtaposition:  their heartfelt passionate advocacy of diametrically opposing positions in an adversarial criminal justice system, yet each relying on the exact same spiritual force and principles for guidance. I liken it to two trains traveling down parallel tracks in our criminal justice system; two trains consistently taking different parallel tracks of advocacy, never touching each other. Ostensibly, we (and I assume each of these men) have viewed this as a parallelism that is necessary in order to intersect at justice. Now, however, I begin to wonder whether the temporal and substantive crossroad of Jimmy and Chip’s lives and deaths is meant in part to steer me to see justice in a new light.

As noted above, our adversarial judicial system depends on two opposing sides vigorously advocating and defending their position. We are taught since law school, if not before, to conclude that such a clash of titans births justice. And because justice is a spiritual foundational bedrock, it is reasonable for me to conclude that Jimmy and Chip zealously advocated his respective position sincerely believing he was fulfilling his role in God’s will. Heck, we all do!

But is it reasonable to cavalierly conclude that justice is borne through such a system? Should we walk away from the dying of these two men with the simplistic notion that two solid, weary warriors for justice will now rest, and life in our criminal justice system will, and should, ramble down its tracks as before? Or can the duality of Jimmy and Chip’s lives and deaths cause us to re-think our notion of justice and advocacy? That is, is it satisfactory for opposing lawyers to continue to travel parallel tracks separated by a chasm of ideology, fiercely advocate for their respective positions, and simply trust that “justice” is the inevitable destination? If so, how do we rationalize the seeming dichotomy of attorneys such as Jimmy and Chip who are devoted followers pursuing the same Biblical justice? Is this continued parallelism the best route to accomplish what the prophet Isaiah meant when he wrote “do right” under the law? Adversarial advocacy—is this “doing right”?

I’m not so sure. Probably a bit crazy, but I’m unwilling to dismiss the proximity of the passing of these opposing warriors as happenstance. I’m actually foolish enough to think that the juxtaposition of these two lives and deaths is meant to spur me and us to seek greater understanding and development. The duality and ultimate convergence of Jimmy and Chip’s lives and deaths has led me to envision the possibility of a different path towards a crossroad where the spirit of these two devoted God-followers and adversaries ultimately met. A crossroad where the spirit of justice that each man embodied can live as one. A course of direction where strict and separated parallelism is not the best course. I am led to envision a place where I—and all of us—could actually become the embodiment of one spirit of justice. Where one lawyer can zealously advocate for her client, yet still understand, empathize, and wrap herself within the spirit of the other’s position. Is this possible? If so, how?

I sat as a prospective juror in a jury selection months ago, and watched and listened as two opposing lawyers attempted to steer their respective trains toward justice. The prosecutor carefully and meticulously worked to diminish the concept of “proof beyond a reasonable doubt.” Despite its position as the highest burden of proof in our land, if not the world, “reasonable doubt” was cut to shreds—all in the name of “justice.” By the time it was over, any citizen-juror who was naïve to the reasoning for such a high standard of proof was left to conclude that some degree of doubt was the inevitable result in any presentation of evidence. The prosecutor left the distinct impression, if not overt irrefutable conclusion, that it would be absurd to think no one could be convicted in the presence of doubt.

Alarmingly, in his explanation of this time-honored principle, the prosecutor made no distinction between “reasonable,” “unreasonable,” or any other kind of doubt; rather, he suggested that elimination of “doubt” is impossible, and that “doubt” inevitably exists in all determinations one makes in life. Clearly, in his view as an official representative of our great State, “doubt,” reasonable or otherwise, should not pose a stumbling block on the road to “justice.”  Interestingly (and in my opinion, tragically), the “defense” attorney sat silent.  The prosecutor then cut against another treasured principle of justice by asserting that we were there as jurors to ultimately decide if the defendant was guilty or “innocent” (which, of course, is a wrong statement of the law). Again, the defense attorney sat silent.

As a former federal prosecutor of over ten years, I wondered why this prosecutor felt it necessary to effectively minimize the State’s burden of proof and cut against what clearly our forefathers felt necessary to protect against injustice. Did this prosecutor fear that the quality of his evidence traveled dangerously close to the cliff of loss? I wondered whether the “win” became more important than the principles of justice on which our country was built, and therefore minimizing our treasured bedrock of justice seemed appropriate and necessary. Why not embrace the spirit of justice that is the foundation for this standard of proof, and confidently assert that his proof is more than sufficient to prove guilt? Sure, there were others in the courtroom who could have voiced an opposition to the prose­cutor’s explanations, and indeed our “adversarial” system depends on the opposition to voice objection. But I wondered, was exposing these misimpressions to non-informed citizens the best way to reach the intersection of justice?

I wonder whether the “win” we all pursue becomes more important than the principles on which our country was built— indeed, the principles on which our Bible was written. Principles such as that found in Genesis 18 and Exodus 23, where the system of law prioritized the protection of the innocent from punishment. This is the same principle later reinforced by forefathers John Adams (“it is more important that innocence be protected than it is that guilt be punished”) and Benjamin Franklin (“it is better 100 guilty persons should escape than that one innocent person should suffer”), and later recognized by our nation’s Supreme Court as a principle inherent in our Constitution.

It would be good if my experience in jury selection was unusual, but unfortunately I’ve seen this form of antagonistic, adversarial approach many times before. We hear prosecutors and defense attorneys sarcastically and derogatorily referring to the other as a member of “the dark side,” even though both faithfully seek light and understanding from the same Bible and worship the same God. An attitude of antagonism, distrust, and opposition too often pervades their dealings and affects their arguments in court. All too often, opposing attorneys travel down the same exhaustive parallel tracks toward a perceived goal of justice, yet still remain separated by a chasm void of mu­tual understanding or empathy.

I have a feeling that the juxtaposition and proximity of the lives and deaths of my friend Jimmy and the honorable Chip, their faith, and their passion for justice is too much to overlook. I believe the convergence of their passion and spiritual devotion is closer to the intersection where I should live—where we all should live in our advocacy. I am not for overturning our adversarial system. Rather, I am led to move forward, evolve, and develop a deeper understanding, and continue to examine how I and others can travel our respective tracks with a different perspective. A perspective that weighs heavily toward a more meaningful and active understanding and empathy for the position and argument of our opponent and for the principles on which justice rests.

Where an advocate consciously and intentionally seeks, understands, and appreciates where justice rests in the opponent’s position and incorporates that into advocacy and counsel. A part of me wonders whether such a perspective would betray the zealousness with which we are required to operate and think. But quickly I dismiss the thought. For I believe that justice allows, and indeed mandates, consideration and empathy for the other’s position. And not just a meaningless nod of recognition, but rather a meaningful mutual awareness that we are all traveling toward the same intersection and an intentional weaving of such awareness into the fabric of our craft.

I believe I should examine the lives and work of Jimmy and Chip in the conjunction, and know that there lies in their duality a lesson for me and us. Rather than life in the parallel universe, we seem to have fallen into a lesson about advocacy; about life; and about Biblical and American justice. So, I pose the question: In the wake of their passing, should life in our criminal justice system ramble down the same parallel tracks as before? Or can we draw deeper meaning and lesson from this interesting proximity of life and death?

April 2013 Complete Issue – PDF Download



19 | Proposed Bylaws Changes – Submitted by Adam Kobs & Coby Waddill
22 | The 37th Annual Texas Criminal Trial College
24 | Enhancement of Punishment Under Texas Law, Part 2 – By Ken Mahaffey
34 | Two Deaths and a Crossroad of Justice – By Michael McCrum
44 | Defendant’s Motion for New Trial – By Stan Brown

7 | President’s Message
9 | Executive Director’s Perspective
11 | Ethics and the Law
15 | Federal Corner
21 | Said & Done

4 | TCDLA Member Benefits
5 | CLE Seminars and Events
38 | Significant Decisions Report

President’s Message: Hats Off… – By Lydia Clay-Jackson


When next you see Allen Place, David Gonzalez, Kristin Etter, Mark Daniel, Sharon Johnson, and Bobby Mims, give them a big THANK YOU. These criminal defense lawyers were extremely effective in maintaining the balance in our courtrooms. Their work with the legislators and their aides proved to be most fruitful. Every one of these individuals worked tirelessly on our association’s behalf, and thus, finally, for the residents of Texas. Primarily because of their effort we’ll not have reciprocal discovery come from this session of the Texas Legislature. However, for the next two years, we must earnestly work to educate our legislators on the differences between “Brady” and “Discovery.”

I would like to thank those members who took to heart President Kennedy’s challenge and asked what they could do for our association. I sincerely hope the TCDLA committee chairs I steered you to were helpful. It is most heartening to have members who want to volunteer their skills to “just help” other members. Our organization is fortunate to have so many truly altruistic members.

I would like to thank the staff at our association’s headquarters; they are doing a wonderful job in keeping us moving forward, from seminar arrangements to fulfilling the different committee needs.

I would like to thank you in advance for mentioning to your TCDLA district board member that you have not yet had the pleasure of reading their article in the Voice, but certainly are looking forward to it. I would like to thank all those board members who have fulfilled their responsibility by submitting their articles.

Good verdicts to you all,

The Hat Lady

Executive Director’s Perspective: Rusty Countdown – By Joseph A. Martinez


Special thanks to our Dean of Students and Faculty, respectively, Lydia Clay-Jackson (Conroe) and Tim Evans (Fort Worth), for the 37th Annual Texas Criminal Trial College held in Huntsville. Very special thanks to our 46 faculty members who participated in the College. We had 77 students from all parts of Texas attend the college. A list of the graduates of this year’s College is on page 22 of this issue of the Voice and on our website. We would ask our members to review the list and make it a point to congratulate these lawyers.

We thank the TCDLEI board for paying for the Hostility (Hospitality) Room at the College for the students, faculty, and staff. We thank the Law Firm of Habern, O’Neil and Pawgan, LLP, for sponsoring a Reception at the Stardust Room. We also thank the Dean Yarabeck of the Sam Houston State University for providing us with a great environment for training lawyers. We also thank Ms. Ann Broussard, Administrative Assistant to the Dean, for taking care of us throughout the week of the College. We thank A. K. Khan, General Manager of the University Hotel, for his and his staff’s cooperation as well. We would not be able to put on the College without everyone’s assistance, guidance, and cooperation.

Special thanks to Mimi Coffey (Fort Worth), Troy McKinney (Houston), Doug Murphy (Houston), and Gary Trichter (Bandera), our course directors for the 20th Annual Mastering Scientific Evidence in DUI/DWI Cases held in New Orleans. TCDLA does this event as a co-sponsorship with the National College for DUI Defense (NCDD). This year marks the eighth year of this unique working relationship between NCDD and TCDLA.

Troy McKinney is the Dean of NCDD. Special thanks to Rhea Kirk, Executive Director for NCDD, for all of her cooperation in the past year. Thanks to everyone working together we had 197 attendees.

Special thanks to the Honorable Senator Rodney Ellis and the Texas Indigent Defense Commission (TIDC), who co-sponsored with TCDLA the Texas Commemoration of the 50th Anniversary of Gideon seminar. The event was held at the Texas Legislature in March. Thanks to Jim Bethke, Executive Director of TIDC, for his guidance and cooperation. Thanks to everyone’s support, we had 74 attendees.

Special thanks to Andrew Kerr, President of the San Antonio Bar, for allowing TCDLA/CDLP to co-sponsor the 50th Annual Criminal Law Institute, in honor of District Judge A. A. Semaan. Our moderators were John Convery and Robert Price. Thanks to everyone’s efforts we had 208 attendees. This is the oldest continuing legal education in the state. TCDLA congratulates the San Antonio Bar for 50 years of dedication to educating the bar.

Thanks to course directors Sarah Roland (Denton) and David Moore (Longview) for the Gideon’s Trumpet held in Long­view in April. Thanks to their efforts we had 58 attendees. We also thank David and his wife Pam for hosting a speaker dinner and reception at their home in Longview.

Special thanks to course directors Sarah Roland (Denton) and Stan Schwieger (Waco) for Gideon’s Trumpet in Waco in April. We also thank the McLennan County Criminal Defense Lawyers Association for their support. Thanks to everyone’s help we had 91 attendees.

The 83rd Texas Legislature is drawing to a close on May 27, 2013, unless Governor Perry calls for a special session. Please follow our legislative team on the TCDLA listserve. Please call the Home Office (512-478-2514) if you need to know how to sign up for the TCDLA Legislative listserve.

The 26th Annual Rusty Duncan Advanced Criminal Law Course is rapidly approaching. A fun bike ride will be part of the healthy lifestyle options that will be available. Please pre-register at our TCDLA website and make your hotel reservations as early as possible. The deadline for the hotel rooms at the Hyatt Regency, Menger Hotel, and La Quinta is May 14, 2013, or until full, whichever occurs first.

Please help us get the word out on the 17th Annual TCDLA Golf Tournament to be held on Wednesday, June 13, at the beautiful Silverhorn Golf Club course. Prizes are awarded for the top three teams. Registration fee includes lunch at 11:30 am. Shotgun start at 12:00.

The TCDLA Board of Directors invites you to attend the TCDLA Annual Members Meeting on Saturday, June 13, 2013, im­me­diately following the adjournment of the 26th Annual Rusty Duncan Advanced Criminal Law Course. This should be approximately at 11:30 am in Ballroom B of the Henry B. Gonzalez Convention Center in San Antonio.

Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas) at or Ray Rodriguez (Laredo) at , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Ethics and the Law: Cool Hand Luke


“Cool Hand Luke” is a 1967 American prison drama film starring Paul Newman in the title role as Lucas “Luke” Jackson, a prisoner in a Florida prison camp who refuses to submit to the system and observe the established pecking order among prisoners. In a 1940s setting, Luke is arrested and sentenced to prison for two years after vandalizing parking meters. Luke’s resistance to observe the pecking order runs afoul with the prisoners’ leader, Dragline. Luke takes a beating from Dragline and eventually earns his respect and that of the other prisoners. Luke’s sense of humor and independence inspires the other prisoners. After winning a game of poker against Dragline with a hand worth nothing, Luke comments that “sometimes nothing can be a real cool hand,” to which Dragline bestows on him the nickname “Cool Hand Luke.”

After getting the news that his mother passed away, Luke escapes from prison but is eventually recaptured. Luke manages to escape the prison a few more times after that but each time is recaptured and punished. Upon his return, the warden, also referred to as the Captain, would deliver his warning speech to the inmates that began with the line, “What we have here is a failure to communicate.” Each time, Luke’s punishment entailed digging a grave-sized hole in the camp yard, filling it back in, and then being beaten by the guards. Luke eventually caves in and begs for mercy, causing the prisoners to lose respect for him. On his final attempt to escape, Luke steals a prison dump truck with Dragline. They travel to a church but police eventually catch up to them. Dragline surrenders peacefully but Luke makes a bold move and mimics the Captain’s famous line of “What we’ve got here is a failure to communicate.” He is immediately shot in the neck and dies. His actions restore his reputation among the prisoners.

When you get hired or appointed on a case, remember you are the one the client and family are looking to for saving the day. Failure to communicate is one of the top reasons clients become unhappy and file grievances. Good communication, even if the case has bad results, will save you a lot of misery. Spending nights and weekends worrying about a grievance, writ, or worse can be minimized if you simply talk to your client. Try to find an ally who is related to or who knows your client well who can be trusted. Get a waiver from your client so you can talk to that person. Engage them as your ally so they can spend hours talking about the case with the client. You can then spend your time lawyering and not babysitting. Clients have put their life in your hands and look to you to help them. Make it clear from the beginning that you cannot perform miracles, and do not be overly optimistic. Many lawyers get the check and then never talk to their clients. A short phone call or jail visit can go a long way to ease a client’s fear. Be honest with them. Send letters to the client even if it is to say hello, hope you’re okay, and we are working on your case. Many times clients come in and you ask who their prior lawyer was—and they don’t remember. You want them to remember you because they can send you more business and tell all their friends and neighbors how great you are. Return your phone calls.

COMMUNICATE WITH COURT PERSONNEL. A friendly “hello, how are you doing” goes a long way. Be polite but firm, and don’t let your client see you hugging or laughing with the prosecutor. Remember who brought you to the dance. Being friends with a DA may be great but not in front of a client. If you were accused of crime and hired a lawyer, would you want to see them together in a bar or restaurant or playing baseball together? I don’t think most people would. You are fighting a battle for your client, and the odds are always against you. Percy Foreman worked until the end. The last time I saw him, he was lying on a couch in his office barking orders to his staff. Look and act like a lawyer, carry a file even if you have a magazine in it or a briefcase when you go to court. Reach out for help if you need it on a case. Get involved with TCDLA and HCCLA. Get on the listserve. Many smart people like Michael Mowla will help. ”

COMMUNICATE WITH YOUR TEAM AND KEEP YOUR HOUSE IN ORDER. With all the technology available now, save important emails or keep a pad by your bed so when you wake up at midnight with a good idea you can write it down, and document the content of client calls. If it isn’t written down and documented in your file and with your staff, re-creating your recollection for a grievance or lawsuit is less enjoyable than an IRS audit.

COMMUNICATE WITH YOUR COLLEAGUES. Right now there are several members of this organization who are very ill, in hospitals, rehabs, nursing homes, AA meetings, going through a divorce, or dealing with the loss of a loved one. Reach out to those people and make an offer to help. Many lawyers in Houston have died, and it is comforting to know that members of TCDLA and HCCLA are helping to resolve their cases. No one can get out of here alive, so keep your affairs in order to protect your clients as well as your loved ones left behind. Effective documentation will save you in front of the grievance committee—as well as your estate against a lawsuit after you’re long gone.

COMMUNICATE TO THE BAR WHEN REQUIRED. If a lawyer, be it defense lawyer, prosecutor, or judge, violates the canon of ethics, you are duty bound to report it. Robb Fickman leads the charge in Houston and elsewhere to aid in filing judicial complaints. Like Warren Burnett, he spent a lot of time in West Texas. A friend of mine who rode the rodeo circuit said when you deal with people who have spent time there, you better have your tennis shoes on tight because they are tough people. Burnett and Fickman are in that category. Like Luke Jackson found out, a failure to communicate can be disastrous. Many lawyers find themselves with a writ or sitting in front of a grievance committee, hearing them say, as the Captain did, “What we’ve got here is a failure to communicate.”

Federal Corner: Run—Don’t Walk—From a Conflict of Interest – By F. R. Buck Files Jr.


A conflict of interest between a lawyer and a client is a terrible thing. Even an allegation that such a conflict existed at the time of the lawyer’s representation of the client can haunt the lawyer for years to come. The safest course to take when there is such an allegation is for the lawyer to run away and fight another day.

This truth came to mind as I read the opinion of the United States Court of Appeals for the D.C. Circuit in United States v. Lopesierra-Gutierrez, ___ F.3d. ___, 2013 WL 764974 (D.C. Cir. 2013) In that case, the Court held—as a matter of first impression—that a conflict of interest resulting from Lopesierra’s counsel’s alleged receipt of laundered funds as payment for legal service was not per se unwaivable. The Court affirmed Lopesierra’s conviction and sentence.

[The Background of the Case]

        Samuel Santander Lopesierra-Gutierrez, a Columbian national, was indicted for conspiring to distribute cocaine with the knowledge or intent that it would be imported into the United States in violation of 21 U.S.C. §§ 959(a) 960, and 963. He was extradited from Columbia to the United States and sat in the courtroom for almost two months listening to the government introduce testimony about his participation in the conspiracy. He was found guilty and an unnamed United States District Judge imposed a below-the-guideline sentence of 300 months. Lopesierra gave notice of appeal.

        The opinion of the Court was authored by Judge Tatel, a blind jurist who writes with great clarity.

        Judge Tatel’s opinion reads, in part, as follows:

[The Bombshell]

Lopesierra’s first and most serious contention is that his trial counsel suffered from a conflict of interest that amounted to a Sixth Amendment violation that preju­diced his defense. Here’s what happened. Quite literally on the eve of trial, the government discovered that a cooperating witness would testify that, in the course of laundering money in the United States for Lopesierra, he had sent $96,000 to Lopesierra’s attorney to cover legal fees. This testimony was part of the government’s evidence regarding the statutorily required nexus between Lopesierra’s activities and the United States. The government informed the court about the potential conflict of interest, explaining that the witness’s testimony had spawned a Department of Justice investigation into whether the attorney had violated 18 U.S.C. § 1957, which criminalizes monetary transactions in property derived from unlawful activity. Arguing that the testimony and resulting investigation created an actual conflict of interest, the government moved to disqualify the attorney.

[The District Court’s First Status Conference and What Followed]

At a status conference the next day, Lopesierra’s attorney insisted that he had no intention of withdrawing, that the witness could testify without identifying him as the recipient of the laundered funds, and that Lopesierra could waive any conflict. Speaking for himself, Lopesierra told the court that he was happy with the attorney’s work and wanted him to con­tinue. Following the conference, Lopesierra filed a response to the government’s motion, which was signed by both the purportedly conflicted attorney and a law professor from whom the attorney had sought advice. In that response, Lopesierra maintained that he had the right to continued representation by his counsel of choice notwithstanding the alleged conflict of interest. According to Lopesierra, the conflict could be avoided so long as the witness never mentioned the attorney by name. He also emphasized that he wished to waive any potential conflict of interest. In response, the government agreed that Lopesierra could waive the conflict—so long as he did so knowingly and voluntarily. The government also acquiesced to a stipulation about the laundered funds that omitted the attorney’s identity.

[The District Court’s Second Status Conference]

The district court then held another status conference, at which Lopesierra was represented by appointed conflict counsel and at which the law professor appeared by telephone. Both lawyers, as well as the government, agreed that Lopesierra could waive any conflict of interest. After considering both parties’ statements and submissions, the district court concluded that any conflict of interest was in fact waivable. It then proceeded to engage Lopesierra, again represented by conflict counsel, in a detailed waiver colloquy. In response to the court’s questioning, Lopesierra assured the court that he was aware of the source of the conflict, that he understood its nature, and that he knew he had a right to conflict-free representation. Lopesierra confirmed that he had been thoroughly advised by conflict counsel, insisted that he had carefully considered his waiver decision, and made clear that he understood he was waiving his right to later claim that he had been prejudiced by a conflict of interest. Given all this, the district court found that Lopesierra had “knowingly, intelligently, [and] voluntarily waived any conflict of interest.” Lopesierra’s original attorney went on to represent him at trial.

[Lopesierra’s Appellate Issues]

On appeal, Lopesierra, now represented by new counsel, argues that he was denied his Sixth Amendment right “to have the Assistance of Counsel for his defence,” U.S. Const. amend. VI, which includes a “correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Lopesierra begins by attempting to demonstrate that “an actual conflict of interest adversely affect[ed] the adequacy of [his] representation.” United States v. Taylor, 139 F.3d 924, 930 (D.C.Cir.1998) (citing Cuyler v. Sullivan, 446 U.S. 335, 349–51, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Only then does he turn to the question whether his waiver bars his claim. We begin with the decisive issue: waiver.

[The Concept of Waiver]

Criminal defendants frequently waive their constitutional rights. By entering a guilty plea, for instance, a defendant waives rights as fundamental as the “privilege against compulsory self-incrimination, [the] right to trial by jury, and [the] right to confront his accusers.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Of course, such waivers are subject to strict oversight by the court, which must find that they are made knowingly and voluntarily. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Like these other constitutional rights, the Sixth Amendment right to conflict-free representation is subject to knowing and voluntary waiver. See Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); see also United States v. Childress, 58 F.3d 693, 734–36 (D.C.Cir.1995) (per curiam). A defendant’s power to waive this right is grounded in another right situated in the Sixth Amendment: the right to counsel of choice. See Wheat, 486 U.S. at 160.

[The Two Sixth Amendment Rights and the Court’s Own Institutional Interests]

In cases like this, where a defendant’s chosen counsel suffers from a conflict of interest, the two Sixth Amendment rights come into clear conflict. Also implicated are the court’s own institutional interests, as guaranteeing conflict-free counsel protects not just defendants’ rights, but also the “[f]ederal courts[’] . . . independent interest in ensuring that criminal trials are conducted within the ethical standards of the [legal] profession and that legal proceedings appear fair to all who observe them.” Id. at 161. Taking the court’s interests into consideration, the Supreme Court has held that a defendant’s counsel-of-choice right may sometimes be trumped by a conflict of interest. See id. at 159 (“[T]he essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”). Specifically, a court may decline to accept a waiver if the conflict of interest jeopardizes the integrity of the proceedings. See id. at 162; see also Childress, 58 F.3d at 734–36. In making this determination, a court balances the defendant’s right to choose his representative against both the defendant’s countervailing right to conflict-free representation and the court’s independent interest in the integrity of criminal proceedings. Cf. United States v. Edelmann, 458 F.3d 791, 806–07 (8th Cir.2006). The outcome of that balance turns on the nature and extent of the conflict. We review a district court’s decision to accept or reject a waiver for abuse of discretion. See Childress, 58 F.3d at 734.

[Can the Conflict be Unwaviable?]

Attempting to get around his waiver, Lopesierra argues that his lawyer’s conflict of interest was so serious that it was simply unwaivable. Alternatively, he contends that, even if the conflict was waivable, his waiver was neither knowing nor voluntary.


[The Conflict Here Is Not Unwaivable.]

Alternatively and more narrowly, we take his position to be that such conflicts are unwaivable at least where the attorney’s supposed crime is related to the defendant’s.


Lopesierra points to no circuit that has accepted the proposition that attorneys who are the subject of criminal investigations are incapable of providing constitutionally adequate representation, and the government identifies numerous circuits that have rejected it. See, e.g., Edelmann, 458 F.3d at 806–08; Reyes–Vejerano v. United States, 276 F.3d 94, 99 (1st Cir.2002); United States v. Montana, 199 F.3d 947, 949 (7th Cir.1999).


This line makes sense. Whenever an attorney is or is likely to be the subject of a criminal investigation, courts worry that he might attempt to curry general favor with the government by pulling punches. Although this concern is serious, it hardly supports a conclusion that “no rational defendant would knowingly and voluntarily desire the attorney’s representation.” United States v. Martinez, 143 F.3d 1266, 1270 (9th Cir.1998) (internal quotation marks omitted). But when the attorney’s alleged criminal activity is “sufficiently related to the charged crimes,” Fulton, 5 F.3d at 611, courts have an additional concern: the attorney’s “fear that evidence concerning [his] involvement might come out” could potentially “affect virtually every aspect of his . . . representation of the defendant.” Id. at 613. For instance, the attorney’s advice to a defendant about whether to cooperate, plead guilty, or take the stand could be colored by the attorney’s calculations about the likelihood that the defendant’s cooperation or testimony would reveal evidence of his own crimes.

     Given the seriousness of this kind of conflict, we might agree . . . that when an attorney is accused of a “sufficiently related” crime, the resulting conflict “create[s] a real possibility that the attorney’s vigorous defense of his client will be compromised.”


But that is not this case. Lopesierra’s attorney was accused only of accepting payment for his services in laundered funds. True, those laundered funds were allegedly the product of the charged cocaine-importation conspiracy. That, however, was the full extent of his supposed connection to Lopesierra’s crimes. Although the attorney’s alleged criminal activity thus in some sense “related” to Lopesierra’s, we see a significant difference between an attorney who conspired with the defendant to distribute drugs and one who was merely paid in laundered funds. In the former case—where it is impossible to discern, for instance, which witnesses the attorney might decline to call or hesitate to cross-examine for fear they will implicate him—every single aspect of representation could be infected, every choice suspect. But where the relationship between the attorney’s alleged crime and the defendant’s is as attenuated as here, the extent of the conflict is clear and can be mitigated by stipulation. A rational defendant—who may well have been responsible for and fully aware of the fact that his attorney was paid with profits from unlawful activity—could thus make an informed choice to proceed in such a circumstance.

[The Court’s Holding]

Accordingly, we hold that where the only relationship between the attorney’s possible crime and the defendant’s is the receipt of laundered funds and where a stipulation bars presentation of incriminating testimony, the resulting conflict is not per se unwaivable. See United States v. Saccoccia, 58 F.3d 754, 771 (1st Cir.1995)(upholding waiver where the attorney allegedly “conspired with appellant to launder the fruits of unlawful activity”). In cases such as this, the knowing and voluntary requirement, coupled with the abuse of discretion standard, strikes the appropriate balance between protecting defendants from conflicted representation and preserving their right to counsel of choice. If in the context of a particular case the district court believes a conflict is intolerable, it may decline to accept a defendant’s waiver. But here, where the conflict was less serious, the district court acted well within its discretion by concluding that Lopesierra’s right to counsel of choice carried the balance.

[Lopesierra’s Waiver Was Both Knowing and Voluntary]

This brings us, then, to Lopesierra’s fallback position—that his waiver was neither knowing nor voluntary. But we have no doubt that it in fact was both. The district court held multiple hearings on this issue and went to great lengths to ensure that Lopesierra, who was represented by an independent attorney, was fully aware of the nature of the conflict and the consequences of waiver. The court explained, for instance, that because the attorney was himself the subject of a related criminal investigation, he might “have a divided loyalty between his interests and [Lopesierra’s] interests” and could “be in some way tempted to take actions that might not be to [Lopesierra’s] benefit in order to assist himself in connection with this other investigation.” It further emphasized that Lopesierra had a right to an attorney who lacked such a conflict and warned that “going forward could be ill-advised.” In response to all of this, Lopesierra repeatedly told the court that he was “100 percent” determined to continue with the attorney who had been representing him for three years. He also assured the court that he understood he was waiving any argument that he was “in some way prejudiced because [the attorney] had this conflict of interest.”

[The Usual Conclusion in These Cases]

We cannot conceive of—and Lopesierra fails to suggest—anything more the district court could have done to protect his rights. In the end, Lopesierra made a rational and informed decision that, given the stipulation and the limited nature of his attorney’s conflict, he wanted to proceed. That he now wishes he had chosen differently gives us no reason to doubt the validity of that choice.

My Thoughts

  • So, what’s the rest of the story? I spoke with Carmen D. Hernandez, who was appointed by the Court to represent Lopesierra on appeal, and she answered that question. No charges have been brought against Lopesierra’s trial counsel. He is a well-respected member of the Bar of the District of Columbia and will not face criminal prosecution.
  • It is, perhaps, for that reason that the opinion never mentions him by name—which I found most unusual as I read the opinion.
  • Was it worth $96,000 to go through the trauma of a two-month trial and embarrassment that the lawyer must have experienced while this case was on appeal? Only the lawyer can answer that question.

Said & Done



Kudos to the firm of Habern, O’Neil and Pawgan, LLP, of Huntsville. The Houston Lawyers Association and the Houston Lawyers Foundation in June honored the firm with the Matthew W. Plummer Sr. Justice Award in honor of the black Houstonian who challenged Jim Crow laws in Harris County and—eventually—won. Bill Habern’s work with the prison and parole system also has been honored by the Harris County Criminal Lawyers Association, which last year gave him its Lifetime Achievement Award. Congratulations on another feather in the cap.

Matt Heermans landed the two-word verdict on his first DWI case in Brazoria County Court at Law 3. Arresting officer wanted a blood test (no breath test offered), which D assented to after speaking with his attorney. Jury didn’t see that as a full-blown refusal. Matt lost a suppression hearing, but officers claimed to know this was a DWI prior to stopping the vehicle. One officer stated that he had probable cause for DWI arrest after merely getting a phone call from his off-duty buddy about a truck stopped in the road. D was polite, looked good on some tests, not so much on others. Very slight speech slur. Traffic infractions leading to arrest were illegal but not indicative of DWI. D admitted to drinking three beers three hours earlier. Cops found two cold unopened beers behind the front seats. DA would not budge on offer. Jury deliberated four hours over a two-day period: not guilty. Congratulations, Matt. The first one’s the sweetest.