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June 2013

Early Termination of Probation with Judicial Clemency Under TCCP Article 42.12

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We read the recent opinion in Hall v. State and discussed the judicial clemency aspect of the case with some of our fellow defense counsel. Many new counsels were unaware that a defendant who successfully completed probation conditions may, in most cases, file a motion to terminate probation and obtain an order from the judge allowing the defendant to withdraw the plea, dismiss the indictment or information, and release and discharge the defendant from all penalties and disabilities resulting from the proceedings. This termination may be obtained, in most cases, prior to the end of the defendant’s probation period and includes both regular and deferred probation. We thought that an article addressing this opportunity along with a sample motion to terminate probation and order would be helpful for new attorneys unaware of this procedure.

Probation (now called community supervision but we still prefer to call it probation) in Texas is governed by Article 42.12 of the Texas Code of Criminal Procedure. Termination of deferred adjudication probation is governed by Article 42.12, § 5. Termination of regular probation is governed by Article 42.12, § 20. Both sections of 42.12 regarding termination of probation are basically the same, but you should read the pertinent section prior to filing a motion to terminate probation, be it either for regular or deferred probation. We will discuss regular probation for the purposes of this article since we have always used both sections identically and merely changed the section number in the motion to terminate probation.

Article 42.12, § 20, creates two distinct ways a court may terminate a person’s regular probation. The most common type is where the judge simply discharges the person from regular probation and the underlying conviction remains. The other type of discharge is termed “judicial clemency” and is discussed at § 20(a). Judicial clemency is where the court discharges the person from probation and sets aside the verdict or permits the defendant to withdraw his plea, dismissing the accusation, complaint, information, or indictment against the defendant and returning all rights to the defendant. Tex. Code Crim. Proc. art. 42.12, § 20(a). The defendant who receives judicial clemency is thereafter “released from all penalties and disabilities resulting from the offense or crime of which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.” Id. The following cases illustrate just how beneficial judicial clemency may be for your client.

Judicial Clemency Case Law

The recent case of Hall v. State, No. 06-12-00091-CR, 2013 Tex. App. Lexis 1057 (Tex. App.—Texarkana, February 6, 2013, no pet. h.), held that a conviction set aside pursuant to judicial clemency was not a reportable conviction requiring a duty to register as a sex offender. Id. On January 30, 1981, Hall was convicted of “Aggravated Rape, a First-Degree Felony.” Id. Hall’s sentence of seven years’ imprisonment was suspended, and he was placed on probation for seven years. Id. At that time, there was no statutory duty to register as a sex offender, and the terms and conditions of his probation did not require him to do so. Id. In 1988, after finding “that all conditions of probation had been satisfactorily fulfilled,” the trial court entered an “Order Setting Aside Judgement of Conviction Dismissing the Indictment and Discharging Defendant from Probation.” Id.

The Hall court characterized the Defendant’s termination of probation under Article 42.12, § 20 as judicial clemency because the order set aside the judgment of Hall’s aggravated rape conviction, dismissed the indictment, discharged the Defendant from probation, and stated, “[T]he Defendant is hereby released from all penalties and disabilities resulting from the Judgement of Conviction in this case.” Id. The Hall court reasoned that because the indictment was dismissed and the conviction was set aside pursuant to Article 42.12, § 20, the conviction ceased to exist. Id. Recognizing the judicial clemency that was afforded to the Defendant in 1988, the Court of Appeals concluded that there was no underlying conviction which could serve as the predicate conviction activating the sex-offender registration requirement. Id.

The Hall decision relied upon the Texas Court of Criminal Appeals decision Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). Cuellar held that a felony conviction set aside pursuant to Article 42.12, § 20, cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. Id. at 816. In 1976, Cuellar pled guilty to possession of heroin. Id. The trial court sentenced him to five years’ imprisonment, suspended the sentence, and placed Cuellar on probation for five years. Id. On September 1, 1981, the trial court entered an order setting aside the judgment of conviction and dismissing the indictment (judicial clemency). Id. In 1996, Cuellar was arrested for felon in possession of a firearm. Id. He was convicted and appealed on the contention that “since the 1976 conviction was set aside pursuant to Article 42.12, § 20, there was no underlying felony conviction to support a conviction under § 46.04 (felon in possession of a firearm).” Id. at 817. The court agreed, explaining that there are “two entirely different types of ‘discharge’ from probation under Article 42.12, § 20.” Id. at 818. The court stated:

First, there is the usual method of discharge. When a person placed on probation has completed his entire term of probation and has satisfactorily fulfilled all of the conditions of probation, the trial judge shall discharge the defendant from probation . . . That person has paid his debt to society and, in effect, “graduates” from probation. However, that person has been convicted of a felony, even though he never went to prison and, for some purposes, it is not a “final” felony conviction.

* * *

There is, however, a second, less common type of discharge under Article 42.12, § 20. This second type of discharge is not a right but rather is a matter of “judicial clemency” within the trial court’s sole discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996). . . . That is, when a trial judge believes that a person on probation is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may “set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.” Tex. Code Crim. Proc. 42.12, § 20(a); State v. Jimenez, 987 S.W.2d 886, 888 n.2 (Tex. Crim. App. 1999) (“Under Texas law, successful completion of probation allows the judge to dismiss some charges without a final conviction”). These words are crystal clear. There is no doubt as to their meaning. See Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom “released from all penalties and disabilities” resulting from the conviction. Art. 42.12, § 20(a).

Id. [emphasis added].

According to Cuellar, “[O]nce the trial court judge signed the Article 42.12, § 20 order, the felony conviction disappears.” Id. The court went on to state that a person whose conviction is set aside pursuant to judicial clemency is not a convicted felon. Id. Therefore, a felony conviction set aside pursuant to judicial clemency cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. Id.

Judicial clemency has the same effect on the federal law prohibiting a felon from possessing a handgun. A conviction set aside via judicial clemency (Article 42.12, § 20) cannot be used as a predicate offense under federal law preventing a felon from possessing a handgun. See United States v. Beck, No. A-09-CR-116-LY, 2009 U.S. Dist. Lexis 74424 (W.D. Tex. Aug. 18, 2009). In Beck, the defendant was charged in a two-count indictment. Count 2 charged being a felon in possession of a firearm that had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Id. Beck filed a motion to dismiss the indictment, arguing that the underlying felony conviction was dismissed pursuant to judicial clemency and therefore no longer existed. Id. Beck was previously convicted of two separate Texas felonies, which the government relied upon to prove that he was a convicted felon. However, Beck received probation for both felonies and upon termination the trial court set aside the conviction, allowed Beck to withdraw his plea of guilty, and dismissed the underlying indictments. Id.

The Beck court first pointed out that the federal felon in possession of a handgun statute is governed by the law of the convicting jurisdiction:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Firearms Owners’ Protection Act, ch. 44, § 101, 100 Stat. 449, 449–50 (1986) (current version at 18 U.S.C. § 921(a)(20) (2000)); see also Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994) (what constitutes conviction is governed by the law of the convicting jurisdiction).

Because Beck’s convictions occurred in Texas, Texas law governed whether the convictions may serve as predicate offenses. See United States v. Daugherty, 264 F.3d 513, 515 (5th Cir. 2001). The Beck court relied upon Cuellar, supra, to hold that the prior “convictions” could not constitute prior felonies for purposes of the federal felon in possession of handgun statute. Id. The court explained its holding:

Each of the orders regarding Beck’s previous convictions is consistent with the second, discretional type of discharge. The 1980 order specifically permits Beck to withdraw his guilty plea and dismisses the indictment against him. The 1998 order sets aside the conviction, dismisses the indictment, and further releases Beck “from all penalties and disabilities resulting from the crime.” The effect of the affirmative, individualized actions of the state trial courts is to place Beck in the same position as one who was never convicted. The Government may not use either of Beck’s prior felony convictions as a predicate offense to support Count 2 of the indictment. As a result, Beck is under no disability or restriction in regard to the possession of firearms.

Id.

The Language of 42.12, § 20.

Texas Code of Criminal Procedure 42.12 , § 20, reads in pertinent part:

Sec. 20. Reduction or Termination of Probation.

(a) At any time after the defendant has satisfactorily completed one-third of the original probation period or two years of probation, whichever is less, the period of probation may be reduced or terminated by the judge. On completion of one-half of the original probation period or two years of probation, whichever is more, the judge shall review the defendant’s record and consider whether to reduce or terminate the period of probation . . . Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty, except that:

        (1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and

        (2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that the defendant previously has received probation under this article in issuing, renewing, denying, or revoking a license under that chapter.

(b)   This section does not apply to a defendant convicted of an offense under Sections 49.04–49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, or a defendant convicted of a felony described by Section 3g.

Tex. Code Crim. Proc. art. 42.12, § 20 [emphasis added].

Once the trial court signs the Article 42.12, § 20, order, the felony conviction disappears, except as specifically noted in subsections (1) and (2). Cuellar, supra. Under subsection (1), if the discharged person is subsequently convicted of another criminal offense, the previously dismissed “former” felony conviction will resurrect itself and be made known to the trial judge. Id. Under subsection (2), if the discharged person is applying for a license to run a child care facility or currently has such a license, the Texas Department of Human Services, in issuing, renewing, denying, or revoking such a license, may consider the fact that the person had previously received probation. See Cuellar, supra.

Some offenses are specifically precluded from judicial clemency. It is unavailable to defendants convicted of offenses described in § 20(b). A defendant convicted of any intoxication offense (DWI, Intoxicated Assault/Manslaughter, etc.) is ineligible for judicial clemency. Id. Likewise, any conviction requiring sex offender registration is ineligible for judicial clemency. Id. Judicial clemency is also unavailable for 3g offenses.

How to Obtain Judicial Clemency

You will not get judicial clemency under Article 42.12, §§ 5 or 20, unless you ask for it. The defendant must be eligible for early termination in that he has satisfactorily served one third of the regular probation or two years of probation, whichever is less. Tex. Code Crim. Proc. art. 42.12, § 20(a). Remember that there is no equivalent minimum time requirement in most cases for deferred adjudication probation under 42.12, § 5. It is our practice to incorporate the judicial clemency language from 42.12, § 20, into both the motion and order terminating either the regular probation or deferred adjudication probation under 42.12, §§ 5 or 20. A sample motion and order to terminate deferred adjudication probation follow for your use, and may easily be modified for regular probation. Good luck to you on obtaining judicial clemency for your eligible clients.

May 2013 SDR – Voice for the Defense Vol. 42, No. 4

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Voice for the Defense Volume 42, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The categorical authority to detain incident to the execution of a search warrant should be limited to the immediate vicinity of the premises to be searched. Bailey v. United States, 133 S. Ct. 1031 (2013).

        While police were preparing to execute a search warrant, detectives conducting surveillance saw D and another person leave the area above the apartment and drive away. D was stopped approximately one mile away; a pat-down revealed keys connecting D to the apartment. D was handcuffed and driven in a patrol car to the apartment, where the search team had already found a gun and drugs. D’s motion to suppress was denied, and he was convicted of drug and firearms possession. The district and appellate courts justified the detention under Michigan v. Summers, 452 U.S. 692 (1981), as incident to the execution of a search warrant. The Federal Courts of Appeals disagree as to whether Summers justifies the detention of occupants beyond the immediate vicinity of the prem­ises covered by a search warrant. The Supreme Court reversed the decision upholding denial of the suppression motion and remanded for the Second Circuit to determine if the detention could be justified alternatively under Terry v. Ohio, 392 U.S. 1 (1968).

        An exception to the Fourth Amendment rule prohibiting detention absent probable cause should not diverge from its purposes and rationale. There were three important law enforcement rationales in Summers justifying the detention of an occupant who was on the premises during the execution of a search warrant: officer safety, facilitating completion of the search, and preventing flight. None of these interests applied to the detention of D, who was a former occupant of the premises and found away from the scene of the search.

The absence of a narcotics dog’s field performance records did not preclude finding PC. Florida v. Harris, 133 S. Ct. 1050 (2013).

        A trial court denied D’s motion to suppress evidence found after a narcotics dog alerted to his car, but the Florida Supreme Court (FSC) reversed for lack of records, including a log of the dog’s field performance, to establish the dog’s reliability. The dog, on two separate occasions, had falsely alerted to narcotics in D’s car; but in the first search, ingredients for methamphetamine were found. The U.S. Supreme Court reversed the FSC, which held that the State had to “in every case present an exhaustive set of records” to establish a dog’s reliability.

        No matter how much other proof the State offered on a dog’s reliability, the FSC would have found that the absence of field performance records precluded finding probable cause—the antithesis of a totality-of-the-circumstances analysis. The FSC treated records of a dog’s field performance as the gold standard in evidence when in most cases they had relatively limited import. A dog could alert to a car in which no drugs were found because the drugs were hidden or in quantities too small to locate. The State introduced substantial evidence of the dog’s training and his proficiency in finding drugs. While the dog’s certification had expired, the officer and dog trained four hours weekly to keep skills sharp. Officer testified, and written records confirmed, that in those settings the dog always performed at the highest level. D had not challenged in the trial court any aspect of the dog’s training. And, D cooked and used meth on a regular ba­sis; so as officer later surmised, the dog likely responded to odors D had transferred to where the dog alerted.

Where the judge in D’s arson case erroneously held a particular fact to be an element of the offense and then granted a midtrial directed verdict of acquittal because the prosecution failed to prove that fact, double jeopardy barred retrial on that offense. Evans v. Michigan, 133 S. Ct. 1069 (2013).

        After the State rested its case in petitioner’s arson trial, the court granted petitioner’s motion for a directed verdict of acquittal, concluding that the State had failed to prove that the building he allegedly burned was not a dwelling, a fact the court mistakenly believed was an element of Mich. Comp. Laws § 750.73. The State appealed, and COA and the Michigan Supreme Court held that the State could retry petitioner because the trial court made an error of law. The U.S. Supreme Court disagreed.

        Retrial following a court-decreed acquittal is barred under the Double Jeopardy Clause of the U.S. Constitution, even in cases where a court misconstrued the statute under which a defendant was charged. In contrast to procedural rulings that result in orders dismissing a case or granting a mistrial on a basis unrelated to factual guilt or innocence, acquittals are sub­stantive rulings that conclude criminal proceedings and raise significant double jeopardy concerns.

Regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain so long as it was plain at the time of appellate review. Henderson v. United States, 133 S. Ct. 1069 (2013).

        D pled guilty to being a felon in possession of a firearm. The district court imposed a 60-month sentence. D appealed, claiming the district court plainly erred in sentencing him to an above-Guidelines prison term solely for rehabilitative pur­poses. After D was sentenced but before his appeal was heard, the Supreme Court issued a decision making his sentence unlawful and the district court’s decision to impose that sentence plainly erroneous. D’s counsel had not objected in the trial court. The Fifth Circuit concluded that D could not show that the error was plain, because an error was plain only if it was clear under current law at the time of trial. The Supreme Court reversed and remanded.

        Whether the legal question was settled or unsettled at the time of trial, as long as the error was plain as of the time of appellate review, the error was “plain” within Fed. R. Crim. P. 52(b). The Court interpreted Rule 52(b)’s phrase “plain error” as applying at the time of review because (1) to hold to the contrary would bring about unjustifiably different treatment of similarly situated individuals, (2) the “time of error” interpretation would make the appellate process yet more complex and time consuming, and (3) a “time of review” interpretation furthered the principle that an appellate court must apply the law in effect at the time it renders its decision. NOTE: The Fifth Circuit had already so held in United States v. Escalante-Reyes, which is one of the following summaries.

Fifth Circuit

D’s Confrontation Clause rights were not violated by the introduction of a recording of conversations of a controlled drug deal between a government informant and two unidentified men because the statements were not testimonial. Brown v. Epps, 686 F.3d 281 (5th Cir. 2012).

        In trial of Mississippi state D convicted of the sale of crack cocaine, an objective analysis would conclude that the primary purpose of the unidentified individuals’ statements was to arrange the drug deal, not to create a record for trial. The Fifth Circuit reversed the district court’s judgment granting federal habeas relief on D’s Confrontation Clause claim.

The Supreme Court’s holding that ineffective assistance of postconviction counsel can excuse procedural default of ineffective assistance claims is inapplicable to Texas defendants. Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012).

        Fifth Circuit denied Texas D’s motion to vacate the district court’s denial of habeas relief in light of the intervening decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012). Martinez v. Ryan—namely, that ineffective assistance of postconviction counsel could, in some instances, excuse procedural default of ineffective assistance of counsel (IAC) claims with respect to trial/plea or sentencing—is inapplicable to Texas defendants. Unlike the Arizona scheme at issue in Martinez v. Ryan, Texas does not require that IAC claims be deferred until collateral review. Rather, Texas permits defendants to raise IAC via a motion for a new trial, and defendants may challenge IAC on direct appeal even without the benefit of a motion for a new trial.

Government not entitled to a writ of mandamus to prevent D’s expert from examining alleged child pornography evidence at the expert’s own facility (the district court had granted D’s motion). United States v. Jarman, 687 F.3d 269 (5th Cir. 2012).

        In light of the evidentiary record, the district court’s determination that there was not “ample opportunity” to view the evidence at the government facility did not rise to the level of clear and indisputable error as necessary to grant a writ of man­damus. Under 18 U.S.C. § 3509(m), a district court shall deny copies of property or material containing child pornography to the defense “so long as the Government makes the property or material reasonably available to the defendant.” Rea­sonable availability means “the Government provides ample opportunity for inspection, viewing, and examination at a Government facility.” The Fifth Circuit affirmed the district court’s order but cautioned that inconvenience to an expert or complexity of the case do not, as a general rule, add up to a failure to make the evidence reasonably available; rather, making the evidence available for inspection at a government facility is reasonable availability, and the only issue to be resolved pretrial relating to § 3509(m) discovery is whether the government inspection conditions imposed on a defendant’s ac­cess at that facility “provid[e] ample opportunity” to inspect, view, or examine the material.

D was indicted beyond the 30 days permitted by the Speedy Trial Act; although the government attributed some of the time to the absence of an essential witness (one of D’s co-defendants, who was a fugitive), the co-defendant was not an essential witness within the excludable-time provision of 18 U.S.C. § 3161(h)(3)(A) because his testimony would have been merely cumulative for a grand jury indictment. United States v. Ortiz, 687 F.3d 660 (5th Cir. 2012).

        Because the indictment was untimely, 18 U.S.C. § 3161(b) of the Speedy Trial Act required its dismissal. The Fifth Circuit therefore reversed D’s conviction and remanded for the district court to decide in the first instance whether to dismiss with or without prejudice.

Where federal prisoner, who was an alien subject to a detainer, challenged the Federal Bureau of Prisons’ regulations excluding him from consideration for participation in drug-treatment programs and release to a halfway house, district court erred in dismissing for lack of subject-matter jurisdiction. Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. 2012).

        Because participation in these programs could decrease D’s sentence, D’s claims were properly raised under 28 U.S.C. § 2241. Furthermore, district court’s alternative ruling that D had not properly exhausted administrative remedies was also in error; an attempt to exhaust would have been futile, since he raised constitutional challenges to the regulations that the agency charged with enforcing them clearly would reject. However, on the merits, D was not entitled to relief. These programs did not create any liberty interest in early release that could support a due-process claim; nor did D show an equal-protection violation, because there was a rational basis for the regulations in question.

In sentencing D convicted for distribution of child pornography, district court reversibly erred in applying a three-level enhancement under USSG § 2G2.2(b)(7)(B) based on the number of additional images found on D’s computer. United States v. Teuschler, 689 F.3d 397 (5th Cir. 2012).

        The government failed to show that the extra images, recovered in a search of D’s computer nearly two months after the offense of conviction, were “relevant conduct” with respect to the offense of conviction. Under United States v. Fowler, 216 F.3d 459 (5th Cir. 2000), such a showing requires more than simply showing that both the images distributed and the images possessed were child pornography.

D not entitled to a court-appointed attorney to help him dispose of a prior Iowa conviction that could enhance his pending sentence. United States v. Garcia, 689 F.3d 362 (5th Cir. 2012).

        D, who pleaded guilty to illegal reentry in the Southern District of Texas, was not entitled to an additional court-appointed attorney, in Iowa, to attempt to set aside a prior Iowa conviction (that would be used to enhance D’s reentry sentence). The challenge to a prior, unrelated conviction in a state court that could affect the sentence a defendant receives on a new federal conviction is not an “ancillary matte[r]” as to which counsel may be appointed.

The district court plainly erred by considering D’s need for anger-management treatment in setting D’s sentence; the error affected D’s substantial rights and warranted correction even on plain-error review. United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc).

        On initial en banc consideration, the Fifth Circuit held that for purposes of plain-error review, when the law is unsettled at the time at the time of the forfeiture but becomes clear while the case is pending on appeal, the plainness of the error is judged at the time of appeal. Under that rule, D was entitled to the benefit of Tapia v. United States, 131 S. Ct. 2382 (2011), which was handed down after his sentencing hearing. Under Tapia, the district court plainly erred by considering D’s need for anger-management treatment in setting D’s sentence; because the error affected D’s substantial rights and warranted correction even on plain-error review, the Fifth Circuit vacated the sentence and remanded. NOTE: In Henderson v. United States, see above, the Supreme Court likewise held that an error is “plain” so long as the error is plain at the time of appellate review.

The government failed to establish that venue was proper in the Western District of Texas for Ds’ charges of attempt to possess with intent to distribute cocaine; venue for a criminal attempt is based on an individual’s actions as opposed to action in concert with others. United States v. Thomas, 690 F.3d 358 (5th Cir. 2012).

        Accordingly, the Fifth Circuit reversed Ds’ attempt convictions.

Court of Criminal Appeals

Once the jury was discharged, it was improper to reconvene them and accept a new punishment verdict; D’s “mistrial” motion properly expressed “stop this proceeding.” Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013).

        A jury convicted D of manslaughter and returned a punishment verdict of six years’ confinement with a recommendation that it be probated. The trial judge formally sentenced D. Nearly 45 minutes later, the discharged jury was called into the courtroom to be polled. At that time, the jury had amended their punishment verdict to reflect six years’ confinement with­out probation. The judge again sentenced D, without probation. What happened between those two formal sentencing pronouncements is only partially reflected in the record. On appeal, D sought reinstatement of his probated sentence. COA held that the judge’s decision to reconvene the jury under the particular facts in this case was harmful error, and it remanded the case for a new punishment hearing. The State argued that COA should have found the error forfeited.

        CCA concluded that D preserved this re-sentencing issue for appellate review, and reinstated his original, probated sentence. “There is no getting around the fact that [D] had already been sentenced and the discharged jury had dispersed outside the presence of the trial judge for seven minutes—a substantial amount of time under the circumstances.”

A defendant who testifies at the punishment stage of trial and admits his guilt does not forfeit his right to complain on appeal about the guilt stage. Jacobson v. State, No. PD-1466-11 (Tex.Crim.App. Feb 6, 2013).

        A jury convicted D of aggravated sexual assault of a child. During punishment, D testified and admitted he had a sexual relationship with a young girl. COA held that under De Garmo v. State, 691 S.W.2d 657 (Tex.Crim.App. 1985), and Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998), D was estopped from complaining about the State’s jury argument in the guilt phase because he had later admitted his guilt. CCA remanded to COA to consider the merits of D’s complaint.

        CCA granted D’s PDR to decide whether Leday’s exceptions to the De Garmo estoppel doctrine should have been extended to a broader class of guilty-phase errors. CCA concluded that Leday’s reasoning applied to all guilt-stage claims of error, not merely “fundamental” claims, and overruled any vestiges of the De Garmo doctrine.

D preserved his objections; it is clear that the judge was ruling on the reliability and relevance of the expert’s testimony and the admission of the videotape itself. Everitt v. State, No. PD-1693-11 (Tex.Crim.App. Feb 6, 2013).

        A jury found D guilty of DWI. D appealed the denial of his objections to videotape evidence of his admission that he took hydrocodone that day, and the accompanying expert tes­ti­mony about the video and the effects of combining hydrocodone and alcohol. COA held that “the trial court merely ruled that [D’s] admission of hydrocodone use was relevant, not unfairly prejudicial, and therefore admissible,” but the trial court “never ruled on the reliability” of the expert’s analysis. CCA reversed COA and remanded for consideration of the admissibility of the video and the expert testimony.

        D let the trial court know what he wanted by filing a motion to suppress and following up with objections to admission. He made it clear why he thought he was entitled to suppression by repeatedly citing precedence requiring relevancy and precedence requiring reliability. COA’s parsing of D’s objections was the kind of hyper-technical analysis that CCA has repeatedly rejected. COA erred by distinguishing between admitting scientific evidence and admitting expert testimony under Tex. R. Evid. 702. Scientific evidence and expert testimony are typically admitted together; a defendant’s admission to taking drugs is relevant to show intoxication only with competent testimony as to the effect of the drug. COA also erred in distinguishing between admissibility based on relevance and admissibility based on reliability. Both relevance and reliability of the expert testimony are components of a court’s ruling on admissibility.

D can be guilty of only one of the two alleged attempted capital murders because the second conviction violates double jeopardy; each attempted capital murder conviction required at least two victims not included in the other attempted capital murders, and D’s two convictions involved the same three victims. Ex parte Milner, No. AP-76,481 (Tex.Crim.App. Feb 13, 2013).

        D pleaded guilty to two counts of attempted capital murder and one count of murder. In a habeas corpus application, D raised a double-jeopardy claim, arguing that he was subjected to a second prosecution for a single violation of the same penal statute (attempted capital murder) and assessed two separate imprisonment terms for the same offense. CCA vacated the trial court’s judgment as to D’s second conviction for attempted capital murder and remanded to the trial court with instructions to enter an acquittal.

        Only one of D’s attempted capital murder convictions could be upheld because each attempted capital murder conviction under Tex. Penal Code § 15.01(b) required at least two victims not included as victims in other attempted capital murder provisions under those same penal code sections, and D’s two convictions had resulted from allegations involving the same three victims. D thus showed that his conviction and sentencing for the second offense of attempted capital murder violated the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. He also accompanied his meritorious double-jeopardy claim with a prima facie showing of actual innocence as to the second attempted capital murder conviction and thereby satisfied his habeas burden under Tex. Code Crim. Proc. art. 11.07, § 4(a)(2).

The dog scent evidence and corroborating evidence were insufficient to support D’s convictions for capital murder and conspiracy to commit capital murder. Winfrey v. State, 393 S.W.3d 763 (Tex.Crim.App. 2013).

        D was convicted by a jury of capital murder during the course of robbery and conspiracy to commit capital murder. Her father and brother were named as co-conspirators. The vic­tim, a janitor at the school D attended who lived near D, was found murdered in his home. The police found blood, a bloody footprint, and fingerprints; no physical evidence connected D or her family to the scene. The only evidence that connected D to the scene was a dog scent lineup: two dogs alerted to D’s scent being on the victim’s clothes. The trial court sentenced D to life imprisonment for the capital-murder count and 45 years’ imprisonment for the conspiracy count. COA affirmed. CCA reversed COA and rendered acquittals on both counts.

        The dog scent evidence was insufficient, alone, to support the conviction. CCA considered corroborating evidence and concluded that it was insufficient to establish D’s guilt. This evidence included testimony that D believed the victim had money in his home, and she wanted it; her father provided specific non-public information about the murder to his cell-mate; D discussed a possible alibi for the night of the murder with her ex-husband; she allegedly shaved her pubic area to prevent the taking of a sample of her pubic hair; and D told her ex-boyfriend that the victim’s home “was an easy lick.” There was also insufficient evidence of an agreement with one or both of the alleged co-conspirators to commit capital murder.

D suffered ineffective assistance due to counsel’s failure to introduce testimony from a missing witness; the witness was the only one who could directly corroborate D’s story. Frangias v. State, 392 S.W.3d 642 (Tex.Crim.App. 2013).

        After he was convicted of sexual assault and sentenced to eight years’ confinement, D filed a motion for a new trial. The trial court allowed the motion to be denied by operation of law under Tex. R. App. P. 21.8(c), and COA affirmed. CCA reversed and remanded.

        COA erred by concluding that D’s trial counsel did not per­form deficiently because counsel’s failure to introduce testimony from a missing witness was not the product of any con­sidered strategy of counsel. The witness was the only one who could directly corroborate D’s account that the drunken woman who arrived at the hotel was a particular woman and that he never entered her room, and counsel’s affidavits confirmed that they regarded the witness’ putative testimony as exculpatory, beneficial, and critical to D’s case. Counsel should have sought to take the witness’ deposition once his doctor advised him that he could not travel to testify; it was apparent from counsel’s affidavits that with the proper documentation, they should have been able to meet the standard of Tex. Code Crim. Proc. art. 39.02, and it was not a foregone conclusion that the court would have denied the application as time-barred. Counsel should have sought a second continuance, as it was reasonable to infer that the witness would have supplied an affidavit from his doctor concerning his inability to travel.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Seizure of blood deemed proper (even though the blood-draw warrant was assumed defective by the court) because good faith exception satisfied. Franklin v. State, No. 14-11-00961-CR (Tex.App.—Houston [14th Dist] Sep 6, 2012).

        “Confronted with this split in authority, [CCA] is presently considering whether Texas law requires a face-to-face meeting between officer and judge. We need not decide that issue here, as we may dispose of this case on narrower grounds. Assuming without deciding that the affidavit was defective due to the manner in which it was presented, we conclude that [D’s] blood was seized pursuant to an applicable ‘good faith exception’ provided under [Tex. Code Crim. Proc. art. 38.23]. . . . [Officer] prepared a comprehensive affidavit in which he asserted numerous facts pertaining to [D’s] intoxication. At the suppression hearing, Officer testified that he believed that he was in possession of a valid search warrant. . . . [Officer] stated that there was nothing about the warrant that may have caused him to believe that it was invalid, and that he had a good faith belief that the warrant was issued based on probable cause by a neutral magistrate. [Officer] also testified that after he ex­e­cuted the warrant, he signed it and turned it in along with his report to the municipal court.”

Officers’ peering through two-inch gap in window—while approaching residence to investigate noise com­plaint—did not constitute a search, even though of­fi­cers had to strain to view contents of home. State v. Hunt, No. 12-11-00186-CR (Tex.App.—Tyler Sep 12, 2012)(unpublished).

        However, officers lacked exigent circumstances by which to enter home where officers merely observed through a window D holding a methamphetamine pipe, despite officers’ reported concern that D would destroy the evidence through consumption of the drugs. “First and foremost, we note that the [officers] testified that they did not fear for their safety, and that they believed the occupants of the home were completely unaware of their presence before [officer] entered the home. . . . Next, there is no testimony about the amount of time that would have been necessary to obtain a warrant.” The evidence showed (1) officers “never actually saw any drugs at all prior to entering the residence, (2) they saw only a man holding a meth­amphetamine pipe to his mouth with no smoke emanating from it or an ignition source. . . . Therefore, the trial court reasonably could have concluded that the entry was illegal and the fruits obtained from the entry should be suppressed.”

D lacked reasonable expectation of privacy inside apart­ment in which he was a visitor, even though he had permission from tenant to be in apartment and had intended to stay one or two nights. Windom v. State, 379 S.W.3d 463 (Tex.App.—Beaumont 2012).

        “[D] did not have a property or possessory interest in the premises. He did not have the right to control who entered the apartment. He testified that he had permission . . . to be there that day, and he intended to stay one or two nights. He did not bring any extra clothes with him, however. He acknowledged that he did not know for sure whether he would spend the night. No evidence suggests that he kept any personal belongings at the apartment or had ever stayed there before.”

Although D refused field sobriety tests, officer had PC to arrest D for DWI due to slurred speech, bloodshot eyes, and revving his vehicle engine at 2:30 a.m. on Christmas in icy conditions with his window rolled down, among other factors. Stovall v. State, No. 02-11-00174-CR (Tex.App.—Fort Worth Sep 13, 2012, pet. ref’d).

        Court cited case law for proposition that refusal of field sobriety tests is among the factors that can support probable cause to arrest for DWI.

Warrantless entry into fenced carport for the reported purpose of securing a pit bull to protect officers’ safety in anticipation of obtaining search consent from resident (who had not yet arrived home) and also to protect K-9 dog while performing sniff, even if unconstitutional, did not taint subsequent consent to search home. Sanchez v. State, No. 14-11-00690-CR (Tex.App.—Houston [14th Dist] Sep 18, 2012, pet. ref’d).

        “[D] contends caging the dog was flagrant because it was ‘the equivalent of picking a lock.’ We decline to adopt this analogy considering no case in Texas has addressed the propriety of police entering a carport area with a non-privacy fence, unlocked gate, a pit bull-type dog, and ‘beware of dog’ sign.”

Consent to search safe located in home deemed voluntary, despite officer telling D that they could request the fire department to bust into it. Phillips v. State, No. 14-11-00415-CR (Tex.App.—Houston [14th Dist] Oct 9, 2012).

        “After [D] made several unsuccessful attempts to open the safe, he claimed that he had recently purchased the safe and was contemplating returning it to the store where he purchased it after experiencing problems with it. The officers told [D] they could take the safe to a local fire department to have them open it. [D] eventually entered the correct combination to allow the police to open and search the safe after he admitted the safe contained pills, marijuana, and a handgun. . . . [D] agreed to provide the combination to the safe and even attempted several times to open it for the officers, impliedly demonstrating his consent to the search of the safe.”

Fear and the DWI Field Sobriety Tests

Published on

The National Highway Traffic Safety Administration (NHTSA) developed the Standardized Field Sobriety Tests (SFSTs) in a vacuum. None of the original research simulated real-life testing conditions—e.g., a person performing the standardized field sobriety tests with the fear of going to jail. This missing premise negates the validity of the tests as far as the “divided attention tests.” The critical flaw of the SFSTs contributes to false convictions in the nationalized DWI testing protocol.

What is fear? Fear as a scientific term describes a behavioral, cognitive-emotional condition in which a set of biological adaptive responses activate in the presence of danger.1 These physiological responses are hardwired to how our brain operates.2 Fear is uncontrollably present in humans and animals when unpredictable, aversive events cause debilitating behavioral, cognitive, and somatic effects.3 Fear is controlled by ancient systems in the brain, primarily the amygdala, which acts relatively independent of later emerging higher cognitions.4 Numerous studies have linked the amygdala with fear.5 Much of fear’s effects on the amygdala are subconscious, with sensory information accessing the amygdala with minimal cortical processing.6 It is important to note that fear is not related to intelligence or its effects negated by alcohol. Alcohol reduces anxiety but not fear.7

Extreme experiments prove the symbiotic relationship of fear to the amygdala. In one, amygdala-lesioned rats approached a sedated cat, crawling over it and even nibbling on its ear.8 In another, rhesus monkeys had their amygdalae removed through a bilateral temporal lobectomy, resulting in no innate fear of snakes, such as avoidance or freezing—a condition known as “psychic blindness.”9 The function of fear is to motivate organisms to manage threats that jeopardize survival through the use of coping reactions clearly focused on escaping, attacking, and freezing.10 Fear potentiated startle (FPS), a variant on freezing, is an instinctive response to a combination of light and noise stimuli.11 A person’s fear of police, at its basic element, is similar to that of rats to cats. In an experiment done by psychologists Blanchard and Blanchard, rats were exposed for 15 minutes to cats, causing each to scatter into burrows and avoid open areas, in addition to curtailing non-defensive behaviors such as grooming, mounting, eating, and drinking for the duration of the test.12 The ability to focus one’s attention while in fear requires first an understanding of the complex reactions occurring involuntarily in the body and beyond one’s control.

Fear activates stress. Stress hormones will dramatically alter the turnover of several classes of neurotransmitters in the prefrontal cortex of the brain.13 The prefrontal cortex has extensive projections from the limbic system, the mammalian part of the brain involved in emotion, which explains why strong emotions can adversely impact the quality of executive functions, increasing the likelihood of imprudent or impulsive choices.14 A study of threatening and neutral images established that the orbitofrontal cortex, as part of the fronto-parietal network, has a key role in spatial attention; attention as well as emotion are two key components compromised in fear. 15

In particular, stress releases damaging hormones. Stress ac­ti­vates the hypothalamic-pituitary adrenal (HPA) axis, which releases the glucocorticoids (cortisol) by the adrenal cor­tex and negatively interferes with brain structures central to memory.16 Corticotrophin (CRH) released with physical and emo­tional stressors causes increased blood glucose, heart rate, and blood pressure, in addition to increased tolerance of pain and changes in motor activity.17 Along with these physical reactions, an increase in glucocorticoid secretion is associated with immobilization or freezing.18 Advances in the understanding of neuroendocrine and neurochemical behavioral responses have come a long way since 1911, when Walter Cannon confirmed the secretion of epinephrine after an emotional response with fight-or-flight.19

Recently it was shown that norepinephrine and dopamine, also interactively involved in stress induced arousal, have effects on one’s prefrontal cognition as well.20 The problem with the body’s natural reactions as a result of fear or stress is the deficits that result in the “loss of normal mental and physical faculties” judged for intoxication in a DWI. It is a recognized fact that when the basoleteral part of the amygdala is activated (such as in fear) and glucocorticoids are released, stress-induced retrieval deficits occur.21 Retrieval deficits result in a negative effect on memory.22 The compromised memory retrieval is due to the stress hormones and neurotransmitters switching the brain into a “memory consolidation” state allowing for strong recall of the event, thereby compromising memory retrieval during the event.23

This makes sense, as being able to recall and avoid threatening events is necessary for evolutionary survival, explaining why our brains’ circuitry is programmed in this manner. Memory retrieval is critical in a DWI investigation for tasks such as NHTSA Phase II (e.g., alphabetic and numeric countdown) exercises. Such exercises are often times requested before exiting the vehicle so that the officer may test short-term memory recall prior to testing the subject’s ability to memorize the instructions for the walk and turn and one leg stand tests. Participants in a study receiving cold pressor stress before memory retrieval recalled fewer words than the no-stress control.24 In another stress study done in 2009, a glucocorticoid (cortisol) administered to subjects impaired their memory during a weeklong word recall experiment.25

Memory is directly connected with the brain’s processing of emotion and attention. Emotion and attention can interact either by emotion modulating attentional processing or attention influencing emotional processing.26 In a DWI scenario, the emotion of fear precedes and interrupts task attention. Emotion functions importantly to help guide attention to emotionally valuable stimuli,27 none of which is beneficial in a DWI investigation. Emotions result in abnormal excitation of the nervous network, which induces changes in heart rate and secretions or interrupts the normal relationship between the peripheral nervous system and the brain.28 Simply put, emotions affect the central nervous system—the same system evaluated for “normalcy” in a DWI. First, emotional information receives priority in neural processing.29 Evidence suggests that once emotional stimuli are processed, visual attention is often sustained.30 One’s inability to “think straight” while mad or “black out” in fear is due to emotional information receiving privileged access to attention and awareness.31

To be “paralyzed by fear” is due to emotions exerting their influence by modulating activity in regions involved in cognitive control.32 Specifically, emotional signals modulate parietal and frontal brain regions involved in attention control.33 This loss of attention control impedes the processing of task-relevant stimuli.34 When the field sobriety tests were developed, the testing subjects had no emotional detractors to interfere with their ability to process the directions. One cannot perform the tests correctly without adhering to the proper instructions such as “keep your arms by your side” or “on the ninth step keep your lead foot planted and take a small series of steps.” Emotions are so powerful, evidence suggests, that outside of “top down” mental processing, some automatic “preattentive” neural processing of emotional stimuli exists as well35 (Ohman proved this in a study that had snakes hidden in pictures).36 Psychology literature reports several published studies that document the slowed brain processing when emotions are involved. One asked subjects to simply identify a target as a circle or square and found that when the shapes were preceded by emotional versus neutral images, this slowed down the identification process.37 Another proved that fear-conditioned cues captured subjects’ attention, making it harder and slower to orient one’s self to proper locations in a spatial attention/emotion study.38 In another, participants found it more difficult to name colors of pictures or words when they had an emotional meaning attached to them, further proving the emotional hindrance is involuntary.39

Emotion potentiates the effect of attention.40 Attention de­fined is the cognitive control involved in maintaining task rules in working memory, monitoring reward and error rates, fil­ter­ing distracters, and suppressing prepotent and competitive re­sponses.41 Weak attentional control increases distractibility, causing attentional lapses, impulsivity, and attentional fatigue.42 When a person loses the ability to orient attention towards relevant stimuli, sensory information can no longer be processed properly.43 This processing occurs in the prefrontal cortex,44 the same place shown to receive activation from threat-related signals.45 The reason why one cannot focus attention during fear is because the amygdala activates the noradrenergic system projecting into and interfering with the locus coeruleus, which modulates attention.46

Without the effects of fear factored into the equation, DWI investigations attempt to prevent one from driving a vehicle when their central nervous system is impaired to the extent defined by the law for intoxication.47 There are two central flaws to this end result. Dr. Marcelline Burns, developer of the SFSTs, has admitted that the tests were never designed to detect impairment and one’s ability to safely operate a motor vehicle.48 She attempts to bridge this fatal blow by advocating her second central flaw—that the field tests are designed for judging one’s ability to divide their attention.49 Does driving a car involve the divided attention used as an objective in the field sobriety tests? Driving often consists of monitoring external stimuli for certain classes of events (pedestrians, looming cars, etc.), with the driving and thinking representing a case of “simultaneous performance.”50 There are specifically two neural conclusions about driving: (1) perceptual monitoring occurs at the same time as central pro­cess­ing and (2) central processing can be interrupted quickly on the basis of detections made while scanning and monitoring the environment.51 Field sobriety tests under fear conditions do not fairly represent simultaneous perception monitoring and central processing.

When it comes to divided attention tests, many tasks interfere with each other quite drastically, although they are neither intellectually challenging nor physically incompatible.52 One comprehensive analysis on the topic, published in the scholarly Psychological Bulletin referred to by specialists in the field of psychology, determined “the results show that people have surprisingly severe limitations on their ability to carry out simultaneously certain cognitive processes that seem fairly trivial from a computational standpoint.”53 Basic science counterbalances ex­peri­ments with controls. If the control studies show unsuitability for divided attention without alcohol, much less negated by the presence of fear, it is time the National Highway Traffic Safety Administration be held accountable for substandard and ineffective protocol and testing measures.

Attention at its core is simply holding information in the working memory, necessitating a basic understanding of working memory as it relates to fear.54 As mentioned above, memory retrieval processes are impaired with a high level of circulating glucocorticoids,55 which occurs in concert with changes in other neurotransmitter systems.56 These neural systems extend from the frontal lobes into the primary cortices, where attention and working memory show considerable overlap.57 To paraphrase, in normal cognition, memory consolidation and retrieval processes occur simultaneously; thus, a single glucocorticoid rush can alter these reactions.58 Specifically, stress levels of glucocorticoids influence the prefrontal cortex, impairing short-term memory retrieval.59 In one study, rats experienced foot-shock exposure for 30 minutes, resulting in a temporary memory loss.60 In a hu­man study, subjects tested after glucocorticoid elevations showed the same impaired memory retention under various test­ing conditions,61 including the recall of previously learned words.62 The bottom line, emotionally distracting scenarios are associated with a decrease in dorsal lateral prefrontal cortex ac­tivity, along with a concomitant drop in working memory per­formance.63

Although man is the most highly developed species, we are still animals largely controlled by instincts, one of the greatest of which is fear. The processing of fear-relevant stimuli was evolutionarily optimized for survival.64 Our fear responses are innate, species-typical responses that are not learned or voluntary.65 These responses kick into full gear when we see the flashing lights behind us, hear the sirens, and are approached by men and women in uniform carrying guns. Known as tonic immobility, profound temporary motor inhibitions both physically and mentally occur when we perceive ourselves to be in these constraining and dangerous situations.66 To disregard these natural reactions, particularly in the scenario of a DWI investigation where testing is conducted, is to ignore science, which short-circuits, truth, and justice.

The social sciences have recognized that people who are depressed have attentional inflexibility, which is linked to impairment in cognitive control mechanisms.67 People with post-traumatic stress disorder (PTSD), in the same light, fail to maintain and direct proper attention when faced with threatening information.68 Modern science has recognized that with advances in brain research, we can pinpoint some of the mechanisms at work that cause a loss of normal mental and physical faculties in emotional states. Whereas doctors have cognitive goals for their patients in these emotional states, lawyers and judges must learn to differentiate such states to prevent false convictions, particularly in the area of intoxication related offenses. There are enormous intellectual differences between the worlds of science and law in the basic premises concerning causality and certainty.69 It is time to close the gap.

Notes

1. J. J. Kim & K. M. Myers, Fear: Psychological and Neural Aspects, 8 International Encyclopedia Of The Social & Behavioral Sciences 5428, 5428 (2001).

2. See Id. at 5430.

3. Ruben P. Alvarez et al., Phasic and Sustained Fear in Humans Elicits Distinct Patterns of Brain Activity, 55 Neuroimage 389, 389 (2011).

4. Arne Ohman, The Role of the Amygdala in Human Fear: Automatic Detection of Threat, 30 Psychoneuroendocrinology 953, 954 (2005).

5. See generally Steve R. Makkar et al., Review: Behavioral and Neural Analysis of GABA in the Acquisition, Consolidation, Reconsolidation, and Extinction of Fear Memory, 35 Neuropsychopharmacology 1625, 1632 (2010); Joseph LeDoux, The Emotional Brain, Fear, and the Amygdala, 23 Cellular and Molecular Neurobiology 727, 727 (2003); Patrik Vuilleumier, How Brains Beware: Neural Mechanisms of Emotional Attention, 9 Trends in Cognitive Sciences 585, 588 (2005); Ralph Adolphs, What Does the Amygdala Contribute to Social Cognition?, 1191 The Annals of the New York Academy of Sciences 42, 42 (2010).

6. See Ohman, Role, supra note 4 at 954; Ralph Adolphs, Fear, Faces, and the Human Amygdala, 18 Current Opinion in Neurobiology 166, 167 (2008).

7. See Christine A. Moberg & John J. Curtin, Alcohol Selectively Reduces Anxiety but not Fear: Startle Response During Unpredictable vs. Predictable Threat, 118 Journal of Abnormal Psychology 335, 345 (2009).

8. Rene Misslin, The Defense System of Fear: Behavior and Neurocircuitry, 33 Neurophysiologie Clinique 55, 61 (2003).

9. Id.

10. Arne Ohman et al., On the Unconscious Subcortical Origin of Human Fear, 92 Physiology & Behavior 180, 180 (2007) (freezing “is a behaviorally quiescent state that involves scanning of the environment to assess risks and opportunities”).

11. See Amanda R. de Oliveira et al., Conditioned Fear Response Is Modulated by a Combined Action of the Hypothalamic-Pituitary-Adrenal Axis and Dopamine Activity in the Basolateral Amygdala, European Neuropsychopharmacology (forthcoming).

12. Misslin, supra note 8 at 58.

13. See Robert M. Sapolsky, The Frontal Cortex and the Criminal Justice System, 359 Philosophical Transactions of the Royal Society B 1787, 1792 (2004).

14. Id.

15. See Jorge L. Armony & Raymond J. Dolan, Modulation of Spatial Attention by Fear-Conditioned Stimuli: An Event-Related fMRI Study, 40 Neuropsychologia 817, 824 (2002).

16. Tom Smeets, Acute Stress Impairs Memory Retrieval Independent of Time of Day, 36 Psychoneuroendoctrinology 495, 495 (2011).

17. See T. M. O’Connor et al., The Stress Response and the Hypothalamic-Pituitary-Adrenal Axis: From Molecule to Melancholia, 93 Quarterly Journal of Medicine 323, 328 (2000).

18. Thierry Steimer, The Biology of Fear-and Anxiety-Related Behaviors, 4 Dialogues in Clinical Neuroscience 231, 234 (2002).

19. See R. McCarty, Fight-or-Flight Response, in 2 Encyclopedia of Stress 62, 62 (2d ed. 2007).

20. See Anreas Boehringer et al., A Combination of High Stress-Induced Tense and Energetic Arousal Compensates for Imparing Effects of Stress on Memory Re­trieval in Men, 13 Stress 444, 451 (2010).

21. See Smeets, supra note 16 at 500.

22. See Marie-France Marin et al., Modulatory Effects of Stress on Reactivated Emotional Memories, 35 Psychoneuroendorinology 1388, 1388 (2010).

23. Benno Roozendaal, Stress and Memory: Opposing Effects of Glucocorticoids on Memory Consolidation and Memory Retrieval, 78 Neurobiology of Learning and Memory 578, 590 (2002).

24. See Smeets, supra note 16 at 495.

25. See Marin, supra note 22 at 1389.

26. Armony & Dolan, supra note 15 at 817.

27. See N. Fragopanagos & J. G. Taylor, Modelling the Interaction of Attention and Emotion, 69 Neurocomputing 1977, 1982 (2006).

28. See Steimer, supra note 18 at 231.

29. See Marie T. Banich et al., Cognitive Control Mechanisms, Emotion & Memory: A Neural Perspective with Implications for Psychopathology, 33 Neuroscience & Biobehavioral Reviews 613, 614 (2009).

30. See Greg Hajcak et al., The Dynamic Allocation of Attention to Emotion: Simultaneous and Independent Evidence from the Late Positive Potential and Steady State Visual Evoked Potentials, Biological Psychology (2011), available at http://www.sciencedirect.com/science/article/pii/S0301051111002973.

31. See Vuilleumier, How Brains Beware, supra note 5 at 586.

32. See Banich et al., supra note 29 at 620.

33. Vuilleumier, How Brains Beware, supra note 5 at 591.

34. See Hajcak et al., supra note 30.

35. Patrik Vuilleumier et al., Effects of Attention and Emotion on Face Processing in the Human Brain: An Event-Related fMRI Study, 30 Neuron 829, 829 (2001).

36. See Ohman et al., Unconscious, supra note 10 at 182.

37. See Hajcak et al., supra note 30.

38. See John G. Taylor & Nickolaos F. Fragopanagos, The Interaction of Attention and Emotion, 18 Neural Networks 353, 358 (2005).

39. See Vuilleumier, How Brains Beware, supra note 5 at 585.

40. Ohman et al., Unconscious, supra note 10 at 183.

41. Martin Sarter & Giovanna Paolone, Theoretical Review-Deficits in Attentional Control: Cholinergic Mechanisms and Circuitry-Based Treatment Approach, 125 Behavioral Neuroscience 825, 825 (2011).

42. Id.

43. See Christina Lucas & Johan Lauwereyns, Selective Working Memory Disables Inhibition of Visual Features, 54 Experimental Psychology 256, 256 (2007).

44. See Taylor & Fragopanagos, supra note 38 at 353.

45. See Belinda J. Liddell et al., A Direct Brainstem-Amygdala-Cortical “Alarm” System for Subliminal Signals of Fear, 24 Neuroimage 235, 240 (2005).

46. Vuilleumier, How Brains Beware, supra note 5 at 592.

47. See Tex. Penal Code § 49.01 (“not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more”).

48. See Lori Raye Court Reporters, Examination under Oath of Marcelline Burns, 1, 39–40 (April 17, 1998).

49. See Jack Stuster & Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (Contract No. DTNH22-95-C-05192) U.S Department of Transportation and National Highway Traffic Safety Administration, 1, 32 (August 1998).

50. See Harold Pashler, Dual-Task Interference in Simple Tasks: Data and Theory, 116 Psychological Bulletin 220, 238 (1994).

51. See Id.

52. See Id. at 220.

53. Id. at 241.

54. See Lucas & Lauwereyns, supra note 43 at 262.

55. See Roozendaal, supra note 23 at 591.

56. See Id. at 588.

57. See Lucas & Lauwereyns, supra note 43 at 256.

58. See Roozendaal, supra note 23 at 588.

59. See Id. at 587.

60. Id. at 585–86. (Rats in the study were trained in a water maze to find a platform located in a specific location. Immediately after exposure to foot-shock, the rats were unable to readily identify the location of the platform previously known to each rat tested. However, after a short time elapsed following the foot-shock, rats were able to easily find the platform location again.)

61. See Id. at 585.

62. See Id. at 587.

63. Banich et al., supra note 29 at 618.

64. See Taylor & Fragopanagos, supra note 38 at 356.

65. See LeDoux, supra note 5 at 728.

66. Misslin, supra, at 59.

67. See Banich et al., supra note 29 at 620.

68. See Id. at 624.

69. See Sapolsky, supra note 13 at 1789.

I Could Have Danced All Night

Published on

In reflecting on my experience before the United States Supreme Court, I find two books coming to mind: The Once and Future King by T. H. White and Pygmalion by George Bernard Shaw. Both books came to life on the Broadway stage in musicals: “Camelot” and “My Fair Lady.”

The story of young King Arthur as he pulled the sword out of the stone can be compared to getting a Writ of Certiorari granted. I later found out that approximately 80 out of 8,000 are granted annually. MAGICAL!

As far as getting ready for oral argument, I was like Eliza Doo­little learning every aspect of Supreme Court advocacy just as Eliza prepared to go to the ball.

I found out that Cert was granted on October 29, 2011, the day Hurricane Sandy crippled the East Coast. Washington had shut down, but the nine justices of the Supreme Court weathered the storm and came in to work that morning. They granted only four writs and turned away several hundred others.

I was standing at the bench in the 436th District Court, a juvenile court. My cell phone vibrated. I looked at it and the caller was Dick Burr. Dick is a death penalty and habeas resource attorney who has been helping me with Carlos’ case ever since I had been appointed in 2002.

As soon as the hearing was over I called. Dick told me that Cert had been granted. I felt as if I had pulled the sword out of the stone.

You Don’t Do This Alone

Many people helped along the way. Bud Ritenour has been my co-counsel for the past six years, replacing Alan Futrell. Bud was chiefly responsible for writing the Cert petition. Alan recruited others to write the original successor. I had become a mitigation investigator after we were denied assistance from the Court.

I cast a wide net seeking guidance and help from everyone I knew in the habeas community. I really wanted to do the oral argument, but to get ready meant a lot of preparation.

Where for others getting ready for oral argument might entail enduring two or three moots (practice oral arguments), I wound up doing ELEVEN! I was determined to make this work.

Professor David Dow at the University of Houston Law School hosted the first and the eighth. I did two at Texas Tech Law School in Lubbock, thanks to Prof. Pat Metze. One was held in Austin before the death penalty clinical professors at the University of Texas. They combined with Professor Dow to write an amicus brief (friend of the court). Two were done in San Antonio—one at St Mary’s Law School, my alma mater, and the other before members of the Federal Public Defenders office in San Antonio’s Western District (which boasts of two successful first-time oral advocates before the Supreme Court, Carolyn Fuentes and Jack Carter). An added bonus was a guest appearance by Professor Robert Bartels of Arizona State University in Tempe, Arizona, who was the attorney who argued the Martinez case before the Supreme Court. Wanting a non-Texas point of view, I managed to get Prof. Andrea Lyon at DePaul University in Chicago to host a moot as well. Bud accompanied me to every moot except the one in Chicago.

Not only did I endure the eleven moots; we videotaped them as well. And in addition to listening time and again to each moot, I did as Jack Carter suggested and turned off the sound and watched them to see if I had any annoying idiosyncratic gestures I needed to control.

Many offers started to pour in from Supreme Court “specialists.” Some former briefing attorneys. All from big firms with partners who argue before the Supreme Court on a regular basis. I resisted their entry into the case.

A huge addition to the team came through Dick Burr’s acquaintance with Seth Waxman. Seth, a partner with the Washington, D.C.-based firm Wilmer Hale, had been the U.S. Solicitor General during the Clinton administration. He agreed to help Bud and me write the brief and reply, and put together the joint appendix. Just an aside: Everything in the Supreme Court is dictated by special rules—the forms of the brief (booklet form), the number of words, the size of the font, and on and on. The number of people and man/woman hours Seth contributed to this effort is staggering.

Others were called in to help, including Prof. Tony Amster­dam at NYU Law School, whose insight into the justices’ idiosyncrasies was invaluable in shaping the brief and the oral argument.

Another extremely important person in this effort was president of the State Bar of Texas, Buck Files. It’s beyond current memory since a criminal defense attorney had last been state bar president. We agreed that it would be helpful for the State Bar to reassert its desire to improve the quality of capital defense as it’s set out in the Texas Guide for Capital Defense. Buck made it happen within the short time frame for the amicus brief to be filed. Justices Kennedy and Breyer favorably referred to the State Bar’s brief at least four times during oral argument.

The Pressure From Without and the Strength From Within

I really wanted to do this oral argument. I had many people from around the country who said I should defer to Seth, for all of the obvious reasons. In the final analysis, I have a lot to thank Seth for. I told him how I felt about doing the argument, and he replied, “Everybody has to have his first . . .” And we never looked back.

I was the Eagle Scout who had to learn how to swim to become a first class. In the ’60s there were no options as there are now, and every Eagle Scout had to have Swimming and Lifesaving merit badges. I gave up a trip cross-country with my Uncle Norm (the first attorney in the family, my mother’s younger brother, who I looked up to as role model in many ways). I earned my Eagle Scout badge overcoming many obstacles, and I attribute that to perseverance, which is a lesson I have drawn upon many times thereafter.

Norm had attended the prestigious Bronx High School of Science, a public high school that requires an entrance examination. Most of the entering class came from better neighborhoods than mine. It was like my competition came from Alamo Heights, and I came from a less affluent part of town. In order to prepare for the exam, I studied the “Increase Your Word Power” feature at the back of the Reader’s Digests my mother had accumulated. It paid off, and I was one of three from my junior high school to join the entering class of approximately 300.

Perseverance has played a big role in my avocations as well. I started bike riding in 1989. Soon I had built up my endurance to do century (100-mile) bike rides for charities such as MS, the Lung Association, the Heart Association, and the Lance Armstrong Foundation. The difference between a metric century (100 kilometers/62.5 miles) and a full century ride (100 miles) is the mental toughness, which I would have to draw upon in this upcoming ordeal.

Total Commitment

When I decided to make this effort, I realized that it would take a lot of sacrifice. I sent a “vacation letter” to all of the courts, sus­pending my availability to take any new court appointments.

Financially, it was not going to be easy. Bud and I have still not been paid for our work in the 5th Circuit to get the case to this point. As Benjamin’s (Dustin Hoffman) dad’s friend advised in the movie “The Graduate,” “Plastics!” I am lucky to have good credit. But I knew that the experience would be priceless.

As the time grew closer, the pressures to give up the oral argument became stronger. But my determination to make this happen became more enhanced.

The people who knew me best, local lawyers including Gerry Goldstein, Stan Schneider, Mark Stevens, and Mike Gross among countless others to a man, and a woman, all advised me to keep the case. I was not going to give it up.

The circle of people helping on the case, at one time literally numbered in the hundreds, now became a very tight-knit group. Bud Ritenour, co-counsel, advisor, deputy, and trusted friend, never wavered in his support. My wife, Teresa (who had sacrificed enormously in many respects during this ordeal), and my daughter Robin, who grew up watching her dad defend numerous clients, stood fast and were an unfaltering source of support.

Most importantly, I maintained that determination that got me into Bronx Science, finished many 100-mile bike rides, and helped me pass my Lifesaving merit badge to become an Eagle Scout.

Becoming Familiar With the Court

How do you prepare for your first oral argument before the Supreme Court? Not living in the D.C. area, not going to law school in the D.C. area, and not clerking for a Supreme Court justice as my opponent had, I needed to be creative in my preparation.

Eleven moots before former briefing attorneys, some who had appeared before the Court and others who were students of the Supreme Court, aided my preparation.

In addition, I listened to over 100 hours of oral arguments, especially the Martinez v. Ryan case to which ours was so inextricably linked. (Oyez.com, now Scotus.com, is a wonderful website.) I listened to Justice Abe Fortas, who argued Gideon v. Wainwright, and watched the Henry Fonda movie version just to see the courtroom scene over and again. I watched a CNN documentary DVD I had bought on a visit to the Court the previous August when I attended a Habeas seminar in D.C. Not only did the DVD show the courtroom; it also explained the history of the Court. And it contained interviews with many of the justices, including Justice Clarence Thomas, whose voice no one would hear (as always) during the oral argument. It discussed not only the oral argument but also the process how Cert is granted and how cases are decided. It actually showed the room where only the nine justices sit to decide the cases—NO ONE else is permitted entry. One interesting note was that when the justices are discussing the cases, the order follows seniority, and no one is allowed to speak a second time until all nine have an opportunity to voice their opinions.

I read biographies about all of the justices—where they went to school, where they grew up, what part of the country they were raised, even who were also Eagle Scouts.

I researched the profile of my opponents; that changed at the last minute.

I read about Supreme Court procedure, the history of oral argument, and techniques to better present oral argument.

I read books by the justices, including Justice Scalia, as well as books by Professors Dow and Lyon.

A great mental and moral boost came the previous August when one of the Supreme Court clerks, Mrs. Tyce, gave me a special tour after my wife and I took the public tour. She took us into the courtroom. Not just the area where the general public sits but inside the bar. She said, “This is where you will be sitting.”

She grabbed me by the arm and placed me at the lectern and said: “This is where you will be standing. Look how close you are to the Chief Justice.”

How prophetic. Mind you, all of this occurred before Cert was granted.

When we returned in February for argument, she met us again and this time gave Bud and me (for a second time) an opportunity to stand at the lectern (it’s not a podium).

The Day Before (February 24, 2013)

After a moot at the Supreme Court Institute at Georgetown Uni­versity on Friday and two more at the office of Wilmer Hale on Saturday, Bud and I agreed I needed to just relax. I thought about basketball players such as Kobe Bryant and Tim Duncan before a big basketball game. They always had ear buds inserted, listening to music. Teresa and Robin vacated the hotel room and went to visit Arlington. I opted to remain in the room. I went to my Pandora app and listened to show tunes, which included songs from “My Fair Lady” and “Camelot.”

Teresa and Robin brought me something light to eat, and I went to bed around 9 p.m.

February 25, 2013

We got up early and went downstairs for breakfast. We were scheduled to be the second argument of the day, beginning at 11 a.m. (I did not want to run out of steam before I began.)

At 9 a.m. all of the lawyers met with Chief Clerk General Suter. He put us at ease. He reminded us of some basic Supreme Court protocol. We then proceeded into the courtroom.

At 10 a.m. I got a chance to witness in person my first Supreme Court argument. At 11 a.m., sitting at the right hand of Seth Waxman, with Bud and Catherine Carroll—one of Seth’s attorneys who was so instrumental in getting the case and me ready—Chief Justice Roberts called the case and my name.

I opened in the obligatory fashion, “Mr. Chief Justice ,and may it please the Court . . .”

In an hour it was over—30 minutes a side.

Conclusion

Practicing now for 37 years, I have been a trial lawyer, argued cases before the 4th Judicial District Court of Appeals in San Antonio, the Texas Court of Criminal Appeals in Austin, the 5th Circuit Court of Appeals in New Orleans, and now before the United States Supreme Court. It was a dream come true.

I have returned to my practice back in San Antonio. But for one brief shining moment I was in Camelot. I could have danced all night.

May 2013 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
18 | Proposed Bylaws Changes – Submitted by Adam Kobs & Coby Waddill
22 | Early Termination of Probation with Judicial Clemency Under TCCP Article 42.12 – By Michael C. Gross & Jeffrey D. Weatherford
28 | Fear and the DWI Field Sobriety Tests – By Mimi Coffey
33 | I Could Have Danced All Night – By Warren Wolf
44 | Motion to Quash Information – By Josh Zientek

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

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

President’s Message: A Tip of the Hat – By Lydia Clay-Jackson

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It has been a pleasure.

Being President of our great Association has been a grand life experience and one of my greatest personal pleasures. I may not bleed TCDLA, as does Randy Wilson, but my heart is truly with our Association and each one of its members.

Gerry Goldstein started me on this saga, David Biers and Edward Mallet mentored me through my baby lawyer stages. Scrappy Holmes, Tim Evans, and Bill White found a place in TCTC where my skills could truly serve our Association. Betty Blackwell and Cynthia Orr forged and paved a path that was a joy to travel. Richard Anderson and Ron Gorenson’s lectures on ethics have been, and yet remain, my personal compass’ true North. These women and men are just a few TCDLA members who deserve my gratitude.

I am most pleased that through the tireless efforts of our lobbyists (Allen Place, David Gonzalez, Kristen Etter), our Legislative Committee (Mark Daniel, Susan Johnston), and our new President, Bobby Mims, we do not have reciprocal discovery. These men and women tried hard to get the Texas Legislature to understand the differences between Brady violations and pretrial discovery. When next you see these individuals, give them a big “thank you.” They did our Association proud.

I will continue my efforts in getting the SBOT to put meaning in Brady violations. Stan Schneider and Craig Jett are working on this issue with TBLS. When these men work on an issue together, failure is not an option. We should be pleased that Buck Files helped SBOT understand that there is no such thing as a “little” Brady violation. The manner in which he illustrated this absurd phrase was indeed most poignant: “A little Brady violation…  Oh, that must be a violation where the person only is wrongly imprisoned for 5 years instead of 28 years.”

It has been a grand pleasure to work with TCDLA’s home office staff. Joseph has assembled one of the most congenial, helpful group of young men and women who are dedicated to the cause of making the lives of TCDLA members easier and more productive. When next you are in Austin, take the time to drop by the home office; you will be treated like visiting royalty. A grand thing about this group of people is that they earnestly consider members’ suggestions about improving services.

It has been my pleasure to work with the women and men of TCDLA who have selflessly given of their time and talents for the benefit of their colleagues. Gary Trichter and Robert Fickman’s organization of the annual reading of the Declaration of Independence should inspire us all to action on behalf of TCDLA. When we ask, “What can I do to help TCDLA,” we truly embody the spirit of TCDLA. We are indeed an Association dedicated to helping one another in this ever-constant struggle to protect and ensure individual rights. There is a place in TCDLA for your unique talents. All you need do is ask, “Where can I serve.” I ought to know.

Good verdicts to you.

The Hat Lady

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

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Special thanks to David Burrows, Larry Boyd, and Deandra Grant, our course directors for the DWI Defense Project: More Silver Bullets CLE held in Arlington in May. Thanks to David, Larry, Deandra, and our speakers, we had an outstanding program with 185 attendees.

The 83rd Texas Legislature drew to a close on May 27, 2013. Governor Perry has called for a Special Session. Please follow our TCDLA Legislative team of Allen Place, Kristin Etter, and David Gonzalez on the TCDLA legislative listserve. Please call the Home Office (512-478-2514) if you need to know how to sign up for the TCDLA Legislative listserve.

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.

Summer is approaching and we invite you to plan a summer of family, friends, and quality CLE all across Texas. The following is our outstanding CLE summer schedule:

July 10–14South Padre IslandMembers Trip
July 10South Padre IslandTraining the Trainers
July 11–12South Padre IslandGideon’s Trumpet
July 26AustinBest of the Best: Capital Murder
July 26GranburyMitigation in the Non-Capital Case
August 8AustinFreeing the Innocent in Texas: The Cutting Edge of Theory and Practice
August 9Corpus ChristGideon’s Trumpet
August 23Houston11th Annual Top Gun DWI
August 30San AntonioSummer Seminar co-sponsored with SACDLA

Please go to our website for more information and to register online.

We updated our TCDLA website. We thank the TCDLA board for their support. We thank Grant Scheiner, Chair of the TCDLA Technology Committee, for his guidance in the project. We thank Melissa Schank, Assistant Executive Director, for her masterful work on the project. We also thank Miriam Rendon and Craig Hattersley for their exhaustive work on the project. Please let us know if you have any suggestions for improving the website.

 TCDLA appreciates its members’ support. We know you have a choice in whose CLE you attend. Thank you for supporting and attending TCDLA CLE.

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

Good verdicts to all.

Federal Corner: A Tutorial on the Crime Victims Right Act – By F. R. Buck Files Jr.

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United States District Judge Karon Owen Bowdre of the United States District Court for the Northern District of Alabama, Southern Division, recently authored a memorandum opinion having to do with the Crime Victims Right Act: 18 U.S.C. § 3771. United States of America v. Michael Heath Thetford, WL 1309851 (2013). The CVRA can be a pain for defense lawyers, prosecutors and the judges of the federal courts. Any defense lawyer who has been through a case involving a Ponzi scheme with multiple victims can attest to this.

[The Plea Agreement]

Michael Heath Thetford was an enthusiastic but unsuccessful criminal. Prior to appearing at a plea hearing before Judge Bowdre, he had already signed a binding plea agreement which set out the agreed upon sentences for each count in the indictment. Judge Bowdre describes the counts to which the defendant entered a plea of guilty and the punishment that he would face on each count, as follows:

The four-count Superseding Indictment charges Defendant Thetford as follows: Count One—felon in possession of firearms (18 U.S.C. § 922(g)(1)); Count Two—violations of gun registration law (26 U.S.C. § 5861(d)); Count Three—wire fraud (18 U.S.C. §§ 1343, 1349, and 2); and Count Four—identity theft (18 U.S.C. §§ 1028(a)(1) and 2). Because Thetford has three prior felony convictions that apparently would count as “violent felonies” for purposes of 18 U.S.C. § 924(e)(2)(B), the statutory sentence for Count One would be the mandatory minimum of at least 15 years and not more than life in prison. Defendant Thetford pled guilty to Counts One and Three and agreed to a binding sentence of 318 months and 240 months, respectively, to run concurrently with each other as well as concurrently with the sentences imposed in the two other cases to which he pled guilty. As part of a global plea agreement, Defendant Thetford also pled guilty in 2:12–cr–00349–KOB–HGD in this court to sexual exploitation of children (this Count also carries a mandatory minimum sentence of 15 years) and possession of child pornography, and to charges pending in the District of South Dakota, CR 11–30159–RAL. In this case and in the other case pending in this court, Defendant Thetford pled guilty to the highest offenses charged.

[The Unhappy Victims]

Even though Thetford was going to spend a lot of years in federal custody, two of his victims wrote a letter to Judge Bowdre. She describes how she became aware of their displeasure:

This matter comes before the court on a letter sent to chambers from “Victims: Jack Winslett and Shirley Winslett.” The court determined that the pro se letter should be treated as a Motion to Reopen the Plea under 18 U.S.C. § 3771(d) and directed that the letter be filed and docketed as such. (Doc. 73). Although the letter references numerous criticisms about conversations with Assistant U.S. Attorneys and F.B.I. agents in South Dakota and Alabama, the thrust of the complaint seems to be that the F.B.I. and U.S. Attorney failed to take possession of and return to them a boat stolen by Defendant Thetford, and that the Government failed to bring criminal charges against the third-party purchaser of the boat. For the reasons discussed in this Memorandum Opinion, the court must deny the Motion to Reopen the Plea.

In explaining her decision, Judge Bowdre writes, in part, the following:

[Crime Victims Have Rights]

Under the Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, Congress provided that victims would have the right to be involved in the criminal justice process.

***

The CVRA provides that victims of crime have certain rights. Those enumerated rights include the right to notice of and “not to be excluded from” any public court proceedings, and the right to be “reasonably heard” at public court proceedings, including plea and sentencing hearings; the right to confer with the government attorney; the right to restitution as provided by law; and the right to be treated with fairness and respect. 18 U.S.C. § 3771(a).

[A Victim’s Rights Don’t Override a Prosecutor’s Discretion]

These rights, however, do not extend to giving crime vic­tims veto power over the prosecutor’s discretion. In­deed, CVRA itself expressly prohibits any encroachment on that discretion: “Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” 18 U.S.C § 3771(d)(6). This language and the statute read as a whole demonstrate that “there is absolutely no suggestion in the statutory language that victims have a right independent of the government to prosecute a crime, set strategy, or object to or appeal pretrial or in limine or­ders. . . . In short, the CVRA, for the most part, gives victims a voice, not a veto.” Rubin, 558 F.Supp.2d at 418.

[The First Analysis]

As an initial matter, the court must determine whether the Winsletts qualify as “crime victims.” The CVRA, 18 U.S.C. § 3771(e), defines a crime victim as any person “directly and proximately harmed as a result of the commission of a Federal offense.”

        The Eleventh Circuit established a two-part test to determine whether one qualifies as a crime victim in a given case: “[F]irst, we identify the behavior constituting ‘commission of a Federal offense.’ Second, we identify the direct and proximate effects of that behavior on parties other than the United States. If the criminal behavior causes a party direct and proximate harmful effects, the party is a victim under the CVRA.” In Re Stewart, 552 F.3d 1285, 1288 (footnote omitted). Under this test, the court finds that Jack Winslett and Shirley Winslett qualify as crime victims.

[The Second Analysis]

Next, the court must consider whether, as crime victims, the Winsletts have asserted a valid reason why the court should reopen the plea of guilty that Thetford entered in this case on March 11, 2013. Pursuant to 18 U.S.C § 3771(d)(5),

A victim may make a motion to re-open a plea or a sentence only if—

(A)  the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied;

(B)  the victim petitions the court of appeals for a writ of mandamus within 14 days; and

(C)  in the case of a plea, the accused has not pled to the highest offense charged.

18 U.S.C. § 3771(d)(5) [emphasis added].

[The Winsletts’ Motion]

In their motion, the Winsletts mention that Jack Winslett did not have advance notice of the plea hearing, although Shirley Winslett did have at least one conversation prior to the taking of Thetford’s plea. As to Shirley Winslett, her motion to reopen the plea fails because she can not meet any of the three conjunctive prerequisites to reopening the plea, much less all of them: she did not assert and have denied her right to be heard at the plea hearing; she did not petition the court of appeals for mandamus within 14 days of March 11, 2013; AND, she cannot show that Thetford did not plead guilty to the highest offense charged. See 18 U.S.C. § 3771(d)(5). Assuming that Jack Winslett did not have notice of the plea, and assuming without deciding that lack of notice excuses the preconditions of (A) and (B) above, he likewise cannot meet the absolute requirement of (C) that the plea can only be reopened when the defendant did not plead to the highest offense charged.

[The Basis for the Denial of the Winsletts’ Motion]

Because Thetford pled guilty to the highest offense charged in this case, under the explicit language of the CVRA, the Winsletts are not entitled to reopen the plea. See Rubin, 558 F.Supp.2d at 423, 424. For this reason, the court will deny their motion.

[The Winsletts’ Remaining Issues and Rights]

Because the Winsletts complain about other matters affecting their rights that will continue to be issues as this case proceeds to sentencing, the court believes addressing them at this stage to be wise.

***

Although not entitled to have the plea reopened, the Wins­letts are still entitled to certain rights under the CVRA. The CVRA gives victims the right “not to be excluded” from public hearings, the “right to be reasonably heard” at sentencing, and the “right to full and timely restitution as provided by law,” among other protections. 18 U.S.C. § 3771(a) [emphasis added]. Sentencing in this case is set for June 27, 2013, at 2:30; victims may be present at that time in open court or submit written statements in advance for the court to consider and/or to read into the Record.

[The Winsletts’ Concerns Do Not Trump Prosecutorial Discretion]

As to their concerns about the perceived inadequacy of restitution, their concerns are premature. The court notes that in the plea agreement, the Government and Thetford agreed that the minimum amount of restitution payable to the Winsletts would be $2800 and left the matter of the total amount of restitution for the court to determine. Between now and sentencing, the Government will be gathering information for inclusion in the Presentence Report to assist the court’s consideration as to the total amount of restitution to impose in this case. Now is the time for the Winsletts to cooperate with the Government to document the actual value of the boat at the time Thetford stole it from them. See Rubin, 558 F.Supp.2d at 425–26 (explaining that the right under the CVRA to restitution only “as provided by law” relies on the provisions of the Mandatory Victim Restitution Act, which “does not require the victim’s seal of approval, or even solicitation of opinion beyond those facts that would assist the government’s required calculations.”); see also In Re W.R. Huff Asset Mgt. Co., 409 F.3d at 563–564 (recognizing limitations on restitution rights of victims).

***

As to their complaint that the Government has not seized the boat or criminally charged the person who purchased it, the court understands the Winsletts’ frustration. However, the United States Attorneys, as officers under the direction of the Attorney General, retain broad prosecutorial discretion, and the CVRA does not transfer any of that discretion to victims.

[The Winsletts’ Civil Remedy]

Having recognized that the CVRA does not give the Winsletts any right to demand that the Government return their purloined boat to them or pursue criminal charges against the person in possession of their boat does not mean that they may not have a civil remedy available to them to recover their boat. Government prosecutors simply may not be commandeered to do their bidding.

My Thoughts

  • Judge Bowdre’s opinion gives us nothing new. It is, though, a great overview of the rights that a crime victim does and does not possess.
  • We all know that it is comforting to the defendant to have his friends and his family present in the courtroom in order that the sentencing judge can see that the defendant has a support group there with him or her. What is depressing is to see the benches filled with crime victims who are hoping that the court will order the defendant to be lynched there in the courtroom. Does the number of victims in the courtroom make a difference to the sentencing judge? I suppose that we will never know, but I am concerned that it does.

Ethics and the Law: Bad Apples in Every Barrel

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Make sure when you get a new case it is done in an ethical manner. Since the beginning of time, some lawyers have been dishonest. There are bad apples in every barrel. We must all pay attention and not violate the rules.

Lawyers run deceptive ads, pay case runners, lie, and use other crooked methods to get cases. Lawyers have been caught taking stolen property, narcotics, and illegal proceeds just to get paid. Some get caught, some don’t. Lawyers have bragged they are golfing buddies, tennis buddies, and party buddies to get cases. They have been known to say “I’m the only lawyer who can get this done.” And some lawyers have an unethical deal with bail bondsmen. Attached is co-chair Chuck Lanehart’s article on the subject.

“Never Get in Bed with a Bail Bondsman”
by Chuck Lanehart

Early in my career, the great Lubbock lawyer Byron Chappell1 advised, “Never get in bed with a bail bondsman.” Most of the bail bondsmen I’d met were crusty, toothless old bastards with beer bellies, so I could not imagine why Lawyer Chappell would think I’d consider a sexual relationship with such a person. But I soon learned the meaning of my mentor’s metaphor.

I learned that the term “bail bond whore” describes an attorney whose practice depends largely on referrals from bail bondsmen. Byron believed bail bond whores joined plea bargain lawyers, penitentiary agents, and V-6 lawyers2 to threaten the reputation and livelihood of the stand-up, ethical-but-zealous criminal defense bar. (And he called every surety a “two-bit bondsman.”)

From the time some two-bit bondsman first collected a fee to spring some poor soul from the local lockup, unscrupulous lawyers everywhere have been known to pay kickbacks to sureties for referring clients. Not only will this shady dealing get you summoned to appear before the local grievance committee; it will get you hauled to the hoosegow. The practice is condemned by Rule 7.03(b) of the Texas Disciplinary Rules of Professional Conduct (TDRPC), which provides, “A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm . . .”

The Barratry Statute, Section 38.12 of the Texas Penal Code, makes lawyer kickbacks to bail bondsmen (or others) a third-degree felony crime, punishable by up to ten years in prison:

(a) A person commits an offense if, with intent to obtain an economic benefit the person:
. . .
(2) solicits employment, either in person or by telephone, for himself or for another;
. . .
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment; [or] . . .
(6) accepts or agrees to accept money or any­thing of value to solicit employment.

The more common “tit for tat” practice of a lawyer referring clients to bail bondsmen with the expectation the surety will return the favor is also illegal in Texas. The Texas Occupations Code, which regulates bail bond sureties, prohibits a bondsman from recommending an attorney or law firm to the surety’s client:

Sec. 1704.304. PROHIBITED RECOMMENDATIONS OR SOLICITATIONS; OFFENSE. (a) A bail bond surety or an agent of a bail bond surety may not recommend or suggest to a person for whom the bail bond surety executes a bond the employment of an attorney or law firm in connection with a criminal offense.
. . .
(e) A person commits an offense if the person violates this section. An offense under this section is a Class B misdemeanor.

Further, a Texas Attorney General’s opinion interprets section 1704.304(a) to prohibit a bail bond surety from recommending any lawyer or law firm, either in­di­vidually or by including the attorney or law firm in a selected list.3 An attorney who knowingly accepts such an arrangement also violates Sec. 1704.304(a), as a party to the offense.4

So, is there a way to get around all these rules for an enterprising lawyer who, say, wants to open his own bail bond business? Nope. That’s been on the no-no list for a long time. A 1957 ethics opinion interpreted Canon 24 of the old Texas Canons of Ethics, which were replaced by the current TDRPC. It is an ethical violation for an attorney who practices criminal law “to engage in the business of making bail or other bonds in criminal cases, whether he makes such bonds under his own name or an assumed name, or to be in any way connected with, or have any interest in, any company which is engaged in the business of making bail or other bonds in criminal cases, regardless of where such company maintains its office, and regardless of whether it advertises its business.”5

What about a lawyer making bail for his own client? Under the Texas Canons of Ethics, it was not unethical for an attorney to habitually engage in the practice of making bail bonds in criminal cases, if the attorney-client relationship existed at the time the attorney signed the bond.6 However, once such bail is posted, it is unethical under the TDRPC for the attorney to surrender the client’s bond, unless the attorney knows that the “client is planning to commit a crime, a fraud, or is about to refuse to comply with the terms of the bond.”7

There’s another situation involving attorneys who make bail for clients that has been addressed by the Texas Commission on Professional Ethics.8 The law allows an attorney to enter a plea of guilty or no contest on behalf of a client in Class C misdemeanor cases in justice court or in municipal court.9 May a lawyer who serves as bail bondsman for his client add to the court’s form of bond a provision in which the client agrees that, if the client fails to appear in court, the attorney is authorized to enter a “no contest” plea that will result in a fine and may result in the issuance of a warrant for the client’s arrest? Such an arrangement—in violation of Rule 1.02, Rule 1.06, and Rule 1.08—“is a prohibited business transaction between lawyer and client that is not on terms fair and reasonable to the client, creates an impermissible conflict of interest for the lawyer, and impermissibly purports to eliminate the lawyer’s duty to consult with, and abide by the decision of, the client concerning the entry of a plea.”10

In a similar scenario, it is okay for a lawyer to include in his contract a provision calling for the client’s agreement, in advance, that the lawyer may enter a plea of “no contest” or “guilty” on the client’s behalf for Class C misdemeanor in municipal court, even if the attorney is on the client’s bond. The lawyer must be careful to make sure the client is able to make an informed decision about the plea, and there must be no significant likelihood that the client will have an opportunity to defend the case.11

So, what would Lawyer Chappell do? He would try to find a way to avoid using bail bonds altogether to extricate his client from jail, because “There are many ways to skin this cat.” A magistrate has the au­thor­ity to authorize a cash bond12 or a personal bond,13 so what’s the harm in asking? Or, Lawyer Chappell might file a writ of habeas corpus under Texas Code of Criminal Procedure Article 11.01 et seq. If the state is unable to establish probable cause after a hearing on the writ, the client must be released. If all else failed, Lawyer Chappell might negotiate the lowest possible fee and hire a “two-bit bondsman,” but you can bet he would never get in bed with the bail bondsman.

Said & Done

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Kudos

Stan Brown scored another “not guilty” recently in a trial before a Taylor County jury. In a suppression hearing, client had testified that case agent came to his home (“knock and talk”) and on the front porch told him that they had info on him growing marijuana in his backyard, and that if he would consent to a search and only a relatively small amount was found, “it will go away.” Agent acknowledged that he could possibly have said something about like that, but added he would’ve said if a relatively small amount, “we can handle it.” Trial court took under advisement and denied a motion to suppress. Testimony essentially the same at trial, with a jury charge on voluntariness of consent: “Unless you are convinced beyond a reasonable doubt consent was freely and understandingly given, you will not consider the evidence seized as a result of the search.” After about two-and-a-half hours deliberating, jury found client not guilty. As one of the jurors said in the elevator, “They just didn’t do it right.” Stan says he’s very proud of this particular jury. And we’re proud of you, Stan.

David A. Schulman wanted brag on his friend, Bonham defense lawyer Steve Miears. Steve litigated the issue of whether a “non-judge” could not rule on a motion to suppress in a DWI case. He won that question at both the Court of Appeals and the CCA, then had to relitigate the case in trial court. As Steve said to David: “Raymond’s DWI video showed him stumbling all over the roadway and admitting to having had 10 beers at the VFW. However, he testified that in his opinion his left wheels did not cross the center stripe like the trooper said. I was able to get the judge to submit to the jury the issue of whether the stop was legal. The jury said he was drunk on his ass but the trooper had no reasonable suspicion to stop.” The two-word verdict made all his work worth it. Congrats, Steve.

Todd Hatter of Amarillo credits what he learned at John Ackerman’s Psychodrama seminar (now called Round Top III—see ad page 32) with a recent victory. In a felony jury trial in the 320th District Court in Potter County, Todd tried an assault family violence case (with a prior on the same charge in 2011). The indictment included the prior as jurisdictional element and was read to the jury. As Todd notes, the trial began at 10 in the morning, and the two-word verdict came back just after 4 in the afternoon, with the jury deliberating a little over 8 minutes. Well done, Todd.

The Harris County Criminal Lawyers Association held its 43rd annual banquet and awards ceremony on May 9, with special honorees. HCCLA President Elect Todd Dupont noted: “This year’s banquet was particularly special. Not only was HCCLA recognizing and honoring some of the finest criminal defense lawyers in Texas. HCCLA also had the unique opportunity to humbly honor Anthony Graves and Michael Morton—two men who, collectively, have wrongfully and unjustly spent 43 years of their lives behind bars, at the hands of rogue prosecutors.” Graves and Morton received the Torch of Liberty Award for their work with members of the Texas Legislature this session.
                Thomas D. Moran received the Sharon Levine Unsung Hero Award for his work on an international case for a client charged by the United Nations International Criminal Tribunal for Rwanda with nine counts ranging from genocide and crimes against humanity to war crimes and rape. His client, Prosper Mugiraneza, was acquitted on all counts.

Chika Anyiam recently got two NGs on two counts of Agg Sex Assault on a child under 6. A grueling trial revealed inconsistencies in the alleged victim’s “coach speak,” and after a bit of wiggling, the SANE admitted that there were no apparent injuries to the child’s genitalia. She simply didn’t know one way or the other. Things got weird during closing when the state said: “The defense attorney has given you little snapshots of the defendant’s life with the victim’s family, but just wait until the punishment phase. This is the first phase, but wait till the punishment phase and you will see the entire picture.” The judge and Chika both erupted at the same time: What the hell was that?! Chika requested an instruction to disregard, moved for a mistrial, and prayed the judge would deny it (having put in some good work). The judge denied, and the jury acquitted. Good job, Chika. Now take that vacation you richly deserve.