Monthly archive

September 2013

September 2013 SDR – Voice for the Defense Vol. 42, No. 7

Voice for the Defense Volume 42, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Michigan Court of Appeals did not unreasonably apply clearly established federal law when it retroactively applied a Michigan Supreme Court decision rejecting the ­diminished-capacity defense to D charged with a murder that occurred several years prior. Metrish v. Lancaster, 133 S. Ct. 1781 (2013).

        The Michigan Court of Appeals’ decision retroactively applying Michigan Supreme Court caselaw that rejected a diminished-capacity defense under Michigan law did not warrant disapprobation as an unreasonable application of clearly established federal law. The Michigan Supreme Court had rejected a diminished-capacity defense that it had reasonably found to have no home in a comprehensive, on-point statute enacted by the Michigan Legislature. The U.S. Supreme Court had never found a due process violation in circumstances remotely resembling inmate’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower-court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fair-minded jurists could have concluded that a state supreme court decision of that order was not unexpected and indefensible by reference to existing law.

When a state’s procedural framework makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance of trial counsel claim on direct appeal, the good cause exception from Martinez v. Ryan, 566 U.S. 1 (2012), applies. Trevino v. Thaler, 133 S. Ct. 1911 (2013).

        A Texas court found petitioner death row inmate’s ineffective assistance of trial counsel (IATC) claim was procedurally defaulted for failure to raise it in initial state post-conviction proceedings. On the inmate’s federal habeas petition, the district court held the procedural default was an adequate state ground barring federal review. The Fifth Circuit affirmed. The U.S. Supreme Court vacated the Fifth Circuit’s judgment and remanded.

        Texas did not expressly require that IATC claims be raised on initial collateral review. Texas law on its face appeared to permit that the claim be raised on direct appeal. But Texas procedure made it virtually impossible for appellate counsel to adequately present an IATC claim on direct review, as the trial record often failed to contain the necessary substantiating information. A motion for new trial was often inadequate because of time constraints and the lack of the trial record being transcribed at that point. In Texas, a writ of habeas corpus issued in state collateral proceedings ordinarily was essential to gathering the facts necessary to evaluate IATC claims. As a systematic matter, Texas did not afford meaningful review of an IATC claim. Where a state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an IATC claim on direct appeal, a procedural default will not bar a federal habeas court from hearing a substantial IATC claim if, in the initial-review collateral proceeding, there was no counsel or counsel was ineffective.

Fifth Circuit

First D’s presence in the truck (along with second D) where marijuana was found was sufficient to confer PC for his warrantless arrest. United States v. Rodriguez, 702 F.3d 206 (5th Cir. 2012).

        First D’s challenge to the search of the cell phone recovered from his person was foreclosed by United States v. Finley, 477 F.3d 250 (5th Cir. 2007), which held that a search incident to arrest of the contents of a cell phone found on arrestee’s per­son for evidence of the arrestee’s crime was allowable. Sec­ond D’s claim—that dog sniff could not enter into determination of probable cause for warrantless search of vehicle, absent evidence of the training and reliability of the detector dog or its handler—was waived because it was not raised in the motion to suppress and, even if reviewed for plain error, was not plainly erroneous because it was foreclosed by circuit precedent.

Although a sentencing court may not consider the mere fact of a prior arrest without more, the court may consider the conduct underlying the arrest provided the conduct is established by an adequate evidentiary basis with sufficient indicia of reliability; such a basis may be established by the presentence report. United States v. Harris, 702 F.3d 226 (5th Cir. 2012).

        The district court is entitled to rely on the PSR unless the defendant objects to the PSR and presents rebuttal evidence. Here, the district court did not rely on just a bare arrest record but rather relied on the PSR’s unrebutted account of the conduct underlying D’s prior arrests; accordingly, the district court did not commit procedural error in this respect.

In prosecution of three police officers arising from the death of a civilian in the aftermath of Hurricane Katrina, the district court did not abuse its discretion in joining one defendant for trial with his two co-defendants pursuant to Fed. R. Crim. P. 8(b); the court did abuse its discretion in denying that D’s motion to sever under Fed. R. Crim. P. 14(a). United States v. McRae, 702 F.3d 806 (5th Cir. 2012).

        The district court did not abuse its discretion in granting another D a new trial on the basis of newly discovered evidence. The evidence, a police report discovered after trial, supported D’s testimony. Moreover, the district court did not err in concluding that the failure to discover the report earlier was not due to a lack of diligence on the part of defendant. Nor did the district court err in concluding that the report would probably produce an acquittal. Accordingly, the Fifth Circuit affirmed the district court’s order granting D a new trial.

Neither possession of cocaine with intent to distribute nor importation of cocaine is a drug-trafficking offense triggering the five-year period of ineligibility for federal benefits. United States v. Silva-De Hoyos, 702 F.3d 843 (5th Cir. 2012).

        Moreover, because D’s convictions supported only a one-year period of ineligibility, D’s substantial rights were affected. However, under the circumstances of this case, the Fifth Circuit declined to exercise its discretion to correct the error on plain-error review, because there was no evidence of any benefit for which D might be eligible and because D was likely to be incarcerated for most, if not all, of the ineligibility period.

District court committed error that was clear or obvious when it treated D’s prior Florida conviction for theft as generic theft constituting an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and USSG § 2L1.2(b)(1)(C). United States v. Medina-Torres, 703 F.3d 770 (5th Cir. 2012).

        Although it was plain error for the district court to enhance the sentence on the basis of the theft conviction, the Fifth Circuit could not tell whether D’s substantial rights were affected because there was another conviction that might possibly support the enhancement. The Fifth Circuit vacated the sentence and remanded for resentencing, with instructions that the government would be allowed on remand to try to es­tablish that the enhancement was supported by the other con­viction.

Inmate had sufficiently exhausted his administrative rem­edies and had offered sufficient evidence to es­tab­lish sincerity of religious belief as a matter of law. Mous­sazadeh v. Texas Department of Criminal Justice, 703 F.3d 781 (5th Cir. 2012).

        Where Texas inmate sued the Texas Department of Criminal Justice for its refusal to provide him with kosher meals, and the district court granted summary judgment for TDCJ based on (1) failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, and (2) lack of sin­cerity of religious belief as required under the Religious Land Use and Institutionalized Persons Act, the Fifth Circuit reversed and remanded.

District court did not err in denying drug D’s motion to suppress arising out of traffic stop; the court did not clearly err in finding vehicular/traffic violations (improper lighting and improper lane usage) justifying the stop at the outset. United States v. Andres, 703 F.3d 828 (5th Cir. 2013).

        Furthermore, the scope and duration of the stop were reasonable. Finally, even if the agents’ warrantless use of a GPS de­vice violated the Fourth Amendment, suppression of the evidence would not be appropriate because, under Davis v. United States, 131 S. Ct. 2419 (2011), searches conducted in ob­jectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule; in December of 2009 (when the GPS tracking occurred) it was objectively reasonable for agents operating within the Fifth Circuit to believe that warrantless GPS tracking was reasonable under United States v. Michael, 645 F.2d 252 (5th Cir. 1981).

Fifth Circuit had jurisdiction to review death-sentenced federal Ds’ claim that the chief judge’s reduction of their expert funding request under the Criminal Justice Act violated due process. United States v. Snarr, 704 F.3d 368 (5th Cir. 2013).

        Unlike In re Marcum, L.L.P., 670 F.3d 636 (5th Cir. 2012), where the Fifth Circuit found it had no jurisdiction to directly review the chief judge’s administrative decision on expert fund­ing, here Ds did not directly appeal the chief judge’s order. Rather, their claim was that as the result of that order, they lacked the funds necessary to present an adequate defense, and therefore they were denied due process. In other words, the appeal in this case related to Ds’ ultimate convictions and sentences, which were appealable final judgments.

District court did not reversibly err in entering an order authorizing the Bureau of Prisons to involuntary medicate D (accused of threatening to kill federal officials) in order to restore him to competency. United States v. Gutierrez, 704 F.3d 442 (5th Cir. 2013).

        The district court’s decision was consistent with the factors that Sell v. United States, 539 U.S. 166 (2003), required to be considered in this decision.

In fraud prosecution, district court erred in submitting a “deliberate ignorance” jury instruction because there was insufficient evidence that D purposefully contrived to avoid learning of the illegality of his conduct; the error was harmless because there was substantial evidence that D had actual knowledge of the illegality of his conduct. United States v. Roussel, 705 F.3d 184 (5th Cir. 2013).

        Secondly, district court clearly erred in finding that more than one bribe occurred, resulting in a two-level enhancement under USSG § 2C1.1(b)(1). District court also clearly erred (by four levels) in its calculation of the fraudulent contract’s expected benefit to D and his co-defendants. Furthermore, these Guideline calculation errors were not harmless, notwithstanding the fact that the district court made a 99-month downward variance to 136 months’ imprisonment, which was within the correct Guideline range; the record did not reflect whether the district court would still have imposed the same sentence even if it had been starting from a range of 121 to 151 months (the correct range), as opposed to starting from the incorrect range of 235 to 293 months. The Fifth Circuit vacated D’s sentence and remanded for resentencing.

Contrary to the decision of the Board of Immigration Appeals, immigrant’s prior Texas conviction for attempted sexual assault did not qualify as an aggravated felony. Rodriguez v. Holder, 705 F.3d 207 (5th Cir. 2013).

        To determine whether immigrant’s prior conviction constituted an aggravated felony for removal purposes, the Fifth Circuit applied the “modified categorical approach.” The approach considered only the statutory definition of the offense of conviction and certain additional documents in the convicting court’s record to determine whether the guilty plea conviction “necessarily” fell under a particular subsection of the statute that meets the aggravated felony criterion. Immigrant’s prior conviction could only be narrowed to one, Tex. Penal Code § 22.011(a)(1). A violation of § 22.011(a)(1) is not categorically a “crime of violence” or an “aggravated felony.” For instance, if the violation was sex between a mental or physical health care provider and a patient, § 22.011(b)(9), or a cleric and a pa­rishioner, § 22.011(b)(10), the offense would not be a “crime of violence” or an “aggravated felony” under 8 U.S.C. § 1101(a)(43). Accordingly, the Fifth Circuit vacated the removal order.

Magistrate judge did not reversibly err when he limited the number of Ds’ relatives who could be present for voir dire. United States v. Cervantes, 706 F.3d 603 (5th Cir. 2013).

        This allowance, combined with the general public’s access to voir dire, adequately protected Ds’ interest in a public trial, satisfying the Sixth Amendment. Given the circumstances (involving both logistical concerns about space and comfort, and concerns about the nature of the case), the magistrate judge had more than one substantial reason justifying a partial closure of voir dire, and the partial closure did not jeopardize Ds’ right to a fair, public trial.

        However, where Ds were possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), it was plain error for the district court to also apply a two-level Guideline enhancement for possession of a firearm under USSG § 2D1.1(b)(1). Accordingly, the Fifth Circuit vacated Ds’ sentences and remanded for resentencing.

Court of Criminal Appeals

CCA altered the parameters of the doctrine of laches as it applies to bar a long-delayed habeas application. Ex parte Perez, 398 S.W.3d 206 (Tex.Crim.App. 2013).

        D was found guilty of murder, and his conviction was affirmed on appeal in 1992. D sought relief under Tex. Code Crim. Proc. art. 11.07, alleging he was denied the opportunity to pursue discretionary review because counsel failed to notify him of the conviction’s affirmance until after the deadline to petition for discretionary review passed. The State invoked the doctrine of laches.

        CCA’s former approach to laches in the habeas corpus con­text “imposed an unreasonably heavy burden upon the State.” Here, CCA adopted a revised approach consistent with the Texas common-law definition of the laches doctrine. In doing so, CCA expanded the definition of prejudice under the existing laches standard to incorporate all forms of prejudice so that a court may consider the totality of the circumstances in deciding whether to hold an application barred by laches. CCA’s revised approach recognized that the former laches stan­dard was too rigid, and some applicants had been per­mit­ted to seek post-conviction relief despite excessive and un­justified delays that prejudiced the State’s ability to defend long-standing convictions. “Given the nature of habeas corpus relief, it is reasonable to permit a court to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of the delay, it is fair and just to grant him relief.” In light of CCA’s revised approach, the court remanded to the trial court to give both applicant and the State an opportunity to present additional evidence.

The house sitter had D’s apparent consent—it is clear and manifest to the understanding that she had his as­sent in fact—to enter his bedroom and use his computer. Baird v. State, 398 S.W.3d 220 (Tex.Crim.App. 2013).

        D hired a caretaker to stay at his home and care for his dog while he was on vacation. During her stay, the caretaker used D’s computer in his bedroom and found child pornography. After the trial court denied his motion to suppress, D pled guilty to 10 counts of child pornography. COA and CCA affirmed.

        The evidence supported a finding that D gave the caretaker apparent consent under Tex. Penal Code § 1.07(a)(11) to enter the master bedroom and use the computer. He invited her to help herself to “anything” and “everything,” and the invitation was not limited to the refrigerator and pantry but was repeated during the house tour, which included his master bedroom. Whatever he might have intended, he told her only that he required her to keep the bedroom door closed to keep the dog out. He did not expressly banish her from the bed­room, nor did he forbid her to use his computer. He did not power the computer down or password-protect it, and he admitted that he allowed his roommate to use it regularly.

The State had not established that D’s discharge from the treatment program presented a sufficient basis to proceed to adjudication that was wholly independent of his claim of Fifth Amendment privilege; COA erred to eschew the constitutional issue. Dansby v. State, 398 S.W.3d 233 (Tex.Crim.App. 2013).

        D argued on direct appeal that his deferred adjudication community supervision was revoked unconstitutionally as a penalty for invoking his Fifth Amendment privilege against self-incrimination by refusing to answer questions during a court-imposed sexual history polygraph examination about past sexual assault offenses. COA declined to reach that issue, holding that D’s community supervision had been legitimately revoked on another basis—that he failed to complete the court-ordered sex offender treatment program that the sexual history polygraph was designed to facilitate. CCA addressed D’s contention that he was essentially discharged from the treatment program because he refused to answer incriminating questions during the course of the polygraph. Because the appellate record admitted a strong inference that D’s unwillingness to incriminate himself was the deciding factor in discharging him from the treatment program, COA could not avoid addressing the constitutional issue. The record did not show that even without refusing to answer what he took to be incriminating questions, D would have been discharged from the program. CCA reversed and remanded to COA.

Hospital employee was a qualified technician under Texas Transportation Code, authorized to take D’s blood. Krause v. State, No. PD-0819-12 (Tex.Crim.App. May 8, 2013).

        After D was arrested for DWI, his blood was drawn at a hospital by a hospital employee. CCA affirmed the denial of D’s motion to suppress. The questions in this case were whether, under Tex. Transp. Code § 724.017, the employee was “emer­gency medical services personnel” and, if so, whether that fact rendered her unable to be a “qualified technician” authorized to take blood specimens in DWI cases. CCA held that the employee was not “emergency medical services personnel” and that she was a “qualified technician” within the meaning of the statute. Although the employee’s job title was “emergency medical technician” and she was licensed as an EMT-I, her primary duty at the hospital was to draw blood in non-emergency situations. She was employed by the hospital to draw samples of blood, was qualified to do so, and had an office in the hospital for that purpose. In addition, her office was a sanitary place. COA was mistaken to conclude that the employee was excluded from taking a blood specimen in this case.

The social expectations for occupants of vehicles were unlike co-tenants in residences; people had a lessened expectation of privacy in vehicles as compared to residences. State v. Copeland, 399 S.W.3d 159 (Tex.Crim.App. 2013).

        An officer was observing a house known for illegal-narcotics activity. He saw a vehicle approach the house and saw passenger D get out, leave his sight, and quickly return to the vehicle. After the vehicle left, officer stopped the driver for a traffic violation. The driver gave officer consent to search the vehicle, but D refused. D claimed to be the owner even though she was not listed on the vehicle registration. She also said she was married to the driver. During the search, officer found two pills. D was charged with possession of a dangerous drug. The trial court granted her motion to suppress. COA upheld the order granting D’s motion to suppress. CCA reversed and remanded for COA to determine whether the trial court’s ruling on the motion to suppress should be upheld on the alternative ground asserted in D’s motion.

        Georgia v. Randolph, 547 U.S. 103 (2006), does not apply to vehicles because the social expectations for occupants of vehicles were unlike co-tenants in residences; people had a lessened expectation of privacy in vehicles as compared to res­i­dences. Vehicle searches are controlled by preexisting law. Because the trial court applied Randolph to vehicles, COA erred by upholding the suppression ruling on that basis.

The offense of falsely holding oneself out as a lawyer did not require a jury instruction as to a culpable mental state beyond the intent expressly prescribed in the plain language of the statute. Celis v. State, Nos. PD-1584-11 & 1585-11 (Tex.Crim.App. May 15, 2013).

        CCA addressed D’s three jury-charge complaints. CCA first held that the trial court properly denied a jury instruction as to a culpable mental state beyond the intent expressly prescribed in the plain language of the statute, Texas Penal Code § 38.122. CCA next held that D was properly denied an in­struc­tion on a mistake-of-fact defense under § 8.02(a) because his requested instruction, based on his alleged mistaken belief that he was licensed and in good standing to practice law in Mexico, did not negate the culpability required for the offense, as § 38.122 did not require proof of a culpable mental state as to the licensing or good-standing elements. CCA further held that the court’s instruction on the definition of “foreign le­gal consultant” within the definition of “in good standing” was not an improper comment on the weight of the evidence because the instruction provided a legally correct definition under Tex. R. Admis. Bar XIV.

No egregious harm resulted from the erroneous jury charge. Gelinas v. State, 398 S.W.3d 703 (Tex.Crim.App. 2013).

        COA reversed D’s DWI conviction. CCA reversed and remanded for COA to address D’s remaining points of error.

        CCA declined to apply the reasoning of Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996), to a jury charge error like that presented. Hutch’s analysis did not attribute the appropriate weight to the various factors in light of the facts. “Hutch was flawed and produces unjust results, and we hereby disavow it. We find the contested jury instruction in the instant case was erroneous, but egregious harm did not result.”

        In erroneous Tex. Code Crim. Proc. art. 38.23 instruction cases, the second Almanza factor should be afforded less weight. That arguments of counsel could be relevant to harm was supported by the fact that the entire third factor of Almanza focused on arguments of counsel. CCA found that the third and fourth factors of Almanza weighing in favor of finding no egregious harm outweighed the first and second factors weighing in favor of finding egregious harm. D was unlikely to have been misled given the fact that common sense, the correct abstract paragraph, and correct jury arguments most likely alerted the jury to the error and allowed them to recognize the mistake and properly apply the law as correctly stated in the preceding sentence.

Trial counsel was not ineffective for failing to assert a mistake-of-fact theory; the record shows that it was an inconsistent, alternative theory, and its inclusion may have lessened the State’s burden of proof. Okonkwo v. State, 398 S.W.3d 689 (Tex.Crim.App. 2013).

        D was convicted for forgery of money. COA reversed, holding that counsel rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact. CCA reversed COA.

        COA properly employed an objective standard to evaluate counsel’s performance by basing its decision not only on counsel’s affidavit, but also on the bases that mistake of fact was D’s only defense and that he would have been entitled to an instruction had he requested it. However, under an objective standard, counsel could not be held ineffective for failing to request a mistake-of-fact instruction because the State had to prove that D knew the money was forged as an element of its case. Furthermore, COA erred by determining that counsel was objectively ineffective in light of the record in this case, which shows that a mistake-of-fact theory was inconsistent with a theory that counsel advanced at trial, and its inclusion may have lessened the State’s burden of proof. Therefore COA erred by determining that the trial court abused its discretion by denying D’s motion for new trial.

D’s double-jeopardy protections were violated because the indictments alleged both threatening with a firearm and threatening with a firearm while committing theft. Ex parte Denton, Nos. 399 S.W.3d 540 (Tex.Crim.App. 2013).

        A county court indicted D in two causes for both aggravated robbery and aggravated assault. A jury convicted him of all counts and sentenced him to concurrent terms of 25 years’ imprisonment for each aggravated robbery and 20 years for each aggravated assault. D petitioned for habeas relief, arguing that the convictions for both aggravated robbery and aggravated assault on each complainant violated double jeopardy. CCA granted relief and set aside the aggravated-assault convictions because they were the lesser convictions.

        The indictments alleged both threatening with a firearm and threatening with the firearm while committing theft, offenses based on the same continuous transaction. The counts for both aggravated robbery and aggravated assault assert that D intentionally or knowingly threatened another person with imminent bodily injury and used or exhibited a deadly weapon during the commission of that offense. The counts for aggravated robbery further allege that D committed theft. Thus, as plead, aggravated assault is a lesser-included offense of aggravated robbery because “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Tex. Code Crim. Proc. art. 37.09(1). If there is no clear legislative intent to punish the offenses separately, multiple punishments for the criminal act is barred.

CCA inferred that D was aware of the range of punish­ment when he entered his guilty plea despite the ab­sence of an admonishment. Davison v. State, No. PD-1236-12 (Tex.Crim.App. May 22, 2013).

        COA held that the trial court erred in failing to admonish D prior to accepting his guilty plea as required by Tex. Code Crim. Proc. art. 26.13(a) but the error was harmless under Tex. R. App. P. 44.2(b). D petitioned against COA’s harm analysis, arguing that COA failed to examine the entire record with a view to what it may reveal he knew when he entered the guilty plea. CCA affirmed COA.

        D’s failure to exhibit alarm at the punishment phase was a circumstance relevant to COA’s harm analysis. Nor did the record refute the inference that D must have been aware of his susceptibility to the greater sentencing range, despite the trial court’s inaccurate admonishment; even at the time of the plea, D must have been aware that the enhancement paragraphs served a purpose, subjecting him to a greater range of punishment.

The Mythology of Non-Refundable Flat Fees

In the months leading up to the proposed rules referendum in 2011, I was exposed to a lot of misinformation about the purported impact of the proposed rules upon my ability to contract for a “non-refundable flat fee.” I even attended a CLE luncheon where the topic was why I should vote against the pro­posed rules because they would have supposedly banned such “non-refundable” fee agreements.

After the overwhelming defeat of the proposed rules, I felt that this was a dead issue into the foreseeable future, probably extending to the end of my own professional career. I believed then, and now, that the proposed rules were defeated largely due to the widespread popular belief—really, superstition—that the proposed rules would have drastically affected our ability to enter into “non-refundable” fee agreements that would protect us from wrongful discharge by a client with a case of “buyer’s remorse” following a great deal of work in a bad case.

Along came Ethics Opinion 611, prohibiting “non-refundable flat fees” outright. Tex. Comm. On Prof’l Ethics, Op. 611, 74 Tex. B.J. 944 (2011). Like many of you, I had the immediate first impression that we, being primarily criminal and family lawyers, were being punished for defeating the proposed rules. I perceived this as an attempt to “back-door” the defeated rules into existence by an undemocratic process.

I became involved in State Bar politics almost entirely due to my desire to get to the bottom of this perceived problem and, if possible, to reverse it. When I was asked to speak at the TCDLA “Jolly Roger” seminar on December 14, 2012, I agreed to speak on the condition that I could speak on the sub­ject of “non-refundable flat fees.” This would finally give me the chance to fully research the subject. At the same time, my fellow State Bar Director, Larry McDougal, also appeared in a Webinar entitled “Ethics of Flat Fee Contracts in Criminal Law,” sponsored by the State Bar, which aired on September 27, 2012. I urge each of you to watch this archived Webinar if you have any further interest in this topic. Larry McDougal and I agree nearly 100 percent on all aspects of this issue. Ethics Opinion 611 really didn’t effectuate much of a change, if any, from the previous body of rules and case law as it related to the concept of a non-refundable flat fee.

One of the most common misconceptions about this entire issue is that Ethics Opinion 611 supposedly banned “flat” (also known as “fixed”) fees. It’s more accurate to refer to a “flat” fee as a “fee cap.” Such a fee agreement does nothing more than limit the amount of the attorney’s fee for a service, which is still perfectly ethical.

After reading Cluck, infra, and Ethics Opinion 431, and discussing this matter with other lawyers, it became clear to me that the proposed rules, if passed, wouldn’t have effectuated much of a change, if any, in the status of either “flat” fees or so-called “non-refundable” fees.

I had heard for years at seminars that I could contract with a client for a “non-refundable flat fee, by using those magic words, that I could then immediately place the entire fee into my operating account, and that I could keep that fee even after termination by a client. Fortunately for me, I never entirely bought into that concept because it was a shaky concept between 1978 and 1986; starting in 1986, it was completely wrong.

Hate to tell you, but we didn’t do a very good job of educating our fellow lawyers about this issue. We haven’t been able to contract for a non-refundable flat fee since 1986. We were all living in a “Fool’s Paradise.” Fortunately for me, my attitude was that, in the rare instance when I had a client with “buyer’s remorse” who didn’t act perfectly delighted to have me as his lawyer, I gave him his money back and told him not to let my door hit him in the posterior. I would rather see a difficult client in my rear-view mirror than at the grievance committee.

My research led me to conclude that this issue evolved in stages and that Ethics Opinion 611 was only—perhaps—the final nail in the coffin of non-refundable flat fees. The original authority allowing such fees was Ethics Opinion 391.

Ethics Opinion 391: Tex. Comm. On Prof’l Ethics, Op. 391 (February, 1978). This opinion was decided under Former DR 9-102. As far as I can tell, this opinion was the original source of an attorney’s contractual ability to contract for a “non-refundable retainer” and to place at least the truly non-refundable portion of the fee into his or her operating account at the very outset of the representation. To the extent that this became standard operating procedure in the criminal practice, it was fairly shaky authority.

Indeed, Ethics Opinion 391 seemed to authorize this practice but then veered off into now-familiar treacherous terrain:

A non-refundable retainer belongs entirely to the attorney at the time it is received in that the fee is earned at the time the fee is received; therefore, it may be placed into the attorney’s general operating account. However, that portion of the advance fee which represents payment for services not yet rendered and which is refundable be­longs in part to the client at the time the funds come into the possession of the attorney and, therefore, must be deposited into a separate, “trust” account. When a client produces one check which represents a non-refundable re­tainer and a refundable advance payment, the entire check should be deposited into the . . . [attorney’s] trust account. Because the attorney may withdraw those funds which are due and owing to the attorney pursuant to 9-102 (A)(2), the attorney may then transfer the funds which represent the non-refundable retainer into his general operating account.

Tex. Comm. On Prof’l Ethics, Op. 391 (February, 1978).

So, a careful analysis of Ethics Opinion 391 shows that even in 1978, the ethics committee was making a distinction between a “non-refundable retainer” and an advanced payment for services to be rendered by an attorney. Ethics Opinion 391 goes on to provide some guidelines for language to be included in a flat fee agreement:

The attorney in such a situation as this should have a thorough understanding with his client as to the ownership of the flat fee paid and whether any part would be refundable in event of discharge. Some attorneys do not have a clear understanding with their client regarding the ownership of a flat fee payable in advance and whether any part would be refundable in event of discharge of the attorney and this should be avoided by a proper understanding and agreement between the attorney and client.

Id.

The above-quoted language provided the underpinnings for flat fee agreements in criminal cases from 1978 until the publication of Ethics Opinion 431 in June 1986. However, even Ethics Opinion 391 went on to state that:

In response to this specific fact situation, the attorney is not entitled to the full use of the fee until that fee has been earned. DR 2-110 (A)(3). There might be some question as to whether the attorney can be required to return an unearned portion of a fee when the client has discharged the attorney without sufficient cause [citations omitted]. Regardless of the resolution of the legal question concerning the ownership of the full fee in such a situation, the fact remains that DR 2-110(A)(3) would require the return of an unearned fee in certain situations and, thus, creates a continuing obligation on the part of an attorney to insure that any unearned portion of a fee be protected and available for recovery by the client.

        At the time the advance fee is paid to the attorney in the fact situation, there is no guarantee that the attorney will be entitled to the full amount. Therefore, the attorney must place those funds into the 9-102 trust account and may withdraw portions of those funds pursuant to DR 9-102(A)(2) when that portion of the fee is due (earned) and not before.

Id.

Therefore, it was my conclusion that even Ethics Opinion 391 did not create a blanket right for attorneys to contract for a truly non-refundable flat fee that could immediately be placed into that attorney’s operating account and exempt that attorney from having to account to a client for the “unearned” portion of the fee following termination of employment. Since Ethics Opinion 391 was decided under the old “D.R.s,” the shaky authority provided by 391 was only quicksand until a very recent article in the October 2012 Texas Bar Journal. See Hamilton, “Is Any Retainer Truly Non-Refundable?,” 75 Texas Bar Journal, No. 9, at pp. 694–696 (2012).

Ethics Opinion 431: Ethics Opinion 431 tightened the screws even further on non-refundable flat fees. Tex. Comm. On Prof’l Ethics, Op. 431 (June 1986). Noting the lack of case law regarding “non-refundable retainers,” this later opinion states:

While a non-refundable retainer is not unethical per se, an attorney may be disciplined for refusing to refund an unearned fee (DR 2-110(A)(3)) or for charging a clearly excessive fee (DR 2-106). This seems to present an ethical dilemma which resolves itself into a question of whether a fee is earned and is it excessive?

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[A] non-refundable retainer agreement which allows an attorney to keep the fee despite his withdrawal or discharge from the case may contravene the requirements of DR 2-110. Such an agreement would appear to deny the client’s right to discharge the attorney if the client believes the retainer is non-refundable even if he discharges the attorney for cause. [¶] If the “retainer” fee is actually an advance payment for services to be performed, the amount of the fee should be related to the services to be performed. If it is not, the fee may be found excessive. An agreement which is actually an advance payment might provide, for example: “Responsibility to provide legal services will be accepted and work begun when attorney receives $___ as an advance retainer against the fees and expenses. [citation omitted]. In such a case, if the client discharges the attorney for cause, that part of the fee which has not been earned must be refunded.

***

A true retainer, however, is not a payment for services. It is an advance fee to secure a lawyer’s services, and re­mu­ner­ate him for loss of the opportunity to accept other employment [citation omitted]. If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer. . . .

        Texas Ethics Opinion 391 is still viable, but is overruled to the extent that it states that every retainer designated as non-refundable is earned at the time it is received. A fee is not earned simply because it is designated as non-refundable. If the (true) retainer is not excessive, it will be deemed earned at the time it is received, and may be deposited in the attorney’s account. However, if the attorney is discharged for cause, or voluntarily withdraws before opportunities have been lost, DR 2-110 imposes a duty upon the attorney to promptly refund an equitable portion of the retainer.

Ethics Opinion 431 reflected the Bar’s growing concern that attorneys were contracting for “non-refundable flat fees” or “retainers,” and then neglecting the client’s matter or, e.g., failing to communicate with the client after representation commenced, getting fired, and then using the “non-refundable” language as an excuse to refuse a demand for a refund or for an accounting.

Opinion 431 also gave rise to the typical language found in many fee agreements, where the agreement stated that, e.g., “the parties recognize that the attorney is foregoing further employment opportunities by agreeing to represent the client,” without any regard to whether this language bore any semblance to reality in the attorney’s practice. Ethics Opinion 431 imposed a duty on a discharged attorney to render an accounting to the dis­charging client and to refund an “equitable portion of the retainer.”

Ethics Opinion 611: Many attorneys who I know and respect opposed the proposed disciplinary rules on the basis that they appeared to prohibit non-refundable flat fees. One ethics professor opined that this was the chief misconception among the Bar that doomed the proposed rules. I personally attended at least one ethics seminar where the presenter opined that the proposed rules would abolish non-refundable flat fees altogether. After the proposed rules were soundly defeated by 80-plus percent of the State Bar membership, many thought that they could resume practicing law with their existing fee agreements intact without becoming further involved in State Bar politics or rule-making efforts.

Like many others, when I received my November 2011 Texas Bar Journal, I flipped through the magazine without much interest, going directly to the Disciplinary Actions and expecting the usual esoterica, when I stumbled upon Ethics Opinion 611. 611 seemed to many of us to be an end-run around the defeat of the proposed rules, perhaps even a form of “punishment” to those who rejected those rules so soundly.

I and many others wondered, “Who are those guys who wrote this opinion?” Texas Gov’t. Code § 81.091 (State Bar Act) provides that the Texas Supreme Court appoints nine members of the State Bar to serve on the Committee on Professional Ethics to serve three-year rotating terms. According to Larry McDougal, the current committee as chosen by the Supreme Court contains not one single criminal defense or family law attorney.

Anyone can request a professional ethics opinion by presenting a question to the State Bar, which will forward the request to the committee chairperson. A minimum of three committee members are required to consider and write the opinion. The opinions are not binding on the Supreme Court. See § 81.092(b). Ethics Opinion 611 bears inclusion herein verbatim because it creates an absolute prohibition of non-refundable flat fees.

THE PROFESSIONAL ETHICS COMMITTEE
FOR THE STATE BAR OF TEXAS
Opinion No. 611
September 2011
QUESTION PRESENTED
Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount initially paid by a client with respect to a matter is a “non-refundable retainer” that includes payment for all the lawyer’s services on the matter up to the time of trial?

STATEMENT OF FACTS

A lawyer proposes to enter into an employment agreement with a client providing that the client will pay at the outset an amount denominated a “non-refundable retainer” that will cover all services of the lawyer on the matter up to the time of any trial in the matter. The pro­posed agreement also states that, if a trial is necessary in the matter, the client will be required to pay additional legal fees for services at and after trial. The lawyer proposes to deposit the client’s initial payment in the lawyer’s operating account.

DISCUSSION

Rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer shall not enter an arrangement for an illegal or unconscionable fee and that a fee is unconscionable “if a competent lawyer could not form a reasonable belief that the fee is reasonable.” Rule 1.04(b) sets forth certain factors that may be considered, along with any other relevant factors not specifically listed, in determining the reasonableness of a fee for legal services. In the case of a non-refundable retainer, the factor specified in Rule 1.04(b)(2) is of particular relevance: “the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. . . .”

        Rule 1.14 deals in part with a lawyer’s handling of funds belonging in whole or in part to the client and re­quires that such funds when held by a lawyer be kept in a “trust” or “escrow” account separate from the lawyer’s op­er­at­ing account.

        Two prior opinions of this Committee have addressed the relationship between the rules now embodied in Rules 1.04 and 1.14.

        In Professional Ethics Committee Opinion 391 (February 1978), this Committee concluded that an advance fee denominated a “non-refundable retainer” belongs en­tirely to the lawyer at the time it is received because the fee is earned at the time the fee is received and therefore the non-refundable retainer may be placed in the law­yer’s operating account. Opinion 391 also concluded that an advance fee that represents payment for services not yet rendered and that is therefore refundable belongs at least in part to the client at the time the funds come into the possession of the lawyer and, therefore, the amount paid must be deposited into a separate trust account to comply with the requirements of what is now Rule 1.14(a). Opinion 391 concluded further that, when a client provides to a lawyer one check that represents both a non-refundable retainer and a refundable advance payment, the entire check should be deposited into a trust account and the funds that represent the non-refundable retainer may then be transferred immediately into the lawyer’s operating account.

        This Committee addressed non-refundable re­­tain­ers again in Opinion 431 (June 1986). Opinion 431 con­cluded that Opinion 391 re­mained viable and that non-re­fund­able retainers are not inherently un­eth­i­cal “but must be utilized with caution.” Opinion 431 additionally con­cluded that Opin­ion 391 was overruled “to the extent that it states that every retainer designated as non-refundable is earned at the time it is received.” Opinion 431 described a non-refundable retainer (sometimes re­ferred to in Opinion 431 as a “true retainer”) in the fol­low­ing terms:

“A true [non-refundable] retainer, however, is not a pay­ment for services. It is an advance fee to secure a law­yer’s services, and remunerate him for loss of the op­por­tunity to accept other employment. . . . If the law­yer can substantiate that other employment will prob­ably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.”

Thus a non-refundable retainer (as that term is used in this opinion) is not a payment for services but is rather a payment to secure a lawyer’s services and to compensate him for the loss of opportunities for other employment. See also Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.—Austin 2007, no pet.).

        It is important to note that the Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer from entering into an agreement with a client that requires the payment of a fixed fee at the beginning of the representation. The Committee also notes that the term “non-refundable retainer,” as commonly used to refer, as in this opinion, to an initial payment solely to secure a law­yer’s availability for future services, may be misleading in some circumstances. Opinion 431 recognized in the excerpt quoted above that a retainer solely to secure a lawyer’s future availability, which is fully earned at the time received, would nonetheless have to be refunded at least in part if the lawyer were discharged for cause af­ter receiving the retainer but before he had lost opportunities for other employment or if the lawyer withdrew voluntarily. However, the fact that an amount received by a lawyer as a true non-refundable retainer may later in cer­tain unusual circumstances have to be at least partially refunded does not negate the facts that such amount has been earned and under the Texas Disciplinary Rules may be deposited in the lawyer’s operating account rather than be­ing subject to a requirement that the amount must be held in a trust or escrow account.

        In view of Opinions 391 and 431, the result in this case is clear. A legal fee relating to future services is a non-refundable retainer at the time received only if the fee in its entirety is a reasonable fee to secure the availability of a lawyer’s future services and compensate the lawyer for the preclusion of other employment that results from the acceptance of employment for the client. A non-refundable retainer meeting this standard and agreed to by the client is earned at the time it is received and may be deposited in the lawyer’s operating account. However, any payment for services not yet completed does not meet the strict requirements for a non-refundable retainer (as that term is used in this opinion) and must be deposited in the lawyer’s trust or escrow account. Consequently, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a lawyer to agree with a client that a fee is non-refundable upon receipt, whether or not it is designated a “non-refundable retainer,” if that fee is not in its entirety a reasonable fee solely for the lawyer’s agreement to accept employment in the matter. A lawyer is not permitted to enter into an agreement with a client for a payment that is denominated a “non-refundable retainer” but that includes payment for the provision of future legal services rather than solely for the availability of future services. Such a fee arrangement would not be reasonable under Rule 1.04(a) and (b), and placing the entire payment, which has not been fully earned, in a lawyer’s operating account would violate the requirements of Rule 1.14 to keep funds in a separate trust or escrow account when funds have been received from a client but have not yet been earned. Any advance payment amount not meeting the requirements for a non-refundable retainer must be deposited in a trust or escrow account from which amounts may be transferred to the lawyer’s operating account only when earned under the terms of the agreement with the client.

CONCLUSION

It is not permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount paid by a client with respect to a matter is a “non-refundable retainer” if that amount includes payment for the lawyer’s services on the matter up to the time of trial.

Appellate Opinions Regarding Non-Refundable Flat Fees & Opinions by Fellow Commentators:

        a. Pre-611 Opinion Regarding “Non-Refundable” Fee Agreements: In Cluck, the attorney agreed to represent a client in a divorce case. The fee agreement provided that the client would pay a “non-refundable retainer” against which fees would be billed. The attorney deposited the funds into his operating account. The client subsequently terminated the attorney because she was allegedly dissatisfied with the lack of progress on her case. The attorney did not refund any portion of the collected fees to the client. The court concluded that the attorney violated Tex. Disciplinary R. Prof. Conduct 1.14(a) because he deposited an advance payment for services, which belonged at least in part to the client, directly into his operating account. The designation of the funds as a “non-refundable retainer” did not relieve the attorney of the duty to hold the funds in a trust account until they were earned. Cluck v. Comm’n for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.—Austin 2007, no pet.).

        In Cluck, the fee agreement provided that, “in consideration of the legal services rendered on my behalf in the above matter I agree to pay . . . [Attorney] a non-refundable retainer in the amount of $ 15,000.” Following that sentence, a handwritten provision explained, “Lawyer fees are to be billed at $150 per hour, first against non-refundable fee and then monthly thereafter. Additional non-refundable retainers as requested.” The contract states that “no part of the legal fee is to be refunded should the case be discontinued, or settled in any other matter.” Id.

        Quoting from Ethics Opinion 431, the Cluck opinion explains that a true retainer “is not a payment for services. It is an advance fee to secure a lawyer’s services, and remunerate him for loss of the opportunity to accept other employment.” Again quoting 431, the Cluck opinion goes on to state that “[i]f the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received.” Id.

        However, Cluck goes on to say that, if a fee is not paid to secure the lawyer’s availability and to compensate him for lost opportunities, then it is a prepayment for services and not a true retainer.” If the (true) retainer is not excessive, it will be deemed earned at the time it is received, and may be deposited in the attorney’s account.” Id. However, money that constitutes the prepayment of a fee belongs to the client until the services are rendered and must be held in a trust account. Tex. Disciplinary R. Prof’l Conduct 1.14.

        “A fee is not earned simply because it is designated as non-refundable.” Ethics Opinion 431. Advance fee payments must be held in a trust account until they are earned. Tex. Disciplinary R. Prof’l Conduct 1.14 cmt. 2 (providing that trust account must be utilized “[w]hen a lawyer receives from a client monies that constitute a prepayment of a fee and that belongs to the client until the services are rendered” and that “[a]fter advising the client that the service has been rendered and the fee earned, and in the absence of a dispute, the lawyer may withdraw the fund from the separate account”); Ethics Opinion 431; see also Tex. Disciplinary R. Prof’l Conduct 1.15(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . refunding any advance payments of fee that has not been earned”). Cluck, id.

        b. Rights of Third Parties to “Non-Refundable Retainer”: C.H.C. revolves around an interesting attempt by a third party to “pierce the veil” [Comment: my words] between the attorney and client in order to disgorge a “non-refundable retainer” from the attorney.

        In the C.H.C. opinion, the wife attempted to collect over $400,000.00 in judgments against the husband. She subpoenaed records from the husband’s attorney which showed that the attorney had received a retainer of $15,000 to represent the husband from the husband’s sister. The wife attempted to obtain a turnover order requiring the attorney to turn over to her all funds held in trust by the attorney on behalf of the husband. In The Interest of C.H.C., 290 S.W.3d 929 (Tex. App.—Dallas 2009). The attorney testified that the fee was a non-refundable retainer and he placed it into his operating account. Therefore, the Court held that the husband did not own the funds paid to the attorney and did not have possession or control over the funds.

        Relying on Cluck, the wife contended that the retainer paid to the husband’s attorney was not a retainer but an advance payment for fees. She further asserted that the unearned portion of the fee belonged to neither the husband’s attorney nor the husband but remained under the husband’s control as a matter of law.

        In C.H.C., the trial court heard conflicting evidence regarding the fee agreement and the ownership and control of the funds paid to the attorney. The wife’s attorney testified that, in his opinion, the “retainer” was an advance payment on fees. The fee agreement stated that the payment was a non-refundable retainer and that one purpose of the retainer was to compensate the husband’s attorney for lost opportunities. The husband’s attorney tes­ti­fied that the fee was a non-refundable retainer and that he had placed it into his operating account. The hus­band’s sister who paid the funds testified that it was her understanding that the $15,000.00 fee was non-refundable, but that if any money was refunded, it would be refunded to her. She further testified that her brother, the husband, did not own the funds and had no right to pos­sess or control the funds. The trial court determined that the husband did not own the funds paid to his attorney and did not have possession or control over the funds. Id.

        c. Suing to Collect a “Non-Refundable” Fee: In Wright, the attorney sued the client’s father, who had agreed to be responsible for the client’s legal fees in an agreement that referred to the fee as a “non-refundable retainer.” The attorney undertook the representation of the client in the federal criminal proceeding without receiving any advance payments, so there were no issues related to depositing client funds in the attorney’s trust account. Gutierrez v. Wright Lawfirm, PLLC, 2012 Tex. App. LEXIS 3353 (Tex. App.—Dallas, Apr. 27, 2012).

        Discussing Cluck, the 5th District Court of Appeals held that Cluck did not involve the validity of a fee agreement, but whether the lawyer violated his ethical duty to hold client funds in his trust account. Cluck did not apply because the attorney never received any amount in advance of performing legal services. Thus, the attorney was never called upon to hold any funds in his trust account. Id.

        Although the agreement called the fee to be paid a “non-refundable retainer,” the fee agreement made it clear that the flat fee was to be paid for services to be performed in investigating and trying to plea bargain the criminal case. Other than using the word “retainer,” nothing in the agreement indicated that the parties intended the fee to be an “advanced fee to secure a lawyer’s services” as opposed to a set fee for services to be performed. To the extent that the client’s father argued that the attorney couldn’t recover the fee because it was never deposited in advance of the work to be performed, the Court rejected that argument. On the facts of Gutierrez, the contract didn’t fail because the fee was described as a retainer rather than a flat fee. Id.

        The 5th Court of Appeals expressed its irritation at the use of the term, “retainer,” as follows:

The word “retainer” has a variety of meanings, including a client’s authorization for the attorney to act in matter, a fee paid simply to have the attorney available when the client needs legal help, a lump-sum fee paid to engage the lawyer at the outset of the matter, and an advance payment for work to be performed in the future. Black’s Law Dictionary 1341-42 (8th ed. 2004). Indeed, over the years, attorneys have used the term “retainer” in so many conflicting senses that it should be banished from the legal vocabulary. . . . If some primordial urge drives you to use the term “retainer,” at least explain what you mean in terms that both you and the client will understand.

Id. (quoting Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics 100, 101 (2d ed. 1988)).

        d. Anyone Can File a Grievance: Neeley is instructive principally because no client was aggrieved by the attorney’s misconduct. The grievance alleging numerous trust account violations was filed by his disgruntled former secretary. Neely v. Comm’n for Lawyer Discipline, 302 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2009). The former employee alleged that the attorney commingled his client trust funds with his personal funds and paid personal bills from the account.

Advisory & Commentator Opinions:

        a. Informal Advisory Letter from Chief Disciplinary Counsel: After Ethics Opinion 611 was published, many attorneys were concerned that the Bar would launch a broad fishing expedition in order to gratuitously in­vestigate lawyers fee agreements and trust accounts and bring grievances against attorneys who didn’t even have an unhappy client. State Bar Director Steve Fischer asked the Chief Disciplinary Counsel, Linda Acevedo, to weigh in on how the Bar would treat violations of 611. Ms. Acevedo responded to Steve’s request on Tuesday, March 27, 2012, as follows:

Dear Mr. Fischer:I trust all is well with you. As you probably know, the entity that issues these ethics opinions is the Professional Ethics Committee, an in­de­pendent committee appointed by the Supreme Court. With that said, actually, neither Opinion 611 nor this office take the position that flat fees are prohibited. The thrust of the opinion is a further fleshing out of what constitutes a true non-refundable retainer (which is earned upon receipt and may be placed in the operating account). The opinion goes on to state that any fee “that includes payment for the provision of future legal services rather than solely for the availability of future services” must be placed in a trust account, which has been interpreted to include a flat or fixed fee. This office does not initiate action against any lawyer for the sole purpose of determining how fees are being handled. In a typical case, we receive a grievance that a lawyer has charged a fee for the representation of a matter, but subsequently does no work or otherwise neglects the case and then takes the position that no part of the fee is subject to refund because the fee was “non-refundable” or was a flat fee. In these cases, our office generally pursues an allegation of neglect and failure to return an unearned fee and decisions regarding any particular case are directed by our client, the Commission for Lawyer Discipline. Regards, Linda A. Acevedo, Chief Disciplinary Counsel, State Bar of Texas

        b. Recent Article in Texas Bar Journal: The State Bar of Texas devoted nearly the entire October 2012 jour­nal to the issue of attorney’s fees in response to the great outcry over 611. One writer gave her perspective on when a retainer might be considered to be truly “non-refundable.” Hamilton, “When is a Retainer Truly Non-Refundable?” 75 Texas Bar Journal, No. 9, at 694–695 (October 2012). Ms. Hamilton starts off by explaining that a “non-refundable retainer” is a payment to secure that attorney’s availability and to compensate that attorney for loss of other employment opportunities. [Comment: It helps me to try to understand this concept to use the metaphor of the rich Texas oilman who provides a retainer to every hot-shot divorce attorney in town to prevent his current wife from being able to hire any of them when he divorces her in order to wed his latest “trophy” wife-in-waiting.]

        611 distinguishes between “true retainers” and a pay­ment to an attorney for services to be rendered, which is what nearly all criminal attorneys appear to be doing, in reality. 611 opines that, even a true “non-refundable retainer” might have to be refunded in the event of discharge for cause and before the attorney actually loses any further employment opportunities. 611 clearly prohibits an attorney from entering into an agreement for a client to pay a “non-refundable retainer” when the Client is actually providing an advance payment for services to be rendered, e.g., up to the time of trial.

        611 discusses the only appellate opinion that directly addressed the issue of “non-refundable retainers” in the context of an actual disciplinary action, Cluck v. Commission for Lawyer Discipline, supra. According to Hamilton’s article, both Cluck and 611 mandate that a two-part analysis shall be utilized in determining the ethics of a “non-refundable retainer.” First, does the representation contemplate that the attorney is to provide future services under the agreement? Second, does the fee agreement clearly communicate that the fee will be fully earned and payable to the attorney (i.e., become truly “non-refundable”) at some specific benchmark of the project? [Comment: I want to emphasize here again that the Cluck opinion preceded the publication of 611 by several years.]

        Cluck held that “a fee is not earned simply because it is designated as non-refundable.” Although Cluck had already ruled that a client must agree to a “non-refundable retainer,” making a written fee agreement essential to that purpose, the circumstances of the attorney-client relationship dictate whether it is ethical to include that language in the contract in the first place. Ms. Hamilton’s article concludes:

If the attorney determines that an advance fee would be reasonable compensation for the likelihood of lost employment opportunities, the attorney may charge a non-refundable retainer. But the attorney must take care to communicate clearly with the client regarding the retainer and ensure that the client understands and unambiguously agrees to the fee’s non-refundable nature.”

Hamilton, id.

Texas Rules of Professional Conduct:

        a. Reasonable Fees: 1.04 Fees (Effective March 1, 2005) (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

        [Now-Defeated Proposed Rule: Rule 1.04. Fees (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a reasonable lawyer would be left with a firm belief or con­viction that the fee is in excess of a reasonable fee.]

        b. Safekeeping Property: Rule 1.14 Safekeeping Property. (a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Such funds shall be kept in a separate account, designated as a trust or escrow account, maintained in the state where the lawyers office is situated, or elsewhere with the consent of the client or third person. Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

        [Now-defeated Proposed Rule: Rule 1.15. Safekeeping Property. (a) When, in connection with a representation, a lawyer receives property that belongs in whole or in part to a client or third person, the lawyer shall safeguard the property and hold it in trust separately from the lawyer’s own property. In addition, the lawyer shall:

(1) deposit any funds into one or more accounts designated as trust accounts, maintained in the state where the lawyer’s office is situated, or elsewhere with the informed consent of the client or third person.
(2) identify any other property as such and safeguard it appropriately; and
(3) create and maintain complete records of all trust-account funds and other property and preserve those records for five years after termination of the representation.}

Conclusions from Recent Developments Regarding “Non-Refundable Flat Fees”:

        a. Set Up a Trust Account According to the Rules: I am amazed as to how many attorneys don’t even have a trust account. If you don’t have such an account, then set one up. You can’t possibly comply with 611 if you don’t even have a trust (“IOLTA”) account.

        b. Have a Written Fee Agreement: You obviously cannot have an understanding with a client about when a fee is fully earned, your sole property, or otherwise available for you to spend unless you have a written fee agreement.

        c. Don’t Use the Term “Non-Refundable” in Your Fee Agreement at All: This language is itself offensive to Ethics Opinion 611. It is a red flag to the Professional Ethics Committee. Use terms such as, “this portion of the fee shall be fully earned by, and become the sole property of the Attorney, upon the occurrence of the following benchmark: ______.” In some circumstances, I believe that it is appropriate to designate an amount of the fee that will become “fully earned and the sole property of the attorney” when “The Work” contemplated by the agreement has commenced and, e.g., the attorney has appeared before a tribunal that would have to approve his or her withdrawal from representation (“Signing Bonus”?).

        In the instance of a “true retainer,” the attorney must have actually incurred “lost opportunities” by taking the employment by the client. A provision in a fee agreement that purports to create an express agreement between the attorney and the client that the attorney is “losing other employment opportunities” by taking the case exalts form over substance and will be disregarded unless the attorney can actually demonstrate that such “lost opportunities” existed.

        If you can actually demonstrate that both you and the client understood in advance that you were going to have to pull an “all-nighter,” or a weekend, to get ready for some part of the project—e.g., forcing you to give away your Super Bowl tickets—make specific note of that and you might be able to truthfully say to some fu­ture grievance committee that some portion of your fee attributable to that project was “fully earned” upon commencement of “The Work” on the project.

        d. Deposit the Entire Fee Into Your Trust Account: I urge that you should place the entire fee into your trust account and only transfer those portions of the fee into your operating account when they become “fully earned and the sole property of the Attorney,” which may be done proportionally, when the agreed “benchmarks of the work” on the project have been reached.

        e. Keep records: On my bigger cases, I have always kept time records. It just makes sense. I have never even considered going to a “paperless” office because those “pass slips” from the courts provide evidence of the services that you performed for the client. My files contain abundant documentation of the ALR hearing demand, discovery requests, discovery reviewed, copious notes pertaining to my DWI video evaluation, witness interviews, and copies of file-marked motions.

        The triggering event for my “pretrial” fee becoming “fully earned and my sole property” is my “final plea” letter, which explains “The Work” performed up to that point in time and how we’ve come to that point where the client either has to accept the plea bargain offer or pay the “Trial Fee” in order to set the case for trial. You should probably also have a “close-out/end of representation/thanks for hiring me” letter in the file, as well. The most conservative lecturers agree that a proper close-out letter always provides a sound basis for you to transfer the balance held in trust to your operating account—assuming no complaints.

        f. The Disgruntled Client: If your client fires you and then demands a refund, you should strongly consider refunding at least a portion of the fee. In the couple of instances when I have signed up a client who later decided that (s)he wanted to hire that other lawyer who was bragging about his or her exploits on Facebook, I asked the client what they thought was fair. I found that what the client thought was fair was also fair to me. A “fee dispute” is always better than a grievance. If the client wants the whole fee back, but you have already provided substantial performance, and passed certain benchmarks in “The Work,” then prepare a legitimate bill to show what you believe that you are reasonably entitled to, and send the client a bill together with a check for the balance.

A PROPOSED FORM “STAIR-STEPPED” FEE AGREEMENT: One thing that my fellow Director, Larry McDougal, avoided was the temptation to provide a form fee agreement. The State Bar steadfastly refused Larry’s requests to provide such a “model” fee agreement. I am providing the following suggested example of what I personally (i.e., not the State Bar of Texas or TCDLA, or anyone else) think might comply with the dictates of Ethics Opinion 611. Remember that you are in a fiduciary relationship with the client. The rules contemplate that a fee agreement between an attorney and client is not an “arm’s length” transaction between two parties with equal bargaining power in spite of the fact that internet search engines and attorney advertising have done much to level the playing field.

This is not a model fee agreement. For one thing, it contains nothing about the “Attorney’s Creed,” which I have heard is supposed to be included in every fee agreement. I confess that I have devoted no research time to that important matter, and you should educate yourself as to that requirement. I urge one of you to submit an article to Voice on that very subject immediately.

I advise you to draft your own fee agreement. As to my fee agreement, feel free to use it, or not, at your own risk. My hope is that this sample fee agreement might provoke some much-needed discussion in this area and that the TCDLA listserve will stimulate other practitioners to provide both constructive criticism and suggestions for additional and revised provisions.

My fellow State Bar Director, Larry McDougal, spent countless hours researching this topic, speaking to State Bar staff, and investigating to discover the reality of how Ethics Opinion 611 came into being and how it will be enforced. Larry was the presenter and co-producer of the 2012 webinar by the State Bar on this topic. He has spoken several times around the state on this topic. Larry and I have compared notes at every stage of our efforts to get to the bottom of this subject, and we are in complete agreement about these conclusions. I also want to thank Brent Mayr. His presentation on this subject at the 2012 DWI Defense Project in Arlington, Texas, provided many useful practice pointers for ethically charging fees in the post-611 environment that I have utilized in the preparation of this article.

Lawrence Boyd’s contract for legal services in criminal cases is available online in the members-only section of the website, www.tcdla.com

Drawing the Blood Test From a DWI Case

The era of the total-refusal DWI case is quickly coming to a close in Texas. Gone are the days of refusing a breath test without concern for something more invasive. DWI blood test trials are the future for the criminal trial attorney. On April 17, 2013, the United States Supreme Court recognized the ease of obtaining a blood search warrant in most metropolitan areas, thereby barring warrantless blood draws without an exigent circumstance—other than the metabolizing or natural dissipation of alcohol in the body.1 Prosecutors in metropolitan areas are already responding by having police document any possible exigent circumstance and demanding blood warrants for every refusal.2 The trickle-down ramification is that “no-refusal” weekends are now every day of the year.3

Regardless, the best defense to winning a DWI blood case may sometimes reveal itself before even attacking the procedures of the blood draw or the analysis of the sample. Every DWI attorney needs to be able to navigate Texas’ blood laws. In doing so, a skilled DWI attorney may discover the perfect angle of attack before trial by systematically analyzing the case and asking the following questions:

Was the client under arrest at the time of the draw?

NO. If the client is not under arrest, then anyone can draw the client’s blood. Implied consent laws only apply if the client is under arrest.

For example, if the client goes to the hospital voluntarily after an accident, the hospital staff may draw his blood for medical reasons with his consent. It is up to the client at that point whether he cares or wants to determine if the blood drawer is a phlebotomist, doctor, nurse, etc. A client may also have blood drawn for general health reasons. In either scenario, the client may give consent to whomever to have his blood drawn—and wherever.

Another example may be when the client comes into a hos­pi­tal unconscious and is left to the expertise of the hospital staff in performing the necessary course of care. If the client is not un­der arrest, it doesn’t mean that a charge may not arise later, but it would require a Health Insurance Portability and Accountability Act (HIPAA) Grand Jury subpoena for the State to obtain the hospital records. Recently, an intoxication manslaughter client was taken to the hospital before police arrived; however, the police took a DPS blood kit to the hospital and demanded the client’s blood, wondering if the client was intoxicated. The client was unconscious, but not under arrest. Accordingly, the implied consent statute is not triggered until sufficient probable cause exists and a person is placed under arrest for DWI.4 So then, the Court must analyze whether any exigent circumstances existed to circumvent the warrant requirement, which will be discussed later.

YES. If the individual is under arrest, then figure out who is asking to draw the blood.

Was the draw done at the request of the police?

NO. If the client is under arrest, yet a police officer is not requesting the blood be drawn and tested, then anyone can draw the client’s blood, depending on the scenario.

For example, if your client submitted to a breath test, but doesn’t trust the Intoxilyzer result, the client may then make arrangements for his blood to be drawn and analyzed.5 This also assumes the police are cooperative in this request; however, if they are not, then that refusal to allow the client to submit a second sample may be admissible in trial.6 The client can have his blood drawn by “a physician, qualified technician, chemist, or registered professional nurse” within two hours of the arrest.7 This is a rare or unlikely scenario where the client is under arrest but the police are not asking for the blood to be drawn or tested and the client is willing to submit to a blood draw.

A second possibility may occur when the client is under arrest and taken to a hospital for medical treatment, but the police do not obtain a warrant and do not ask for the blood at the time it is drawn. Here, the hospital may need to test the client’s blood before administering certain medication or for other medical reasons. The prosecutor typically sends a grand jury subpoena to the hospital for the client’s medical records, including any blood alcohol results, at a later date. In this situation, however, the hospital will most likely use enzymatic assay testing for medical treatment rather than forensically accepted gas chromatography. Hospital enzymatic assay test results should not be forensically acceptable in a subsequent DWI prosecution.8

YES. If a police officer or other law enforcement official is asking for the blood to be drawn, is it with the client’s consent?

Did the client consent to the blood draw?

YES. If the client is arrested, a police officer asks for blood under our Implied Consent statute, and the client consents, then Texas Transportation Code § 724.017 governs who may draw the blood. Section 724.017 states:

(a) Only a physician, qualified technician, chemist, registered pro­fessional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.
(b) The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not re­lieve a person from liability for negligence in the taking of a blood specimen.
(c) In this section, “qualified technician” does not include emergency medical services personnel.9

Additionally, Cavazos requires any phlebotomist that draws the blood, without a warrant and pursuant to 724.017, must be proven up as a “qualified technician” since a phle­bot­o­mist is not specifically included in the job titles defined under 724.017.10 It is the client’s duty, however, to allege the statutory violation before the burden shifts to the State to combat a Section 38.23 suppression issue.11 It’s important to note that emergency medical services personnel (EMS/EMT/ambulance driver/paramedic) may not draw blood based on their title alone.12 However, an EMT or paramedic may be proven up as a qualified technician based on training, education, and skills.13 Additionally, beginning September 1, 2013, House Bill 434 will allow a licensed or certified EMT or paramedic to draw blood under 724.017 so long as they comply with specifications laid out in 724.017(c) as follows:

(c) A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises the provision of emergency medical services by a public or private entity that:

(1) provides those services; and
(2) employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics

(c-1) A protocol developed under Subsection (c) may address whether an emergency medical technician-intermediate or emergency medical technician-paramedic engaged in the performance of official duties is entitled to refuse to:

(1) go to the location of a person from whom a peace officer requests or orders the taking of a blood specimen solely for the purpose of taking that blood specimen;
(2) take a blood specimen if the technician-intermediate or technician-paramedic reasonably believes that complying with the peace officer’s request or order to take the specimen would impair or interfere with the provision of patient care or the performance of other official duties; or
(3) provide the equipment or supplies necessary to take a blood specimen.

(c-2) If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace of­fi­cer, a peace officer must:

(1) observe the taking of the specimen; and
(2) immediately take possession of the specimen for purposes of establishing a chain of custody.14

Of course, as in any other search, consent, assuming it is truly voluntary, is always going to trump your defense challenges to the blood draw. Remember, though, the State must prove voluntary consent by clear and convincing evidence or the results may be suppressed.15 Voluntariness must be examined before any exigent circumstances to the warrant requirement.

NO. If the client is under arrest, police request a blood sample and the client does not consent, then the blood may only be drawn pursuant to a warrant absent exigent circumstances.

Did the police obtain a blood search warrant?

YES. Just because your client declined a voluntary blood draw and the police obtained a sample with a search warrant doesn’t mean that the state will automatically get to use that evi­dence. The Fourth Amendment protects your client against all unreasonable searches and seizures, and any warrant must be supported by probable cause.16

In analyzing a warrant, the lawyer is limited to the “four corners” of the document.17 The warrant should specifically state what is to be taken, by what means, and by whom.18 Analyze every warrant with strict and meticulous scrutiny. Make sure the dates, times, and signatures are all in order. Read the reasonable suspicion for the stop and the probable cause for the search. If you recognize any statements as intentional deception or reckless disregard for the facts, you will need to request a Franks hearing on the validity of the warrant. Before any Franks hearing, however, make sure you have read and understood necessary case law.19

Section 724.017 dictates who may draw blood under the Transportation Code, but it is not an exclusive list. That being said, a judge could allow anyone to draw the blood; but judges, like police, are constrained by the Fourth Amendment, and the terms of a warrant must be reasonable. A judge could allow an EMT or phlebotomist to draw the blood by specifically including those job titles in the warrant, so long as it is reasonable under the circumstances.

That being said, even if a warrant appears sufficient on its face, ask yourself (and your client), was the warrant reasonably executed? Under what conditions was the blood drawn? Did the police use force against your client? Especially in Texas, there are basic standards to be met before the results of your client’s blood draw can be admitted into evidence. The Court of Criminal Appeals has held that the drawer of the blood must inquire into the medical history of the client before piercing the skin.20 Additionally, the police may not use excessive force by assaulting the client in an effort to hold him down for a blood draw.21

Did the police draw blood without a warrant?

YES. On April 17, 2013, the United States Supreme Court handed down Missouri v. McNeely, holding the government’s general interest in combatting drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.22 The Court did not define what factors would establish exigency generally, but left that issue open for a case-by-case analysis based on the “totality of the circumstances.”23

Post-McNeely, the State is now scrambling to prove-up exigency and fight the suppression of involuntary blood draws. Here, any argument made by a prosecutor regarding the inconvenience or impracticability of obtaining a search warrant prior to an involuntary blood draw should be attacked with Clay.24 In Clay, the arresting officer swore to a blood warrant probable-cause affidavit over the telephone and then faxed the signed affidavit to the judge.25 Arguably, it doesn’t get much easier to obtain a blood search warrant. Regardless of technology, however, if the state is arguing that a warrantless blood draw was done pur­suant to the exigency exception to the warrant requirement, you must know your adversary and the resources available to each county prior to litigating the issue.

It is the state’s burden to prove exigency in a particular case after Defendant proves, or the State stipulates, that a warrantless blood draw occurred.26 In doing so, you should anticipate that the arresting officer will testify he could not obtain a warrant in a reasonable amount of time. To effectively rebut this testimony, you will need to present evidence to the contrary. While every case is different, our esteemed colleague and Dean Emeritus of the National College for DUI Defense, Troy McKinney, has suggested that you should know and be able to prove the following, at a minimum, if you want any chance of overcoming an adverse ruling:

1. How many prosecutors were on duty during the relevant time frame;
2. How many magistrates were on duty during the relevant time frame and their locations relative to your officer;
3. Your minimum and maximum relevant time frames. Minimum relevant time frame being from the time of arrest to the time of the blood draw, and maximum relevant time frame being from the time of the arrest to the time of delay or circumstance that justifies the alleged exigency (which may require an expert);
4. Whether your specific officer has ever obtained a warrant in prior cases;
5. What, if any, forms were available for the warrant affidavit;
6. Whether there were other experienced officers on duty and available to obtain a warrant; and
7. Evidence of how long it would have taken to obtain a warrant based upon how long it typically takes in other cases.

Under McNeeley, if a warrant can be objectively reasonably obtained between the time of arrest and the time of the involuntary blood draw, then no exigency exists.27 If, on the other hand, the State alleges circumstances surrounding the arrest of your client created an exigent need to draw blood without a warrant, you will need to be able to rebut the argument and show why your specific facts do not rise to the level of exigency.

Notwithstanding, if the State manages to get around McNeely by proving-up exigent circumstances, then remember, at least for now, that any phlebotomist must be qualified as a “qualified technician” in order for the results of the blood test to be admitted into evidence. An EMT/paramedic may not draw blood on their title alone until September 1, 2013; and even then, the draw must occur in a sanitary place.28

What type of record is the state relying upon?

Knowing what type of records the State intends to introduce or rely upon will dictate the course of action you should take in evaluating the strengths and weaknesses of the State’s case. Most DWI cases involve a blood sample that is analyzed at a police or state-owned forensic laboratory utilizing gas chromatography. The reports produced in such testing are called chromatograms, and they are used by State witnesses in an attempt to prove-up the validity of the analysis and the purported test results from your client’s blood. Alternatively, if your prosecutor attempts to introduce a medical record, make sure the State has properly complied with Texas Rules of Evidence 803(6), the business record exception, and 902(10), requiring an affidavit or custodian of record. Additionally, if your client’s case involves a hospital enzymatic assay test, be sure the prosecutor produces a witness that can satisfy the first prong of Kelly: i.e., “the underlying scientific theory must be valid.”29

In every case, whether by State lab or by hospital test, before a prosecutor reveals the results of your client’s test, or seeks to offer a chromatogram or any opinion of the result of the blood test, make sure that the state has complied with Bullcoming, and that the actual analyst who prepared the sample for testing is available for confrontation and cross-examination.30 Never acquiesce or allow a prosecutor to substitute testimony from any­one other than the actual analyst who prepared the client’s sample for testing. The procedures for proper site preparation, execution of the blood draw, preparation for analysis, maintenance of the instrument/machine, analysis of the sample, and interpretation of the results are each complex areas of attack, and are not addressed in this article.

Without even analyzing how the blood was drawn and tested, an informed trial attorney may sometimes attack and sup­press a client’s blood test long before a jury is present. Texas blood tests are ripe for such challenges. The key is in knowing how to systematically navigate through the quickly developing body of law. As you evaluate each case and ask the few simple questions highlighted in this article, remember to maintain your course and keep the judge up to speed and on course as well. Let your prosecutors know that any attempt to redirect your efforts will be met with knowledge of the law and firm insistence on justice, fairness, and the presumption of innocence.

Notes

1. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 1555 (2013).

2. http://www.tdcaa.com/journal/what-do-about-missouri-v-mcneely.

3. http://www.myfoxhouston.com/story/22859770/2013/07/17/year-round-no-refusal.

4. The first line of Texas Statutory Warning DIC-24 specifically states that the client is “under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place, or water craft while intoxicated or an offense arising under Section 106.041, Alcoholic Beverage Code.”

5. Tex. Transp. Code § 724.019.

6. Tex. Transp. Code § 724.062.

7. Tex. Transp. Code § 724.019(a).

8. See Thiessen, M. “Falsely Elevated Ethanol Results Using Hospital Enzymatic Assay Blood Testing,” TCDLA Voice for the Defense, Vol. 41, No. 3 (April 2012).

9. Tex. Transp. Code § 724.017 (West 2011).

10. Cavazos v. State, 969 S.W.2d 454, 456–57 (Tex.App.—Corpus Christi 1998, pet. ref’d); Tex. Transp. Code § 724.017(a); see also Cordero v. State, 2009 WL 3231504 (Tex.App.—El Paso Oct. 7, 2009).

11. State v. Robinson, 334 S.W.3d 776 (Tex.Crim.App. 2011); Tex. Code of Crim. Proc. § 38.23 (West 2011).

12. See Krause v. State, 368 S.W.3d 863 (Tex.App.—Houston [14th Dist.] 2012)(EMT); State v. Laird, 38 S.W.3d 707 (Tex.Crim.App. 2000)(paramedic) (emphasis added).

13. Krause v. State, 2013 WL 1890731 (Tex.Crim. App. 2013)(reversing Court of Appeals and allowing EMT to be proven up as qualified technician).

14. House Bill 434 (Effective September 1, 2013) http://www.legis.state.tx.us/tlodocs/83R/billtext/html/HB00434S.htm.

15. State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997). citing Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App. 1972).

16. Hughes v. State, 843 S.W.2d 591, 593 (Tex.Crim.App. 1992); Keen v. State, 626 S.W.2d 309, 312 (Tex.Crim.App. 1981); Davis v. State, 27 S.W.3d 664, 667 (Tex.App.—Waco 2000, pet. ref’d).

17. Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992); Oubre v. State, 542 S.W.2d 875, 877 (Tex.Crim.App. 1976); Mayfield v. State, 800 S.W.2d 932, 934 (Tex.App.—San Antonio 1990, no pet.).

18. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

19. Harris v. State, 227 S.W.3d 83 (Tex.Crim.App. 2007); Dancy v. State, 728 S.W.2d 772 (Tex.Crim.App. 1987); Cates v. State, 120 S.W.3d 352 (Tex.Crim. App. 2003); Jones v. State, 907 S.W.2d 850 (Tex.App.—Houston [1st Dist.] 1995).

20. State v. Johnston, 336 S.W.3d 649 (Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 212 (2011).

21. Hereford v. State, 302 S.W.3d 903 (Tex.App.—Amarillo 2009, aff’d.).

22. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. at 1555–56 (2013).

23. Id.

24. Clay v. State, 382 S.W.3d 465 (Tex.App.—Waco 2012), review granted (June 27, 2012).

25. Id. at 465–466.

26. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986)(citing Mattei v. State, 455 S.W.2d 761, 765–66 (Tex.Crim.App. 1970)).

27. McNeely, 133 S.Ct. at 1557–60.

28. State v. Johnston, 336 S.W.3d 649 (Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 212 (2011)(sanitary); Jackson v. State, 2009 WL 1552890 (Tex.App.—El Paso 2009); State v. Laird, 38 S.W.3d 707 (Tex.Crim.App. 2000)(paramedic); Krause v. State, 368 S.W.3d 863 (Tex.App.—Houston [14th Dist.] 2012)(EMT); Krause v. State, 2013 WL 1890731 (Tex.Crim.App. 2013); House Bill 434 (Effective September 1, 2013).

29. Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).

30. Bullcoming v. New Mexico, __U.S__, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); cf Williams v. Illinois, __U.S.__, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

September 2013 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
20 | For the Record: Robert Pelton Honored
24 | The Mythology of Non-Refundable Flat Fees – By Lawrence G. Boyd
34 | Drawing the Blood Test From a DWI Case – By Mark Thiessen & Chris Samuelson

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

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

President’s Message: Is It Time for a Moratorium on Executions in Texas? – By Bobby Mims

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On September 18, the American Bar Association’s Death Penalty Due Process Review Project released its latest report entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report (An Analysis of Texas’s Death Penalty Laws, Procedures, and Practices). The report is focusing on the fairness and accuracy of Texas’ death penalty system. In summary the findings of the report stated: “In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the ad­min­is­tration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state.”

Many of us who have been involved in capital defense for years already know too well the unfairness of the capital murder scheme in Texas. There does not appear to be any consensus among the members of TCDLA about whether the death penalty should be abolished or continue to be implemented. However, there is little doubt that a vast majority of our members support the right to a fair trial under the Constitution and laws of the United States and Texas. In many ways the evils that the Supreme Court found in Furman v. Georgia, 408 U.S. 238 (1972), still prevail in the current death penalty scheme. The report brings into stark relief what Texas capital defenders have been stating for years.

The ABA Team consisted of two law school professors, a former Federal Judge (and now a law-school dean), a former U.S. attorney, the chair of the litigation section of a large civil law firm, a former justice on the Texas Supreme Court, the former chairman of the Texas Department of Corrections, and a former governor of Texas. The importance of the ABA’s report filed by the Texas Capital Punishment Assessment Team is that it takes no position on the death penalty regarding whether it should be abolished or not. Rather, the report seeks to point out the areas where Texas needs to improve the process in order to ensure that the death penalty is administered fairly and constitutionally.

The assessment made several recommendations to help prevent wrongful convictions and improve due process, including requiring the indefinite preservation of biological evidence in violent crimes, abandoning the law’s emphasis on predicting the “future dangerousness” of the defendant in deciding death sentences, and enacting appropriate statutes to deal with capital defendants with intellectual disabilities and severe mental illness. The report commended Texas on recent improvements to its justice system, such as the 83rd Legislature passing and the governor signing the Michael Morton Act. The report commended Texas for adopting better lineup procedures, disclosure of police reports to the defense, and the establishment of Regional Public Defenders for Capital Cases in a large part of Texas and the Office of Capital Writs to provide capital habeas representation throughout the state.

There is no question that the issue of “future dangerousness” is the most confusing to lawyers and judges, but most particularly is confusing to jurors. It’s misleading and “often turns on unreliable scientific evidence,” and, in my opinion, is intentionally “fear based” in an effort to motivate/scare a juror to answer the issue in a manner that will result in the death penalty. As the report properly stated, “the defendant’s alleged future dangerousness is placed at the center of the jury’s punishment decision.” One of the report’s recommendations was that “expert testimony as to a defendant’s propensity to commit criminal acts of violence must be prohibited, whether by statute or by rule.” Some, such as a capital murder juror, will recoil when asked to predict the future in order to decide whether some person lives or dies.

Much has been documented and said about the issue of prosecutorial misconduct and the failure to disclose exculpatory evidence. There have been 12 exonerations of death row prisoners since 1976. The Texas District and County Attorney Association has undertaken to emphasize training in Brady and other issues since the passage of the Michael Morton Act. It is hoped that this will ameliorate in some manner future abuses. However, the fact remains that since 1976, Texas has sentenced to death more than 1,000 men and women who did not have the benefit of protection of the Michael Morton Act. It is unknown if there is an innocent among the nearly 300 who remain on death row. We do know, and the ABA report sets out in stark clarity, the problems with the death penalty scheme in Texas. Presumably each of these inhabitants of Death Row has been tried and convicted under the present law with its imperfections.

Texas leads the nation in executions since 1976 with 504 through September 19, 2013, including 12 so far in 2013. Some members have called for a “Moratorium on Executions in Texas” until these issues have been dealt with by the lawmakers. Certainly our policy makers want a system that is constitutional and fairly implemented if Texas is going to have the death penalty. Under the present state of the law, there may be no mechanism to implement a moratorium. If so, then this is another failure of the law to protect its citizens and should be addressed by the policy makers and the lawmakers. In any event it would seem that it is reasonable to stop any further executions in order to give time for our legislature to hold hearings and to implement changes in the system that are deemed appropriate. After all, if the state seeks to execute one of its citizens it should ensure that all due process has been obtained so that the people can be assured their criminal justice system has not made a mistake.

Now is the time for the governor and the legislature to show leadership on this critical issue of criminal justice and act promptly on considering a moratorium on executions.

There are those who will say that it’s working just fine, and that Texas has made tremendous progress in a more fair crim­i­nal justice system. That may be true, but when lives are at stake and the fairness of our system that decides who should live and who should die is in question, we should make time in our pursuit of justice.

Is it time for a moratorium on executions in Texas?

Bobby Mims
September 2013

Executive Director’s Perspective: Falling Forward – By Joseph A. Martinez

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TCDLA received notice from the Texas Court of Criminal Appeals of the following grant awards for fiscal year 2014 (September 1, 2013, through August 31, 2014).

Criminal Defense Lawyers Project$913,662
Innocence$100,000
Public Defender$33,035

TCDLA will maximize these grants and conduct over 42 seminars in the coming budget year. Seminars/events will be held in cities across Texas. Eight will be online on our TCDLA website. Working together with our public defender offices and our local criminal defense bars, we project we will train 5,500 lawyers in fiscal year 2014.

We thank the entire Texas Court of Criminal Appeals for having the trust and confidence in TCDLA to provide quality continuing legal education to the criminal defense bar. We thank, in particular, Judge Hervey, who is the judicial oversight for the Judicial and Court Personnel Training Fund.

TCLDA also received notice from the Department of Justice through the Texas Court of Criminal Appeals of awarding of the second round of funding for the Capital Case Litigation Initiative (CCLI). CCLI is specialized capital training for both criminal defense lawyers and prosecutors. TCDLA was awarded $99,875 for the next two fiscal years. The Center for American and International Law (CAIL) in Plano will do the prosecutor training.

We thank the Texas Court of Criminal Appeals for their partnering with TCDLA on this most important training as it relates to lawyers who take on clients facing the Texas death penalty. We especially thank Judge Hervey for having the foresight to apply for the funds.

Special thanks to Danny Easterling (Houston) and Grant Scheiner (Houston), our course directors for the 11th Annual Top Gun DWI seminar held in Houston in August. We thank Danny and Grant for their coming up with the idea for a DWI seminar in Houston and twice held in Austin. We thank them for their commitment to quality CLE for our TCDLA members. Thanks to their efforts we had 246 attendees.

Special thanks to Jorge Aristotelidis (San Antonio), President, and the Board of Directors of the San Antonio Criminal Defense Lawyers Association (SACDLA) for allowing TCDLA/CDLP to co-sponsor their Against All Odds: Winning Trial Tactics seminar held in San Antonio in August. Thanks also to Trisha Morales Padia, new SACDLA Executive Director. Thanks to everyone’s efforts we had 95 attendees.

Special thanks to Janet Burnett (El Paso), our course director for the Indigent Defense and the Representation of the Mentally Ill Seminar held in El Paso. Special thanks to El Paso County Judge Veronica Escobar, who presented on El Paso County’s Vision and the Mentally Ill at the seminar. Thanks to everyone’s efforts we had 66 attendees.

Special thanks to Robyn Nance (Amarillo) and Kelly Pace (Tyler), our course directors for the Trial Strategies That Work seminar held in Amarillo. Thanks to their efforts we had 30 attendees.

The Trial Strategies That Work seminar will be held in the following cites and on these dates:

October 25, 2013   Laredo
November 15, 2013   Sugarland
April 4, 2014   Waco
April 11   Beaumont
April 25   Tyler
July 17–18   South Padre Island

John Ackerman is the course director for one of the most important training seminars TCLDA conducts—the 3rd Annual Roundtop seminar. The seminar will focus on Advanced Skills Training—Voir Dire and Opening. There are still openings for this seminar, though space is limited. Please go to our website or call the Home Office for more information.

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

Good verdicts to all.

Federal Corner: August Was the Month for Role Reversals – By F. R. Buck Files Jr.

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For this column, I decided that I would break my mold and try something different. For the past 170+ columns, I have focused on only one case per column, but I saw something in mid-August that was just too good to pass up. Lawyers in two cases were engaging in role reversals. In the Third Circuit, a defendant’s attorney complained of the district court’s refusal to grant use immunity to a defense witness. U.S. v. Quinn, ___F.3d___, 2013 WL 4504647 (3rd Cir. 2013) [En Banc: McKee, Chief Judge, Sloviter, Scirica, Rendell, Ambro, Fuentes, Smith, Fisher, Chargares, Jordan, Hardiman, Greenaway Jr., Vanaskie, and Aldisert, Circuit Judges. (Opinion by Ambro)]. In the Southern District of New York, the prosecutor attempted to assert the attorney-client privilege on behalf of a cooperating witness. U.S. v. Martoma, ___F.Supp.2d___, 2013 WL 4502829 (S.D.N.Y., 2013) [U.S. District Judge Gardephe]. In neither case was the lawyer successful.

United States v. Quinn

[The Facts]

        Keenan Quinn was convicted of the offense of aiding and abetting his co-defendant, Shawn Johnson, in an armed bank robbery. Quinn’s defense was that he did not know that Johnson intended to rob a bank teller at gun point when he drove Johnson to the bank. At the time of Quinn’s trial, Johnson was awaiting sentencing for his conviction for the bank robbery charge. He invoked his Fifth Amendment protection against self-incrimination and refused to testify. Quinn’s lawyer urged United States District Judge Petrese B. Tucker of the Eastern District of Pennsylvania to immunize Johnson so that he could testify on Quinn’s behalf. Judge Petrese refused to do so. After he was convicted, Quinn appealed.

[Excerpts from the Opinion]

THE STATUTORY BASIS OF IMMUNITY

Immunity is a creation of the legislature, the body that defines criminal offenses and their sanctions. It removes “those sanctions which generate the fear justifying invocation of the privilege,” Ullmann v. United States, 350 U.S. 422, 431, 76 S.Ct. 497, 100 L.Ed. 511 (1956), and is akin to “an act of general amnesty,” Brown v. Walker, 161 U.S. 591, 601, 16 S.Ct. 644, 40 L.Ed. 819 (1896).

 Under the federal witness immunity statute, “no testimony or other information compelled . . . (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” 18 U.S.C. § 6002. This is known variously as use and derivative use, or use and fruits, immunity (shortened to use immunity throughout this opinion). Congress has given the Attorney General the authority to exchange the protection of immunity for otherwise incriminating testimony when, “in his judgment,” a witness’s testimony “may be necessary to the public interest.” § 6003(b). Because this protection “is coextensive with the scope of the [Fifth Amendment] privilege against self-incrimination,” a Court can hold an immunized witness in contempt for refusal to testify. Kastigarv. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

***

 Congress granted this authority to the Executive Branch because immunity is a prosecutorial tool. Often those with pertinent knowledge about criminal offenses have engaged in unlawful behavior themselves. Granting immunity enables the Government to elicit testimony that would otherwise be protected by the Fifth Amendment privilege against self-incrimination.

 Congress has not given criminal defendants any similar power to seek immunity for their witnesses. Nor has it authorized the federal courts to immunize a witness. Instead, under § 6002 a district court’s role is to grant immunity when it is requested by the Attorney General or his designee. Though a court reviews the Government’s request for procedural compliance with the statute, it does not consider whether the Government has correctly determined if immunity is in the public interest. Pillsbury Co. v. Conboy, 459 U.S. 248, 254 n. 11, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (“Congress foresaw the courts as playing only a minor role in the immunizing process. . . .”); Herman, 589 F.2d at 1201 (“There is . . . overwhelming judicial and legislative authority for the proposition that review on the merits of a federal prosecutor’s decision to grant immunity is barred by statute.”); see also United States v. Taylor, 728 F.2d 930, 934 (7th Cir.1984) (describing this review as “ministerial”).

***

Quinn fails to show that the Government interfered unconstitutionally with Johnson’s decision not to testify. We thus affirm.

U.S. v. Martoma

[The Facts]

 Matthew Martoma was indicted for one count of conspiracy to commit securities fraud and two sub­stan­tive counts of securities fraud. The indictment al­leged that Martoma received inside information for a cooperating witness—Dr. Sidney Gilman—and traded securities on the basis of that inside information.

 At the time of the conspiracy Gilman was employed by the University of Michigan, and was using computers, an iPhone, an iPad, and five external flash drives belonging to the University.

 Gilman had permitted the FBI to copy the hard-drive of the laptop computer provided by the University. Both Gilman’s counsel and the Government acknowledged that the hard-drive contained potential “confidential information.”

 Gilman resigned from the University of Michigan and returned all the electronic devices that had been issued to him. Gilman asserted that in doing so, “neither [he] nor any other privilege holder waives any applicable privilege(s).” After he was indicted, Martoma requested that the Government produce a copy of Gilman’s hard-drive. Gilman’s counsel advised the Government that some of the documents on the hard-drive appeared to be privileged and the Government declined to comply with Martoma’s request.

 Martoma then moved to compel the Government and/or the University to produce the documents withheld on the basis of Gilman’s assertion of the attorney-client privilege. The Government filed an opposition to Martoma’s motion, asserting the attorney-client privilege. Gilman moved to intervene to oppose Martoma’s motion and for a protective order barring the production of the allegedly privileged communications.

[Excerpts From the Opinion]

THE GOVERNMENT LACKS STANDING TO ASSERT DR. GILMAN’S ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege “can be asserted only by the client (or one authorized to do so on the client’s behalf).” In re Sarrio, S.A., 119 F.3d 143, 147 (2d Cir.1997); see also In re von Bulow, 828 F.2d 94, 100 (2d Cir.1987) (attorney-client privilege “belongs solely to the client”).

 The Government contends, however, that it has standing because it has “a legitimate and compelling interest in acting ethically and consistently with the rules of professional conduct in not releasing to the defendant (or reviewing itself) documents over which a witness has made a non-frivolous claim of privilege.” (Gov’t Br. 8) While the Government may have an ethical obligation to bring the privilege issue to the Court’s attention, that obligation does not confer standing on the Government to assert privilege on Dr. Gilman’s behalf under the circumstances of this case. See United States v. Smith, 454 F.3d 707, 713 (7th Cir.2006)

***

DR. GILMAN’S MOTION TO INTERVENE WILL BE GRANTED

“The Federal Rules of Criminal Procedure make no reference to a motion to intervene in a criminal case.” United States v. Aref, 533 F.3d 72, 81 (2d Cir.2008).

***

Nevertheless, “it is settled law that persons affected by the disclosure of allegedly privileged materials may intervene in pending criminal proceedings and seek protective orders. . . .”

***

A third-party’s reasonable assertion of privilege with respect to documents to be produced in a criminal action is sufficient grounds on which to grant the third-party’s motion to intervene and to consider the merits of that party’s application. Accordingly, Dr. Gilman’s motion to intervene will be granted.

***

For the reasons stated above, the Government lacks standing to oppose Defendant’s motion to compel. Dr. Gilman’s motion to intervene to oppose Defendant’s motion to compel is granted.

My Thoughts

  • When I saw the holding in Quinn, I thought that Quinn’s lawyer had lost his mind when he requested the district court to grant use immunity to a co-defendant; however, I did not realize that this had been permitted in the Third Circuit for more than 30 years. In 1980, United States Court of Appeals for the Third Circuit held that if the Government has refused to immunize the witness, the defendant is entitled to immunity for his witness if the testimonial evidence is “clearly exculpatory and essential to the defense case and… the government has no strong interest in withholding use immunity.” Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) In Quinn, the en banc court over-ruled Smith and brought the Third Circuit in line with the other Circuits.
  • In Martoma, it’s hard to criticize a prosecutor who is being sensitive to a privilege issue. Even though his assertion of the attorney-client privilege was without a basis in law, I appreciated his enthusiasm—and the opinion has some good language about a witness’ right to intervene on a privilege issue.
  • If there is a lesson from these cases, it is this: It doesn’t hurt to reach a little when you’re trying to be a good lawyer.

Said & Done

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Ken Wincorn of Richardson scored a major victory for justice in post-Padilla immigration law recently in District Court No. 4. Defendant, a lawful permanent resident since 2002 with a wife and four U.S. citizen children, faced deportation based on a 2007 deferred adjudication of evading arrest that he pled guilty to based on advice from trial counsel. D’s attorney did not tell him the plea made him deportable, instead telling him not to worry about it. He had no other criminal history. The court agreed with Ken’s writ based on ineffective assistance and lack of adequate translation. The case revolved around the testimony of a client and his prior attorney involving accurate translation of immigration warnings and his right to a fair trial, among other admonitions. The court ruled that if a client did not understand a proceeding or its repurcussions then the trial did not meet our constitutional standards for a fair trial and the case could be reopened. Ken notes that for attorneys whose clients have pled and received deferred adjudication with serious consequences, this is an example that there may be relief. Congratulations, Ken, on a job well done.

Don Flanary of San Antonio came out on top in a highly publicized case recently when the Fourth Court of Appeals agreed with his pretrial writ of habeas corpus and struck down Penal Code 21.15(b)(1), the Improper Photography statue. The court held that the statute is a content neutral restriction on free expression protected by the First Amendment and thus subject to intermediate scrutiny. The court wrote that the statue does not survive intermediate scrutiny, and is void on its face because the statute is overbroad, reaching a substantial amount of constitutionally protected conduct.
 Don argued that “innocent photographers run the risk of being charged with violating the statute.” He told the court: “The statute would like to say, ‘You can imply the intent from the photograph.’ Regulating content based on intent is a regulation of thought.” As he noted later, “If a paparazzi takes a picture of Britney Spears and they publish it to make money selling magazines, that violates the statute.” Don says the State told him at oral argument that if they lost that they would seek discretionary review, so you can probably expect to see the CCA weigh in later. For the nonce, though, score it a big win for Don in a tough case. Kudos for his work requiring more specificity in a statute he judged too broadly written.

Laura McCoy of Mount Pleasant heard the two-word verdict for a client charged with Aggravated Sexual Assault of a Child. Defendant complicated efforts by admitting he was too drunk to recall much about the night in question. But as trial developed, alleged victim recited an ever-evolving recounting of events. Initially, she doesn’t actually recall a rape taking place, but she’s taken to hospital for a SANE exam—no DNA, no sperm, no injuries, no trace evidence. But then she does recall a rape and says she was lying on her side and client assaulted her. Six days later, she further embellishes the story: person lifts covers, gets in bed behind her, she never moves/pretends she is sleeping, person pulls down her shorts/panties to mid-thigh, “sticks it in.” Again, she never moves, bends over, turns over, anything.
 As Laura details, victim actually had a motive for lying. It came out in trial that she actually had some boys over to the house while momma was away that evening and she knew this was forbidden and would result in severe discipline. The lack of any kind of physical evidence whatsoever, and the fact that the story became more and more embellished the more she told it—compounded by the fact that the alleged “rape” was just anatomically impossible—provided the reasonable doubt. The jury was out for only about an hour before returning the two-word verdict. Laura graciously shared credit with her compatriots, saying “Thanks to everyone for their expert advice and tips! This listserve is truly invaluable.” Nice job, Laura.

Cindy Ermatinger and Kirk Lechtenberger scored a notable success recently—two NGs on two sexual assaults and two more on a pair of Aggravated Kidnapping charges in the 40th District Court in Ellis County. Their clients waited 40 months for their trial. They noted that the Ellis County District Attorney’s withheld information for 40 months be­fore releasing exculpatory/Brady evidence as the trial was going on. A hard-fought trial with what they term a couple “Perry Mason moments.” Congratulations, Cindy and Kirk.

Bill Trantham sent out congratulations to former TCDLA president Craig Jett, doling out high praise on the listserve: “He tried a two-day DWI trial here in Denton last Thursday and Friday. This is venue notoriously tough on DWI. He kept the Jury out till 1 am on Saturday, finishing after the courthouse closed at 5 pm on Friday. He did not win, but I bet the prosecutors will be much easier to deal with on Monday. Thanks, Craig. I hope we have more fighters come here.”

In August, the George Roland Scholarship was presented by the Collin County Criminal Defense Lawyers Association to Brian Peck. John Hardin, long-time friend and colleague of George, presented the award to Brian on behalf of the association and Roland family. Brian graduated from Boyd High School in ­McKinney. His parents, Sara and Chris Peck, were in attendance, as were Sharon Roland and Sarah Roland.

For the Record

Our own Robert Pelton received singular recognition in August when Representative Ted Poe of Houston’s 2nd Congressional District read an extended kudo into the Congressional Record. Poe, a former prosecutor and District Court judge in Texas, was effusive in his praise, reading Robert into history:

“Mr. Speaker, I would like to take this opportunity to recognize the remarkable career and outstanding community involvement of a great Texan, devoted public servant and my good friend, Robert Pelton. It is an honor for me to recognize Robert, not only for his numerous professional accomplishments and many contributions to our Houston community and the great state of Texas, but also for his service to our country.

“Robert and I met many years ago while I was working in the Harris County District Attorney’s Office as a prosecutor. Our friendship may have seemed unlikely as Robert, a criminal defense attorney, was more often than not defending the people I was prosecuting. Even though we were on opposing sides, there was a mutual admiration among us that to this day, has not wavered. I am grateful to call Robert a friend.

“Robert’s humble nature comes from his small town roots and strong patriotic upbringing in Abilene, Texas. As a child growing up in West Texas, Robert had a passion for reading. The books Robert read made Texas history come alive and his fascination with Texas legends and lawyers took root. He began to notice how folks less fortunate were mistreated and taken advantage of in his small town. So, at the young age of 14, he made up his mind to become a great lawyer, like the heroes he read about in his books. Robert still likes classic old west movies about good guys and outlaws.

“His West Texas roots taught him that his word was his bond. He lives by that character trait.

“Like many honorable men, Robert wanted to serve our nation and enlisted with the Texas Army National Guard. He trained as a combat infantryman, a job that is not for the weak of heart, with the 36th Infantry Division. After honorably serving from 1966 to 1972, Robert was discharged with the rank of Sergeant (E-5). Still determined to become a lawyer, Robert enrolled with South Texas College of Law after graduating from McMurry College in Abilene. During law school, he served as Chief Prosecutor of the Honor Court and as a Justice on the Honor Court. And the rest is history.

“During his internship with the famous attorney Jim Skelton, Robert worked on a case where Mr. Skelton represented David Owen Brooks—a defendant in the largest mass murder case in the United States at the time. After helping with this case, Robert realized that his calling was to defend those accused of crimes.

“Since May 1975, Robert has represented numerous people during his legal career. Of all of his clients, a highlight in Robert’s legal career was representing the late Marvin Zindler, as his personal lawyer for over 30 years. Marvin Zindler was known for his consumer reporting—on ABC News on channel 13—one of the first in the business to do so—letting the unsuspecting public in on the down and dirty dealings of local businesses throughout Southeast Texas. Marvin was a fighter for the little man and defended those who were swindled or scammed—seeking retribution the best way he knew how, with a bright light, an all-seeing camera lens, and a television audience. It makes sense that Robert represented this local legend.

“Robert’s extensive knowledge of the justice system and his incredible work ethic earned the respect of his colleagues in the law profession. Over 50 of Robert’s felony criminal cases have resulted in no-bills due to the Grand Jury Defense presentations that his team worked on. In 2012, he helped prove a wrong man had been arrested, which resulted in another capital murder case being dismissed. The impact of Robert’s work is far reaching.

“Over his career, Robert has maintained a strong focus on ethics and has received numerous accolades. He is the Founder and Chairman of the Ethics Committee for the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association. In 2011, he recognized a need for criminal defense attorneys to have access to an ethics hotline and urged the Texas Criminal Defense Lawyers Association to create one. In addition, Robert has been named by H-Texas Magazine as one of Houston’s Best Criminal Defense Lawyers each year from 2004 to 2010 and as well as one of Houston’s “Top Lawyers for the People” each year from 2004 to 2010. In 2012 and 2013, Robert received the President’s Award from the Texas Criminal Defense Lawyers Association in recognition of his excellent work during those years. In addition to these honors, Robert has recently been named by the College of the State Bar of Texas as the recipient of the Jim D. Bowmer Professionalism Award for 2012. This high honor is awarded annually to an outstanding College member based on achievement or contribution to professionalism. Robert continues to contribute to the legal profession by authoring monthly columns in The Defender and the Voice for the Defense magazines. He also serves on the faculty of the Center for American and International Law.

“In addition, there are books written about several of his high-profile cases, including Ashes to Ashes and another book about Pam Perillo, who was eight hours away from execution, but because of a writ hearing in Federal Court that Robert filed, her life was spared. Several of his well-known cases, were documented on national TV specials: “Women on Death Row” and “Caught on Camera.”

“As a former prosecutor and then judge, I know how consuming this career can be. But, I also know how meaningful and rewarding it can be. Robert’s innovation, determination, and compassion for helping others makes him one of the best attorneys in the nation. I am truly blessed to consider him one of my dearest friends and am honored to give him the recognition that he deserves.

“And that’s just the way it is.”

July/August 2013 SDR – Voice for the Defense Vol. 42, No. 6

Voice for the Defense Volume 42, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant. Missouri v. McNeely, 133 S. Ct. 1552 (2013).

        D’s motion was granted to suppress the results of a blood test where his blood was taken for chemical testing without obtaining a search warrant. The Missouri Supreme Court affirmed the grant of the motion. Certiorari was granted to resolve a split of authority; the U.S. Supreme Court affirmed the Missouri Supreme Court.

        The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. The Court held that it did not. While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances. Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.

If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

        The Board of Immigration Appeals affirmed an immigration judge’s deportation order that found petitioner’s conviction for possession of marijuana with intent to distribute under Ga. Code § 16-13-30(j)(1) was an aggravated felony and a Controlled Substances Act (CSA) offense. The Fifth Circuit denied review. The U.S. Supreme Court reversed and remanded.

        Illicit drug trafficking, a generic crime and aggravated felony, encompassed all state offenses proscribing conduct punishable as a felony under the CSA. The generically defined federal crime in 21 U.S.C.S. § 841(a)(1) was any felony punishable under the CSA, 18 U.S.C.S. § 924(c)(2), not just any CSA offense. The alien’s conviction could correspond to either the CSA felony or the CSA misdemeanor. That ambiguity meant the conviction did not “necessarily” involve facts that corresponded to an offense punishable as a felony under the CSA. Under the categorical approach, the alien was not convicted of an aggravated felony. Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, did not fit easily into the everyday understanding of trafficking, which ordinarily meant some sort of commercial dealing. It was not sensible that a state statute that criminalized conduct that the CSA treated as a misdemeanor should be designated an aggravated felony.

Fifth Circuit

Sexual assault of a child is firmly considered statutory rape and, therefore, a crime of violence. United States v. Cabecera Rodriguez, 698 F.3d 220 (5th Cir. 2012), reh’g en banc granted, 701 F.3d 1080 (5th Cir. 2012).

        Graves concurred, rejecting the age-differential argument but urging review of the question of the generic age of sexual consent, given conflicting Fifth Circuit decisions.

Contrary to the district court’s finding, the hearing on Texas prisoner’s competency to be executed was procedurally sufficient. Green v. Thaler, 699 F.3d 404 (5th Cir. 2012).

        The district court ruled that the state competency proceeding violated due process by failing to allow D to call forth fact witnesses who would testify as to his medical records and by failing to apply the proper constitutional standards. The Fifth Circuit held that the competency hearing did not violate due process because D was able to testify and introduce expert testimony, including medical records stipulated as accurate. D failed to present clear and convincing evidence to rebut the presumption in favor of upholding the state court’s competency finding. The Fifth Circuit also rejected the contention that habeas findings adopted verbatim from those submitted by the State are not entitled to deference. The Fifth Circuit vacated the district court’s stay of execution.

        Green v. Thaler, 133 S. Ct. 474 (2012), denied a subsequent application for stay of execution.

District court had no authority to strike the appeal-waiver provision of D’s plea agreement with the government; district court’s authority was limited to either rejecting the agreement or accepting it in full. United States v. Serrano-Lara, 698 F.3d 841 (5th Cir. 2012).

When a federal district court sentences a defendant without ordering restitution and finds that 18 U.S.C. § 3663A(c)(3) applies (that it is simply too burdensome or complicated to calculate restitution), the mandate in § 3663A(a)(1) that a court shall order restitution does not authorize that court to reopen its sentencing judgment to add a restitution order. United States v. Murray, 700 F.3d 241 (5th Cir. 2012). 

        Given that the district court had declined, at Ds’ sentencings and in reliance on § 3663A(c)(3), to impose restitution, it had no authority to reopen the proceedings several months later and impose restitution. Dolan v. United States, 130 S. Ct. 2533 (2010), was distinguishable because § 3663A(c)(3) (which is applicable only to property crimes) was not implicated in the restitution order at issue in that case (for assault). The Fifth Circuit reversed Ds’ restitution orders.

        Secondly, the appeal-waiver provision of one D’s plea agreement—barring an appeal of the “sentence imposed”—did not bar D’s appellate challenge to the district court’s belated imposition of a restitution order. Plea agreements do not bar appellate claims unless the plain language of the plea agreement unambiguously applies to the claim. Here, it was not just plausible—it was more likely that the appeal waiver was not meant to apply to D’s claim that the restitution order was imposed outside the authorized sentencing process.

D’s federal conviction for conspiracy to distribute meth­amphetamine, a violation of 21 U.S.C. § 846, was a drug trafficking offense supporting a 16-level enhancement under USSG § 2L1.2(b)(1)(A)(i). United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012).

In order to convict a defendant under 18 U.S.C. § 2251(a), the government is not required to prove that the defendant knew of the interstate nature of the materials used to produce the images of child pornography at issue. United States v. Terrell, 700 F.3d 755 (5th Cir. 2012).

        Nor is there any requirement that the individual who exploited the child also be the person who produced the images.

Where Texas state prisoner initially presented a “mixed” federal habeas petition (with one exhausted claim and various unexhausted claims) and, although the ex­hausted claim was dismissed with prejudice on the mer­its, the unexhausted claims were dismissed without prej­u­dice due to failure to exhaust prisoner’s subsequent federal habeas petition, raising only the previously unexhausted (but now exhausted) claims was not an unauthorized second or successive petition. Strickland v. Thaler, 701 F.3d 171 (5th Cir. 2012).

        The Fifth Circuit reversed the district court’s dismissal of that petition and remanded.

District court committed error that was clear or obvious when it ordered D’s supervised-release-revocation sentence to run partially concurrently with a state sentence D had already served. United States v. Kirklin, 701 F.3d 177 (5th Cir. 2012).

        Neither 18 U.S.C. § 3584(a) nor any other provision authorizes an order that a sentence be served concurrently with a discharged state sentence; indeed, that would make no sense. However, under the third and fourth prongs of plain-error review, the Fifth Circuit declined to vacate the sentence. Even as of the date of the opinion, D was due to be released in less than 30 days, and even more time would have passed by the time it was possible to resentence D. A reduction of no more than a few days was possible, and it was not evident that the district court would make even that reduction. Under these circumstances, D’s substantial rights were not affected, and failure to correct the error would not impugn the fairness, integrity, or public reputation of judicial proceedings.

D’s two convictions and sentences—one for possession of a firearm and one for possession of ammunition—vio­lated Double Jeopardy because the record did not show that the firearm and ammunition were received or possessed on different occasions. United States v. Meza, 701 F.3d 411 (5th Cir. 2012).

        Fifth Circuit sua sponte noticed that D’s two separate convictions and sentences under 18 U.S.C. § 922(g)(1)—one for felon in possession of a firearm and one for felon in possession of ammunition—were multiplicitous and violated the Double Jeopardy Clause. The error met the standard for correction on plain-error review because D received consecutive 120-month sentences (the statutory maximum) on each count for a total sentence of 240 months, whereas he was properly subject to no more than 120 months. The Fifth Circuit vacated D’s sentences and remanded for dismissal of one of the counts at the government’s election, to be followed by resentencing on the remaining count.

Upon granting the victim mandamus review, the Fifth Circuit found no generalized proximate cause requirement for child pornography victim to recover restitution from a defendant possessing images of her abuse. In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012) (en banc).

        Nothing in the Crime Victims’ Rights Act (CVRA) grants crime victims the right to appeal; the CVRA grants crime victims only mandamus review. The Fifth Circuit pretermitted the question whether to apply the slightly less onerous supervisory mandamus power of review to victim’s mandamus petition, as she was entitled to mandamus relief even under traditional mandamus review.

        Except for the “catch-all” provision of 18 U.S.C. § 2259(b)(3)(F), a restitution award under § 2259 does not require proof that the offender’s conduct was the proximate cause of the victim’s losses. Thus, § 2259 requires a district court to engage in a two-step inquiry. First, the district court must determine whether the person seeking restitution is a crime victim under § 2259(c). Second, the district court must ascertain the full amount of the victim’s losses as defined under § 2259(b)(3)(A)–(F), limiting only § 2259(b)(3)(F) by the “proximate result” language contained in that subsection, and craft an order guided by the mechanisms described in § 3664 with a particular focus on its mechanism for joint and several liability. Under this standard, victim was entitled to a remand for entry of a restitution order reflecting her full losses, not limited by any proximate-cause requirement; however, as to the second defendant, because only he appealed, and neither the government nor the victim sought review of the restitution order, the Fifth Circuit could not, consistently with Greenlaw v. United States, 554 U.S. 237 (2008), order the restitution order to be increased, even though the district court erred in failing to award the victim the full amount of her losses. NOTE: The federal circuits are divided on this issue.

Because 21 U.S.C. § 844 defendant’s five-year prison sentence and three-year supervised-release term exceeded the maximums authorized by the post-Act version of § 844, the Fifth Circuit vacated D’s sentence and remanded. United States v. Berry, 701 F.3d 808 (5th Cir. 2012).

        The holding of Dorsey v. United States, 132 S. Ct. 2321 (2012)—namely, that the Fair Sentencing Act of 2010’s reduction in the statutory penalties of 21 U.S.C. § 841 applies to pre-Act offenders sentenced after the Act’s effective date—applies with equal force to the Act’s reduction in the statutory penalties of § 844 (penalizing simple possession).

Court of Criminal Appeals

Officer lacked reasonable suspicion to stop D for the traffic code violation. Abney v. State, 394 S.W.3d 542 (Tex.Crim.App. 2013).

        D filed a motion to suppress evidence after he was found in possession of marijuana during a traffic stop. The trial court denied the motion, and D subsequently pled nolo contendere to the possession charge. D appealed the conviction, and COA held that the trial court did not err by denying his motion to suppress. CCA reversed COA.

        COA erred when it held that officer had reasonable suspicion to stop D for the traffic violation under Tex. Transp. Code § 544.004 of driving in the left lane without passing when a sign prohibited such action. Officer did not provide specific, articulable facts that would lead him to reasonably suspect un­der U.S. Const. amend. IV that D was engaged in a traffic of­fense because there was no evidence to support an assumption that D had driven past the sign, other evidence indicated that the sign was actually located 27 miles away from the stop, and the facts supported that D was driving in the left lane to make a left turn, which would be an appropriate action as it was clearly illegal to make a left turn from the right lane.

COA erred in finding that D’s prior North Carolina conviction for “Taking Indecent Liberties With Children” was substantially similar to the narrower Texas offense of “Indecency with a Child.” Anderson v. State, 394 S.W.3d 531 (Tex.Crim.App. 2013).

A complete analysis of the rejection of D’s lesser-included offense instruction would have considered intermediary offenses and the offenses that were submitted to the jury. Hudson v. State, 394 S.W.3d 522 (Tex.Crim.App. 2013).

        D was convicted of capital murder and sentenced to life in prison for intentional murder of her 13-year-old adopted son in the course of a kidnapping, in violation of Tex. Penal Code § 19.03(a)(2). COA reversed, finding that D should have received a requested jury instruction on the lesser-included offense of manslaughter, § 19.04. CCA reversed COA and remanded.

        The jury charge contained instructions regarding two lesser-included offenses: murder, § 19.02(b)(1), and injury to a child, § 22.04(a)(1). The victim had been beaten with a cord, a mop handle, a rake, and a baseball bat; there was evidence that the victim had also been confined to his room and deprived of food for days. First responders noticed bruising stripes from the boy’s neck to his feet. D’s statements indicated that she was seeking to discipline him. COA conducted its error analysis without considering possible intermediate lesser-included offenses that the evidence might have supported, and it conducted its harm analysis without considering the lesser-included offenses that were actually submitted to the jury. A complete analysis of whether a manslaughter instruction should have been given would consider whether the evidence established one of these offenses and whether such a circumstance prevented D from being entitled to the submission of manslaughter.

Because the law of parties was in the abstract portion of the jury charge and was supported by sufficient evidence, it should be taken into account for the purpose of determining whether to submit a lesser-included offense; in light of the law of parties, there was no evidence that D committed only the crime of robbery. Yzaguirre v. State, 394 S.W.3d 526 (Tex.Crim.App. 2013).

        COA reversed D’s conviction of aggravated robbery and remanded for a new trial on the basis that the trial court committed some harm by not submitting the lesser-included offense of robbery. CCA reversed COA and affirmed the trial court.

        COA held that the charge did not allow the jury to convict D under the law of parties because it was not contained in or referred to by the jury charge’s application paragraph. Consequently, COA concluded that D’s testimony that he did not have a weapon was sufficient to raise the lesser-included offense of robbery. CCA held that because the law of parties was contained in the abstract portion of the jury charge and was supported by sufficient evidence, it was an issue that should be taken into account for the purpose of determining whether to submit a lesser-included offense. Because there was no evidence, in light of the law of parties, that D committed only the crime of robbery, the trial court was correct to deny the submission of the lesser-included offense of robbery.

As a temporary guest in a hotel room, D did not have the objective expectation of privacy of overnight guests. Ex parte Moore, 395 S.W.3d 152 (Tex.Crim.App. 2013).

        A motion to suppress evidence found during the execution of a search warrant on a motel room was denied, and D was convicted of possession of cocaine. The trial court recommended denying habeas corpus relief. In denying relief, it was determined that counsel was deficient due to a waiver of the complaints raised in the motion to suppress. CCA denied habeas corpus relief.

        No prejudice resulted from counsel’s deficient performance because D did not have standing to challenge the search of the motel room under Tex. Const. art. I, § 9 and U.S. Const. amend. IV. Overnight guests of a registered hotel guest shared the registered guest’s reasonable expectation of privacy in the hotel room. Whether a temporary guest shared in the registered guest’s reasonable expectation of privacy is determined by evaluating the totality of the circumstances. D’s subjective expectation of privacy was not one that society was prepared to recognize as objectively reasonable under the circumstances. He was not a registered guest of the room, and he had no property or possessory interest therein. There was no evidence that he had personal belongings in the room or that he intended to stay overnight.

Tex. Fam. Code § 51.095(a)(1)(A) does not prohibit the presence of law-enforcement officers when a magistrate reads the required statutory rights to a juvenile. Herring v. State, 395 S.W.3d 161 (Tex.Crim.App. 2013).

        Defendant juvenile filed a motion to suppress his signed statement confessing to an aggravated robbery, but the motion was denied. D was found guilty of aggravated robbery. COA and CCA affirmed.

        D argued that his statement was taken in violation of Tex. Fam. Code § 51.095 because armed law enforcement officers were present when he was given the magistrate’s warnings. Be­cause § 51.095(a)(1)(A) did not explicitly prohibit the presence of law enforcement officers when a magistrate read the required statutory rights to a juvenile, while other subsections of § 51.095 expressly forbade the presence of law enforcement officers during other kinds of proceedings, CCA concluded that the legislature expressed its intent that such a prohibition should not apply to the reading of the statutory warnings.

The record did not support officer’s warrantless entry into D’s home because nothing suggested that destruction of evidence was imminent; however, COA failed to address the contention that officer’s entry was justified by a belief that the child required immediate aid. Turrubiate v. State, 399 S.W.3d 147 (Tex.Crim.App. 2013).

        A police officer had been informed by an investigator with the Texas Department of Family and Protective Services that a strong odor of marijuana was emanating from D’s home. The six-month-old child of D’s girlfriend lived at the home. When officer knocked on the door, D cracked open the door, and officer smelled marijuana. Officer determined that entry was required to prevent the marijuana from being destroyed. He forcibly entered the home and D was arrested. The trial court denied D’s motion to suppress, and he was convicted of possession of marijuana. COA reversed the order denying D’s motion to suppress. CCA reversed and remanded to COA to decide the State’s arguments with regard to the safety of the child.

        Nothing in the record suggested that destruction of evidence was imminent. D did not engage in any conduct suggesting that he intended to destroy evidence. The record did not support officer’s warrantless entry into D’s home on that basis. However, COA erred in failing to address the State’s contention that officer’s entry was justified by an objectively reasonable belief that the child required immediate aid.

D could not be ordered to pay court-appointed attorney’s fees because the court made no findings to disprove D’s indigence. In re Daniel, 396 S.W.3d 545 (Tex.Crim.App. 2013).

        Inmate applicant filed a habeas corpus writ in the District Court of Bexar County challenging the clerk’s assessment of appointed attorney fees as a cost of court. The Bexar County District Clerk had issued the bill of cost more than nine years after applicant’s conviction and sentence. In addition to the $295 that was specifically assessed in the judgment as court costs in 2002, the belated bill of cost assessed a cost for an appointed attorney for $7,945. Applicant alleged that as of the time of his trial and appeal nine years earlier, he had been declared indigent. The trial court recommended that the writ be granted. CCA ordered the district clerk to amend the bill of cost to remove the charge for counsel fees.

        The clerk’s 2011 bill was not predicated upon any findings whatsoever with respect to the critical elements of Tex. Code Crim. Proc. art. 26.05(g)—D’s financial resources and ability to pay as of the time of trial. Because no such findings were made, there was no basis for the assessment of attorney fees. CCA treated the pleading as an application for writ of mandamus to compel the clerk to remove the attorney’s fee charge. The challenge was not the proper subject of a statutorily governed post-conviction application for writ of habeas corpus because it did not implicate the fact or duration of D’s confinement.

D did not forfeit his restitution order objection; he had no opportunity to object and thus could not have preserved error. Burt v. State, 396 S.W.3d 574 (Tex.Crim.App. 2013).

        A jury convicted D of misapplication of fiduciary property. The judgment contained a restitution order for $591,785. D filed a motion for new trial, but it was denied. COA affirmed, holding that under Tex. R. App. P. 33.1(a), D had failed to preserve the restitution issues by failing to raise them in the trial court. CCA reversed and remanded to COA for consideration of the merits of D’s restitution claims.

        CCA found that in the circumstances surrounding the judg­ment, D did not forfeit his complaint as he had no opportunity to object and therefore could not have preserved error. D could not have objected during the oral pronouncement because at that point, he could not have known that the sentence in the written judgment would be different from the orally pronounced sentence, or that there might be error in the amount of restitution. Similarly, when D filed his motion for new trial, the written judgment had not yet issued, so D could not have known to include the restitution issues in the motion. The trial court ruled on the motion for new trial that same day, thus preventing D from amending the motion to include the restitution issues.

D’s conviction for fraudulent use or possession of identifying information did not violate the in pari materia doctrine; the statute does not conflict with the failure to identify statute because the statutes differ in meaningful ways. Jones v. State, 396 S.W.3d 558 (Tex.Crim.App. 2013).

        D was convicted under Tex. Penal Code § 32.51(b) for fraudulent use or possession of identifying information. D argued that her conviction under § 32.51(b) violated the doctrine of in pari materia because that statute conflicted with Tex. Penal Code § 38.02, the statute defining the offense of failure to identify, which carried a lower penalty. D argued that she should have been charged under § 38.02(b), the more lenient statute. CCA agreed with COA that the in pari materia doctrine did not preclude D’s prosecution under § 32.51. Section 38.02 applied to a much narrower class of persons than § 32.51. The plain language and placement of each statute in the Texas Penal Code also indicated that § 32.51 and § 38.02 did not have the same subject or purpose. Moreover, neither offense appeared to be a more narrowly hewn version of the other. Because the in pari materia doctrine sought to give full effect to legislative intent, § 32.51(e) was the most authoritative proof that the legislature did not intend to limit the State to prosecution under § 38.02 in circumstances in which § 32.51 was equally applicable. Thus, given that § 32.51 and § 38.02 had different subjects and purposes and were aimed at different groups of people, it was clear to the court that the two were not in pari materia, particularly in light of § 32.51(e).

The outcry statute is a hearsay exception statutorily limited to live testimony of the outcry witness; the child-complainant’s own videotaped statement does not meet the requirements for being admitted under that statute. Bays v. State, 396 S.W.3d 580 (Tex.Crim.App. 2013).

        D was convicted of indecency with a child by contact under Tex. Penal Code § 21.11(a)(1). COA reversed. CCA affirmed COA.

        The trial court impermissibly admitted the child victim’s videotaped statement under the outcry statute, Tex. Code Crim. Proc. art. 38.072. The child victim’s own videotaped state­ment did not meet the requirements for being admitted under the outcry statute because the statutory hearsay exception for outcry evidence applied only when the child’s statements were conveyed through the testimony of the properly designated outcry witness. CCA further held that the admissibility of a child’s videotaped statement was governed by the more specific video statute, Article 38.071, as opposed to the more general outcry statute, and that the requirements of the video statute were not met because the child victim was available to testify at trial.

D had standing to challenge the search of his aunt’s backyard and the seizure of his dogs because he had a reasonable expectation of privacy. State v. Betts, 397 S.W.3d 198 (Tex.Crim.App. 2013).

        D was indicted for cruelty to animals. The trial court granted D’s motion to suppress. COA and CCA affirmed. Even though D no longer lived at the residence, he had permission from his aunt to keep his dogs in her backyard and to enter the premises to water and feed the dogs, which he did on a daily basis. The backyard was fenced on three sides, the fourth side was enclosed by the neighbor’s fence, and the dogs were kept approximately 70 yards from the road. Because the officers did not have a warrant to enter the yard, and the State did not argue that an exception to the warrant requirement existed, officers were not authorized by the plain view doctrine to make a warrantless entry into the yard to seize the dogs. The fact that officers could see the dogs from afar did not mean that they were entitled to go onto the property and seize the dogs without a warrant. Because the community caretaking function was not argued by the State at trial or to COA, the State could not rely on that theory on appeal.

The bigamy provision of Tex. Penal Code § 22.011(f) was not found facially unconstitutional because D failed to show that it had no valid application. State v. Rosseau, 396 S.W.3d 550 (Tex.Crim.App. 2013).

        COA properly held that D failed to prove that § 22.011(f) was facially unconstitutional under the Equal Protection Clause, U.S. Const. amend. XIV, because it had at least one valid application, namely the punishment of bigamists who sexually assaulted their purported spouses. Because D failed to show that it was unconstitutional in every respect, § 22.011(f) was not facially unconstitutional.

Officer did not have RS to stop D because officer did not actually see D’s traffic violation. State v. Duran, 396 S.W.3d 563 (Tex.Crim.App. 2013).

        D was charged with DWI. The trial court granted his motion to suppress evidence from the traffic stop, finding there was no reasonable suspicion for the stop. COA reversed the trial court based on a DVD recording of the stop. CCA reversed COA and reinstated the trial court’s decision granting the motion to suppress.

        The officer was en route to a domestic call at a speed of over 60 miles per hour in a 45-mile-per-hour zone when he saw D, approaching from the opposite direction, make a left turn in front of officer, causing officer to brake. Officer turned right to follow D. The DVD recording showed that D’s tire swung slightly across the center line. Officer’s report stated that he stopped D for failing to yield the right of way; however, officer was mistaken in believing that he had the right of way: because he was speeding, he did not. The issue presented to the trial court was therefore a factual issue: Did the officer actually see the center line violation shown in the DVD? The trial court decided that he did not, because that violation was not mentioned in the report, and it was too minor to cause officer to abandon his domestic call and was not visible before he abandoned the domestic call. CCA held that the appellate courts were required to defer to that determination of fact. The totality of the trial judge’s findings supported its reasonable conclusion that officer did not see the center stripe violation.

COA lacked the benefit of recent decisions changing the requirements for counsel to advise of the immigration consequences of guilty pleas. Ex parte Enyong, 397 S.W.3d 208 (Tex.Crim.App. 2013).

        D filed a habeas application claiming his counsel provided ineffective assistance by failing to advise him of the immigration consequences of his guilty pleas. The trial court denied relief. COA reversed. The State filed this petition, contending COA erred in holding that Padilla v. Kentucky, 559 U.S. 356 (2010), applies retroactively to the collateral review of a state conviction that was final when the Padilla opinion was issued. CCA vacated COA’s judgment and remanded.

        The U.S. Supreme Court recently held that Padilla does not have retroactive effect. Chaidez v. United States, 133 S. Ct. 1103 (2013). CCA adopted that reasoning as a matter of state law in Ex parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). In the instant case, COA did not have the benefit of Ex parte De Los Reyes.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Deemed invalid was inventory search that continued to progress after D’s father showed up at the scene to pick up vehicle, despite officer’s testimony that father failed to provide proof of insurance needed to release vehicle to father. State v. Cashion, No. 05-11-00334-CR (Tex.App.—Dallas Oct 26, 2012), pet refused.

        Local police policy did not expressly require proof of insurance, observed the court. Rather, the policy merely requires the arresting officer to “verify the person taking possession of the vehicle is a licensed driver.”

Odor of marijuana detected by officer during conversation with driver triggered PC to search, not only the passenger compartment but also the trunk. Williams v. State, No. 05-11-00982-CR (Tex.App.—Dallas Oct 31, 2012), pet refused.