Monthly archive

July 2013

June 2013 SDR – Voice for the Defense Vol. 42, No. 5

Voice for the Defense Volume 42, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Padilla v. Kentucky, 559 U.S. 356 (2010), requiring defense attorneys to inform defendants of the deportation risks of guilty pleas, does not apply retroactively to convictions that became final before its announcement. Chaidez v. United States, 133 S. Ct. 1103 (2013).

        The Fifth Circuit already so held in United States v. Amer, 681 F.3d 211 (5th Cir. 2012).

For purposes of habeas review under 28 U.S.C. § 2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume that the federal claim was adjudicated on the merits. Johnson v. Williams, 133 S. Ct. 1088 (2013).

        Federal habeas courts should not assume that any unaddressed federal claim was simply overlooked because state courts do not uniformly discuss separately every claim referenced by a defendant; however, the presumption of merits adjudication may be rebutted where, for example, the state standard is less protective than the federal standard or where the federal precedent was mentioned by the state court only in passing.

        Applying this rebuttable presumption of merits adjudication to the facts here, the Supreme Court reversed the Ninth Circuit’s decision granting federal habeas relief, and remanded. The Ninth Circuit erred in finding that the state court of appeals overlooked D’s Sixth Amendment claim (arising from the midtrial dismissal of a juror for bias).

Evidence found through an unwarranted and uninvited search of D’s front porch violated the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409 (2013).

        Police took a drug-sniffing dog to D’s front porch, resulting in a positive alert for narcotics. The officers obtained a search warrant, found marijuana plants, and charged him with trafficking in cannabis. The Supreme Court of Florida approved a suppression of evidence, finding no probable cause for the Fourth Amendment search, rendering invalid the warrant based on information gathered in that search. The U.S. Supreme Court upheld the evidence suppression.

        Acting on an unverified tip that marijuana was being grown in D’s home, officers used a dog to explore the area around the home. They were gathering information in an area belonging to D and immediately surrounding his house—its curtilage, which enjoyed protection as part of the home. They gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. Officers entered the boundaries of the curtilage, the front porch being a classic example of a constitutionally protected area. While an officer not armed with a warrant could approach a home and knock, introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence was something else. There was no customary invitation to do that. That officers learned what they learned only by physically intruding on D’s property was enough to establish that a Fourth Amendment search occurred.

Supreme Court precedent did not clearly establish that a defendant retains a constitutional right to revoke his waiver of counsel at trial and require reappointment of counsel to file a new-trial motion. Marshall v. Rodgers, 133 S. Ct. 1446 (2013).

        Inmate filed a habeas petition, arguing that the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to appoint an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counsel. A district court denied the petition. The Ninth Circuit granted relief. The U.S. Supreme Court reversed the Ninth Circuit and remanded.

        The question was whether, after a defendant’s valid waiver of counsel, a trial judge had discretion to deny the defendant’s later request for reappointment of counsel. The Supreme Court found that all the case required was to observe that in light of the tension between the Sixth Amendment’s guarantee of counsel at all critical stages of the criminal process and its concurrent promise of a constitutional right to proceed without counsel when a criminal defendant voluntarily and intelligently elected to do so, it could not be said that California’s approach was against, or an unreasonable application of, the general standards established by the Court’s assistance-of-counsel cases. The court of appeals’ contrary conclusion rested in part on the mistaken belief that circuit precedent could be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that the Court had not announced. COA erred in concluding that the inmate’s claim was supported by clearly established federal law determined by the Supreme Court and under 28 U.S.C.S. § 2254(d)(1).

Fifth Circuit

A Garcia hearing is only required where defense counsel has an actual conflict of interest. United States v. Hernandez, 690 F.3d 613 (5th Cir. 2012).

        District court did not err in failing to hold a hearing, see United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), to explore an alleged conflict of interest arising from the fact that D’s counsel previously represented D’s brother (who was a co-defendant) in an unrelated felony case in state court the week before counsel began to represent D. The conflict remained purely hypothetical: (1) counsel did not learn any confidential information from the brother during the short representation of him (counsel did not even speak with the brother before per­suading the state prosecutor to drop the case); (2) the cases were unrelated; and (3) counsel’s representation of the brother had unambiguously ended before counsel’s representation of D began.

        However, where D was convicted of conspiracy to possess with intent to distribute cocaine and aiding and abetting the theft of government money, the district court plainly erred in applying a one-level multi-count adjustment for the theft offense because the theft offense was nine or more levels less serious than the cocaine conspiracy offense, see USSG § 3D1.4(c). Given that D’s 120-month prison sentence (based on an incorrect Guideline imprisonment range of 97 to 121 months) significantly exceeded the correct Guideline imprisonment range of 87 to 108 months, D’s substantial rights were affected. The Fifth Circuit exercised its discretion to correct the error and thus vacated the sentence and remanded for resentencing.

The 911 caller’s statements were nontestimonial even if the caller clearly understood that his call would initiate investigative and prosecutorial machinery. United States v. Polidore, 690 F.3d 705 (5th Cir. 2012).

        Under the limited circumstances of this drug-trafficking prosecution, introducing the recordings of two anonymous 911 calls describing D as being in the midst of selling crack co­caine did not violate D’s rights under the Confrontation Clause. Although the circumstances did not indicate that the primary purpose of the 911 calls was to enable police assistance to meet an ongoing emergency, the calls likewise did not have, as their primary purpose, the creation of an out-of-court substitute for trial testimony. Nor did the introduction of the statements violate the rule against hearsay, as they were admissible under the present-sense-impression exception.

Ds could not, on remand from a partially successful appeal, relitigate their challenges to the jury instructions and indictment based on Skilling v. United States, 130 S. Ct. 2896 (2010); because Skilling did not change the law as applied to these facts, it did not trigger the intervening-change-of-law exception. United States v. Teel, 691 F.3d 578 (5th Cir. 2012).

        (2) The fact that on remand for resentencing following a par­tially successful appeal, D’s sentence was increased on one count (from 60 months to 75 months) did not trigger a presumption of vindictiveness. In United States v. Campbell, 106 F.3d 64 (5th Cir. 1997), the Fifth Circuit adopted an “aggregate package approach” to judicial-vindictiveness claims and held that an increase in the sentence on a single count did not give rise to a presumption of vindictiveness unless the aggregate sentence was increased. Here, D’s aggregate sentence actually decreased, from 110 months to 75.

        (3) District court did not abuse its discretion in imposing an above-Guidelines fine of $2 million (representing the statutory maximum of $250,000 per count), although it is an abuse of discretion to impose an upward-departure fine based on a defendant’s ability to pay. The district court did not base the fine upon D’s ability to pay; the court properly utilized its discretion to vary from the Guidelines by taking into account D’s financial resources when determining the appropriately punitive fine.

On remand from the U.S. Supreme Court, the Fifth Circuit vacated Ds’ sentences and remanded for resentencing consistent with Supreme Court caselaw; the more lenient penalties of the Fair Sentencing Act apply to pre-Act offenders. United States v. Tickles, 691 F.3d 592 (5th Cir. 2012).

        The Fifth Circuit had previously held that the more lenient penalties of the Fair Sentencing Act of 2010 did not apply to pre-Act offenders even where they were sentenced after the effective date of the Act. Dorsey v. United States, 132 S. Ct. 2321 (2012), held otherwise.

Even on plain-error review, the lifetime term of supervised release, although recommended by the Guidelines, was unreasonable; the district court’s comments indicated that its imposition of the lifetime term was virtually automatic in this type of case, without consideration of any of the specific circumstances. United States v. Alvarado, 691 F.3d 592 (5th Cir. 2012).

        The within-Guidelines, 170-month prison sentence imposed on D, convicted of receipt of child pornography, was neither procedurally nor substantively unreasonable; the lifetime term of supervised release was unreasonable. Even when a given term of supervised release is strongly recommended by the Guidelines, district courts should refrain from imposing that recommended term blindly and without careful consideration of the specific facts and circumstances of the case. The Fifth Circuit vacated D’s lifetime supervised-release term and remanded on that issue.

District court properly denied the 28 U.S.C. § 2255 motion filed by D, who pleaded guilty to misprision of a felony in connection with a judicial bribery; D’s claim that the conduct was rendered noncriminal by Skilling v. United States, 130 S. Ct. 2896 (2012), was waived by his failure to raise it in his § 2255 motion. United States v. Scruggs, 691 F.3d 660 (5th Cir. 2012).

        In any event, the claim was not “jurisdictional,” as it did not deprive the district court of subject-matter jurisdiction, especially given that the information to which D pleaded charged a facially valid offense against the United States. D also claimed that under Skilling he is actually innocent of the charge of misprision of a felony and that he is innocent of all the charges in the original indictment. The Fifth Circuit answered that actual innocence is not a free-standing ground for relief. “Rather, it is a gateway to consideration of claims of constitutional error that otherwise would be barred from review. We need not decide whether [D] is actually innocent because we have concluded that [D’s] constitutional claims fail on the merits.”

D preserved his challenges to the reasonableness of increasing his prison sentence from 71 to 108 months, even though he did not formally object or fully articulate the basis of his objections. United States v. Gerezano-Rosales, 692 F.3d 393 (5th Cir. 2012).

        The district court increased D’s sentence based on D’s al­leged disrespect in protesting the 71-month sentence—the Guidelines range was 57 to 71 months. D clearly communicated to the district court the essential substance of his challenges to the procedural and substantive reasonableness of his sentence, and to have further objected would have been futile. The district court did not lack jurisdiction to modify the sentence because there was no formal break in the proceedings after the imposition of the 71-month sentence; nor was the 71-month sentence procedurally or substantively unreasonable. However, the 108-month sentence was substantively unreasonable because the court’s decision to impose a three-year variance based on D’s disrespect constituted a clear error in judgment in balancing the sentencing factors, especially in light of the court’s implicit threat to raise D’s sentence if he questioned the new, higher sentence. The Fifth Circuit vacated D’s sentence and remanded.

Even under the new Guidelines, the imposition of a term of supervised release upon a deportable alien does not constitute a departure triggering special notice or explanation requirements. United States v. Dominguez-Alvarado, 695 F.3d 324 (5th Cir. 2012).

        Even though the Guidelines were amended, effective November 1, 2011, to advise that a sentencing court “ordinarily” should not impose a term of supervised release upon a deportable alien, the district court did not plainly err (D’s objection did not preserve the errors he claimed) in imposing a term of supervised release. Moreover, even though the district court was not asked to focus on the relevant language of the amended Guideline, the district court’s explanation was nevertheless suf­ficiently particularized to justify the imposition of a term of supervised release. The Fifth Circuit affirmed the sentence.

District court reversibly erred in refusing to compel grand-jury target to produce foreign bank records he was required to keep under Treasury Department regulations; because these records fell under the Required Records Doctrine, target’s assertion of his Fifth Amendment privilege against self-incrimination was unavailing. In re Grand Jury Subpoena, 696 F.3d 428 (5th Cir. 2012).

        Under the Required Records Doctrine, compelled production of records does not violate the Fifth Amendment if (1) the record-keeping requirements are essentially regulatory, (2) the records sought are of a kind customarily kept, and (3) the records sought have assumed public aspects that render them at least analogous to public documents.

In sentencing D upon revocation of her supervised re­lease, the district court did not run afoul of Tapia v. United States, 131 S. Ct. 2382 (2011), because the court did not impose or lengthen D’s prison term for the pur­pose of enabling her rehabilitation or treatment in prison. United States v. Receskey, 699 F.3d 807 (5th Cir. 2012).

        Rather, the district court, after selecting its sentence based on the statutory sentencing factors, merely discussed the opportunities for rehabilitation and treatment that D would have while incarcerated.

Court of Criminal Appeals

Upon de novo review, CCA found reasonable suspicion for the investigatory detention that led to D’s arrest. State v. Kerwick, 393 S.W.3d 270 (Tex.Crim.App. 2013).

        D claimed officer lacked reasonable suspicion to conduct the investigatory detention that led to her DWI arrest. The trial court granted D’s motion to suppress, and COA affirmed. CCA reversed.

        A motion to suppress evidence is reviewed under a bifurcated standard. COA failed to grant the trial judge’s factual findings almost total deference and review de novo the trial judge’s legal conclusion that officer lacked reasonable suspicion based on those facts. A trial judge’s determinations of fact and mixed questions of law and fact that rely on credibility are granted almost total deference when supported by the record. But when mixed questions of law and fact do not depend on the evaluation of credibility and demeanor, a trial judge’s ruling should be reviewed de novo, as if considering the issue anew.

        CCA found the totality of the circumstances gave officer reasonable suspicion: (1) the report of people fighting and the vehicle damage officer observed indicated that unusual activity occurred, which was some indication that a crime might have taken place, like assault or criminal mischief; and (2) the evidence supported a reasonable basis to believe that D or her occupants might have been connected to this activity.

The Texas civil burdens of proof and standards of review are applied to criminal affirmative defenses; the defendant must prove an affirmative defense by a preponderance of the evidence, and the appellate court must review the rejection of an affirmative defense by civil legal and factual sufficiency standards. Matlock v. State, 392 S.W.3d 662 (Tex.Crim.App. 2013).

        D, who had six children for whom he was responsible to pay child support, asserted the affirmative defense of inability to pay, Tex. Penal Code § 25.05(d). D was charged with 16 counts of nonsupport for failing to pay support for 16 months. The jury found D guilty on all counts. COA reversed as to one count. CCA reversed COA and remanded to that court to review the legal (and, if necessary, factual) sufficiency of the evidence supporting the jury’s rejection of D’s affirmative de­fense.

        COA conflated the standards for legal and factual sufficiency review. COA applied the standard of review for factual sufficiency and sustained D’s claim of inability to pay as to one month in which he had been in jail. However, COA rendered a judgment of acquittal as if it had granted D’s legal insufficiency claim. If COA thought that the jury’s decision was against the great weight of the evidence, then a new trial was required on that count.

CCA set aside the order denying bail because the State failed to substantially show D’s guilt for the felony committed while he was on bail for a prior felony. Spell v. State, No. AP-76,962 (Tex.Crim.App. Mar 4, 2013).

        While free on bail for several offenses, D was arrested and jailed for a new offense of burglary of a habitation. After a hearing on the State’s motion, the trial court denied bail under Tex. Cons. art. 1, § 11a, because D is alleged to have committed a felony while on bail for a felony for which he had been indicted. D appealed the order denying bail, arguing that at most, the evidence shows criminal trespass. CCA set aside the order.

        Under Art. 1, § 11a, the State has the burden to present evidence “substantially showing” D’s guilt of the burglary. This showing is “far less” than proof beyond a reasonable doubt. And that burden must be considered in light of the general rule that favors the allowance of bail. At the bail hearing, the State called officer to testify about the burglary. Officer stated that the owners of a mobile home told him someone had broken in and removed copper wiring. The owners did not live in the home, and told officer they did not know if any other property was missing, but they could tell someone had been staying there without permission. Officer also spoke with people who lived next door; they told him D and his girlfriend had been staying at the neighbors’ home the week prior. Given the absence of evidence concerning the timing of the theft in the uninhabited home, D’s presence in the home, without more, does not substantially show his guilt. The order denying bail is set aside, and the case is remanded to the trial court to set bail. No motion for rehearing will be entertained.

CCA set aside D’s conviction; his due process rights were violated because the lab technician solely responsible for testing the evidence was found to have committed misconduct. Ex parte Hobbs, 393 S.W.3d 780 (Tex.Crim.App. 2013).

        Habeas applicant was convicted of possession of a controlled substance. He did not appeal his conviction. He contends that his due process rights were violated because a forensic scientist did not follow accepted standards when analyzing evidence and therefore the results are unreliable. A Department of Public Safety report shows that the lab technician who was solely responsible for testing the evidence in this case is the scientist found to have committed misconduct. While there is evidence remaining that is available to retest in this case, that evidence was in the custody of the technician in question. CCA believes technician’s actions are not reliable; therefore custody was compromised, resulting in a due process violation. D is entitled to relief. The district court’s judgment is set aside, and D is remanded to the custody of the Sheriff of Galveston County. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

There was no affirmative evidence to infer that the mur­der was committed after a statute lifted the duty to re­treat when a person is justified in using deadly force against another. Krajcovic v. State, 393 S.W.3d 282 (Tex.Crim.App. 2013).

        D appealed his conviction for murder, arguing the trial court erred in refusing his request for a jury instruction on the Castle Doctrine. COA reversed and remanded for a new trial. CCA reversed COA and affirmed the trial court.

        The trial court did not err in failing to instruct the jury on the Castle Doctrine, which went into effect September 1, 2007, and changed Tex. Penal Code § 9.32(c). The Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if (1) he has a right to be present at the location where the deadly force is used, (2) he has not pro­voked the person against whom the deadly force is used, and (3) he is not engaged in criminal activity at the time that the deadly force is used. Here there was no affirmative evidence to support a rational inference that the murder was committed on or after September 1st. Some witnesses indicated that the victim was missing the last week of August and the offense occurred August 29th.

The court did not err by instructing the jury on the unknown manner and means of committing the offense; the victim’s injuries could have pointed to a variety of possibilities, and the crime scene did not point to a conclusive list of possibilities. Moulton v. State, 395 S.W.3d 804 (Tex.Crim.App. 2013).

        D was convicted of murder. COA reversed. CCA reversed COA. The trial court did not err by instructing the jury on the “unknown” manner and means of committing the offense because the manner and means of the victim’s death remained unknown at the conclusion of the evidence. The victim, D’s wife, was found dead in a pond. Each of the State’s three theories included in the jury charge—that the victim was killed by manual strangulation, by drowning, or by asphyxiation by means unknown—could be supported by the evidence given by the medical expert at trial. The means unknown theory was supported by the fact that the victim’s injuries did not con­clusively point to a manner and means of asphyxiation but rather her injuries could have pointed to a variety of possibilities. There was unlimited information that was unknown because the crime scene did not point to a conclusive list of possibilities.

CCA firmed up the standard to establish prejudice in claims of ineffective assistance regarding plea offers. Ex parte Argent, 393 S.W.3d 781 (Tex.Crim.App. 2013).

        D filed two habeas corpus applications, alleging that ineffective assistance caused him to reject the plea offer of eight years’ imprisonment. He was convicted of aggravated sexual assault and indecency with a child, and punishment was assessed at 20 years for each. CCA remanded for the convicting court to make findings based on the standard announced by CCA.

        Counsel incorrectly told D that he was eligible for judge-ordered community supervision and shock probation when only a jury’s verdict recommending probation could result in shock probation and the judge could order only deferred adjudication. CCA held that to establish prejudice in a claim of ineffective assistance in which a defendant is not made aware of a plea-bargain offer, or rejects a plea-bargain because of bad legal advice, defendant must show a reasonable probability that: (1) he would have accepted the earlier offer if counsel had not given ineffective assistance; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not have refused to accept the plea bargain. CCA overruled Ex parte Lemke, 13 S.W.3d 791 (Tex.Crim.App. 2000), which applied a lesser standard.

        NOTE: CCA subsequently denied habeas relief, finding that D would not have accepted the plea bargain even with effective assistance of counsel. Ex parte Argent, Nos. AP-76,891 & AP-76,892 (Tex.Crim.App. May 15, 2013).

The judge’s failure to list the confidential informant in the application charge was harmless because the en­trap­ment instructions provided the jury with an ade­quate vehicle to fully consider and give effect to D’s en­trap­ment defense. Vega v. State, 394 S.W.3d 514 (Tex.Crim.App. 2013).

        District court convicted D of three drug offenses. D complained that the judge reversibly erred by not instructing the jury accurately on his entrapment defense because the application instruction did not list inducement by the confidential informant as well as inducement by an undercover officer. COA held that D’s failure to request the specific application instruction, or object to its omission, forfeited the issue. CCA affirmed COA.

        Disagreeing with COA, CCA held that any defect in the charge on entrapment amounts to an error in the charge because the defense of entrapment was “law applicable to the case.” The jury should have been instructed to find D not guilty if it believed he was induced to commit the first drug sale either by the informant, acting as a law enforcement agent, or by the agent, or by both. The evidence showed that the informant was an agent acting under the control of law-enforcement, and D tes­tified it was the informant who suggested that he de­liver drugs to the officer. The trial judge erred in failing to spe­cifi­cally name the informant in the entrapment application para­graph. However, D’s rights were not harmed by the failure.

The U.S. Supreme Court holding that defense attorneys are required to inform defendants of the deportation risks of pleas does not apply to convictions that became final before its announcement. Ex parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013).

        D was admitted to the United States as a permanent legal resident. In 1997, he pleaded guilty to misdemeanor theft. In 2004, he pleaded guilty to a second charge of misdemeanor theft; the plea document D signed admonished him that his guilty plea could result in deportation. In this habeas application, D alleged he received ineffective assistance because his trial counsel failed to advise him that he was subject to deportation after he pleaded guilty to a second crime of moral turpitude. Trial counsel admitted that he did not properly review the immigration consequences. The trial court denied the application, but COA granted relief, holding that Padilla v. Kentucky, 559 U.S. 356 (2010), should be applied retroactively. CCA reinstated the trial court order.

        Padilla requires defense counsel to inform defendants of the deportation risks of guilty pleas. Chaidez v. United States, 133 S. Ct. 1103 (2013), held that Padilla does not have retroactive effect. In the instant case, CCA adhered to Chaidez.

The search warrant was supported by probable cause and was sufficiently particular, despite officer’s included errors about the location; officer’s “significant fa­miliarity” with the location left “little chance” of mistakenly searching the wrong location. Bonds v. State, No. PD-0039-12 (Tex.Crim.App. Mar 20, 2013).

        D moved to suppress evidence seized pursuant to a search warrant. The trial court overruled the motion. D pled guilty to possession of a penalty-group 1 controlled substance with intent to deliver. COA found that the warrant lacked probable cause and reversed D’s conviction. CCA affirmed the trial court.

        Based solely on the affidavit’s four corners, the magistrate had a substantial basis for concluding that probable cause existed to search the location described in the affidavit and warrant. Despite listing an incorrect address and roof color, the balance of the description was sufficient to enable an officer to distinguish which property was intended to be searched. Officer’s familiarity with the location to be searched and the fact that he was both the affiant and participated in the warrant’s execution were circumstances that resolved any ambiguity created by the description’s errors and rendered the warrant sufficiently particular.

When a PDR is filed, the appellate court loses authority to issue an opinion. Ex parte Shaw, 395 S.W.3d 819 (Tex.Crim.App. 2013).

        D filed a habeas corpus writ seeking pretrial release because the State was not ready for trial within 90 days of the beginning of his detention. The trial court denied relief. COA reversed and remanded. The State filed a PDR on January 11, 2013. On January 24, 2013, COA withdrew its opinion and issued another opinion. CCA held that this second opinion is not permitted since Tex. R. App. P. Rule 50 was abolished in 2011. Accordingly, when a PDR is filed, the appellate court loses authority to issue an opinion. CCA ordered withdrawal of the January 24 opinion; COA’s December opinion is reinstated. Additionally, CCA refused the State’s January 11 PDR and took no action on the State’s amended petition of February 25th since that petition addresses an opinion that has been ordered withdrawn.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Search warrant affidavit deemed sufficient even though it failed to describe K-9 dog’s past experience; K-9’s ex­pe­rience inferable merely from affidavit’s reference to “open-air sniff” and “positive alerts.” Skaggs v. State, No. 11-10-000273-CR (Tex.App.—Eastland Oct 11, 2012).

        “It was not unreasonable for the magistrate to conclude that a ‘K-9’ who conducted an ‘open-air sniff’ was trained to detect the smell of narcotics and that, from the K-9’s ‘positive alerts,’ the magistrate could reasonably infer experience with the odor-causing agent. However, we note that the best practice is for an officer to expressly include the officer’s experience, train­ing, and background information so that little is left for the magistrate to infer. . . . Because we conclude that the positive alert alone was sufficient to establish probable cause, we need not address appellant’s other argument.”

CPS worker who met with D was not an agent of law enforcement required to comply with Miranda; there was no evidence that law enforcement provided worker with any questions to ask or that she did anything designed to assist law enforcement. Hailey v. State, No. 02-10-00247-CR (Tex.App.—Fort Worth Oct 18, 2012).

        “[D] also highlights [detective’s] testimony that she contacted CPS prior to going to the hospital, and that she agreed on cross-examination that it was the usual mode of operation for Fort Worth to coordinate the investigation with CPS and conduct a very purposeful, coordinated investigation. . . . The record demonstrates that law enforcement did not attempt to use [CPS worker] as its anointed agent. Indeed, law enforcement already had a strong case against [D] before [CPS worker] interviewed [D], and there is no evidence that the police used the agent’s interview to accomplish what they could not lawfully accomplish themselves.”

Deemed sufficient for RS was officer’s testimony that D was following too close such that he could not stop if needed to avoid a collision, despite CCA opinion holding insufficient an officer’s conclusory testimony of “fol­lowing too close.” Young v. State, No. 06-12-00045-CR (Tex.App.—Texarkana Oct 19, 2012).

        Carter dissented: In Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005), “officer testified that Ford’s vehicle was ‘following too close behind another vehicle.’ This presented no factual detail to allow a neutral magistrate to evaluate Ford’s conduct. Here, the testimony is very similar. The officer testified [D] was following too close and would have been unable to stop without colliding with the vehicle he was behind. He specifically denied having any knowledge of the distance and stated he was not qualified to estimate it. . . . I cannot see any substantive difference in the testimony that the defendant was ‘following too close’ behind another vehicle and that the defendant was following too close and could not stop to avoid a collision. Each of those statements is an opinion that the driver was violating the law without providing any factual details[.]”

Officer’s reliance on landlord’s representation that land­lord had authority to consent to search of D’s apart­ment deemed reasonable; landlord told officer that D had vacated apartment, though landlord turned out to be incorrect. Biera v. State, 391 S.W.3d 204 (Tex.App.—Amarillo 2012).

        “While a landlord generally may not consent to search a leased residence, a valid consensual search does not necessarily depend on actual authority because even if the consenting party does not actually possess the requisite relationship to the premises, the Fourth Amendment is not violated if an officer has an objectively reasonable, even if mistaken, good-faith belief that she obtained valid consent to search the area.”

        Furthermore, evidence of D’s drug use was relevant in robbery prosecution to show motive; accomplices testified that D was unemployed yet frequently used drugs, raising inference of D’s motive to obtain money from an illegitimate source.

Video showing that D’s vehicle briefly touched double-yellow line was insufficient to support RS, absent explanation from officer as to why D’s maneuver was unsafe. State v. Houghton, 384 S.W.3d 441 (Tex.App.—Fort Worth 2012).

        “One other car appears on the video near the time [D’s] vehicle touched the double-yellow line, but that car does not appear to have been in proximity to [D’s] vehicle. Without explanation from [officer] as to observations by him as to why [D’s] maneuver was unsafe (and thus in violation of transportation code section 545.060(a)), we cannot say that the stop of [D’s] vehicle was justified solely based on an alleged violation of section 545.060.”

So You’re My Lawyer…

“Free World” vs. Appointed Lawyers

Public opinion of court-appointed lawyers is, to put it gently, not entirely positive. One would be hard-pressed to find nearly as many articles praising superior performances by court-appointed lawyers as to find those chronicling gross deficiencies in their performance.

I’ve heard that we don’t do as good a job because we’re not “free world” lawyers. Many of my appointed clients often offer to pay me for my work at the outset thinking that money will make me work better or harder. Of course, that’s based on what they have heard about court-appointed lawyers and oftentimes their own (bad) past experiences with appointed lawyers. For the clients who request to pay me, they are equally surprised to hear me say that I will not (and cannot) take anything, and that even if I could, it wouldn’t make a difference in the quality of representation they will get from me. I tell them to request a different lawyer from the judge immediately if they ever feel like I’m not performing effectively or providing zealous representation. After all, it’s the defendant’s case, freedom, and life.

So the question for us is this: What might explain the public’s negative opinion of court-appointed lawyers? Are we just performing poorly overall? Is the public being too hard on us? Are those lawyers who appear on the court-appointed list somehow inferior to those whose names do not? And how do we begin to correct the public’s opinion?

Explaining the Deficit . . . or Lack Thereof

I will take up first the notion that court-appointed lawyers are somehow less qualified to represent clients than other lawyers, as this is the easiest argument to dispel. Article 26.04(e) of the Code of Criminal Procedure provides that the judges of both county and district courts are charged with “specifying the objective qualifications necessary for an attorney to be included on the [court-appointed] list.” However, the judges alone are not entirely responsible for determining the qualifications for court-appointed counsel. Article 26.04(d)(3) requires that any lawyer added to the list referenced above must meet both the “objective qualifications specified by the judges under subsection (e) . . . and must meet any applicable qualifications specified by the Texas Indigent Defense Commission (TIDC)” (emphasis added). The qualifications set forth by the TIDC are available online, county-by-county. (See for the TIDC Defense Plans by county, including qualifications.) Needless to say, the TIDC guidelines are thorough enough to ensure that “unqualified” lawyers do not end up on appointment lists. Thus, clients may rest assured that the State of Texas demands that a court-appointed lawyer be as qualified to do her job as a “free-world lawyer.”

So, the question now becomes if we, as qualified, court-appointed lawyers, are simply performing poorly for indigent clients and providing inferior representation merely because we have been appointed or if there is something else feeding the public’s negative opinion of us. We all know that the right to appointment of counsel includes the right to effective assistance of counsel. Evitts v. Lucy, 469 U.S. 387 (1985). Further, we all know that we as lawyers are afforded the benefit of the doubt as to the determination of whether or not we have been “effective.” As long as our actions are explicable as strategic decisions, and so long as we do not perform so ineffectively as to “undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” lawyers are seldom ineffective. See Strickland v. Washington, 466 U.S. 668 (1984).

After all, we are all familiar with the “sleeping lawyer” case that made Texas infamous. Ex parte McFarland, 163 S.W.3d 743 (Tex.Crim.App. 2005). In McFarland, a capital murder case, the defendant was not entitled to a presumption of prejudice with respect to his claim of ineffective assistance of counsel due to the fact that his lead defense counsel had persistently napped during trial, as counsel was not defendant’s sole attorney, and defendant’s other attorney was an awake, active, and zealous advocate in the adversarial testing of the state’s case. However, few of us, including the public at large, know that the “awake, active, and zealous advocate” in McFarland was the defendant’s court-appointed lawyer—Samford Melamed—whereas the “napper” (who shall remain nameless) was his hired counsel. (The case is worth re-reading, as McFarland initially “wanted nothing to do with Mr. Melamed and refused to sign the appointment of counsel form.” Id. at 750.)

The Minimum Requirements for Appointed Counsel

Article 26.04(j) of the Code of Criminal Procedure explicitly establishes further duties in addition to constitutional requirements of appointed counsel so as to ensure counsel’s effectiveness. These duties are mandatory. In full, our explicit statutory duties are as follows:

(1)   make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the de­fen­dant as soon as practicable after the attorney is appointed;

(2)   represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record; and

(3)   with respect to a defendant not represented by other counsel, before withdrawing as counsel for the defendant after a trial or the entry of a plea of guilty:

        (A)  advise the defendant of the defendant’s right to file a motion for new trial and a notice of appeal;

        (B)  if the defendant wishes to pursue either or both remedies described by Paragraph (A), assist the defendant in requesting the prompt appointment of replacement counsel; and

        (C)  if replacement counsel is not appointed promptly and the defendant wishes to pursue an appeal, file a timely notice of appeal.”

Article 26.04(j) (emphasis added).

Perhaps the most crucial requirement under Article 26.04(j) is that a court-appointed lawyer contact the defendant immediately after appointment. In fact, the lawyer should, per 26.04(j)(1), make “every reasonable effort to contact the defendant not later than the end of the first working day after the date at which the attorney is appointed” (emphasis added). The initial client interview should take place “as soon as is practicable after the attorney is appointed.” Id. The Code of Criminal Procedure deems this initial communication so important that Article 26.04(k) provides that any appointed lawyer who violates 26.04(j)(1) may be replaced by new counsel, and intentional or repeated violations of Article 26.04(j)(1) can lead to removal of consideration for appointment.

It is worth noting that this is the only one of the statutory duties listed above that provides a specific remedy for its vio­lation. Communication and contact with our clients is the most important duty we have to them. It is equally important to provide continued communication with our clients throughout the duration of representation. That means return phone calls, return letters, answer questions, and do all of the above promptly just as you would expect and hope from a defense lawyer (should you ever need one). It doesn’t always have to be good news—though that helps—it just has to be some news. It is your author’s opinion that failure to promptly contact an appointed client and answer questions are the very root of the soured reputation court-appointed lawyers suffer.

One important thing to keep in mind about these duties, however: They represent the bare minimum standards for court-appointed counsel in Texas; they are the proverbial “floor” not the “ceiling.” We need to be continually reminding ourselves that this is the least we can do. We can, and always should, do more and strive to be better for ourselves, our clients, and our profession.

Going Beyond the Minimum

In January 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”).1 The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime. Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. While it is true that a disclaimer was placed on the guidelines—that they are not criteria for the judicial evaluation of alleged misconduct—the guidelines were formulated to help provide an indigent client the best representation possible. Therefore, if we want to change the overall public perception of appointed criminal defense lawyers (and defense lawyers in general), we should all print, (re)read, and follow the guidelines.

Enlisting Professional Help

Often it is necessary to employ experts and/or private investigators. Often judges are reluctant to grant funds for experts or investigators. Perhaps this reluctance is based in part on a notion that “effective assistance” does not require expert testimony or private investigators—that a lawyer alone is enough. Judges all too often conveniently forget that lawyers aren’t doctors, psychologists, ballistics experts, or the like, and such forgetfulness is always at the expense of the constitutional rights of defendants. While it is true that “the State need not ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy,’ it must provide him the basic tools to present his defense within our adversarial system.” Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995) (citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985)). Due process demands an equally level playing field at trial, which means more than a “neutral” expert—it means a defense expert to assist the defendant. Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995). For as Justice Black famously wrote, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19 S.Ct. 585, 591 (1956).

The Code of Criminal Procedure specifically contemplates experts and private investigators as not only “reasonable and necessary expenses,” but as part of an effective scheme of representation. Were this not the case, it would make little sense to discuss experts and private investigators along with other “reasonable and necessary expenses” in Article 26.05—which is tellingly entitled “Compensation of Counsel Appointed to Defend.” (In full, Article 26.05(d) provides that “[a] counsel in a noncapital case, other than an attorney with a public defend­er’s office, appointed to represent a defendant under this code, shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts”(emphasis added).

Additionally, the Performance Guidelines address expert and investigative assistance. According to Guideline 4.1, B.9:

Counsel should consider whether expert or investigative assistance, including consultation and testimony, is nec­essary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to:

a.  The preparation of the defense;
b.  Adequate understanding of the prosecution’s case;
c.  Rebut the prosecution’s case or provide evidence to establish an available defense;
d.  Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
e.  Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.

Guideline 7.1, C.3 provides the following:

Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).

In order to be entitled to expert or investigative assistance, a defendant must show: (1) that there is a private interest that will be affected by the action of the state; (2) the governmental in­terest that will be affected if the safeguard is provided; and (3) the probable value of the additional safeguards and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Under the third and most important consideration, a defendant must show that the expert is necessary to resolve a significant issue at trial. For instance, in Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995), a pathologist was necessary to establish the manner of death which, according to the defendant, would be a contested issue at trial.

So always ask for monies to assist you in your defense. Oftentimes, it’s a hard road ahead if you choose to go it alone. Sometimes, though, it is not by choice that we go it alone; rather, it is because, despite our request for expert or investigative assistance, a judge improperly denies us that to which due process says we are entitled. When that happens it is essential to preserve error for appellate review. In order to properly preserve error: (1) assert your client’s indigence at every step of the way; (2) in a sealed ex parte motion ask the court for funds; (3) have an ex parte hearing on said motion where evidence is presented; (4) take what funds the court does allocate and use them wisely; (5) spend all of the funds the court provides; (6) in a sealed ex parte motion for additional funds for assistance, explain why additional funds are necessary; (7) have an ex parte hearing on said motion where evidence is presented that shows the court why the additional funds are necessary to effective representation; (8) object to the trial court’s denial of your motion; (9) do not announce ready for trial; (10) do not pass witnesses for whom assistance is needed in order to effectively cross-examine said witness without making it subject to the court’s denial of assistance; (11) rest only subject to the court’s denial of assistance; (12) create a bill of exceptions via testimony and/or affidavits detailing for the record what your expert would have done had the assistance been provided; and (13) at every opportunity possible, assert your client’s indigence.

Several relatively recent cases concerning ineffective assistance claims have specifically held that failure to investigate or failure to procure, or to attempt to acquire, expert testimony established ineffective representation. For example, in Ex parte Rogers, the Texas Court of Criminal Appeals held that a defendant who pleaded guilty to aggravated sexual assault with a deadly weapon and aggravated sexual assault and received 75 years’ confinement was prejudiced by counsel’s failure to object to testimony about an extraneous offense that was inflammatory and could have been deflected by adequate investigation. Ex parte Rogers, 369 S.W.3d 858 (Tex.Crim.App. 2012).

In Ex parte Briggs, the Texas Court of Criminal appeals held that counsel had performed deficiently in investigating medical evidence before advising the defendant to plead guilty to felony injury to child, and that counsel’s decision to limit his investigation of medical records to determine cause of death because the defendant could not afford to pay for medical experts was an economic rather than strategic decision. Ex parte Briggs, 187 S.W.3d 458 (Tex.Crim.App. 2005). Further, counsel in Briggs failed to consider other options for obtaining expert testimony, such as subpoenas for treating physicians to elicit their opinions or requesting appointment of counsel and state-funded payment of expert witness fees based on the defendant’s indigency. Id.

In Wright v. State, as in Briggs, counsel lacked a strategic justification for failing to acquire expert testimony. Wright v. State, 223 S.W.3d 36 (Tex.App.—Houston [1st Dist.] 2006). Wright concerned a defendant who had been charged with, and convicted of, aggravated sexual assault of a child. Whereas counsel in Briggs did not obtain an expert due to financial considerations, counsel in Wright failed to acquire expert testimony because “he [counsel] was told that any expert he hired would not be able to interview the [child] complainant, and . . . by the time he had received [therapist expert witness for state’s] notes he did not have time to contact an expert.” Id. at 43. Counsel’s failure to obtain an expert to review the state’s therapist’s notes resulted in undiscovered “exculpatory evidence in [therapist’s] notes, and expert testimony about deviations from the standard protocol [for interviewing child complainant’s about sexual assault] reflected in the notes.” Id. at 44. The Court of Appeals  took a very unfavorable view of counsel’s contention that the above reasons were “strategic,” writing that “[n]either of these offered justifications constitutes a legitimate reason for [counsel’s] failure to fully investigate the facts relevant to appellant’s case.” Id. at 43.

Reasonable Compensation

Contrary to popular public opinion, court-appointed lawyers do not work for free, although it often feels like that. We all know that court-appointed lawyers are entitled to “reasonable attorney’s fees” for the court-appointed work they perform. Article 26.05(a). And as we all know, what is “reasonable” in the eyes of the court is actually quite unreasonable most of the time. “Reasonable” must have one of those obscure legal meanings that does not, apparently, mean “compensation commensurate with regard to the work performed.”

Jokes aside, compensation is dependent on the schedule of fees that each court (county, statutory county court, and district court) has adopted and is on file with the commissioner of each county court. Article 26.05(b). As mentioned above, this reimbursement contemplates expenses incurred by hiring experts and private investigators. Article 26.05(d). Such expenses may be paid by the county directly to the expert/investigator. Article 26.05(h). And we may be all too familiar with the fact that judges can amend, reduce, or itemize any fees submitted. Article 26.05(c) requires any disapproval of the amount of payment by the judge to be in writing, and for said writing to state the reason for approving an amount different than that requested.

What you might not know, however, is that you have a right to appeal such disapproval. Pursuant to Article 26.05(c), “[a]n attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region.” After filing, the presiding judge of the administrative judicial region will review disapproval/failure to act, and will determine the appropriate amount of payment. Id. The judge is authorized to conduct a hearing on the matter, and the amount determined by the presiding judge of the administrative region will be remitted not later than 45 days after the date of application for payment of the fee is submitted. Id.

Presumption of Indigence

Article 26.05(g) also permits a judge to require a defendant to offset, in whole or in part, the amount requested by lawyer for court-appointed services, including additional costs (re: expert/investigative, etc.), if the court determines that the defendant has sufficient financial resources. A defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees. Mayer v. State, 274 S.W.3d 898, 901 (Tex.App. —Amarillo 2008), aff’d, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010) (reh’g denied). Accordingly, the record must supply a factual basis supporting a determination the defendant is capable of repaying any appointed attorney’s fees levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.) (per curiam); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.—Amarillo 2009, no pet.). Article 26.04(p) does not suggest or otherwise intimate that the court can, sua sponte, determine the presumption of continued indigency has been broken where the State has not tendered evidence showing that a material change in the defendant’s financial circumstances has occurred.

It is well-established that when the State fails to present evidence that the defendant is able to pay all or part of his court-appointed attorney’s fees, the trial court commits error by assessing any part of those fees as costs of court. Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex.Crim.App. 2010) (reh’g denied); Clements v. State, No. 09-10-00509-CR, 2011 WL 3925691 (Tex.App.—Beaumont 2011, pet. ref’d) (memorandum opinion); Cole v. State, No. 07-10-00126-CR, 2010 WL 3270208 (Tex.App.—Amarillo 2010, no pet.) (memorandum opinion); Barrera v. State, 291 S.W.3d 515 (Tex.App.—Amarillo 2009, no pet.) (per curiam); Roberts v. State, No. 11-10-00183-CR, 2012 WL 2977160 (Tex.App.—Eastland 2012, no pet.) (memorandum opinion); Gaither v. State, No. 10-11-00129-CR, 2012 WL 2511430 (Tex.App.—Waco, no pet.) (memorandum opinion); Perucci v. State, No. 03-10-00765-CR, 2011 WL 3890390 (Tex.App.—Austin 2011, no pet.) (memorandum opinion); Montgomery v. State, No. 05-11-00236-CR, 2012 WL 3024222 (Tex.App.—Dallas 2012, no pet.) (memorandum opinion). A trial objection is not required to preserve an appellate challenge to the insufficiency of the evidence of an appellant’s financial resources and ability to pay court-appointed attorney’s fees. Mayer, 309 S.W.3d at 556. The proper remedy in such a scenario is to modify the judgment to delete that portion requiring an indigent appellant to pay court-appointed attorney’s fees. Id. The most recent cases addressing this very issue wherein the judgments were modified to delete the imposition of court appointed attorney fees are Johnson v. State, 389 S.W.3d 513 (Tex.App.—Houston [14th Dist.] 2012, pet. ref’d), and Taylor v. State, No. 02-12-00106-CR, 2013 WL ___ (Tex.App.—Fort Worth 2013, no pet. h.) (memorandum opinion).

It is also worth briefly mentioning that 26.04(m) lists the extent of factors that the court may consider when determining indigency. “The court . . . may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant’s financial circumstances as measured by the other considerations listed in 26.04(m).” For ease of reference, the factors listed in 26.04(m) and which should be established at an indigency hearing are as follows:

  • Defendant’s income
  • Defendant’s source of income
  • Property owned
  • Outstanding obligations of defendant
  • Necessary expenses
  • Number and age of dependents of defendant
  • Spousal income available to defendant

One other point warrants brief mentioning: filing a “false claim”—submitting for payment or reimbursement for services or fees not actually performed or incurred—may get a lawyer removed from the court-appointed list, according to article 26.05(e). Apart from potentially getting a lawyer removed from the list, and apart from just being plain dishonest (if not criminal), this sort of thing gives court-appointed lawyers a bad name.


Representing court-appointed clients is tricky business, insofar as they might feel “stuck” with us due to poor financial circumstances. And, as mentioned above, a court-appointed client most likely does not have the utmost confidence in her court-appointed counsel based on what she has heard about court-appointed counsel. Much of this mistrust or lack of confidence is based on misperceptions or lack of knowledge about who we are (qualified lawyers), the fact that we do receive compensation for our services from the county, and the duties we have to court-appointed clients. But as I have suggested above, some of our poor reputation, sadly, has been earned. And while no collection of statistics or academic papers or the like can remedy this, the remedy is, in many respects, far simpler: All we need do is perform for our court-appointed clients as we do for those clients who hire us. Make contact with court-appointed clients quickly after appointment, promptly update them on matters related to their cases, hire experts and investigators if needed, etc. In short, show our court-appointed clients that the quality of representation they are receiving is not “justice on a budget.” We owe this much to them, and to our profession.

Check That Parachute! Suggestions for Voir Dire on Reasonable Doubt

From experience, it appears that many lawyers’ approach to voir dire is almost as an afterthought. Far too many take the approach that the upcoming trial is just like the last, however many trials dealing with the same crime the lawyer has tried. While that may not be a recipe for disaster, it definitely diminishes the “return on investment” your client should be entitled to expect.

So this article will attempt to give you some pointers on how to be prepared for voir dire, how to deal with an ob­struc­tion­ist judge, and how to address in voir dire, trial, and closing the most important issue in a criminal trial: proof beyond a reasonable doubt.

In Texas, the right to voir dire is part of the right to counsel in order that peremptory challenges may be exercised intelligently.2 And the scope of permissible voir dire examination is necessarily broad to enable litigants to discover bias or prejudice so that they may make challenges for cause or peremptory challenges.3 But the trial court also has broad discretion over the process of selecting a jury. The Court of Criminal Appeals has held:

Without the trial court’s ability to impose reasonable limits, voir dire could go on indefinitely. Thus, we leave to the trial court’s discretion the propriety of a particular question and will not disturb the trial court’s decision absent an abuse of discretion. A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case. However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.4

So, remember that if the judge wants to shut your voir dire down, the threshold that you must overcome (and establish in the record) is an abuse of discretion.

So how do you do that in connection with voir dire? Remember that denial of a proper question cannot be harmless er­ror.5 So, you need to know what your questions are, up front, and they need to be in writing so you can make a bill of exceptions if you are denied the right to ask the questions you intend to ask. You also need to have a trial notebook with copies of all of the cases you will be relying upon (e.g., Fuller, and all cases cited in the Levels of Proof, infra).6

Remember also that the trial court, in its discretion, may place reasonable time limits on the length of voir dire examination, and within such limits the defendant may examine each prospective juror individually and pose questions about any proper area of inquiry.7

What a reasonable amount of time is depends on the situation and how you, as counsel, preserve the error in being limited in your voir dire.

A trial court’s limitation of voir dire examination to approximately 30 minutes in a murder trial was held to not constitute reversible error where defense counsel did not present a list of questions he desired to ask until a hearing on a motion for new trial, and where the reviewing court was presented with no bill of exceptions showing how the defendant was injured or deprived of any valuable right by jury selection.8 As hard as it may be to wrap your head around, our appellate courts have no problem upholding these arbitrary time limitations—if you do not preserve the error.

What Centamore teaches us is that you need to have a list of questions prepared so that you can put them into the record, right then and there, and be prepared to put on a bill of exception as to how your voir dire is being hampered or denied.

The authors suggest that you go through your list of questions to pare out questions that are not absolutely necessary to your voir dire. From our experience, questions about whether anyone knows you, or what the venire’s opinion of defense counsel is, are not the sort of questions that will rise to the level of an abuse of discretion if you are prevented from asking them. Correspondingly, having asked those questions leads you into the judge saying that you wasted the time allotted you by asking those “filler” questions. Work on your list of questions.

In that context, the authors feel there are two areas that must always be addressed in voir dire. The first is a question committing a juror to consider the minimum punishment, and the second is the levels of proof.

In Cardenas, the Court of Criminal Appeals held that a question committing a juror to consider the minimum punishment is both proper and permissible.9 But it is an impermissible commitment question when you attempt to commit a veniremember to consider the minimum sentence based on specific evidentiary facts.10 What the Court of Criminal Appeals held, in that regard, was this:

For example, a party may ask the potential juror if he could consider the minimum of five years’ imprisonment in a murder case, but he may not ask if the juror could consider five years in prison in a case in which the State alleged that the defendant “tortured, garroted, poisoned, and pickled” the victim. The nonstatutory manner in which the defendant was alleged to have committed the offense adds evidentiary facts peculiar to the case on trial. That question, because it goes beyond the statutory elements and statutory manner or means, is improper . . .11

What the defense counsel asked, and that was held proper, was this:

During his voir dire, defense counsel again explained the range of punishment for the crimes charged and the re­quirement that all jurors must be able to consider that full range. His final question asked whether the panel members could “honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment[?]”12

Defense counsel preserved the error in the following manner:

After using all of his peremptory strikes, defense counsel asked for additional peremptories and explained that nine of his strikes had been used on jurors who should have been removed for cause. He stated that he would have stricken three of the empaneled jurors had additional peremptory challenges been granted.13

You should be prepared to do the same.

In Fuller, the defense counsel sought to explain the different burdens of proof and to elicit whether the jury understood that proof beyond a reasonable doubt is the highest burden.14 Specifically what he did:

Immediately before the voir dire commenced at his trial, the appellant requested that he be permitted to ask the members of the venire panel whether they understood that the standard of proof beyond a reasonable doubt constituted a level of confidence under the law that was higher than both the preponderance of the evidence and the clear and convincing evidence standards. When the trial court denied his request, the appellant objected that he was thereby denied the right to ask a “proper” question during voir dire, depriving him of the ability to intelligently exercise challenges for cause and peremptory challenges. . . .

        On the morning that voir dire was to commence, but before the venire panel was brought into the courtroom, the following colloquy transpired.

        THE COURT: Did you want to go on the record about the reasonable doubt?

        [DEFENSE COUNSEL]: Judge, I would request that I be allowed to ask each and every member of the venire panel if they understand that proof beyond a reasonable doubt is the highest burden that we have under the law, that it’s higher than clear and convincing evidence. I would like to explain to them that clear and convincing evidence is the type of burden that might be used when someone is committed to an involuntary health institution or when someone is trying to terminate someone’s parental rights.

        I would like to explain to them that it’s higher than—I probably would have started at the other end—but higher than the preponderance of the evidence, which is just over 50 percent, and that’s the kind of burden that might be used in a civil lawsuit when someone is suing over money.

        I would like to ask them if they understand that proof beyond a reasonable doubt is the highest burden we have anywhere in our legal system.”15

After the court denied his request, defense counsel preserved the error by objecting, as follows:

And we would object to that ruling in that it violates the defendant’s right to ask the proper question for purpose of making an intelligent challenge for cause and pe­remp­tory strike. Under Article 1, Section 10, of the Texas Constitution, Article 35.17(2), of the Texas Code of Criminal Procedure, the Sixth Amendment and due process clause.”16

Now, in addition to teaching us how to preserve the error, what Fuller teaches us is that instructing jurors on the levels of proof in order to find out whether a juror can hold the State to its burden of proof, beyond a reasonable doubt, is proper voir dire.17 Why? Because a prospective juror who cannot or will not hold the State to the standard of proof beyond a reasonable doubt to convict in a criminal case is subject to the defendant’s challenge for cause for harboring “a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely.”18

So how do you instruct the jurors on the levels of proof?

Many successful defense lawyers start educating the jurors about the State’s burden of proof in voir dire. Unfortunately, if they do anything at all, too many lawyers use isolated, hackneyed examples to tell potential jurors what “proof beyond a reasonable doubt” is. And then they do it without explaining the other levels of proof.

In light of the proliferation of NINJA19 loans and the recent bailouts of Fannie Mae and Freddie Mac—the certainty that one wants before buying a house is hardly that certain. To begin with, there are drastic distinctions between judge-conducted voir dire and attorney-conducted voir dire. What follows here is a discussion of what we have successfully used for a number of years in conducting our own voir dire and closing arguments.

It has been our experience that if the presiding judge tells the veniremen anything at all, it will be along the lines of “proof beyond a reasonable doubt is not defined,” and “it is a level of proof that we do not use in everyday life.” Hunh? Helpful? Not at all.

To overcome that lack of guidance from the bench, start by detailing the levels of proof on a blank flip chart. Use of a flip chart forces the veniremen to use at least two senses at the same time. In our experience, this tends to increase their retention of what you are about to tell them—and what they tell you (it allows them to “own it”). Alternatively, purchase and use the Levels of Proof chart from the National College for DUI Defense.20 Whatever PowerPoint® presentations you may use during the trial, the authors suggest that you address the levels of proof with either the flip chart or the Levels of Proof chart and not the PowerPoint presentation.

It is also important to empower the jury to find your client not guilty. One of the ways to do this is to explain to the venire that in Scotland, they have three verdicts in a criminal case: guilty, not guilty, and not proven. In Scotland, not guilty means the defendant had absolutely nothing to do with the crime, that there was no evidence the defendant had anything to do with the crime. A verdict of not guilty in Scotland is a bar to a civil suit on the same facts. Not proven only means that the prosecution did not prove its case beyond a reasonable doubt. Not proven does not mean that the defendant had nothing to do with the crime alleged. In the United States we roll “not guilty” and “not proven” into “not guilty,” and a verdict of not guilty is not a bar to someone being sued in civil court later. This is what happened to O. J. Simpson after the murder of his ex-wife when he was sued in civil court. If he had been found not guilty in Scotland, it would have been a bar to the civil suit.

It is the authors’ opinion that explaining about verdicts in Scotland is a proper subject for voir dire because many jurors operate under the conception that if your client was there, he must have done something. A verdict of not guilty is not saying that your client had nothing to do with what happened; it is only saying that the state did not prove its case beyond a reasonable doubt—Scotland’s “not proven” verdict.

Empowering your jury also means asking the venire who disagrees with the Los Angeles jury’s verdict to find O.J. not guilty of his ex-wife’s murder. Invariably, there will be a number of hands that go up. Then ask whether any of them saw the entire trial, especially the testimony about the preservative that was put in the blood that was found in the Bronco and in O.J.’s room, how the police were unable to explain how that preservative got into the blood that they claimed to have found in those two places, or the many, many other problems with the State’s case. Since the jury in that case heard all of the evidence that was presented, only that jury had the right to decide whether the State did or did not prove its case beyond a reasonable doubt. Ask them, “Do they understand that no one has the right to question the jury’s verdict that the State has not proven its case beyond a reasonable doubt?”

Remember proof beyond a reasonable doubt is the ultimate measure by which a jury will decide your client’s case. For the jurors to better understand what proof beyond a reasonable doubt is, however, it is helpful for them to understand that it is the highest measure of proof required in our law, and how it is distinguished from other measures of proof—“reasonable suspicion,” “probable cause,” “substantial evidence,” “preponderance,” and “clear and convincing.” These measures are defined for the jurors as follows:

No evidence. No trace of evidence whatsoever.

Scintilla of evidence. Any evidence at all. Even the small­est amount of evidence. Whoever did this was alive. Your cli­ent is alive. That is a scintilla.

Reasonable suspicion. A reasonable suspicion is what a police officer must have in order to momentarily detain a per­son to question them about a crime or to do a pat down of their clothing should he believe the person is armed with a weapon. This measure of proof is more than a hunch or a guess. It requires “articulate facts,” i.e., the officer must state the facts that gave rise to his suspicion in order to make it a rea­son­able one.

“Reasonable suspicion” means the officer must be able to articulate something more than an inchoate and un-particularized suspicion or hunch.21 It requires some minimal level of objective justification for making the stop. U.S. v. Sokolow, 490 U.S. 1 (1989). This is the level of proof that a police officer needs to stop someone on the sidewalk and ask for identification.

Probable cause. Probable cause is what a police officer must have in order to make an arrest or search a person’s home or business. It is also the minimum measure of proof in order to allow a judge to issue a search or arrest warrant. Prob­a­ble cause concerns probabilities and is decided on an ob­jec­tive standard based upon the training and experience of the par­tic­u­lar officer making the arrest or search. Said another way, probable cause requires a reasonable person’s standard of proof to justify the officer’s actions in either arresting or searching—i.e., was it objectively reasonable for the officer to do what he did based upon what he actually knew and based upon his experience? The probable cause standard is necessary for a police officer to do a strip search of a person.

“Probable cause” concerns whether the facts available to the officers at the moment of the arrest would warrant a man of reasonable caution (alertness and prudence) in the belief that an offense has been committed. Probable cause also turns on whether, at the moment the arrest was made, the officers had probable cause to make it, and that is defined as whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent (wise in practical affairs) man in believing that the person had committed or was committing an offense. Beck v. State of Ohio, 379 U.S. 89 (1964).

“Probable cause” is also the level of proof required for 9 of 12 grand jurors to return an indictment. This is a good place to remind the veniremen that the indictment process is not unanimous and is on a much lower level of proof than required of them to convict your client. Not to mention the fact that defense counsel is not allowed into the grand jury, so no one is cross-examined.

Substantial Evidence. Substantial evidence does not mean a large or considerable amount of evidence, but rather it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact.” Lauderdale v. Texas Dept. of Agriculture, 923 S.W.2d 834, 836 (Tex.App.—Austin 1996, no writ) (quoting Pierce v. Underwood, 487 U.S. 552, 564–65 (1988)).

Substantial evidence is also more than a scintilla but less than a preponderance. Marker v. Finch, 322 F.Supp. 905 (D.C. Del. 1971) (more than a scintilla but less than a preponderance). Under the substantial evidence standard of review, an administrative decision may be sustained even if the evidence preponderates against it. Mireles v. Texas Dept. of Public Safety, 9 S.W.3d 128 (Tex. 1999). Since this level of proof is less than a preponderance, you might want to leave a blank step and fill it in after you explain preponderance.

The Levels of Proof chart that you can purchase from the National College for DUI Defense does not refer to substantial evidence. Until that is changed, we prefer to use the flip chart so that all levels are addressed. If you use the Levels of Proof chart, make sure you address the missing step with the venire. Make sure you also address proof beyond a reasonable doubt, since the Levels of Proof chart stops at reasonable doubt.

Preponderance. Preponderance is the measure of proof required in most civil court cases. It is sometimes referred to as the “51 percent of the evidence rule,” or the “more likely than not” rule. Here, the party to a lawsuit that convinces the jury by 51 percent of the evidence is the winner. This is the measure that is used to take money from one party of a lawsuit and give it to another.

“Preponderance of the evidence” as a standard of proof in civil cases means the greater weight and degree of credible evidence admitted in the case. The degree of proof that when taken as a whole shows that a fact sought to be proved is more probable than not. Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1991); see also Texas Pattern Jury Charge § 1.03.

For the preponderance of evidence demonstrative, we like to use two new reams of paper—unopened. Unwrap both reams and show them to the venire. Both have 500 sheets of paper and, if placed on the scales of justice, would be evenly balanced—not even proof by a preponderance. Remove one sheet from one ream. Ask the venire to look at both and how close they are. But they know that one stack only has 499 sheets, the other 500. If both stacks of paper were placed on the scales of justice, the 500-sheet stack would be heavier. That is a preponderance.

Clear and convincing. Clear and convincing is the measure of proof required in heirship determinations, termination of parental rights cases, involuntary commitment cases, and guardianship cases—a determination of a fundamental or property right. Also, it is the standard by which a jury’s right to impose punitive damages is measured. Our courts have defined this measure as the tier between the “reasonable doubt” standard and the “preponderance” standard. Here, the law requires that a fact finder be “clearly convinced” before it terminates a parent’s rights in their child, involuntarily commits a person to a mental health institution, determines that a person is an heir, or that a person no longer has the ability to take care of either their estate (business affairs) or their person.

“Clear and convincing” means that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 388 S.W.2d 569 (Tex. 1979); see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (“clear and convincing” proof standard is constitutionally required in parental termination proceedings); Texas Family Code § 161.001.

Reasonable doubt. Reasonable doubt is the standard/measure of proof in criminal cases. It is such a doubt as would cause a prudent person to hesitate before acting in matters of importance to themselves. This is the threshold above which the proof must rise in order to convict your client.

Proof beyond a reasonable doubt. Do we use this standard of proof in our everyday lives? Well, here’s two exam­ples that say we do.

First, it is the certainty that you would want before you unplugged a loved one from life support. As you raise your hand, ask the potential jurors who among them has ever had to be the person to make that decision. Ask one of the ones who raised their hand how certain they wanted to be when they made that choice. Remind them of the man who was in a coma for 19 years and came out of it.22 Remind them that in that case, the person would have been killed if life support had been discontinued at 18 years and 9 months, or even 18 years and 11 months. You want to be certain beyond a reasonable doubt because you know that if you guess wrong, you will have killed your loved one. That’s proof beyond a reasonable doubt.

Proof beyond a reasonable doubt is also the certainty that someone who is going to parachute needs before jumping out of a perfectly good working airplane.23 That person checks every square inch of the parachute and every inch of all of the lines, beyond a reasonable doubt. Watches the packing of the chute, every fold, every tuck, ever fastener, beyond reasonable doubt. Goes over the packed parachute, beyond a reasonable doubt. Up in the plane, he goes over it again beyond a reasonable doubt, and if there is a single thread out of place, he doesn’t jump. Only when he is confident, beyond a reasonable doubt, does he put the parachute on and jump out of that plane.24 Why? Because he knows, beyond a reasonable doubt, that if the parachute doesn’t work—beyond a reasonable doubt—he is dead.

Ask the jurors if they have any different meanings for what reasonable doubt means to them.25

Make an ascending staircase on a flip chart with these levels. The last stair is the one above reasonable doubt, the one labeled “Beyond a Reasonable Doubt.” Go back with a red highlighter, ask different veniremen what the verdict would be and write “not guilty” by each of the ones up to beyond a reasonable doubt. Do not have them answer what their verdict will be if they find proof beyond a reasonable doubt.

The Levels of Proof chart that you can purchase from the National College for DUI Defense used to have the last step labeled “guilty.” The new chart does not have a step labeled Beyond a Reasonable Doubt. There are lawyers who are still using the old Levels of Proof chart. We disagree with using the old chart or a strategy that writes the word “guilty” anywhere during your voir dire, or in omitting the step of Beyond a Reasonable Doubt. We don’t feel you should do anything in the voir dire to acknowledge guilt, but you should put that highest step before the jury. And if any venireperson asks you what goes on the last step, you know that person is too dumb to be sitting on your jury.

As to this portion of your defense, the levels of proof, whether in voir dire or during trial or in closing, we disagree with using a PowerPoint presentation. Why? Because it takes time to power up the monitor or projector and then you are not near what the jury is looking at. Conversely, if you use the flip chart or the NCDD chart, you are standing right next to it as you point to the level in question. You become the instructor, to whom the jury will come to look for guidance.

Accordingly, using the Levels of Proof, you can graphically and educationally walk the jury panel through the respective ascending levels (steps) of proof. Demonstrating these levels to the jury, we, as defense counsel, can make the jury visually understand that proof beyond a reasonable doubt is indeed the highest burden in our law.

Using these examples of “proof beyond a reasonable doubt” in an aggravated sexual assault case, we once got an assist from the judge during voir dire. To answer a potential juror’s question about the difference between clear and convincing and proof beyond a reasonable doubt, the judge explained the difference between beyond a reasonable doubt, clear and convincing, and scintilla by using our analogies. He said: “Beyond a reasonable doubt is how well you check you parachute before you step out of the plane. Clear and convincing is how well you check your wife’s parachute before you help her out of the plane. Scintilla is how well you check your ex-wife’s backpack before you shove her out of the plane.”

Gary Trichter, in his paper given to the National College for DUI Defense, advised that the Levels of Proof step-ladder chart can also be used during the cross-examination of the arresting officer in DWI cases. His recommendation was for the defense lawyer to use the graphic burdens of reasonable suspicion, probable cause, and reasonable doubt in the cross-examination of the arresting officer—i.e., the officer is asked if he understands those required levels of proof and whether he applied the reasonable suspicion and probable cause burdens in his decision process in your client’s case.

Unfortunately, far too many Texas judges have begun limiting defense counsel’s ability to present these levels of proof to the venire during voir dire, whether through the NCDD’s chart or counsel’s flip chart, Fuller, supra, notwithstanding. The authors’ experience is that these “judicial geniuses” will either ignore Fuller, or try to parse words as to your questions, or try to limit you on time.26 If you have the (mis)fortune of trying a case in front of one of these judicial misers and are unable to go through the levels of proof in voir dire, then use the flip chart during your cross-examination of the police officer and anyone else whom the State has offered as an expert. Of course, make sure you preserve the error in voir dire by asking for more time, presenting the questions you would have asked, asking for additional peremptory strikes, and making the objection as was done in Fuller, supra.

In his paper, Mr. Trichter observed that experience teaches us that in DWI cases, most police officers will testify that they did not form their opinion of probable cause until after they observed the very last intoxication fact, and that it was then they arrested your client. When this happens, leave it alone and don’t ask any more burden of proof questions. By doing so, you can argue in your closing that even accepting all that the officer said was true, by his own words he only had probable cause—a reason to believe, and that is far short of the required proof beyond a reasonable doubt required to convict. Of course, that also dovetails perfectly into arguing that if the police officer was a doctor telling you you need to unplug your loved one from life support, you’d definitely want a second opinion, wouldn’t you?

If the judge has prohibited you from using your flip chart in voir dire, use the flip chart during cross-examination and write down the levels of proof. Again, if you get the police officer to testify he did not form his opinion of probable cause until after he observed the very last intoxication fact and that it was then that he arrested your client, leave it alone and don’t ask any more burden of proof questions.27

If the State objects and the judge sustains the objection to this cross-examination, offer it by way of a bill of exception. If the judge denies you a bill of exception on this, you should have built-in reversible error.28 And if you are allowed to present it by way of bill, you should have preserved the error, assuming the judge does not change his ruling and allow you to cross-examine in this manner.

What if the State’s case rests upon the testimony of a witness who has problems “keeping the facts straight,” or if there are conflicts between the accounts offered by the various State witnesses? In such a situation, in closing, place you hand on your client’s shoulder and ask the jury to imagine that your client is their loved one who is on life support.29 And the witnesses are doctors who are telling them that it is hopeless; life support must be discontinued from their loved one. Remind them that their loved one might be like that man in Poland who was on life support for 19 years and came out of it.

Refer to the witnesses as the doctors who are telling you that you need to unplug your loved one from life support. Point out all of the inconsistencies and contradictions. Write them down on a flip chart for the jury to see. Then ask the rhetorical question, “In light of all of these inconsistencies and if you were the one being asked to pull the plug on your loved one’s life, you’d want to get a second opinion before pulling the plug, wouldn’t you?” Since reasonable doubt is such a doubt as would cause a prudent person to hesitate before acting in matters of importance to themselves, wanting a second medical opinion before deciding to pull the plug is reasonable and prudent. Then tell them: “That is reasonable doubt. The State hasn’t proven its case beyond a reasonable doubt and you must acquit.”

Lastly, using the Levels of Proof stepladder graphic allows you to deal with some of the State’s arguments in closing—even if you are not allowed to voir dire on the levels of proof, you can still use those levels of proof to argue for your client. It doesn’t matter that the evidence was “overwhelming”—that is not a level of proof. It doesn’t matter if there was “substantial evidence”—that is less than a preponderance. And it doesn’t matter if the evidence was “clear” or if it was “convincing” or if it was “clear and convincing.” All are less than reasonable doubt. Obviously, if the DA argues that there is overwhelming evidence of guilt, you should object and request the court to instruct the jury that there is no such level of proof recognized in law: Ask that the jury be instructed and move for a mistrial. If the DA argues that there is substantial evidence of guilt, you should object and request the court to instruct the jury that substantial evidence is a level of proof below a preponderance. Ask that the jury be instructed and move for a mistrial. And if the DA argues that the evidence is clear, or that it is convincing, or even if he argues that the evidence is clear and convincing, you should object and request the court to instruct the jury that clear and convincing is a level of proof below reasonable doubt, and move for a mistrial.

Are these techniques effective? Mr. Trichter’s well-deserved reputation in defending DWIs says that they are. But there’s even better proof available. One of the authors has a co-counsel who practices in Baltimore, Maryland—where the judge does all of the voir dire. After the author gave him the example of unplugging a loved one from life support, he adopted it and incorporated it in all of his closing arguments. Using this example, he was able to put together a run of over one year without any convictions.

You can be a more effective trial attorney. What is laid out in this article should help you reach that goal.


1. Much of this paper is based on the paper that J. Gary Trichter presented at the 2000 Summer Session of the National College for DUI Defense (NCDD) and on the Levels of Proof chart related to that presentation. Both the paper and the chart are copyrighted by NCDD and are available from it at its website, To the extent that portions of that paper or the chart appear here, they are used with the permission of NCDD, for which grateful acknowledgment is made. Much of what is in this paper was also published in the June 2009 issue of The Defender, the quarterly publication of the Harris County Criminal Lawyers Association.

2. Vernon’s Ann.St.Const. art. 1, § 10; Florio v. State, 568 S.W.2d 132 (Tex. Crim. App. 1978).

3. Zavala v. State, No. 14-10-00286-CR, 2011 WL 5156843 (Tex. App.—Houston [14th Dist.] November 1, 2011), citing Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005); Sanchez v. State, 165 S.W.3d 707, 711–12 (Tex. Crim. App. 2005).

4. Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012).

5. Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978).

6. You need to have copies of the cases, especially the ones set forth in the Levels of Proof, available so you can ask the court to take judicial notice of their holdings in the event the prosecutor objects to you instructing the jury on the law. Seldom is there anything better during a trial than to have the judge have to instruct the jury on a definition of law, especially when the DA has objected to the very definition that you have given them.

7. Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978).

8. Centamore v. State, 632 S.W.2d 778 (Tex.App.—Houston [14th Dist.] 1982).

9. Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010).

10. Cardenas v. State, 325 S.W.3d at 184.

11. Id.

12. Cardenas v. State, 325 S.W.3d at 182.

13. Cardenas v. State, 325 S.W.3d at 183.

14. Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012).

15. Fuller v. State, 363 S.W.3d at 583–584.

16. Fuller v. State, 363 S.W.3d at 584.

17. If you are denied the right to voir dire on the levels of proof, the authors would suggest that counsel also ask for additional peremptory strikes, enough to cover the entire venire, because you don’t know if any of the venire can hold the State to the proper standard.

18. Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012), citing Tex.Code Crim. Proc. art. 35.16(c)2.

19. A Ninja Loan was a type of subprime loan for housing issued to borrowers with No Income, No Job, and no Assets. No Income No Asset, (last visited December 14, 2012).

20. The chart can be ordered from the NCDD at its website, The artwork for this article is based on that chart, with the modifications suggested here.

21. “Inchoate” is a lawyer word, and it is a word of art. Unfortunately, most people’s eyes will glaze over when they hear it. We suggest that you substitute “not yet completed or fully developed, rudimentary or undeveloped” in its place.

22. The man was Jan Grzebska, in Poland. His case received international attention.,2933,277475,00.html (Last accessed December 14, 2012).

23. You may want to ask if any of the venire have ever parachuted, but we do not suggest you raise your hand as someone who has—even if you did it in the military. If one of the venire answers that they parachuted in the military, after thanking them for their service, have them go over all of the steps taken to ensure that the parachutes work perfectly—every time.

24. Yes, the authors know that the parachute is put on while on the ground. But someone else will have done it on board the plane. It is that last check to make sure everything is right.

25. Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012).

26. One of the motions that you should always go to trial with is a motion for more time for voir dire.

27. One of the hardest things to learn is when to shut up and sit down. Once learned, it is an invaluable resource.

28. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).

29. This is not an improper appeal to sympathy. It is merely a metaphor.


After the article was submitted to TCDLA for consideration, Gary Trichter posted the following on the listserve. It seemed appropriate to include it with the article, so here is what Gary posted (with thanks, again, for his shared brilliance):

Thought I’d share a thought that might be of help in voir dire when discussing one of the Three Rules of Jury Decision making, “The Government’s Burden of Proof.” That said, I suggest you consider framing the issue with the following:

Thomas Sowell, syndicated columnist who writes on economics, philosophy, and politics, wrote, “It’s hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.”

With that in mind, consider the following:

“Some say our law needs to be fair and equal. Our law mandates jurors to follow and apply the law in their decision process. Supposing we had a follow-up law that said where jurors failed to follow the law and wrongfully convicted a person who received the maximum punishment, that the jurors themselves would suffer the same punishment. How would you feel about a fairness law like that?”

Framed this way, the B of P can be defined as that level of mental surety the government must convey to fulfill its proof responsibility so as to convince jurors that they are safe from being harmed by their own decision.

My personal definition of B of P is this:

Burden of Proof—the government’s responsibility to make you feel absolutely certain you have not made a mistake in deciding whether a person should be subject to the worst or most severe consequence of being convicted of a crime and labeled a criminal.

June 2013 Complete Issue – PDF Download



22 | Pictures from the 26th Annual Rusty Duncan Criminal Law Course
26 | So You’re My Lawyer… – By Sarah Roland & George Roland
32 | Check That Parachute! Suggestions for Voir Dire on Reasonable Doubt – By L. T. “Butch” Bradt & Betsy Grubbs

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

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

President’s Message: Discovery and the Legislature – By Bobby Mims


I begin my service as the 43rd President of the Texas Criminal Defense Lawyers Association (“TCDLA”) at the conclusion of 83rd Regular Session of the Texas Legislature. During this session TCDLA lobbyists were able to craft legislation that may result in some of the most significant changes in the practice of criminal defense in Texas in a generation.

At the start of every legislative session, for as long as one can remember, there have been legislative proposals by prosecutors for the defense to be required to provide “reciprocal discovery.” In the past this has been the most divisive issue within the TCDLA and the most insistent demands by the prosecutors. Individually, District Attorney offices have realized that an “open file” policy is good business for the management of their offices. Open file policies promote the settlement of cases and the movement of dockets. As of this writing it is estimated that 90 percent of Texans live in a jurisdiction where the DA has some form of open file policy.

At the start of this legislative session the prosecution forces were, under the guise of agreeing to a statutory open file policy, demanding that the legislature mandate “reciprocal discovery” for the defense. Their proposal would have required a criminal defense attorney to provide the prosecutor with his list of witnesses, their witnesses’ statements, and a notice of defenses in advance of trial. The environment of the multiple exonerations that have occurred in Texas over the last few years, the highly publicized exoneration of Anthony Graves in Washington County, and the more highly publicized Michael Morton case in Williamson County operated to put much political pressure on the legislature to “do something.” Incredibly the “do something” was to demand discovery from defense lawyers. It was the paradoxical position of the prosecutors and a few misguided friends of the criminal defense bar that this would solve the problem of wrongful convictions. They were very close to “selling” this to the legislature.

TCDLA and the Harris County Criminal Defense Lawyers Association (“HCCLA”) joined forces and, along with TCDLA lobbyists, met with legislators and stakeholders to oppose any bill that contained a reciprocal discovery provision. Michael Morton and his lawyers met with the leaders of TCDLA and HCCLA to discuss the reasons why both organizations opposed reciprocal discovery. During these meetings the Morton forces became allies and also opposed reciprocal discovery. Indeed, during the markup of these bills and the negotiations, the prosecutors were faced with an array of opposition to reciprocal discovery that included members of the judiciary.

During the pendency of this legislation the TCDLA Board of Directors passed a strong resolution opposing reciprocal discovery, clearly stating that no one spoke for TCDLA at the legislature other than our lobbyists. This resolution was a strong statement to the legislature and to the public that the 3500 members of the TCDLA stood absolutely against any form of reciprocal discovery. This “froze” the politics in Austin, causing the prosecution interests to relent and agree to support a statutory open file policy. They dropped their demand for reciprocal discovery from the defense. This is an incredibly important development for the practice of criminal defense and for the public in Texas. This issue is resolved for the foreseeable future. The efforts of our lobbyists were very successful, and we owe them a debt of gratitude.

This year the confluence of political forces in the legislature fortunately favored the defense and the righteous position of the TCDLA. This will not likely be the situation in the next session. The challenge for the leadership of this organization over the next two years is to be better prepared for the 84th legislature.

We are underfunded in our legislative efforts. We must find funds to have a continuing presence at the legislature. Our lobbyists dedicate incredible time to this effort, but they have their own practices to which they must attend. We must find additional funds to augment our legislative efforts or we are going to be incapable of meeting the legislative challenges in 2015. The leadership has been meeting to address this situation, and a recommendation will be made to the Board of Directors at the September meeting.

There are many other challenges for TCDLA in the next year, but at least for now the legislature has spoken on discovery and the governor has signed this legislation into law.

I am honored to serve as the 43rd President of the finest organization in the country. We are made up of more than 3500 criminal defense lawyers who daily stand against the power of the government. You can be proud to be a criminal defense attorney and a member of the TCDLA.

Bobby Mims
June 2013


Executive Director’s Perspective: Rusty Duncan and Summer Fun – By Joseph A. Martinez


Special thanks to Betty Blackwell (Austin), Kerri Anderson-Donica (Corsicana), Brent Cahill (Navasota), Leslie Starr Barrows (Colleyville), Warren Wolf (San Antonio), and Ray Rodriguez (Laredo), our course directors for this year’s 26th Annual Rusty Duncan Advanced Criminal Law Course. Thanks to all our 26 speakers, our board member’s support, and staff, we had over 870 attendees. This year 31 exhibitors participated in our Exhibit Hall.

We raised $9,145 from the 54 items donated by board members, hotels, and various other sponsors. These funds will be used for scholarships for lawyers in the coming year.

Thanks to Rick Wardroup (Lubbock), course director for our Capital Update held on June 13 in San Antonio. Thanks to Jody Lynee Madeira, our speaker, we had 33 attendees.

Bill Trantham (Denton) organized a group of lawyers to take the Amtrak train to and from San Antonio. It was inexpensive, hassle-free, and no driving was required. The Amtrak train station is less than a mile from all the hotels in downtown San Antonio. We are going to arrange for a Rusty Flyer from the Metroplex and possibly Houston for next year’s 27th Annual Rusty Duncan Advanced Criminal Law Course, scheduled for June 2013. More information to follow.

The TCDLA Board and Members met for the 43rd Annual Members Meeting in San Antonio on Saturday, June 15, 2013. The following motions were passed:*

MOTION: Minutes

Approve minutes from March 9, 2013, TCDLA Board Meeting in Dallas. Motion made by Mark Snodgrass, seconded by Sam Bassett—motion carries.

MOTION: Bylaws Changes

Adopt proposed challenges as published to the general membership listed below. Mo­tion made by Adam Kobs, seconded by Gary Trichter—motion carries (2 opposed).

MOTION: Williamson County Affiliate

A motion to accept Williamson County as an affiliate of TCDLA made by Vincent Perini, seconded by Gerry Goldstein—motion carries.

MOTION to approve the 2013–2014 officers, new and reappointed Board Members

Motion made by Coby Waddill, seconded by Gerry Gold­stein—motion carries.

MOTION: Voice for the Defense Magazine Editor and Assistant Editor

A motion was made to have Michael Gross as the editor and Grant Scheiner as assistant editor. Motion made by Bobby Mims, seconded by Danny Easterling—motion carries.

Special thanks to our course directors, Carlos Garcia (Austin) and Rick Wardroup (Lubbock), for our second annual Training the Trainers seminar held in South Padre Island. We are putting special emphasis on preparing speakers for our CDLP CLE for the coming year. Presentations included adult learning principles and effective PowerPoint presentations. We had 25 current and future speakers.

Special thanks to our course directors, Sarah Roland (Den­ton), Bobby Lerma (Brownsville), and Sheldon Weisfeld (Brownsville). Thanks to their efforts we had 62 attendees.

Thanks to Bill Trantham (Denton), Bobby Lerma (Brownsville), and Mel Bruder (Denton)—plus TCDLA staff and Pepe Flores, staff spouse—for putting together the 8th Annual Beach Bar-B-Que. Thanks to everyone’s help, we had close to 100 persons enjoy the barbecue, shrimp, and beach and sun.

We held our annual TCDLA/CDLP/TCDLEI board orientation at South Padre Island. Board members were oriented to their duties and responsibilities and given an overview of TCDLA/CDLP/TCDLEI. We also had a Sunset Bay Cruise and a Hawaiian Luau. A good time was had by all.

Bobby Mims, TCDLA President (Tyler), discussed his challenging goals for the coming year

We want to thank the TCDLA members who were the local organizers of the July 4, 2013, Readings of the Declaration of Independence in 51 cities in Texas. Robb Fickman, TCDLA board member (Houston), started the readings in Houston with the Harris County Criminal Lawyers Association (HCCLA) in 2011 and expanded throughout Texas. This year there were readings in 12 states and the District of Columbia, as well as a reading in London.

Thank you Robb for your dedication and patriotism and for helping us remember why we are so fortunate to be Americans.

Summer is upon us. Please join us for CLE throughout the coming months.

July 26AustinBest of the Best IV: Capital Murder
July 26GranburyMitigation in Non-Capital Case
August 8–9AustinInnocence for Attorneys
August 9Corpus ChristiGideon’s Trumpet
August 23Houston11th Annual Top Gun DWI
August 30San AntonioAgainst All Odds: Winning Trial Tactics

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

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.

*The minutes from the June 14, 2013, members meeting have not been approved by the TCDLA Board.

Editor’s Comment: Out to Pasture – By Greg Westfall


I grow old …
I grow old …
I shall wear the bottoms of my trousers rolled.
Shall I part my hair behind?
Do I dare eat a peach?
I shall wear white flannel trousers, and walk upon the beach.

T. S. Eliot, The Love Song of J. Alfred Prufrock

Well, I guess it’s not as dire and depressing as all that. I really am turning over the reins of the Voice for the Defense after four years. But, the fact is, I just turned 50 and am feeling rather sorry for myself.

As of Rusty this year, I have retired and Michael Gross and Grant Scheiner have taken over as Editor-in-Chief for the Voice and Editor of the Voice Online, respectively. I am going to hang around and I think do some blogging on the Voice Online. The thought of writing 100–200 words in a given session really appeals to me right now. I think as I have grown older, my ADD has actually gotten worse.

I am extremely proud of the Voice, though, and look forward to seeing it progress in others’ hands.

Like I said at Rusty, if I am remembered for anything, it will probably be the Voice Online, which we launched during my term as Editor. The truth, though, is that I came up with the idea (which was not altogether original in 2009 when I came up with it). Then, Melissa Schank and Craig Hattersley (and then our web designer, Stacy Clifford) shouldered the work. Melissa, in particular, oversaw scanning every issue of the Voice from inception to the present day for our archives and did some work on the code. I had the idea and an outline of what I envisioned. An idea, however, no matter how great, is pretty much DOA without execution, and Melissa and Craig provided that. The Board provided the seed money to get it done. It was a team effort and the end product reflects that.

If I could choose what I am to be remembered for, it would be making the Voice more accessible to our members. I wanted (and persevered) to take personality completely out of publication decisions. If I could help it, no decision to publish or not publish would ever be based upon whom the prospective author’s friends (or enemies) were. That, in my opinion, is as it should be. Now, with the Voice Online and blog, one doesn’t even need to be a member to join in. No debate is benefited through restricting the number of voices allowed to participate. And the Voice for the Defense ought to be a forum for debate.

I hope in the future more members will take part in this debate. A number of members have their own blogs, but have never once offered a blog entry in the Voice Online. This utter lack of participation is my only gripe from my term. The listserve, on the other hand, is an extremely active forum for commentary. I hope in the future that some of you will take a chance and turn some of those discussions outward. It would benefit the organization.

I believe that all board members ought to have a requirement to author just four blog posts per year. And rather than just scold all the board on a quarterly basis for not doing them, they should be tracked as attendance at board meetings is now tracked. If a board member fails to fulfill the quota, he or she will be kicked off the board. If we had a vibrant blog, our stats would go through the roof and our organization would become more visible as a result. Higher visibility means more members and more legitimacy at the Legislature, among other things. Simple as that. Weigh these benefits against the ridiculously small amount of effort to simply put together 200 words of commentary about some recent event, and I feel perfectly justified in suggesting that the board member should go.

One thing I would have liked to have floated would have been an alternative to the listserve, at least as to substantive matters. I have just recently seen yet another call for some kind of knowledge base created from substantive conversations on the listserve, of which there are many. I am no tech guru, but to my mind, a listserve is not even capable of such a thing. There is no way to really search a listserve, and to the extent that a knowledge base is created, it is only because you aren’t in the habit of deleting your emails. I don’t care how dedicated and smart the members of a listserve are, if you want a knowledge base, the listserve concept is just not going to support that.

Instead, I hope that this organization will one day establish a forum. A forum stores information topically under headings and is fully searchable. If a year ago some member posted a bunch of great stuff about scientific evidence in sexual abuse cases, you could find that in a forum through a keyword search, and unlike emails, this knowledge base is located on the web, not in the inbox on your computer. It would be a rational alternative to the listserve and something that I hope will one day get a fair, clear-eyed look.

More than anything, I would just like to say thank you to the Texas Criminal Defense Lawyers Association for letting me be Editor of the Voice. The Voice, like TCDLA, has a rich heritage and I am extremely proud to have spent four years at the helm. You are my brothers and sisters and I love you all.

Ethics and the Law: No Man Is an Island


As you get older, you realize no man is an island. This thought came to me at the Rusty Duncan award ceremony when I saw John Dietz, Bill White, John Boston, Ron Goranson, Scrappy Holmes, Tim Evans, and a few others. Travis Bryan was not there. Travis is now a District Court Judge in Bryan. Back then, he was like the rest of us, working as a defense lawyer. Rusty Duncan had also been part of our group at the Huntsville Trial College. We had many things in common and became fast friends. We were all young lawyers, but luckily, had trained under great lawyers like Charles Tessmer, Roy Minton, Jim Skelton, Warren Burnett, Racehorse Haynes, and other great ones. Some of the students went on to become great lawyers. Some went on to be wasted space.

Every now and then people come along who go above and beyond the call of duty: Audie Murphy, the most highly decorated soldier of WWII, Alvin York, who single-handedly captured numerous German enemies killing his comrades. We in the criminal defense bar do not wear uniforms and carry weapons with us as we do our jobs. We do our jobs by standing up to the tyranny of the government. We do our jobs by filing motions for discovery, investigating our clients’ cases, trying cases, and appealing cases. A lawyer has taken an oath to zealously represent the client, doing it right and ethically.

When you are in the military and do not follow your oath, bad things happen. The same is true for lawyers. Some lawyers brag at cocktail parties and other places, “I am a lawyer,” and then never follow their oath. It happens every day in every courtroom across the state. They get the check to the bank and head for the golf course or Paris. The client calls and wants to know what happened to that man who claims to be the greatest lawyer in the world on his website or billboard. What happened to that man or woman who told me they could save the day? As my friend Ken “Dude” McLean used to say, “Most of them have not read a case since Plessey v. Ferguson.” He also said the same thing about the judiciary.

Every now and then people rise above others and do remarkable things to help their fellow man. The people I selected on the ethics committee are such people: Don Davidson, Jack Zimmerman, Robyn Harlin, Ray Fuchs, David Sheppard, David Zavoda, Joe Pelton, Greg Velasquez, Joseph Connors, Cary Hart, and Michael Mowla. Gerald Goldstein and Cynthia Orr are such people. Bobby Mims is also one of those people. Randy Schaffer and Josh Schaffer are also among them. Terry Gaiser is one. Audley Heath is one. 

As I noted once before, my bronco-riding rodeo friend said, “When you deal with some people in West Texas, you better have your tennis shoes on tight because they are going to be tough.” When Robb Fickman, who is from Midland, found out what was happening in Edna, Texas, he was like Col. William Travis at the battle of the Alamo. He sent out a message for help to save a fellow lawyer from possible jail and great agony. Lawyer Fickman mobilized up to 70 men, women, and boys and girls to go to Edna in support of a lawyer being railroaded by a prosecutor. They all worked together as a team and it turned out to be a happy ending. If you think this is an isolated case, you must still believe in the Easter bunny.

Prosecutors and judges across the state ignore the Constitution. There are some good judges and prosecutors. Let’s give them the benefit of the doubt and believe that they just don’t get it. It is a sad state of affairs when a prosecutor in Houston gets recognized for doing the right thing. He did what his oath requires. It happens so infrequently that it makes the news when the oath is followed.

We need to be professional when we “remind” the judges and prosecutors what their oath is and what the Constitution, statutes, and cases say.

Like David Crockett said, “Be sure you are right, then go ahead.” He died fighting for what he thought was right.

Even if you do not like, have no use for, and simply can’t stand the judge, always show respect for the position. It is always humorous when someone gets appointed or wins an election for a judicial bench and then says: “I want to be a public servant. I am willing to take a cut in pay.” It is a long-standing joke that is not true. Nine times out of ten the new judge has not been very successful as a lawyer. Otherwise they would not be trying to get on the public trough. They know that once they get there, unless they are caught in a devious act, they will stay for what seems forever. There are a few exceptions. There are a few judges who were actually successful criminal defense lawyers in Houston—such as Sherman Ross and Denise Collins. But many have ascended that well-greased wheel to their thrones from the district attorney’s office. Judges are then sent to “Judges School,” where they master the art of “overruled” and “move along,” and “I gotta move my docket.”

Warren Burnett, when as he said he was in a sporting mood, used to ask the judge, “Your Honor, from what to what do you want me to move along to?” Lawyer Burnett was a smooth operator. More than once he would go to the funeral of a judge, as he said, “to make sure the bastard was dead.” Remember Rule 8.03. You have a duty to report unethical behavior of prosecutors, judges, or defense lawyers. Lawyers complain but then do nothing. It is time to stop complaining and take action. Ex-parte communications are unethical and should be reported. Also, when prosecutors lie or hide evidence, it should be reported.

If something bad happens, file the motion for a PR bond under section 21.002(d) of the Texas Government Code. Remember that you are always entitled to a bond and a hearing in front of another judge.

The Lone Ranger had Tonto, Wyatt Earp had Doc Holiday, Waylon had Willie, Johnny Cash had June Carter, Roy Rogers had Dale Evans, and you have 3,200 TCDLA members to help. Just call the hotline number: (512) 646-2734.

Federal Corner: You Deposited What Into Our Law Firm’s Accounts? – By F. R. Buck Files Jr.


Scott Rothstein was a successful lawyer who became the Chairman and CEO of Rothstein, Rosenfeldt and Adler, P.A. (RRA)—a Florida law firm with 70 lawyers. But that’s not the story.

Rothstein was charged in a five-count Information that alleged violations of the RICO statute: 18 U.S.C. § 1962(c). The charges were based on a common allegation that Rothstein operated a “Ponzi” scheme by

fraudulently inducing investors through the use of false statements, documents, and computer records to (1) loan money to purported borrowers based upon fraudulent promissory notes and fictitious bridge loans, and (2) invest funds based upon anticipated pay-outs from purported confidential settlement agreements which had been reached between and among certain individuals and business entities. These settlement agreements were falsely presented as having been reached between putative plaintiffs in civil cases and putative defendants based upon the forbearance of civil claims in sexual harassment and/or whistle-blower cases.

But that’s not the story.

Rothstein was sentenced to two concurrent prison terms of 50 years. But that’s not the story.

Here’s the story: Rothstein deposited the funds received from the victims of his “Ponzi” schemes into two RRA bank accounts—and the Government sought to forfeit these funds. In his plea agreement, Rothstein agreed to forfeit to the United States “all of his right, title and interest to all assets listed in the Information”—and that included the two bank accounts.

At the plea hearing, Judge Cohn entered a preliminary order of forfeiture that included these bank accounts. At the sentencing hearing, Judge Cohn entered a final order of forfeiture.

So was the Government successful in upholding the forfeiture of RRA’s bank accounts? Here’s the rest of the story:

Before charges were filed against Rothstein, four creditors of Rothstein, Rosenfeldt and Adler petitioned the Bankruptcy Court for the Southern District of Florida for a reorganization of the law firm under Chapter 11 of the United States Bankruptcy Code. Herbert Stettin was appointed to serve as Trustee of the bankruptcy estate.

Prior to Rothstein’s sentencing hearing, the Trustee petitioned Judge Cohn for an order directing the Government to return the funds seized from the law firm’s accounts. The Government moved to dismiss the Trustee’s petition, arguing, in effect, that the preliminary order of forfeiture forfeited to the United States the funds RRA held in the bank accounts. Judge Cohn denied the Trustee’s motion.

The Trustee appealed Judge Cohn’s denial of his petition, arguing that the bank accounts and the properties listed in the Information that were purchased from those accounts constituted assets of the bankruptcy estate.

On June 12, 2013, a panel of the United States Court of Appeals for the Eleventh Circuit held that as a matter of first impression, funds from investors in a “Ponzi” scheme which were deposited in a law firm’s bank accounts and commingled with legitimate income that the firm received were not “traceable to” the attorney’s scheme so as to be subject to forfeiture. In re Rothstein, Rosenfeldt, Adler, P.A., a.k.a. RRA, Debtors United States of America, Plaintiff-Appellee, v. Scott W. Rothstein, Defendant-Appellee, ___F.3d___, 2013 WL 2494980 (11th Cir. 2013) [Panel: Circuit Judges Tjoflat, Martin and Graves. Opinion by Judge Tjoflat.]

Judge Tjoflat’s opinion includes, in part, the following:

[The Trustee’s Theory of the Case]

The Trustee contends, in essence, that the bank accounts could not be forfeited because the funds they held did not constitute proceeds of Rothstein’s Ponzi scheme. Further, in his responsive briefing to our questions at oral argument, he contends that the RRA bank accounts contained commingled assets and thus were not subject to proceeds forfeiture.

[The Government’s Theory of the Case]

While the plea agreement and preliminary order of forfeiture both equivocate on the point, it seems to us from the surrounding documents that, in seeking the forfeiture of the law firm’s bank accounts, the Government proceeded under the theory that the accounts comprised the proceeds of Rothstein’s Ponzi scheme. We have said that proceeds of crime constitute a defendant’s “interest” in property, United States v. Conner, 752 F.2d 566, 575–76 (11th Cir.1985); for this reason, they can be forfeited in an in personam proceeding in a criminal case.

[What Money Can Be Forfeited]

Though RICO does not define “proceeds,” see 18 U.S.C. § 1961, the only other statutory provision that the Government has cited that makes reference to proceeds forfeiture, 18 U.S.C. § 981(a)(1)(C), defines it as “property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto, and . . . not limited to the net gain or profit realized from the offense,” 18 U.S.C. § 981(a)(2)(A). Therefore, whatever money Rothstein obtained as a result of his criminal activity, and any property that can be traced to that money, is forfeitable. Under the relation-back rule, where such money or property is “subsequently transferred to a person other than the defendant,” that money or property “vests in the United States upon the commission of the act giving rise to forfeiture” unless the third party can demonstrate his right to the property in an § 853(n) hearing. 21 U.S.C. § 853(c).

[The Requirement of a Nexus]

Property can only be forfeited as proceeds, however, where the Government “establishe[s] the requisite nexus between the property and the offense.” Fed.R.Crim.P. 32.2(b)(1)(A). The Advisory Committee notes to Federal Rule of Criminal Procedure 32.2 offer the money on deposit in a bank account as one example of “specific property” that requires such a showing:

To the extent that the government is seeking forfeiture of a particular asset, such as the money on deposit in a particular bank account that is alleged to be the proceeds of a criminal offense, or a parcel of land that is traceable to that offense, the court must find that the government has established the requisite nexus between the property and the offense.

Fed.R.Crim.P. 32.2(b) advisory committee’s note, 2000 adoption. Where no such showing can be made, the Government must resort to the substitute asset provision of sections 1963 and 853, which provides that “the court shall order the forfeiture of any other property of the defendant” where “as a result of any act or omission of the defendant,” forfeitable property, such as proceeds, “has been commingled with other property which cannot be divided without difficulty.” 21 U.S.C. § 853(p). The Government may seek forfeiture under this provision of property “up to the value” of commingled property. Id.

[The Problem of Commingling]

We have not previously addressed the question of when property becomes so commingled that it may not be forfeited directly such that substitute property must be forfeited instead. The Third Circuit, however, has offered instructive guidance in a pair of cases, United States v. Voigt, 89 F.3d 1050 (3d Cir.1996), and United States v. Stewart, 185 F.3d 112 (3d Cir.1999). In Voigt, that court held that “the government must prove by a preponderance of the evidence that the property it seeks under § 982(a)(1) in satisfaction of the amount of criminal forfeiture to which it is entitled has some nexus to the property ‘involved in’ the money laundering offense.” Id. at 1087. Commenting that this burden may be very difficult to meet where property “is commingled in an account with untainted property,” the court rejected the government’s effort to forfeit items of jewelry “purchased with funds from an account into which money laundering proceeds had been commingled with other funds, and after numerous intervening deposits and withdrawals.” Id. at 1087–88. The court held that, in such a situation, funds cannot be traced as a matter of law, and therefore “the government must satisfy its forfeiture judgment through the substitute asset provision.” Id. at 1088 (emphasis added).


[The Commingling in This Case]

In the case at hand, Rothstein’s investors’ funds were deposited in RRA bank accounts and commingled with legitimate income RRA received from the billings of its seventy lawyers, $12 million in the first ten months of 2009 alone. This commingling went on for four years—the duration of Rothstein’s Ponzi scheme. The sheer volume of financial information available and required to separate tainted from untainted monies in this case leads us to the conclusion that it is . . . appropriate to apply the Third Circuit’s rule in Voigt.


[Judge Cohn’s Frustration]

The District Court itself expressed frustration with the tracing methodology the parties employed at the ancillary hearing, which focused on the timing of deposits and withdrawals. The methodology, borrowed from the law of trusts and referred to as the lowest intermediate balance rule (“LIBR”), attempts to divide tainted and untainted money by considering, where a set amount of proceeds is deposited into an account and commingled with other funds, “the account to be ‘traceable proceeds’ to the extent of [the deposited proceeds] as long as the account balance never falls below that sum.” United States v. Banco Cafetero Panama, 797 F.2d 1154, 1159 (2d Cir.1986). The court dubbed the LIBR a “legal fiction,” Record, vol. 13, no. 579, at 12, but acknowledged that, according to the Government’s representation in open court, “all of the interested parties believe LIBR provides the appropriate legal rule here,” id. at 13 n. 8. The Court therefore “honor[ed] the parties’ accord.” Id. at 13 n. 8.

[The Court’s Conclusion]

In sum, if ever there was a case where commingled proceeds “c[ould not] be divided without difficulty” and that therefore required the Government to seek forfeiture pursuant to the statutes’ substitute property provisions, §§ 1963(m) and 853(p), this is that case. For us to conclude otherwise would “render the substitute asset provision a nullity,” Voigt, 89 F.3d at 1087, contrary to the time-honored canon of construction that we “should disfavor interpretations of statutes that render language superfluous,” In re Griffith, 206 F.3d 1389, 1393 (11th Cir.2000) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)). We therefore hold that the District Court erred in ordering forfeiture of the funds as proceeds. Consequently, all proceedings the court held subsequent to the imposition of Rothstein’s sentence must be vacated.

My Thoughts

  • Rothstein obviously retires the trophy for being the worst law partner anyone can have.
  • This is, though, one of those cases that reminds us of a truth that we should not forget: Just because the Government wants to do it and just because the Government wins in the District Court does not mean that they will always prevail. Here we had a Trustee who took on the Government and won. Was he an underdog? Of course he was. And so are we in almost every case, but that doesn’t keep us from doing the best we can for our clients.