Monthly archive

July 2014

June 2014 SDR – Voice for the Defense Vol. 43, No. 5

Voice for the Defense Volume 43, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

When an occupant objecting to a search was removed from the premises, a remaining occupant could consent to the search. Fernandez v. California, 134 S. Ct. 1126 (2014).

        D’s motion to suppress evidence found in his apartment was denied. He pled nolo contendere to firearms and ammunition charges, and was found guilty by a jury of robbery and infliction of corporal injury. The California Court of Appeal affirmed. The California Supreme Court denied review. The U.S. Supreme Court affirmed the Court of Appeal.

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. . . . In Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

Fifth Circuit

District court’s factual finding of bodily injury was clearly erroneous because the presentence report did not specify whether the victim sustained any injury, and because a significant injury did not invariably follow from this type of conduct. United States v. Zuñiga, 720 F.3d 587 (5th Cir. 2013).

        In Hobbs Act robbery/firearm case, the district court reversibly erred in applying a two-level enhancement under USSG § 2B3.1(b)(3)(A) for causing bodily injury to a victim during the robbery. Although the presentence report stated that one of the defendants stepped on the victim as he was attempting to leave the scene of the robbery, it did not adequately specify how the victim was injured by this action. The presentence report’s recounting of a witness statement that it caused the victim pain in her arm said nothing about the degree of the victim’s injury. The Fifth Circuit remanded for resentencing.

For D convicted of failing to register as a sex offender, district court abused its discretion in imposing, as a condition of supervised release, a blanket ban on internet use without prior approval by a probation officer. United States v. Tang, 718 F.3d 476 (5th Cir. 2013).

        Neither the instant offense nor the prior offense (the one triggering D’s requirement to register as a sex offender under SORNA) involved use of the internet. Additionally, where the district court orally imposed a supervised-release condition that D not cohabitate with anyone who has children under 18 without prior approval by a probation officer, but the written judgment broadened the condition by forbidding D to cohabitate with or date such a person without prior approval by a probation officer, the additional restriction in the written judgment improperly conflicted with the oral pronouncement. The Fifth Circuit vacated both the internet ban and the dating restriction.

Louisiana state D was not entitled to either statutory tolling or equitable tolling of AEDPA’s one-year statute of limitations with respect to his federal habeas petition because D failed to show it was the State’s failure to provide notice that caused his late filing. Clarke v. Rader, 721 F.3d 339 (5th Cir. 2013).

        Although the state did not notify D of the Louisiana Supreme Court’s denial of his state writ application on January 29, 2010, D’s own counsel learned of the denial and mailed D a notice in February 2010, at which time a federal habeas petition would have been timely; nevertheless, D did not file his federal petition until April 30, 2010. The Fifth Circuit affirmed the district court’s judgment denying D’s federal habeas petition as untimely.

District court impermissibly participated in plea negotiations by suggesting that a condition of accepting D’s plea in one case would be that he resolve another pending case. United States v. Peña, 720 F.3d 561 (5th Cir. 2013).

        In case involving alleged bribery of El Paso officials, the court impermissibly participated in plea negotiations, in violation of Fed. R. Crim. P. 11(c)(1), with comments suggesting that a condition of accepting D’s plea in one case would be that he had to resolve another pending case, even though the court later attempted to retract those comments. D was entitled to vacatur of his guilty plea, even if plain-error review applied, because D’s substantial rights were affected under the circumstances; the fairness, integrity, and public reputation of judicial proceedings required that remedy. The Fifth Circuit vacated D’s guilty pleas, convictions, and sentence, and remanded for proceedings before a different district judge.

In sentencing D for illegal reentry after deportation, dis­trict court reversibly erred in applying a 16-level crime of violence enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s prior New Jersey conviction for third-degree aggravated assault. United States v. Martinez-Flores, 720 F.3d 293 (5th Cir. 2013).

        The N.J. Stat. § 2C:12-1b(7) requirement of only “significant bodily injury” differed in a critical way from the generic definition of “aggravated assault,” which requires “serious bodily injury” for its injury-alone prong. Nor did the New Jersey offense have as an element the use, attempted use, or threatened use of physical force against the person of another. Because the government failed to show that the Guideline calculation error was harmless, the Fifth Circuit vacated D’s sentence and remanded.

The district court reversibly erred in imposing supervised-release conditions on D on the basis of bare arrest records. United States v. Windless, 719 F.3d 415 (5th Cir. 2013).

        A court may not rely on a “bare arrest record” at sentencing. An arrest record is “bare” when it refers only to the facts of an arrest (date, charge, jurisdiction, and disposition) without corresponding information about the underlying facts or circumstances regarding the defendant’s conduct that led to the arrest. An arrest record is not “bare” when it is accompanied by a factual recitation of the defendant’s conduct that gave rise to a prior unadjudicated arrest and that factual basis has an adequate evidentiary basis with sufficient indicia of reliability. If the factual recitation lacks sufficient indicia of reliability, it is error for the district court to consider it at sentencing, regardless of whether the defendant objects or offers rebuttal evidence.

        Additionally, the district court committed substantive error by imposing on D (convicted of failure to register under SORNA) a supervised-release conviction forbidding him to have any direct or indirect contact with children under 18, ab­sent adult supervision and probation officer pre-approval. Under the circumstances, a restriction of this breadth worked a greater deprivation of liberty than reasonably necessary. Accordingly, the Fifth Circuit vacated one condition and remanded for reconsideration, and it completely reversed the “no contact” condition with instructions that it could not be imposed as currently phrased.

Texas death-sentenced D was not entitled to a certificate of appealability on his claim that trial counsel was ineffective in various ways, including failing to investigate and present evidence at both the guilt/innocence phase and punishment phase. Trottie v. Stephens, 720 F.3d 231 (5th Cir. 2013).

        D was also not entitled to a certificate of appealability on his claims of suppression of material exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and prosecutorial misconduct (referring to evidence outside the record).

It was not unreasonable for the state court to determine that appellate counsel did not provide deficient performance by failing to argue racial discrimination in jury selection on direct appeal. Higgins v. Cain, 720 F.3d 255 (5th Cir. 2013).

        D convicted of murder in Louisiana state court was not entitled to federal habeas relief on the basis of his claim that his state appellate counsel was ineffective for failing to raise, on direct appeal, three issues related to alleged racial discrimination in jury selection, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

D was entitled to a hearing on the allegation in his 28 U.S.C. § 2255 motion that he went to trial only because of the ineffective assistance of counsel in erroneously and significantly overestimating the Guideline range if D accepted the government’s plea offer. United States v. Reed, 719 F.3d 369 (5th Cir. 2013).

        D, convicted of trafficking counterfeit goods, specifically alleged in the affidavit accompanying his § 2255 motion that counsel predicted a 36-month sentence if D accepted the government’s plea offer, and that he would have pleaded guilty had he been apprised of his correct Guideline sentencing exposure. Because D’s affidavit was sufficient to prove his allegation and was not speculative, conclusory, plainly false, or contradicted by the record, the district court erred in rejecting it without hold­ing an evidentiary hearing. The Fifth Circuit vacated the court’s order dismissing the motion and remanded for further proceedings, to include an evidentiary hearing.

D’s conviction for federal drug conspiracy in Pennsylvania did not create a double-jeopardy bar to his later conviction, in Texas, for possession of marijuana with intent to distribute, interstate travel in aid of racketeering, and possession of an unregistered short-barrel shotgun; conspiracy and its object offense(s) are separate offenses, with distinct elements, and thus a defendant may be convicted of both. United States v. Tovar, 719 F.3d 376 (5th Cir. 2013).

        (2) The district court did not err in denying D’s motion to suppress evidence. The search warrant and affidavit pursuant to which his home was searched were not so bare-bones, boilerplate, or obviously lacking in probable cause to preclude the searching officers from relying on them in good faith.

        (3) The district court did not err in denying D’s motion to suppress statements. Even if D’s first, pre-Miranda admissions were unlawfully obtained, they did not require the suppression of D’s later, post-Miranda statements.

Court of Criminal Appeals

D had a duty to register as a sex offender under Tex. Code Crim. Proc. art. 62.002 because the savings clause that previously exempted him was deleted by the 2005 amendments. Reynolds v. State, 423 S.W.3d 377 (Tex.Crim.App. 2014).

        D was convicted as a sex offender in 1990 and served a five-year sentence. Relying on a letter from the Texas Department of Public Safety that stated he did not have to register under the new law, D never registered. In 2009, he was convicted for failing to register. COA and CCA affirmed.

        In 1991, the Texas Legislature enacted its first sex-offender registration provision; it required registration for people with a reportable conviction on or after September 1, 1991. Because D’s conviction occurred in 1990, the statute did not require him to register. In 1997, the Legislature redesignated the statute as chapter 62 of the Code of Criminal Procedure and instituted its retroactive application to individuals with convictions on or after September 1, 1970. This was accompanied by an uncodified “savings clause” that restricted its application to people who were “confined in a penal institution . . . or . . . under the supervision . . . the Texas Department of Criminal Justice” on or after September 1, 1997. D completed his sentence in 1995; the “savings clause” applied to him. However, in 2005, the Legislature repealed Article 62.11, which had contained the rule on applicability and the uncodified savings clause. “There is no language within the statute that indicates the ‘savings clause’ was to be retained. . . . Chapter 62 does apply to Appellant and he was required to register under Chapter 62.”

Courts of appeals lack jurisdiction to consider an interlocutory appeal of a pretrial motion for bond reduction. Ragston v. State, 424 S.W.3d 49 (Tex.Crim.App. 2014).

        D was indicted for one count of capital murder, one count of murder, and one count of aggravated robbery. D was jailed and held on no bond for the capital murder charge, and $500,000 bond for each of the murder and robbery charges. D motioned for bond reduction. The trial court ordered that D would be held without bond on the murder charges and reduced the bond on the aggravated robbery charge. D filed an interlocutory appeal. COA dismissed for want of jurisdiction. CCA affirmed.

        The courts of appeals have been divided on whether they have jurisdiction to review interlocutory orders regarding excessive bail or the denial of bail. The courts that found jurisdiction relied on Tex. R. App. P. 31 and a footnote in Primrose v. State, 725 S.W.2d 254 (Tex.Cr.App. 1987). They argue there is an exception allowing jurisdiction over interlocutory orders for the denial of a motion to reduce bail.

        CCA disagreed: “A rule of appellate procedure cannot, by itself, grant the courts of appeals jurisdiction to hear interlocutory appeals regarding excessive bail or the denial of bail, because this Court’s rules cannot enlarge the rights of litigants beyond those provided in the constitutions or a statute. There is no constitutional or statutory authority granting the courts of appeals jurisdiction to hear interlocutory appeals regarding excessive bail or the denial of bail.”

Upholding prior denials of DNA testing, CCA said D did not establish that biological evidence exists or that exculpatory test results would have affected his trial. State v. Swearingen, 424 S.W.3d 32 (Tex.Crim.App. 2014).

        D was convicted of capital murder and sentenced to death. CCA affirmed. D filed seven habeas applications, which were denied. Here, the State appeals a trial court decision granting D’s fourth motion for DNA testing. CCA reversed the trial court’s order: The law-of-the-case doctrine provides that an appellate court’s resolution of questions of law is binding in subsequent appeals concerning the same issue. Although Tex. Code Crim. Proc. art. 64.01 regarding DNA testing was amended in 2011, CCA found that the amendments did not affect its previous determinations. The amendment required only that the results be run through the Combined DNA Index System and did not set a standard for exculpatory results. Under Article 64.01(a), D could still not prove the existence of biological material in the case of the ligature, the other half of the pantyhose, the cigarette butts, or the decedent’s clothing. The results showing the presence of another DNA donor in the fingernail scrapings would not overcome the “mountain of evidence” of D’s guilt, and the decedent’s having encountered another person would not factually exclude D from having killed her.

D’s mistake in sending his notice of appeal to the court of appeals instead of the district court was a harmless procedural defect because the appellate procedure rules required the COA clerk to forward D’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established by the mailbox rule. Taylor v. State, 424 S.W.3d 39 (Tex.Crim.App. 2014).

        CCA reversed COA’s dismissal and remanded.

Venue error is reviewed using the standard for non-constitutional errors; the State’s failure to prove venue was harmless. Schmutz v. State, No. PD-0530-13 (Tex.Crim.App. Jan 29, 2014).

        D was indicted in Titus County for the offense of hindering a secured creditor by misappropriating proceeds of se­cured property. The indictment alleged that venue lay in Ti­tus County based on D “sell[ing] or dispos[ing] of secured prop­erty” there. Tex. Code Crim. Proc. art. 13.09. The undisputed facts at trial, however, showed that D sold property in Erath, not Titus, County. Titus was the county from which the property had been removed, but the State’s indictment did not allege that as a basis for venue. D repeatedly, yet unsuccessfully, challenged venue on the ground that he had not disposed of any property in Titus County, as alleged in the indictment. The jury convicted D, and COA and CCA affirmed.

        CCA first held that because venue is not an element of the offense, failure to prove venue does not implicate sufficiency of the evidence, nor does it require acquittal. Second, applying the Tex. R. App. P. 44.2(b) standard for non-constitutional errors, CCA determined that the State’s failure to prove its alleged venue was harmless because the record did not show that D’s substantial rights were affected by the venue of his trial, which occurred at one of the places permitted under Tex. Code Crim. Proc. art. 13.09, the applicable specialized venue statute.

While testimony of a prosecution witness about his lack of delusions was false, D failed to prove that the false testimony was material; the State corroborated many of the facts to which the witness testified, and D’s murder conviction was supported by an abundance of evidence unrelated to the testimony. Ex parte Weinstein, 421 S.W.3d 656 (Tex.Crim.App. 2014).

        D, convicted of murder, filed a habeas application alleging he was denied due process because the State (1) failed to disclose that its key witness had hallucinations and delusions, and (2) presented false testimony when the witness lied about not having hallucinations and delusions. On remand, the habeas judge found that the State unknowingly presented false tes­timony when the witness testified that he did not have hallucinations. The judge also found that the witness was a key wit­ness in establishing D’s intent to murder. The judge concluded there was a reasonable likelihood that the outcome of the trial would have been different had the witness admitted to having hallucinations. CCA adopted the habeas judge’s factual findings that the witness’ testimony about his lack of delusions was false but concluded that D failed to prove that the witness’ false testimony was “material,” i.e., reasonably likely to have affected the jury’s judgment. CCA denied relief.

CCA now limits the allowed length for pleadings; D’s 328-page habeas petition was deemed too long but allowed because it was filed before CCA’s length limit. Ex parte Walton, 422 S.W.3d 720 (Tex.Crim.App. 2014).

        D was convicted of aggravated sexual assault and sentenced to 40 years’ imprisonment. COA affirmed, and CCA refused D’s PDR. D filed this habeas application pursuant to Tex. Code Crim. Proc. art. 11.07, employing the 11.07 form in use at the time he filed the application in district court. That form allowed for an attached memorandum of law of unspecified length. D’s memorandum was 328 pages long, 138 pages of which relate to Ground Number One. Additionally, D filed motions to supplement this memorandum.

        CCA said:

The length of this pleading is excessive. . . . [T]his Court has amended the rules governing the application process for post-conviction applications for a writ of habeas corpus. Our revisions include a new length restriction for any memorandum of law. Texas Rule of Appellate Procedure 73.1(d) now provides:

“Each ground for relief and supporting facts raised on the form shall not exceed the two pages provided for each ground in the form. The applicant or petitioner may file a separate memorandum. This memorandum shall comply with these rules and shall not exceed 15,000 words if computer-generated or 50 pages if not. If the total number of pages, including those in the original and any additional memoranda, exceed the word or page limits, an application may be dismissed unless the convicting court for good cause shown grants leave to exceed the prescribed limits…”

Under Rules 73.1(d) and 73.2, an application such as the one before us would be subject to dismissal for being excessively long. However, since these rules were not in place when this application was filed, the court has considered it on the merits. Upon review of the application and the record, we deny relief.

D did not have the right to counsel in a competency ex­amination of child-complainant because the examination was not a critical stage of the proceedings. Gilley v. State, 418 S.W.3d 114 (Tex.Crim.App. 2014).

        The jury convicted D of aggravated sexual assault of a child and sentenced him to 30 years’ imprisonment. On the morning jury selection was to begin, the trial court heard argument on D’s pretrial motion for a hearing to determine the 6-year-old complainant’s competency to testify. Over D’s objection, the court conducted its Tex. R. Evid. 601(a)(2) competency examination of the complainant in the absence of D and the attorneys for both sides. The court then found complainant competent. COA and CCA affirmed.

        CCA said the right to counsel extends to all “critical stages” of the criminal proceeding, not just the actual trial, but not every event in adversary judicial proceedings constitutes a critical stage. The court concluded D was not denied his U.S. Const. amend. VI right to counsel in the competency examination because it was not a critical stage of the proceedings, given defense counsel’s later opportunities to challenge the com­plainant’s deficiencies during trial. D was able to participate in the examination by submitting questions for the court to ask complainant, and defense counsel was able to review a transcript of the examination and cross-examine complainant during trial.

It was inappropriate to presume error and materiality in every case in which the culpable Houston lab tech­nician worked; the habeas court had to determine whether D established an inference of falsity and, if so, to what extent it was material. Ex parte Coty, 418 S.W.3d 597 (Tex.Crim.App. 2014).

        In CCA’s original opinion, it granted D relief based on a presumptive violation of due process because the technician solely responsible for testing the evidence in his case was found to have committed misconduct, and the evidence had been destroyed and could not be retested. CCA then withdrew its opinion and ordered this case be filed to answer “under what circumstances, if any, [CCA] should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case.” CCA here remanded to the habeas court.

        “[W]e now recognize that it is not appropriate to presume error and materiality in every case on which [this lab technician] worked. We believe the better method for resolving these claims is to allow an applicant to shift the burden of the falsity issue to the State if the requisite predicate is proven, but the burden of persuasion with respect to materiality will always remain with the applicant. Thus, even if the State fails to rebut an inference of falsity, an applicant still must prove that the ‘false evidence’ was material to his or her conviction. Having answered the question that we filed and set this case for, we remand this cause to the habeas court to apply the principles of this opinion in Applicant’s case[.]”

An ambiguous reference in the jury charge did not cause egregious harm; also, the judge’s recollection of whether defense counsel objected to a juror was sufficient to reject D’s appeal. Nava v. State, 415 S.W.3d 289 (Tex.Crim.App. 2013).

        Ds were both convicted of felony murder and organized criminal activity. CCA granted review to determine whether they suffered egregious harm from an error in the jury instructions on the law of parties and whether their appeals were prejudiced due to a missing portion of the voir dire record. Finding against Ds on both issues, CCA affirmed.

        The abstract portion of the jury charges correctly instructed the jury on the “intent to promote or assist” and con­spir­acy theories of party liability under Tex. Penal Code § 7.02(a)(2), (b). The ambiguous reference to “offense” in the ap­pli­ca­tion paragraph was harmless, as it was unlikely the jury con­victed Ds of felony murder based solely on their involvement in the theft.

        On the second issue, the “trial judge recalled with certainty and precision: whether the defense identified an objectionable person who actually sat on the jury. None of the attorneys contradicted the judge’s recollection, and nothing in the record that actually is before us leads us to doubt that recollection. At least under these circumstances, we hold that the court of appeals was correct to credit the trial judge’s recollection as it related to the question of whether the missing record was necessary to the resolution of the appeal. Accordingly, the court of appeals correctly determined that, because the defense attorneys did not identify an objectionable person who would sit on the jury, the defendants had no viable appellate claim with respect to the denial of challenges for cause. . . . Appellant contends that he might still have had a viable claim of ineffective assistance of counsel. . . . As part of an ineffective-assistance claim based upon an attorney’s failure to identify an ob­jec­tionable juror, a defendant would have to show who the objectionable juror was. Because this issue is raised on direct appeal, any such showing would have to have been made in the trial court[.]”

Court of Appeals

The State was required to reoffer the 10-year plea bar­gain after the original trial judge recused herself be­cause the only way to neutralize the taint of trial coun­sel’s ineffective assistance and the judge’s voluntary recusal was to return D to the position he would have been in prior to his counsel’s improvident advice to reject a reasonable plea-bargain offer. Rodriguez v. State, 424 S.W.3d 155 (Tex.App.—San Antonio 2014, pet. granted).

        “[T]here is a reasonable probability that the trial court would have accepted the plea agreement prior to trial. Additionally, assuming the ten-year plea bargain offered by the prosecution was within the boundaries of acceptable plea bargains . . . the eight life sentences imposed after the trial in this case amplifies the prejudice that resulted from trial counsel’s ineffective assistance.”

Tex. R. Evid. 608(b) prohibits “general character assassination.” Tollett v. State, 422 S.W.3d 886 (Tex.App.—Houston [14th Dist] 2014, pet. ref’d).

        DWI D first contended that the court erred by precluding cross-examination of police officer regarding officer’s ter­mination from another police department, the Dickinson Police Department. “We disagree that the trial court denied appellant his constitutional right to cross-examine Officer Hernandez regarding his 2006 termination. . . . Evidence that, during a hearing six years ago, Officer Hernandez intentionally withheld testimony about his failing to report a weapon discharge would not have achieved appellant’s specific goal of proving Officer Hernandez lied about appellant’s reckless driving. . . . In his second issue, appellant contends the trial court violated Rule 608(a) and the Confrontation Clause by precluding him from questioning Ron Morales—who was Officer Hernandez’s former police chief at the Dickinson Police Department—about Officer Hernandez’s reputation for truthfulness. . . . ‘The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but . . . the evidence may refer only to character for truthfulness or untruthfulness.’ Tex. R. Evid. 608(a). Assuming without deciding that the trial court violated the Texas Rules of Evidence by excluding Chief Morales’ opinion/reputation testimony about Officer Hernandez’s character for truthfulness, we hold such nonconstitutional error was harmless.”

D’s request for a jury instruction on theft as a lesser-included offense of aggravated robbery was properly denied since there was no evidence of the value of the vehicle stolen to establish the applicable grade of theft. Ramirez v. State, 422 S.W.3d 898 (Tex.App.—Houston [14th Dist] 2014, pet. ref’d).

        While the failure of defense counsel to elicit testimony concerning the value of the vehicle appeared to lack any strategic reason, any deficient performance of counsel was not prejudicial since the evidence was sufficient to show that D threatened the victim, which precluded a finding of theft.

The trial court properly excluded testimony about psychologist’s “weapon focus effect” because D provided insufficient information to determine that the testimony was reliable. Blasdell v. State, 420 S.W.3d 406 (Tex.App.—Beaumont 2014).

        CCA had reversed and remanded, holding that “even the ‘possibility’ of distorted perception under the circumstances was sufficient to establish a ‘fit’ with the facts of the case, and hence, the relevance of Rubenzer’s expert testimony.” Here, COA again determined that the testimony was properly excluded.

        “During the trial of this aggravated robbery case, the trial court excluded the testimony of Dr. Steven Rubenzer, a foren­sic psychologist, concerning witness identifications that occur during crimes that involved guns. . . . The trial court conducted a hearing outside the jury’s presence to determine the admissibility of Dr. Rubenzer’s testimony regarding [the vic­tim’s] identification of Blasdell. . . . Rubenzer defined the ‘weapon focus effect’ as ‘a tendency, when there is a weapon involved, particularly in brief encounters, for the weapon to essentially attract attention away from the perpetrator’s face and, by doing so, result in lesser accuracy for the identification.’ In forming his opinion in Blasdell’s case, Dr. Rubenzer stated that he reviewed the offense report, the photo spread, [victim’s] description of her assailant, and that he had discussed the case with defense counsel; however, he agreed that he had not interviewed [victim] or any of the police involved in the in­ves­ti­gation of the robbery. With respect to whether [victim’s] iden­tification was inaccurate, Dr. Rubenzer stated that in his opinion, the weapon pointed in [victim’s] face had ‘possibly’ impacted her ability to accurately identify. . . . Without more, such as information about what the studies Dr. Rubenzer cited had shown regarding the impact of a weapon being displayed on the reliability of a witness’ identification of the perpetrator, the trial court was not able to determine whether Dr. Rubenzer’s testimony about the weapon focus effect in Blasdell’s case was reliable.”

Defending Boating While Intoxicated Cases

On any day at the lake a responsible boater is increasingly vulnerable to wrongful arrest for boating while intoxicated (BWI). This is true, because it is not against the law in Texas to consume alcoholic beverages while operating a boat or other watercraft, so long as the operator does not drink so much that he/she becomes legally intoxicated. There is no doubt that water safety patrols are necessary to protect all people on the water, but some of the investigative tactics employed by water safety patrols cast such a wide net that they catch responsible, sober

boaters too. Thus, many boaters who are drinking and boating responsibly are subject to wrongful detention and arrested due to increasing water patrols and use of federal grant money to enforce water safety laws. Water patrols are now using a series of “float tests,” or seated sobriety exercises, a creation of the International Association of Chiefs of Police (IACP). These seated exercises later became part of a national curriculum through the National Association of State Boating Law Administrators, in their Boating Under the Influence Seated Battery Transition

Training Course, Student Manual.1

Only two studies have examined the investigation of intoxicated boaters in the marine environment. Just one of these studies examined using seated sobriety exercises on a boat. It is comes as no surprise that both studies were conducted by gov­ernment agencies with government grant money aimed at coming up with a law enforcement-based solution. The focus of this article is to address these two marine studies, and then examine and explain the seated sobriety exercises and the attendant shortcomings. After explaining and analyzing the findings of these studies, I will discuss defenses in BWI cases.

I. Studies

The first marine study was conducted in 1990 by the United States Coast Guard. Perhaps the main reason this first study was conducted is because, according to the U.S. Coast Guard website, the Coast Guard did not begin to enforce new federal regulations prohibiting operation of a vessel while intoxicated until June 1, 1991.2

A. An Experimental Evaluation of a Field Sobriety Test Battery in the Marine Environment

In 1990, the U.S. Department of Transportation, through the United States Coast Guard, with the assistance of the IACP, set out to determine the usefulness of field sobriety tests in determining if boaters are intoxicated. The study noted that
“[c]ertain stressors are present in the boating environment which are not present on the highway . . .”3 These stressors in boating include heat, spray, boat motion, vibration, and glare, and may cause boaters (whether intoxicated or sober) to perform poorly on field sobriety tests.

This study used the one leg stand, walk and turn, horizontal gaze nystagmus (HGN), finger-to-nose, and finger count exercises. The tracing task was eliminated since papers and pencil tasks were determined to be difficult for all boaters to perform (regardless of alcohol consumption) due to the motion of a boat affected by waves and wakes. The alphabet recital and hand pat test were added to the exercise battery.


The test subjects were 97 military men—not women—ages 21 to 40. The mean age was 27. All of the subjects were military personnel, and they were screened for age, amount of boating experience, any susceptibility to seasickness, medical conditions, and drinking history. The presumption is that since most of these subjects were U.S. Coast Guard and other military personnel in a coastal region, they were highly fit and previously passed rigorous water safety fitness tests and had extensive boating experience.


Only six officers were used in this study. Two officers were from the Maryland Department of Natural Resources, and four marine officers were from the Ohio Department of Watercraft. Five of these officers had nine or more years of experience, and one officer had four years of experience. All officers were classified as having receiving “extensive training” in field sobriety testing. These six officers were divided into two groups of three officers. Each group of three officers was present when Officer #1 conducted all the exercises, but every officer conducted their own HGN exam.


The boats were 16-18-foot “Boston Whaler” type patrol boats rented from the U.S. Army. This size boat was selected due to U.S. Coast Guard Statistics in 1986 showing that the majority of fatal accidents occur in boats less than 26 feet long. The test subjects were only given a 90-minute boat ride. This is crucial information, because of the arbitrary 15-minute resting period on land to re-gain “land legs” was formed based solely on a 90-minute boat ride, which is probably significantly less than a typical BWI client’s own boating experience. Further, these subjects were clearly more experienced in the marine environment, and perhaps in better shape than the majority of clients, making them less susceptible to acquiring “sea legs.” This study is apparently the genesis of the 15-minute waiting period.


Alcohol dosing was divided into three groups. Each group was provided a total of four drinks each over a three-and-a-half-hour period. Three drinks were consumed on land every 40 minutes. The fourth drink was 10 minutes after boarding the boat for the 90-minute boat ride. The drink was 190-proof grain alcohol, mixed with orange, grapefruit, or pineapple juice. “Group A” was dosed to a 0.12%; “Group B” was dosed to 0.10%; and “Group C” was provided four drinks, with only a floater of grain alcohol and was dosed to 0.00%. Subjects were asked to eat only a light breakfast before arriving, yet it was reported that some did not comply.

Breath Testing

Breath testing was conducted on land using a Seimens Alcomat, and also on the boat using an Alcometer S-D2 fuel-cell, portable breath testers (PBT). PBT testing was carried out by “trained personnel.” PBT results were not made known to the six officers. Despite that PBTs are not considered evidentiary breath test results, these particular PBT results were referred to in the study as the “actual BAC results.”4

Testing Environment

Testing was done over a 9-day period in May 1987 on the James River in Yorktown, Virginia. The weather was described as “relatively mild summer-like weather” conditions.5 None of the subjects were allowed to drive a boat—they were only passengers. The target number of subjects to test was 12 per day, with 2 subjects arriving every hour beginning 7:00 a.m. until noon. All testing was done in daylight hours. These conditions are hardly the environmental conditions and times that accurately reflect most BWI clients’ boating experience, who sometimes face much harsher weather conditions and perhaps engage in water sport activities. Importantly, “[n]o testing was conducted under adverse conditions such as high winds and disturbed sea state.”6 Subjects were instructed to “[a]ct as if the situation was an actual encounter with a police officer and as if the person was indeed in danger of arrest.”7 Thus, none of the subjects were under the actual threat, fear, and excitement of being arrested at the time they were tested.

Testing on the Water

The officers were instructed to approach subject passengers on the boat and phrase questions in their own words, not from a script. The three officers made observations of the passengers. Officer #1 would do the testing, but the other two officers would do their own HGN. The testing mode consisted of alphabet recital and then hand pat. The officers would write down, based upon what they saw, their estimated BAC. No criteria for instructions, or clues they were looking for, were provided as a basis for the guesses on BAC levels. Next the officers conducted the finger-to-nose and finger-count. Again, officers estimated BAC of the suspects based upon their observations of exercises. And again, no criteria for instructions, or clues they were looking for, were provided as a basis for the guess on the BAC level for each subject. Each officer then conducted an HGN exam and estimated BAC.

The subjects were then transported back to land. Subjects were given 10 minutes to attain land legs—i.e., stabilize balance in order to perform the balance tests to follow.8 No studies were cited, or other criteria or information provided, to support the belief that the arbitrary selection of 10 minutes was a sufficient amount of time to simulate land legs in a normal boating situation.

Analysis of Data

This officer’s BAC estimates were found to have been “very erratic” over the first three days. So BAC estimates for the first three days were selectively excluded. The selective basis for this exclusion was due to one officer having no recent history of arrests. The study cites that he was experienced in the “administrative and training aspects of marine law enforcement, but did not have experience in the implementation of OUI arrest procedures in the field.”9 This selective exclusion is not representative of what regular officers would incur out in the field, or in the marine environment. This is a useful tidbit of information for cross examination with an officer with few marine arrests.

The marine environment data compiled was compared to the first two SFST studies in non-marine environments (“Psychophysical Tests for DWI Arrests,” Burns and Moskowitz, 1977, and “The Development and Field Test of Psychophysical Tests for DWI Arrest,” Tharp, Burns and Moskowitz, 1981). Those two studies showed that the arrest/release decisions were only accurate 76% and 81% of the time. Further, the methodology employed by Burns and Moskowitz in a highway situation is not comparable to the methodology employed by this marine study.

The summary of the data shows that “the results indicate that the accuracy of the officers to estimate BAC was significantly improved by the use of the FST battery.”10 HGN on the boat contributed to a significant improvement in the estimates of the raters [officers].” However, they oddly concluded that conducting the HGN test on land did not result in significant improvement of overall accuracy.

“Of 97 subjects, the officer correctly classified 21 true arrests (persons with BAC ^ 0.10%) and 59 true releases (persons with BAC , 0.10%).”11 The study cites 6 officers made 80 correct classifications out of 97, for an 82% correct decision.

The takeaway from the comparison between the highway and marine studies is that the alphabet, hand pat, finger to nose, and finger count exercises still have no reliability or validity as previously determined by the previous “studies.” Lastly, the legal limit in 1990 at the time of this study was 0.10, not 0.08.

B. Validation of Sobriety Tests for the Marine Environment

This second study is another government sponsored and funded product of the Southern California Research Institute entitled Validation of Sobriety Tests for the Marine Environment.12 The study was funded by the U.S. Coast Guard and NASBLA.13 The study was conducted to address lack of state-to-state uniformity in enforcement of BWI and BUI. The study recognizes the difficulties of enforcing BWI. First, it is not illegal to drink while boating. Open containers are legal. Second, there are no speed limits, so excessive speed is not necessarily a clue of impairment. Third, environmental conditions (wind, water choppiness, and glare) can make it difficult to determine a boater’s impairment. Unlike on the roadside, there is no standardized battery used on water. The objective of the study was to develop sobriety tests that could be administered in the seated position, to assist water patrol to detect impairment above .08.14

Site & Timing

The site was Lake of the Ozarks in Central Missouri, particularly Osage Beach location. Data was collected June–September 2009, during the expected busiest boating days of summer: Friday, Saturday, Sunday, and holidays. Shifts for the officers began at noon and lasted roughly 10–12 hours, depending on demand.15


The four marine officers received four days of intense training by the Southern California Research Institute (SCRI) staff. First day consisted of eight-hour in-class explanation and demonstration of the four seated sobriety tests (HGN, FTN, PP, and HC). Two volunteers (age, weight, health, and sex unknown) were dosed to above 0.08% BAC. Officers performed SFSTs and SCRI staff-provided feedback. Days 2–4 were 10-hour shifts on the water with the sole purpose of becoming proficient. There were also two civilian observers of unknown experience, academic, and professional background.16

Breath Test

These four officers did not use evidentiary certified breath test instruments to verify and confirm their beliefs. Rather, the officers used only an Alco Sensor FST portable breath tester to make an arrest/release decision.17


The four marine officers stopped boaters who were suspected of BUI and selected random out-of-flow boats at checkpoints. Thus, officers could already see some degree of impairment to justify the detention, as opposed to random water safety checks that occur in most jurisdictions. Once stopped, boaters were requested to board the patrol boat and sit at the stern. Boaters were asked a few unidentified agency-specific questions, and then HGN, FTN, PP, and HC were conducted. Then the boaters submitted to breath specimens to two different Alco Sensor PBTs. Based on the evidence from the sobriety tests and the breath tests, the officer either released or arrested the boater.18 There is no indication provided in this study of whether the officer made a determination to release or arrest a boater before the breath test was provided!

There were 331 study cases. Of these, 251 cases (76%) were obtained with civilian observers present, with times ranging from 1:59 pm to 6:04 am, and 80 cases (24%) were obtained without observer, with times ranging from 10:20 am to 7:04 am. The observers were staff members of SCRI.19


The test with the highest correlation to BAC was HGN, followed by PP, FTN, and HC.

HGN—85% correct prediction of 0.08 BAC or greater20
FTN—67% (‘moderate predictor”)21
PP—65% (“fair predictors”)22
HC—59% (“fair predictors”)23

Combined HGN and FN equals 75%24
Combined HGN, FN, PP equals 72%25
Combined HGN, FN, PP, HC equals 68%26
Without HGN, best predictor was combination of FN, PP, HC equaling 66%27

Subjects were predominately white males 18–80 years old (though no data exists to determine how many people arrested were over 45 years old). BACs ranged .08 to .32. It should be noted that 58% of boaters stopped for probable cause reasons had a BAC at or above .08.28

C. Analysis of Marine Studies

These two studies relied upon the 1981 SCRI Study, the 1983 SFST Field Evaluation, the Colorado Study, and the San Diego Study. All of these validation studies specifically excluded the use of finger-to-nose, hand clap, and palm pat exercises. These exercises were determined to be unreliable. They were also unable to validate to any predicted level of BAC in a safe level-highway environment. How can it be that tests determined to be unreliable in the field are now reliable in a marine environment? The data out of this study specifically does not support these seated exercises as reliable or validated. At best, it only concludes what NHTSA previously concluded—HGN is the most reliable indicator of BAC. All of the previous validation studies conclude that the HGN, OLS, and WAT require a level surface. None of the studies that the marine studies rely upon scientifically support any of the marine studies’ conclusions. Further, it is required that the OLS and WAT are done on land after a 15-minute waiting period for the subject to get their land legs back. There is no scientific data, or even the smallest amount of anecdotal evidence, to support this arbitrary claim of 15 minutes. No background information exists as to how this arbitrary waiting time was ever derived, except to cite as an accepted standard from the 1990 marine study.

Moreover, there are no stated driving cues for visual detection of boating under the influence or boating while intoxicated cases.

II. The Manual

A. Boating Under the Influence Seated Battery Transition Training Course, Student Manual

The IACP created the seated exercises. These seated exercises later became part of a national curriculum through the National Association of State Boating Law Administrators in their Boating Under the Influence Seated Battery Transition Training Course, Student Manual. This manual is akin to the NHTSA Standardized Field Sobriety Student Manual. This eight-hour training course is provided to water patrol officers over the course of one day.

This manual recognizes the limitations of the standing bat­tery of SFST in the marine environment. Specifically, “[w]hen activities (such as boating) disrupt a person’s equilibrium; balance is potentially affected for a period of time following the activity. A common phenomenon occurs, commonly referred to as ‘sea legs,’ where a person feels unsure of their balance on shore, especially after riding in a boat for long periods. The USCG recommends allowing a waiting period onshore for at least 15 minutes before administering the standing SFST battery.” The manual also acknowledges that there is no scientific data to back up the 15-minute waiting period when it stated: “There needs to be additional research performed to thoroughly evaluate and quantify the effects of ‘sea legs’ on a person’s equilibrium.”29

Prior to administering the seated battery, it is required that the subject “must be seated” and is “properly positioned and stable.” The validation of the seated SFSTs relied upon this assurance, and was an important part of the research.30

The Seated Exercises

There are four seated boating exercises: (1) horizontal gaze nystagmus eye exam (HGN); (2) the finger-to-nose exercise (FN); (3) palm pat exercise (PP); (4) and the hand coordination (HC) exercise. All four are akin to a “Simon Says” routine. Failure to follow any of the scripted instructions read by a police officer off a cheat sheet is counted as a clue of intoxication, even if a boater has not consumed alcohol or ingested medication or drugs causing impairment.

Even NASBLA recognized the lack of reliability and validity of seated exercises. “Although some of the seated SFSTs are only moderate indicators of impairment individually,” but then went on to say that “the results of the study unmistakably validated the seated battery of SFSTs.” What does this mean? Does 66% accuracy unmistakably prove validation and reliability? Even NHTSA doesn’t think so!

Before administering any of the seated battery exercises, boaters are required to be provided the following instructions before starting any of the seated Battery Standardized Field Sobriety Tests:

  • “Please sit straight at the front edge of your seat.”
  • “Put your arms down at your sides.”
  • “Place your feet shoulder-width apart so you are comfortable and stable.” Are you stable?” (Wait for response.)
  • “Do not move your feet until the tests are over. Stay in this position and do not do anything else until I tell you to do so.”
  • “Do you understand?” (Get acknowledgement of understanding.)

Horizontal Gaze Nystagmus

Plenty of authoritative articles have been published on defending and excluding horizontal gaze nystagmus. Most notable of these articles is “Challenging and Excluding HGN Tests” by Troy McKinney, published in The Champion, April 2002, as well as in Drunk Driving Defense, 8th edition, by Lawrence Taylor and Steven Oberman. There is no reason to rehash all that has been extensively written on HGN except to say that HGN is used by medical professionals to determine if person sustained a head injury, or suffers from a neurological injury. Nystagmus is the involuntary jerking of the eye. It exists in every human being. There are 38 recognized causes of nystagmus other than alcohol and drugs.31 Officers are trained by other officers to utilize this exercise, and are only taught that two of these causes are alcohol and drugs. Officers are erroneously taught that if the eyes track equally, there is no medical impairment.

The seated SFSTs manual provides key cross-examination gems. First, the HGN test and the times of the passes for standardized administration are specifically identified.32 Second, the seated SFSTs manual provides the disclaimer that was recently removed from the newest NHTSA manual:


  • The tests are administered in the prescribed, standardized manner.
  • The standardized clues are used to assess the suspect’s performance.
  • The standardized criteria are employed to interpret that performance.


Below are the exact procedures and clues for each of the three seated sobriety exercises set forth in the NASBLA BUI Seated Battery transition Training Course, Student Manual.

Finger-to-Nose (FN) Exercise Procedures34

The procedures for the FN exercise are as follows:

  • “Make a fist with both hands, extend your index fingers and turn your palms forward.” (Demonstrate.)
  • “Remain in this position while I explain the test. Do you understand?” (Wait for response.)
  • “When I say BEGIN, tilt your head back to about a 45-degree angle and close your eyes.” (Demonstrate how the subject is supposed to move the arm up directly in front of the subject and how to properly touch the tip of the nose with the tip of the index finger.)
    NOTE: Show the tip of the index finger as the area immediately below fingernail tip, not the fingerprint pad area or the side of the index finger, and demonstrate touching the tip of the nose (about a dime-sized portion at the very end of the nose).
  • “When I say RIGHT, you must touch your right index finger to your nose; when I say LEFT, you must touch your left index finger to your nose.”
  • “Do you understand?” (Get acknowledgement of understanding.)
  • “BEGIN.”
    NOTE: Ensure that the subject tilts the head back and closes the eyes. Do not start to give the commands until the subject is in compliance. If necessary, emphasize to the subject that he must keep the eyes closed until you say to open them.
  • “LEFT, RIGHT, LEFT, RIGHT, RIGHT, LEFT.” (Give the commands in exactly this order.)
    NOTE: Make sure the subject returns the arm to the side immediately after each attempt. Pause two or three seconds between commands to both evaluate a proper return and to allow time for you to document observations.
  • “Open your eyes and straighten your head” (after the sixth attempt).

Finger-to-Nose (FN) Clues35

There are a total of 13 clues, during 2 phases of the FN exercise: (1) instruction phase; and (2) performance phase. Nine or more clues “suggest” that individual is impaired with .08 or higher BAC.

Instruction Stage:

A. Unable to follow instructions—Applies if exercise had to be explained “more than twice,” or subject did not remain instruction phase.
B. Started at wrong time—Subject began test before being told to begin by tilting head back or closing eyes, or by raising either finger before being told to do so.

Performance Stage:

A. Did not close eyes—Failed to close eyes when told to begin test.
B. Did not tilt head back—Failed to tilt when told to begin; however, if tilted back too much or too little, clue would not be assessed.
C. Opened eyes during test—Opened eyes at all during test.
D. Moved head during test—Moves head backward, forward, or side to side after beginning test. Movement of at least 1 inch is necessary to score clue.

The following require compliance with each attempt

E. Wrong hand—Contacts nose with wrong hand.
F. Wrong finger—Used any finger other than index finger.
G. Hesitated—Starts with one hand then changes to other hand prior to making contact, or when pauses or significantly slows down upon approach to and prior to contact with nose. (No time is provided for pause or significant slows down, leaving subjective interpretation to the officer.)
H. Searched—Any distinct vertical or horizontal movement with finger upon approach to nose. NOTE: Hesitation and searching may both be observed during same attempt.
I. Not fingertip—Touches nose with any part of finger other than area immediately below fingernail tip. Fingerprint pad area of finger is not the fingertip.
J. Missed tip of nose—Fails to touch any part of the finger to tip of nose. Nose is defined as dime-sized portion of the nose furthest away from face.
K. Did not bring hand down—Failed to immediately (if contact is more than one second) bring finger back down to the side after making contact with nose.

Palm Pat (PP) Exercise Procedures36

The PP requires one hand extended, palm up, out in front. Other hand is placed on top with palm facing down. Top hand begins to pat bottom hand, rotating 180 degrees alternating between back and palm of hand. Bottom hand remains stationary.

The instructions for the PP exercise are as follows:

  • “Place your hands palm to palm with one hand up and one hand down, like this.” (Demonstrate.)
    NOTE: Start by demonstrating to put one hand out in front with the open palm facing upward. The opposite hand is then placed on top of the first hand with the open palm facing downward with hands/fingers parallel. The demonstration will show that the hand with the palm facing upward is held in a stationary position. The hand on top with the palm facing downward will be the only hand moving.
  • “Remain in this position while I explain the test. Do you understand?” (Wait for response.)
  • “When I say tell you to begin, turn the top hand over and count out loud ‘one,’ then turn the hand back over and count out loud ‘two,’ counting only when your hands make contact, like this.” (Demonstrate at least two sets at a moderate pace.)
    NOTE: To begin, the subject will rotate the top hand 180 degrees and pat the back of the top hand to the palm of the bottom hand simultaneously counting out loud, “One.” The top hand then rotates 180 degrees so the palm of the top hand pats the palm of the bottom hand, simultaneously counting out loud, “Two.” Be sure to exaggerate the palm pat sequence using adequate height between claps.
  • “Repeat this, speed up as you go, and do not stop until told.”
    NOTE: The process then repeats. The subjects should start at a slower speed then gradually increase the speed un­til a relatively rapid pace is reached.
  • “Make sure to keep your hands and fingers parallel during each pat, like this.” (Demonstrate.)
  • “Do you understand?” (Get acknowledgement of understanding.)
  • “BEGIN.”
    NOTE: The subject should perform this test for a minimum of 10 seconds but no more than 15 seconds. If the speed has not noticeably increased within 4 or 5 seconds, prompt the subject to increase speed. The goal is to reach a relatively rapid pace.

Palm Pat Exercise Clues

There are a total of 10 clues during the two phases of the PP exercise: (1) instruction phase; and (2) performance phase. Two or more clues “suggest” that individual is impaired with .08 or higher BAC.

Instruction Stage:

A. Unable to follow instructions—Applies if exercise had to be explained “more than twice,” or subject did not remain instruction phase.
B. Started at wrong time—Subject began test before being told to begin either by starting on his own at any time or by following along with the officer’s demonstration.

Performance Stage:

A. Did not count as instructed—Counts out loud anything other than “1, 2, 1, 2, 1, 2,” and so on. “1” must be said out loud only when the back of the top hand makes contact with the palm of the bottom hand, and “2” must be said out loud only when the palm of the top hand makes contact with the palm of the bottom hand. If the subject fails to count out loud, check this clue; however, correct him and advise to start counting out loud.
B. Rolled hands—Fails to fully break contact between the two hands when going from one pat to the next, simulating a “rolling” movement on bottom hand with top hand.
C. Double pat—Conducts two or more of the same pat in a row—e.g., pats the palm of the top hand to the palm of the bottom hand twice in a row.
D. Chopped pat—Hits bottom hand with side of top hand instead of either palm or back of top hand.
E. Other improper pat (document)—Conducts any pat other than what is instructed and cannot be checked above. Be sure to describe in narrative.
F. Did not increase speed—Did not make noticeable increase in speed within any 4 to 5 second period of the test. Correct this and remind him to speed up as he goes.
G. Rotated hands—Fingers no longer run parallel to each other resulting in noticeable and distinct rotation in any pat.
H. Stopped before being told—Subject stops at any time before the command to stop is given.

Hand Coordination (HC) Exercise Procedures37

The HC requires a person to perform four tasks with the hands. It is adapted from the Walk-and-Turn SFST performed in the standing position.

The standard instructions for the HC exercise are as follows:

  • “Make fists with both hands. Place your left fist at the center of your chest and your right fist against your left fist, like this.” (Demonstrate.)
    NOTE: Place your left thumb against the sternum and the thumb side of the right fist against the fleshy side of the left fist.
  • “Remain in this position while I explain the test. Do you understand?” (Wait for response.)
  • “When I say BEGIN, you must perform four tasks.”
  • “The first task is to count out loud from one to four while you move your fists in a step-like fashion, making contact between your fists at each step.” (Demonstrate while counting out loud “1, 2, 3, 4.”)
  • “The second task is to memorize the position of your fists after you have counted to four, clap your hands three times and return your fists to the memorized position.” (Demonstrate.)
    NOTE: No verbalized count is required.
  • “The third task is to move your fists in a step-like fashion in reverse order, counting out loud from five to eight and returning your left fist to your chest.” (Demonstrate while counting out loud “5, 6, 7, 8.”)
  • “The fourth task is to open your hands with palms down and place them in your lap.” (Demonstrate.)
  • “Do you understand?” (Get acknowledgement of understanding.)
  • “BEGIN.”

Hand Coordination Exercise Clues

There are a total of 13 clues during the 2 phases of the HC exercise: (1) instruction phase; and (2) performance phase. There are four tasks, with 3 clues in task one; 4 clues in task 2; 4 clues in task 3; and 2 clues in task four. Three or more total clues “suggest” that individual is impaired with .08 or higher BAC.

Instruction Stage:

A. Unable to follow instructions—Applies if exercise had to be explained “more than twice” or subject did not remain instruction phase. Also put when right fist is put to chest instead of left fist when told to put left fist against chest.
B. Started at wrong time—Subject began test before being told to begin either by starting on his own at any time or by following along with the officer’s demonstration.

Performance Stage:

Task One: Forward Steps

A. Improper count—Counts anything other than “1, 2, 3, 4,” while moving fists out away from the chest four times in a step-like fashion. This includes when subject does not count out loud or counts too many or too few steps.
B. Improper touch—Drags the fist over one another while moving from one step to another, when the subject does not make end-to-end contact between the two fists or when the subject accidentally makes top to bottom contact between the two fists.
C. Did not perform—Skips over and forgets to perform this task.

Task Two: Hand Clapping

A. Improper count—Does anything but clap three times. Subject does not have to count out loud. This includes too many or too few claps.
B. Improper touch—Makes any contact between the hands other than palm-top-palm clapping.
C. Improper return—Does not return fists to the memorized position end-to-end with the right fist in front of left. Most common mistake is returning the left fist in front of right.
D. Did not perform—Skips over and forgets to perform three hand claps.

Task Three: Return Steps

A. Improper count—Counts anything other than “5, 6, 7, 8,” while moving fists toward the chest four times in a step-like fashion. This includes when subject does not count out loud or counts too many or too few steps.
B. Improper touch—Drags the fist over one another while moving from one step to another, when the subject does not make end-to-end contact between the two fists or when the subject accidentally makes top to bottom contact between the two fists.
C. Did not return left fist to chest—Does not make contact to the chest with the left fist or if the subject brings the right fist to the chest instead of the left fist.
NOTE: Following an improper return on the hand clap, if the subject makes an adjustment to return the left hand to chest along with a proper number of counted steps and proper touch, a clue will not be assessed.
D. Did not perform—Skips over and forgets to perform this task.

Task Four: End Position

A. Improper position—Opens up the fists and places them anywhere other than on the lap. A noticeable attempt to complete this task must be observed—e.g., if the subject opens hands, palms facing down, and then holds them out in the air in front of them, if the subject opens hands, palms facing down, and places the hands beside them in the seat, or if the subject opens hands and then says, “I can’t remember where to put my hands.”
B. Did not perform—Skips over and forgets to perform this task—e.g., if the subject remains with fists closed against the chest and makes no attempt to perform the final task or if the subject takes fists directly to lap or seat with no attempt to open hands up with palms facing down.
NOTE: If subject totally refuses to perform HC, refusal will be noted. Officer will not check all of the “did not perform” boxes, thus resulting in an indication that four clues were observed.
NOTE: During Task 1 of HC, while moving fists in a step-like fashion out away from the chest, if the subject did not go out away from the chest as much as the officer demonstrated, no clue will be assessed. All the subject must do is place one fist in front of the other in a step-like fashion while counting out loud from 1 to 4. No specific distance from the chest is required.
NOTE: During Tasks 1 and 3 on HC, no clues will be assessed if the subject “steps” under or around the fist instead of “stepping” over the fist as demonstrated by the officer.
NOTE: When a clue is observed in any test, it is only counted once, no matter how many times it was observed. The only exception is for those performance clues that require compliance during each attempt during the Finger to Nose test.

III. Defenses

A. Limitations of Seated Battery

The seated battery manual acknowledges that the seated battery may not be appropriate for people with certain disabilities, such as:

1. People with certain arm, shoulder or elbow problems may not be able to perform the tests.
2. People missing a portion of an index finger… or more should not be administered the FTN.

If obvious disabilities are observed that would significantly limit the subject’s ability to perform one or more of the tests, it is best not to administer the tests in question.38

B. Marine Environment

The marine environment, as acknowledged in both studies, has “certain stressors [that] are present in the boating environment which are not present on the highway… ”39 The stressors inherent in boating are heat, spray, boat motion, vibration, and glare and may cause boaters (whether intoxicated or sober) to perform poorly on field sobriety tests. These environmental conditions (wind, water choppiness, and glare) can make it difficult to determine boaters’ impairment.

The 1990 marine study was not conducted in as harsh of temperatures or general boating conditions that most boaters will endure. The military personnel in that study were only passengers on a boat for 90 minutes. They were young, fit, and ostensibly veteran boaters not susceptible to seasickness or sea legs. Most importantly, they were not under the threat of arrest.

This manual recognizes the limitations of the standing battery of SFST in the marine environment. Specifically, “[w]hen activities (such as boating) disrupt a person’s equilibrium, balance is potentially affected for a period of time following the activity. A common phenomenon occurs, commonly referred to as ‘sea legs,’ where a person feels unsure of their balance on shore, especially after riding in a boat for long periods. The USCG recommends allowing a waiting period onshore for at least 15 minutes before administering the standing SFST battery.” The manual also acknowledges that there is no scientific data to back up the 15-minute waiting period when it stated: “There needs to be additional research performed to thoroughly evaluate and quantify the effects of ‘sea legs’ on a person’s equilibrium.”40

The manual further sets forth that the seated battery must be administered in a reasonably safe and stable environment. It is recommended to administer the seated battery in calmer waters—i.e., backwaters, coves, bays, or stabilized on the shoreline in a location that minimizes significant boat movement.41

C. Legal Challenge to Detention

On a roadway stop, an officer can only stop a motorist when rea­sonable suspicion exists that a law violation has been committed. Moreover, NHTSA has determined that certain driving characteristics are visual cues of an intoxicated driver. In the marine environment, most states allow marine officers to con­duct water safety checks without the reasonable suspicion re­quire­ment. Specifically in Texas, Tex. Parks & Wild. Code Ann. § 31.124 authorizes a certified marine officer to stop and board any vessel only for the purpose of ensuring compliance with the registration and safety requirements.

The Texas Court of Criminal Appeals rejected a constitutional challenge to section 31.124 under the Fourth Amendment so long as the intrusion with the boaters is minimal in scope because the search may only be directed at the safety items listed in the statute. Further, while the boat must carry several safety and registration items, only a brief visual inspection is necessary to determine compliance. See Schenekl v. State, 30 S.W.3d 412, 417 (Tex.Crim.App. 2012)(Meyers, J., concurring opinion).

In Texas, a peace officer or game warden must be a certified marine safety enforcement officer by the department to enforce any provision of Tex. Parks & Wild. Code Ann. § 31.121. An officer is only allowed to check a boater for the following:

1. The vessel’s certificate of number. Tex. Parks & Wild. Code Ann. § 31.028 (certificate of number shall be carried on board vessel);
2. Identification number and validation decal. Id. at § 31.032 (identification number and validation decal shall be painted on or attached to side of vessel near bow);
3. Manufacturer’s identification number. Id. at § 31.043 (vessels manufactured in Texas for sale and vessels sold, numbered, or titled in Texas shall carry manufacturer’s hull identification number clearly imprinted on structure of vessel or displayed on plate permanently attached to vessel);
4. Lights. Id. at § 31.064;
5. Sound-producing devices. Id. at § 31.065;
6. Life preserving devices. Id. at § 31.066;
7. Fire extinguishers. Id. at § 31.067;
8. Flame arrester or backfire trap on carburetors of gasoline en­gines, with the exception of outboard motors. Id. at § 31.068;
9. Ventilators for bilges of engine and fuel tank compartments, with the exception of open boats. Id. at § 31.069;
10. Exhaust water manifold or muffler installed on engine. Id. at § 31.070; and
11. Rearview mirror (in certain circumstances where persons are being towed). Id. at § 31.071.

Despite Texas and other states allowing random spot checks for water safety inspections, the United States Coast Guard, on their website, specifically acknowledges that they do not con­done or adhere to this practice:

The Coast Guard will not conduct random spot checks, block­ades or checkpoints to detect intoxicated operators, nor will any quota systems be employed. A boarding officer will di­rect a recreational boater to submit to a field sobriety test and/or a breath analyzer test only when he has a reasonable suspicion that an operator is intoxicated or when a marine accident has occurred.42

Further, the Arkansas Supreme Court found the state statute authorizing water safety checks—as it was enforced in this particular case—did not pass constitutional muster:

Sergeant Tucker testified that, while he tried to stop and perform a safety check on as many vessels as he could in a given day, there was no plan and nothing to determine which boats he stopped. There were no specific, objective facts about Allen’s vessel to indicate that society’s legitimate interests required the seizure of Allen and his particular vessel. As the circuit court found, Allen’s vessel was being legally operated in an unremarkable fashion. Sergeant Tucker testified that he did not believe that he had “the unfettered discretion to pull over any boat at any time for any reason that [he desired],” but only to perform a safety check. However, this means that whether the stop is proper depends only on the law-enforcement officer’s subjective assertion of his or her purpose when the Fourth Amendment requires objective fact supporting the stop or a plan embodying explicit, neutral limitations. As the circuit court found, the practice of safety-check stops by law-enforcement officers in this case violates the Fourth Amendment.

See State of Arkansas v. Robert M. Allen, 2013 Ark. 35 (AK Supr. Court 2013).

The Arkansas case is an example of excellent lawyering. Every state has a statute in place allowing suspicionless water safety checks. Do not concede that the stop in your case is legal. Preparation and good cross-examination could potentially obtain the same outcome as in the Arkansas case. Lawyers are encouraged to review their state statutes to determine compliance to ensure that the detention of your client was legally permitted.

D. Public information Act Requests

Public Information Act requests to determine whether a particular marine officer is a certified marine officer as required by statute is a necessity. In addition, most state marine officers are required to report their water safety check reports to their governing body. These officers are also required to submit BWI offense reports and other arrest paperwork to their governing body for statistical analysis. It is incumbent upon lawyers to also submit public information act requests for all of this information. These reports are a treasure trove of helpful information and can demonstrate a lack of competence, habits and modus operandi of officers, repeated language from report to report, etc. There are also agency violation analysis reports that are helpful to learn more about a particular marine officer.

Lastly, certified marine officers that take the NASBLA BUI seated Battery Transition Training Course take an examination. This examination is forwarded to NSABLA for grading to a key. If NASBLA determines an officer passed the exam, they forward a certificate. A subpoena duces tecum or public in­formation act request should be made to NASBLA for the arresting officer’s exam.

E. Float Camera Audio/Video Recordings

Most water safety patrols utilize some form of electronic audio/visual recording device. It is routine in Texas for game wardens to utilize float cameras affixed to their hats with wireless microphones. These on the boat scene videos are very telling of the observations made by the officers of our clients. These videos generally demonstrate the absurdity and ridiculousness of the seated battery of exercises.

F. Alphabet and Counting Exercises Were Excluded

It is common for water safety patrol to ask our clients to say the alphabet and also count backwards. While these tasks can cause our clients to trip up due to being nervous due to threat of arrests, they have not been determined to be reliable. The truth is, the seated battery is actually even more susceptible to scoring clues due to nervousness and threat of arrest.

G. Seated Exercises Do Not Prove Impairment

The seated exercises do not prove impairment. Rather, the seated exercises when a certain number of clues are exhibited purport to only “suggest” that a person has a BAC of above .08.43

Rule 401, Texas Rules of Evidence provides: “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Any evidence that the state wants to offer that arises out of the NASBLA methods, procedures, training, and scoring is not relevant to impairment because all that information is only relevant to blood alcohol concentration (BAC). Therefore, the seated exercise BAC evidence does not have any tendency to make the issue of impairment any more or less probable than without evidence. This preclusion of BAC evidence is required by Emerson v. State, 880 SW2d 759 (Tex. Crim. App. 1994) (no quantifying evidence allowed).

Indeed, this no impairment correlation premise is admitted by NHTSA and NASBLA. In the 2000 Student Manual entitled “DWI Detection and Standardized Field Sobriety Testing,” at section VIII-1, p.4, it says, “[l]aboratory research indicated that three years ago tests, when administered in a standardized manner, were a highly accurate and reliable battery of tests for distinguishing BACs above 0.10.” The manual does not correlate standardized field sobriety test performance to physical or mental impairment.

Moreover, the NHTSA study entitled “Development and Field Test of Psychophysical Tests for DWI Arrest” (March 1981), at p. 72, says that “[t]he major objectives of this project have been to . . . assess in the field its feasibility and effectiveness when used by the police for estimating BAC…” Additionally, the NHTSA study entitled “A Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery” reaffirms the notion that the SFST results are “made strictly in terms of BAC” (p. 13). Finally, the NHSTA study entitled “A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery” (November 1995) says in pertinent part that “this analysis . . . is defined strictly in terms of the BAC statute and does not speak to the more difficult question of the individual driver’s impairment” (p.3).

Under Rule 402 of Texas Rules of Evidence, the NASBLA seated exercise evidence is not admissible because it is not relevant in an impairment prosecution. Alternatively, under Rule 403, Texas Rules of Evidence, even if it were relevant, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

IV. Summary

The seated battery is as unreliable in the marine environment as NHTSA determined they were in stable and level field environment. The only thing these seated exercises provide is an excuse to justify a further detention to transport a boater to land for further investigation. Defense lawyers need to read these studies and the manual to be prepared to challenge the fallacies of the seated exercises and these so called studies. For BWI manuals and material, follow this link:


1. NASLA BUI Seated Battery Transition Training Course, Student Manual (hereafter “Manual”), p. 3.5.


3. E. Sussman, et al., An Experimental Evaluation of a Field Sobriety Test Battery in the Marine Environment, U.S. Coast Guard, 1990 (hereafter, “Marine Environment Study”), p. 1.

4. Marine Environment Study, p. 14.

5. Marine Environment Study, p. 15.

6. Marine Environment Study, p. 16.

7. Marine Environment Study, p. 16.

8. Marine Environment Study, p. 24.

9. Marine Environment Study, p. 26.

10. Marine Environment Study, p. 35.

11. Marine Environment Study, p. 41.

12. Fiorentino, D. D., Validation of sobriety tests for the marine environment (hereafter “Fiorentino”), Acid. Anal. Prev. (2010).

13. Fiorentino, p. 7.

14. Fiorentino, p. 1.

15. Fiorentino, p. 2.

16. Fiorentino, p. 2–3.

17. Fiorentino, p. 3.

18. Fiorentino, p. 3.

19. Fiorentino, p. 3.

20. Fiorentino, p. 5.

21. Fiorentino, p. 6.

22. Fiorentino, p. 6.

23. Fiorentino, p. 6.

24. Fiorentino, p. 6.

25. Fiorentino, p. 6.

26. Fiorentino, p. 6.

27. Fiorentino, p. 6.

28. Fiorentino, p. 6.

29. Manual, p. 3.8.

30. Manual, p. 4.2.

31. Schultz v. State, 106 Md. App. 145, 664 A. 2d 60 (1995).

32. Manual, p. 2.3–2.5.

33. Manual, p. 3.9.

34. Manual, p. 4.2–4.5.

35. Manual, p. 4.5–4.7.

36. Manual, p. 4.8–4.11.

37. Manual, p. 4.8–11.

38. Manual, p. 4.12.

39. An Experimental Evaluation of a Field Sobriety Test Battery in the Marine Environment (hereafter, “Marine Environment Study”), p. 1.

40. Manual, p. 3.8.

41. Manual, p. 4.13.


43. Manual, p. 3.8–3.9.

After the Ball

It has been more than a year since I stood at the lectern in the historic marble chamber that is the United States Supreme Court, and as I turn the page of the calendar to my next case, it is an appropriate time to reflect on what was a very special year.

Post Argument—February 25, 2013

After the bang of the gavel, the Chief Justice announced the case will be submitted. Courteous exchanges between my “friend” Andrew Oldham, Assistant Texas Solicitor General, and his associates were, I believe, sincere. Seth (Waxman), Bud (Ritenour), and Catherine (Carol), who sat at counsel table, felt relieved and confident in the “spot on” delivery we all were pointing towards. I had delivered the performance of a lifetime.

Strangers who watched the argument approached me and offered their congratulations. The highest compliment came from Deputy Clerk Jameson, who commented that he did not believe it was my first appearance before the Court. I have always held court personnel in the highest regard. They have a peculiar insight into court proceedings, and they know what is and is not good.

Of course, Teresa (my wife) and Robin (my daughter) were there. Robin was as ever proud of her Daddy. Teresa, who had sacrificed so much in her own way, got to witness the fruits of our collective labors.

 After the case was set for submission, Teresa and Robin and I remained in the Supreme Court building. We went back to the clerk’s office to say goodbye to Mrs. Tycz—the deputy clerk who had been so encouraging. She congratulated me on my maiden appearance. Others had offered similar compliments as I left that hallowed chamber. But it was the decision of the nine Justices that mattered, and that decision was not expected until the end of the term before summer recess.

Teresa, Robin, and I ate at the Supreme Court cafeteria. After a stop at the gift shop, we made our way to Reagan Airport and then to San Antonio.

“The Law Is a Jealous Mistress”

My property professor at St. Mary’s Law School told us this in our first year, and he was right. My calendar was bursting at the seams, thanks to the local judges back home who gave me generous court recesses for four months of my calendar. The time had come to get back to the work at hand. But yet I still had that one special case. I started watching the Supreme Court calendar for announcements. Like an expectant father, I had an interest in the outcome but had no control over the process or its timing.

May 28, 2013

Almost three months to the day, while I was sitting in the Bexar County Jail in the midst of a parole revocation hearing, I received a message from my co-counsel, Bud Ritenour, on my iphone that we had won.

It was the crowning achievement of a 37-year career, a dream come true. It was like winning the Super Bowl, the World Series, and the NBA Championship, all rolled into one.

Later that day, I learned it was Justice Kennedy and not Justice Breyer who made the oral pronouncement in open court. It is customary that the justice who is the author of the opinion make the announcement. Ironically, Justice Breyer, who is a fellow Eagle Scout, was in the hospital recovering from a broken collarbone he incurred while riding his bicycle. Coincidentally, I had a major bicycle accident during my representation of Carlos. In 2009, I broke my hip, which resulted in a total hip replacement. It was as if Justice Breyer and I were “joined at the hip”—or scapula, as the case may be.

The Express-News Article

Craig Capitan, the courthouse beat reporter for our local newspaper, keeps his ear to the ground and is quick to get a story. We had discussed Carlos’ case when certiorari was granted, but the time was not ripe for such a story.

The Defense of Marriage Act (DOMA) was coming up for oral argument, shortly after my case. Local attention was drawn more heavily to the Supreme Court.

When the decision came back favorably in Carlos’ case, I became newsworthy. Craig immediately contacted me and interviewed me. The next day the story ran, “S.A. Lawyer a Success in the Supreme Court.”

Recognition in the Community

After the story ran, I started receiving congratulatory messages from friends, old and new.

Steve Skinner

The one that stands out the most is my old Boy Scout friend, Steve Skinner. I had known Steve from our work in the local Boy Scout Council back in the 1970s. We had renewed our friendship in 2010, as we both were on staff at the centennial Boy Scout National Jamboree. We got together for lunch shortly thereafter. He told me that his future-son-in-law and he had talked about the fact that Steve knew someone who had appeared before the U. S. Supreme Court. Steve told me that his son, who graduated from the University of Chicago Law School, had a question on one of his final exams regarding my case.

Al Reiter

Al Reiter, another good Scouting friend, suggested that I speak to the San Antonio Breakfast Club (of which he is a member). I was not quite sure how a bunch of retired businessmen would react to a criminal defense attorney who the court appointed to represent a condemned man sitting on death row.

I was pleased by their genuine interest in the process and my experience. They even extended to an invitation to join their club.

Recognition by My Peers

The accolades began to cascade down. The Texas Criminal Defense Lawyers Association named Bud and me as the Percy Foreman Lawyers of the Year. The San Antonio Criminal Defense Lawyers Association (SACDLA) followed suit, naming us Defenders of the Year. We were also named by San Antonio Scene magazine as one of San Antonio’s Best Criminal Defense Lawyers as selected by their peers. In addition, I was selected for membership into the National Trial Lawyers Top 100 Trial Lawyers for 2013.

I wrote an initial story about my Supreme Court experience entitled, “I Could Have Danced All Night,” published in TCDLA’s Voice and SACDLA’s Defender magazines.

Part of Supreme Court History

At last year’s Rusty Duncan Seminar when we received our lawyer of the year awards, I had the honor to meet the keynote speaker, Stetson Law School Dean Bruce Jacob. Dean Jacob is the last surviving participant of the landmark case, Gideon v. Wainwright. Clarence Earl Gideon is deceased. His lawyer, Justice Abe Fortas, is deceased. All of the nine justices who heard the case are no longer living. The judge and the lawyers in Florida who were involved in the original case and its retrial are deceased as well.

We talked about the plight of the indigent and the “right to counsel” and how our cases are linked. We parted—agreeing to keep in touch. I sent him a link to my oral argument. I had listened to the oral argument in Gideon in my preparation for my oral argument. He sent a reply email the following day telling me that he enjoyed my time at the lecturn.

“After the Ball”

As Bud reminds me, going to the U. S. Supreme Court is not a destination but a journey. I am now introduced by judges, lawyers, and laypersons as the lawyer who went to the Supreme Court. Although I have returned to my regular caseload, my life has been inexorably changed. I hope to stand as an inspiration to my peers, old and young, and in a peculiar way to myself. I will forever be able to say that I argued a case before the United States Supreme Court; and won.

And now, on to my next client.

Texas and Federal Rules of Evidence: Our Top 12

Certain rules of evidence are needed in most every trial. These may be committed to memory, not necessarily so the rule can be recited verbatim, but at least so we may get to our feet and give a rule number and general description of the rule in making an objection. Being able to recite the rule word for word has advantages also. However, not all rules of evidence are as important as the ones we use reg­ularly. Learning a rule of evidence so it may be used read­ily in trial requires a ranking of the rules in order of im­por­tance. If we know only three rules, they should be the three most important. We suggest that a fluency with the top twelve rules will give a certain comfort level in trial that most trial lawyers lack. Later, we will give another group to round out the top twenty-five.

We are listing the rules we have found most important. This is based on years of regular trial work, rather than any counting of objections from trial transcripts, but we believe most busy criminal defense lawyers would end up with a list that looks similar.

One, two, and three: Rules 602 (personal knowledge), 402 (relevance), and 802 (hearsay)

The first three: Rules 602, 402, and 802.

Rule 602, the queen of the evidence rules, requires personal knowledge of the witness. The five senses are the key to this rule. Rule 402 excludes evidence that is not relevant. Relevant evidence has a tendency to make any fact of consequence to the determination of the action more or less probable. Rule 802 excludes hearsay, a statement made by the declarant to prove an assertion.

These three often go together: “Your honor, objection. No personal knowledge under Rule 602. Not relevant under Rule 402. Hearsay, Rule 802.” The meat of these objections is in the definitions in Rules 401 and 801, but this is the triumvirate of objections that will be necessary over and over. T. S. Eliot wrote that “Dante and Shakespeare divide the modern world between them; there is no third.” Rules 602, 402, and 802 divide the evidence world with a three-way split.

Four, Five, and Six: Rules 403 (prejudice), 615 (production of witness statement), and 614 (The Rule)

The next three: Those first three are big and hard and needed in every trial. These next three are easier, but common. We want to urge these next three be learned now to provide a break before we move back into some harder rules. Also, grouping the rules in threes makes them easier to remember. Our next three are 403, 615, and 614 for a state court trial. For a federal trial, 403 is the same but the other two are found in different places. Each of these three rules should also be invoked in almost every criminal trial.

Rule 403 excludes even relevant testimony if it is too prejudicial, confusing, or misleading. For example, polygraph results may be excluded under Rule 403. United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). The federal rule includes “waste of time.” The impatient federal judge may say: “Sustained. That’s a waste of time.” The state judge must cloak his impatience by saying: “Sustained. Because of considerations of undue delay and needless presentation of cumulative evidence, that will be excluded.”

Rule 615 has traditionally been the first consideration in most cases in which the prosecutor says, “I pass the witness.” Although the new discovery rules may now provide every witness’ statement before trial, the best practice has been to request the previous statements of the witness, in­clud­ing grand jury testimony, before beginning the cross-examination. The federal rule is found in Federal Rules of Criminal Procedure Rule 26.2.

Rule 614 is “The Rule” for excluding witnesses from the courtroom during testimony of other witnesses. “Your honor, we invoke The Rule.” Note that complaining witnesses and expert witnesses may sometimes be allowed to stay in the courtroom. Confusingly enough, “The Rule” in federal cases is Rule 615.

So here we have the first six rules to memorize that are used in almost every trial—602, 402, 802, 403, 615, 614. In a perfect world, we would want to master the top twelve before beginning trial, but these first six can be learned during that time on Sunday afternoon before trial usually devoted to unproductive worry. If you decide to mem­o­rize these word for word, begin with Rules 602, 401, and 801, because the definitions are the heart of relevance and hearsay.

Seven: Code of Criminal Procedure Chapter 38, Evidence in Criminal Actions

Our next two rules, making up the seventh and eighth, are not even in the rules of evidence, but they are evidentiary and they are critical. First is the exclusion of witness testimony under Article 38, and the next are the Confrontation Clause issues of Crawford. We group these because they are so important in keeping out harmful State’s evidence. Our winners for place seven are Code of Criminal Procedure Article 38.21 and the sections that follow restricting the use of the statement of the accused. These sections require some study to master them, but certainly the location of this rule needs to be learned. This article is also filled with evidence rules that apply to specific facts in the trial such as murder, 38.36, accomplice testimony, 38.14, child victim testimony, 38.072, or inmate testimony, 38.073. Beyond the general rules of evidence, the specific offenses may elevate some rules to greater importance, and an awareness and review of Chapter 38 before trial will help.

Eight: Sixth Amendment, Confrontation Clause, Crawford

Even if the evidence is otherwise relevant and falls under a valid hearsay exception, it may be excluded if it violates the Confrontation Clause. “Objection. Violation of the Sixth Amendment right of confrontation since this question would elicit testimony that we cannot test by cross-examination under Crawford.” This objection, especially when combined with a Rule 602 objection that the testimony is outside the witness’ personal knowledge, excludes testimony that a few years ago came in as both relevant and an exception to hearsay. This is a rule that requires study as well, but knowledge of the basic outline of the Confrontation Clause will exclude much harmful testimony. A nice quote from Crawford: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Nine: Rule 404(b) (other crimes, wrongs, or acts)

This may only be part of a rule, but it is essential even before trial. The first filing in most cases should be a Request for Notice under Rule 404(b). This notice obligates the prosecution to tell you what crimes and bad acts they want to move into evidence against your client. Rule 404(b) must be understood within the context of other rules, 609 (impeachment by evidence of conviction of crime), 803(22) (exception for judgment of previous conviction), and Code of Criminal Procedure Article 37.07, Section 3 (evidence of prior criminal record in all criminal cases after a finding of guilty).

Ten: Rule 701 (opinion testimony by lay witness)

A witness’ opinion is not admissible unless it qualifies either as a lay witness opinion under 701 or expert witness tes­ti­mony under 702. A prosecutor will sometimes try to in­tro­duce a police officer’s opinion as a lay opinion because the officer cannot qualify under 702 as an expert on the sub­ject. Rule 701 is a valuable tool for excluding harmful opinion testimony. Under Rule 701, the lay opinion must be rationally based on the perception of the witness and must be help­ful to the jury. These restrictions exclude many of the opinions the prosecutor will offer. For example, neither lay nor expert witnesses may express an opinion on proper punishment for a criminal defendant. Hughes v. State, 787 S.W.2d 193 (Tex. App.—Corpus Christi 1990, pet. ref’d).

Eleven: Rule 702 (testimony by experts)

Rule 702 may be used to exclude or limit the testimony of the prosecution witnesses. The trial judge has a gatekeeping duty. Daubert challenges have greatly limited expert tes­ti­mony, and we should use them as readily in criminal cases as they are used in civil cases. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Texas version of the rule is Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Also, Rule 702 is needed to support the defense expert witness, for ex­ample, on the issue of the state of mind of the defendant. Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988).

Twelve: Rule 104 (preliminary questions)

Rule 104 allows many of the issues we discussed in the first eleven rules to be decided outside the hearing of jury. Many lawyers would put it first. After all, what good is a rule of evidence if the jury has already heard the matter before they are told it is not admissible? Also, an adverse ruling under any of the rules above can sometimes be controlled and even changed by a request for a hearing under Rule 104. Much of the language in the rule is mandatory, and trial judges will usually grant the hearing.

So, these are the first twelve. The next group will round out the Top Twenty-Five, because we envision this as a series of articles. Our plan is to offer memory techniques to commit the first twenty-five to memory and then review each of the top twenty-five in more depth.

Our belief is that the rules of evidence are in a separate category from any other area of law. We think you will enjoy how useful is this article, and we believe you will find the rules of evidence to be beautiful. Evidence teaches us how we determine truth or falsity in the material world around us.

June 2014 Complete Issue – PDF Download



18 | Pictures from the 27th Annual Rusty Duncan Advanced Criminal Law Course
22 | Defending Boating While Intoxicated Cases – By Doug Murphy
35 | After the Ball – By Warren Wolf
38 | Texas and Federal Rules of Evidence: Our Top Twelve – By Ed & Sara Stapleton

7 | President’s Message
9 | Executive Director’s Perspective
11 | Federal Corner
16 | Said & Done

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

President’s Message: United We Stand – By Emmett Harris


As I took the oath of office at Rusty Duncan I remembered the line from the Robert Redford movie, “The Candidate,” where, to his surprise, he has been elected, looks at his handlers, and asks: “What do we do now?” Here are my suggestions for some answers to that question.

First of all, I give another salute to my predecessor, Mr. Bobby Mims. I watched and learned from him during his presidency as he sacrificed countless hours and miles navigating your association through occasionally challenging seas. He was and is a remarkable and diplomatic leader. Thanks to him we now have a newly minted agreement and relationship with the National College of DUI Defense and its excellent Mastering Scientific Evidence seminar in New Orleans.

High on our to-do list is our legislative effort. We have added a new member to our team. Patricia Cummings is our new addition to the legislative arena. You had a chance to meet her at Rusty, and I’m sure you saw what an extraordinary asset she will be leading and personifying us in the legislature.

We have created a new committee, the Listserve Committee, which will be chaired by Past President Bill Harris. This committee will formulate a specific structure to improve the quality and service of our listserve. It will also monitor and deal with questions or complaints concerning the use of the listserve by our members.

We are looking at new ways to reach out to law schools and attract new lawyers to our membership.

Here is what I think we do next. This may be a very good time to think about who we are. What is our purpose? What are we supposed to be up to? Our bylaws (our constitution) say:

Article II—Purpose

The purpose of the Association shall be:

To protect and ensure by rule of law those individual rights guaranteed by the Texas and federal Constitutions in criminal cases;

To resist the constant efforts which are being made to curtail these rights;

To encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance;

And through this cooperation, education, and assistance to promote justice and the common good.

Did you catch that phrase “to encourage cooperation between lawyers”?

Are we encouraging cooperation between lawyers engaged in ensuring individual constitutional rights? How so? Are we encouraging cooperation or engaging in competition between lawyers?

Now, we are all fighters. We do not suffer any deficiency of ego. We do not lack self-confidence. There are now over three thousand of us in this association spread across this huge state, from multi-storied firms in big city buildings to modest one-lawyer offices in small towns. We will inevitably have different views on particular issues, and we practice in an adversarial arena. There is an element of combat in what we do, and the deck is always stacked against us to some extent.

The public, from which our jurors come, is not inclined to embrace the presumption of innocence. It is not inclined to embrace our client’s right to remain silent. It is inclined to hold that silence against our client. It is not inclined to place the burden of proof on the state. It is not inclined to respect what we do as advocates for the accused.

And what is the health of those constitutional rights the curtailment of which it is our purpose to resist? How about the constitutional scholars who teach that our Constitution is no longer of any value, was written by a bunch of pre-industrial revolution slave-holders and should be abandoned? You can put that in the curtailment column. How about the steady erosion of the Fourth Amendment and the exclusionary rule? And how about the difficulty of arguing the issue of “expectation of privacy” in our cyber world?

Yes we are all fighters, and we had better be. There are, indeed, “constant efforts to curtail” constitutional rights. The answer to what we do now is that we continue to fight… but for Pete’s sake, not with each other! Let’s re-embrace that important part of our purpose and enthusiastically, energetically, encourage cooperation between our brother and sister lawyers. We do not have the luxury of fighting ego-driven turf wars within our association. We do not have the luxury of using our association merely as an arena for self-promotion. We will not let it be said that we took our eyes off the ball because we were scuffling around in the mud fighting with each other. Rather let it be said that we were united in the pursuit of our true purpose. We must always fight, but we must fight united as those who are dedicated to promoting justice and the common good.

It is a high and humbling honor to be your president. I encourage each of you to dedicate yourselves to the noble purpose of this association. United we will stand. Have a wonderful fun year rediscovering the joys of encouragement.

Emmett Harris

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


TCDLA has been very fortunate to have Bobby Mims (Tyler) as president in the last year. Thanks to his guidance and wise counsel, TCDLA advanced in all aspects of the association. Special thanks to Bobby for his sacrifices and his outstanding contributions in the past year. Welcome to Emmett Harris (Uvalde), our new President. We look forward to a successful and prosperous year under his leadership.

Special thanks to Michael Gross (San Antonio), who served as Chair of the Criminal Defense Lawyers Project (CDLP) Committee. This is the committee that oversees the $1+ million grant from the CCA. We thank Michael for his contributions overseeing CDLP activities. Kelly Pace (Tyler) is the new chair for CDLP. Jani Jo Woods is the new CDLP Vice Chair.

Thanks to Frank Suhr (New Braunfels), the Chair for this past year for the Texas Criminal Defense Lawyers Educational Institute (TCDLEI). Kameron Johnson will serve as the new Chair for TCDLEI this year. Randy Wilson (Abilene) was presented a special service award by outgoing Chair Frank Suhr for his 20 years serving on the TCDLEI Board. Randy served as the Chair for nearly 10 of his years on the Board.

Special thanks to Heather Barbieri (Plano), Jason Cassel (Longview), and Michael Heiskell (Fort Worth), our course directors for the 27th Annual Rusty Duncan Advanced Criminal Law in Course held in San Antonio in June. Thanks to them and the speakers, and staff support, we had 899 attendees. This was the largest Rusty Duncan attendance ever in a non-legislative year. Please make plans on joining us for next year’s 28th Annual Rusty Duncan Advanced Criminal Law Course, scheduled for June 18–20, 2015.

At Rusty this year, a special Justice Award was given to Senator Robert Duncan (Lubbock) for his authorship with Senator Rodney Ellis (Houston) of this year’s Michael Morton Act. Senator Ellis was not present but will receive his award at a later date.

Also honored at Rusty were Hall of Fame honorees David Botsford (Austin), Ron Goranson (Dallas), and Stan Schneider (Houston), as well as the Percy Foreman Lawyers of the Year, Keith Hampton (Austin) and Michael Ware (Fort Worth), and the Charles Butts Pro Bono Lawyers of the Year, Casie Gotro (Houston), Angela Moore (Boerne), and Mark Stevens (San Antonio). Congratulations to all.

Special thanks to Warren Wolf and Bud Ritenour, our lunch speakers for the Capital Update.

Special thanks to all of the participants who attended this year’s Rusty Duncan Advanced Criminal Law Course. Those of you who did not can purchase the DVD on our website. We will be sending our TCDLA Affiliates a complimentary copy they can use over the next 12 months for CLE at their monthly meetings.

Special thanks to Christie and Gerry Goldstein for opening their King William home to over 500 lawyers for the annual Pachanga party. Special thanks Harold Danford (Kerrville) and Clay Steadman (Kerrville) for coordinating the Annual TCDLA Golf Tournament.

Special thanks to our Membership Party Committee, Melissa Schank, Melinda Carroll, Lance Evans, and Mark Thiessen, who delivered the first time ever Casino Night Membership Party. A very good time was had by all.

Special thanks to Lynn Richardson and Alex Bunin, our course directors for the Public Defender training held in San Antonio on June 11. Thanks to their efforts we had 78 attendees.

Please make plans to join us for the 12th Annual Top Gun DWI seminar in Houston on August 22. How to deal with blood draws is the focus of the seminar.

Are you interested in forming a local criminal defense bar?  Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , Co-Chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Federal Corner: The Government Overreached and Got Spanked by the Supreme Court – By F. R. Buck Files Jr.


Prosecutorial discretion can be a wonderful thing. Over the years, Texas and federal prosecutors have listened to my pleas for leniency and—on a bunch of occasions—have chosen either not to indict or to charge my client with the commission of a lesser offense. Sometimes, though, prosecutorial discretion can go the other way and a client can receive a harsh sentence that is simply not appropriate under the facts of the case. We’ve all seen that.

On November 5, 2013, the Justices of the Supreme Court saw that. On June 2, 2014, Chief Justice Roberts, writing for the Court, held that the statute imposing criminal penalties for possessing and using a chemical weapon, and implementing the International Convention on Chemical Weapons Treaty, did not reach the unremarkable local offense of an amateur attempt by a jilted wife to injure her husband’s lover. In essence, the Court said that the Government prosecutor had overreached. Bond v. United States, ___ S.Ct. ___, 2014 WL 2440534 (2014). Justice Scalia filed an opinion concurring in the judgment, in which Justices Thomas and Alito joined. Justice Thomas filed an opinion concurring in the judgment, in which Justice Scalia joined, and Justice Alito joined in part. Justice Alito filed an opinion concurring in the judgment. The Court reversed and remanded.

Chief Justice Roberts’ opinion reads, in part, as follows:

[The Offense Conduct]

Petitioner Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, Bond’s closest friend, Myrlinda Haynes, announced that she was pregnant. When Bond discovered that her husband was the child’s father, she sought revenge against Haynes. Bond stole a quantity of 10–chloro–10H–phenoxarsine (an arsenic-based compound) from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate (a chemical commonly used in printing photographs or cleaning laboratory equipment) on Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill Haynes. She instead hoped that Haynes would touch the chemicals and develop an uncomfortable rash.

        Between November 2006 and June 2007, Bond went to Haynes’ home on at least 24 occasions and spread the chemicals on her car door, mailbox, and door knob. These attempted assaults were almost entirely unsuccessful. The chemicals that Bond used are easy to see, and Haynes was able to avoid them all but once. On that occasion, Haynes suffered a minor chemical burn on her thumb, which she treated by rinsing with water. Haynes repeatedly called the local police to report the suspicious substances, but they took no action. When Haynes found powder on her mailbox, she called the police again, who told her to call the post office. Haynes did so, and postal inspectors placed surveillance cameras around her home. The cameras caught Bond opening Haynes’ mailbox, stealing an envelope, and stuffing potassium dichromate inside the muffler of Haynes’ car.

[At the District Court]

Federal prosecutors naturally charged Bond with two counts of mail theft, in violation of 18 U.S.C. § 1708. More surprising, they also charged her with two counts of possessing and using a chemical weapon, in violation of section 229(a). Bond moved to dismiss the chemical weapon counts on the ground that section 229 exceeded Congress’ enumerated powers and invaded powers reserved to the States by the Tenth Amendment. The District Court denied Bond’s motion. She then entered a conditional guilty plea that reserved her right to appeal. The District Court sentenced Bond to six years in federal prison plus five years of supervised release, and ordered her to pay a $2,000 fine and $9,902.79 in restitution.

[From the Third Circuit to the Supreme Court]

Bond appealed, raising a Tenth Amendment challenge to her conviction. The Government contended that Bond lacked standing to bring such a challenge. The Court of Appeals for the Third Circuit agreed. We granted certiorari, the Government confessed error, and we reversed. We held that, in a proper case, an individual may “assert injury from governmental action taken in excess of the authority that federalism defines.” Bond v. United States, 564 U.S. ___, ___, 131 S.Ct. 2355, 2363–2364, 180 L.Ed.2d 269 (2011) (Bond I ). We “expresse[d] no view on the merits” of Bond’s constitutional challenge. Id., at ___, 131 S.Ct., at 2367.

[Back at the Third Circuit]

On remand, Bond renewed her constitutional argument. She also argued that section 229 does not reach her conduct because the statute’s exception for the use of chemicals for “peaceful purposes” should be understood in contradistinction to the “warlike” activities that the Convention was primarily designed to prohibit. Bond argued that her conduct, though reprehensible, was not at all “warlike.” The Court of Appeals rejected this argument. 681 F.3d 149 (C.A.3 2012). The court acknowledged that the Government’s reading of section 229 would render the statute “striking” in its “breadth” and turn every “kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” Id., at 154, n. 7. But the court nevertheless held that Bond’s use of “‘highly toxic chemicals with the intent of harming Haynes’ can hardly be characterized as ‘peaceful’ under that word’s commonly understood meaning.” Id., at 154 (citation omitted).

        The Third Circuit also rejected Bond’s constitutional challenge to her conviction, holding that section 229 was “necessary and proper to carry the Convention into effect.”


[The Second Trip to the Supreme Court: The Background and the Issue before the Court]

[T]he Second Battle of Arras during World War I… and others like it led to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government’s constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States’ obligations under the Convention, Congress enacted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a stat­ute that, like the Convention it implements, deals with crimes of deadly seriousness.

        The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.


[The Limited Powers of Our National Government]

In our federal system, the National Government possesses only limited powers; the States and the people re­tain the remainder. The States have broad authority to enact legislation for the public good—what we have often called a “police power.” United States v. Lopez, 514 U.S. 549, 567, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The Federal Government, by contrast, has no such authority and “can exercise only the powers granted to it,” McCulloch v. Maryland, 4 Wheat. 316, 405, 4 L.Ed. 579 (1819), including the power to make “all Laws which shall be necessary and proper for carrying into Execution” the enumerated powers, U.S. Const., Art. I, § 8, cl. 18. For nearly two centuries it has been “clear” that, lacking a police power, “Congress cannot punish felonies generally.” Cohens v. Virginia, 6 Wheat. 264, 428, 5 L.Ed. 257 (1821). A criminal act committed wholly within a State “cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.” United States v. Fox, 95 U.S. 670, 672, 24 L.Ed. 538 (1878).


[The International Convention on Chemical Weapons Treaty]

Section 229 exists to implement the Convention, so we begin with that international agreement. As explained, the Convention’s drafters intended for it to be a comprehensive ban on chemical weapons. But even with its broadly worded definitions, we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct. The Convention, a product of years of worldwide study, analysis, and multinational negotiation, arose in response to war crimes and acts of terrorism. See Kenyon & Feakes 6. There is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.


[Why the Government’s Theory of the Case Was Rejected]

Bond was prosecuted under section 229, and the statute—unlike the Convention—must be read consistent with principles of federalism inherent in our constitutional structure.

        In the Government’s view, the conclusion that Bond “knowingly” “use[d]” a “chemical weapon” in violation of section 229(a) is simple: The chemicals that Bond placed on Haynes’ home and car are “toxic chemical[s]” as defined by the statute, and Bond’s attempt to assault Haynes was not a “peaceful purpose.” §§ 229F(1), (8), (7). The problem with this interpretation is that it would “dramatically intrude[ ]upon traditional state criminal jurisdiction,” and we avoid reading statutes to have such reach in the absence of a clear indication that they do. United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).


[The Court’s Conclusion]

We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States. See See Bass, supra, at 349.


We do not find any such clear indication in section 229. “Chemical weapon” is the key term that defines the statute’s reach, and it is defined extremely broadly. But that general definition does not constitute a clear statement that Congress meant the statute to reach local criminal conduct.

        In fact, a fair reading of section 229 suggests that it does not have as expansive a scope as might at first appear.


In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.


[The Government’s History of Prosecutions under Section 229]

[W]ith the exception of this unusual case, the Federal Government itself has not looked to section 229 to reach purely local crimes. The Government has identified only a handful of prosecutions that have been brought under this section. Brief in Opposition 27, n. 5. Most of those involved either terrorist plots or the possession of extremely dangerous substances with the potential to cause severe harm to many people. See United States v. Ghane, 673 F.3d 771 (C.A.8 2012) (defendant possessed enough potassium cyanide to kill 450 people); United States v. Crocker, 260 Fed.Appx. 794 (C.A.6 2008) (defendant attempted to acquire VX nerve gas and chlorine gas as part of a plot to attack a federal courthouse); United States v. Krar, 134 Fed.Appx. 662 (C.A.5 2005) (per curiam ) (defendant possessed sodium cyanide); United States v. Fries, 2012 WL 689157 (D.Ariz., Feb. 28, 2012) (defendant set off a homemade chlorine bomb in the victim’s driveway, requiring evacuation of a residential neighborhood). The Federal Government undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to the States, and nothing we have said here will disrupt the Government’s authority to prosecute such offenses.

[The Statutes of the Commonwealth of Pennsylvania Would Support a Prosecution of Bond]

It is also clear that the laws of the Commonwealth of Pennsylvania (and every other State) are sufficient to prosecute Bond. Pennsylvania has several statutes that would likely cover her assault. See 18 Pa. Cons.Stat. §§ 2701 (2012) (simple assault), 2705 (reckless endangerment), 2709 (harassment). And state authorities regularly enforce these laws in poisoning cases. See, e.g., Gamiz, Family Survives Poisoned Burritos, Allentown, Pa., Morning Call, May 18, 2013 (defendant charged with assault, reckless endangerment, and harassment for feeding burritos poisoned with prescription medication to her husband and daughter); Cops: Man Was Poisoned Over 3 Years, Harrisburg, Pa., Patriot News, Aug. 12, 2012, p. A11 (defendant charged with assault and reckless endangerment for poisoning a man with eye drops over three years so that “he would pay more attention to her”).

My Thoughts

  • Bond’s lawyer represented her well by asserting a Tenth Amend­ment argument at every opportunity. Great lawyering.
  • The Government lawyer who wrote the Government’s Brief in Opposition should have been concerned that the prosecution of Ms. Bond was absolutely different in scope from the other cases prosecuted under Section 229.
  • I have so much fun every month as I try to decide what case to write about because there is always a new issue out there for me. This time, it was one based on the Tenth Amendment. What a kick!

Said & Done



Steven R. Green and John Scott of Athens recently reached a plea agreement for Life without Parole in the capital murder case of Donny Lee Greenhow in the 294th Judicial District Court of Van Zandt County, Texas. The State indicted Mr. Greenhow for the double murder of two family friends while strung out on illegal drugs and prescription medications. The State was seeking the death penalty, but with the help of mitigation specialist Gerry Byington and a sympathetic victims’ family, Green and Scott were able to convince the State that life without parole was the appropriate resolution. Congratulations, counselors.

Former TCDLA Director and Houston lawyer Jack B. Zimmermann was presented the Lifetime Achievement Award by the Harris County Criminal Lawyers Association at its banquet on May 8, 2014. Zimmermann was introduced by former National Association of Criminal Defense Lawyers President Jim E. Lavine as a defender of the constitution, champion of the underdog, zealous ethical advocate, American hero who served his country in combat with distinction and valor, leader of the Bar, and teacher of young lawyers to improve the quality of representation of the citizen accused. His many nationally significant cases were reviewed, and Zimmermann recalled humorous incidents from some key cases and testimony before Congress. All 350 seats were sold for the largest banquet audience in HCCLA history. He continues to practice as a senior partner in a Houston-based law firm focusing on state, federal, and military defense cases. You’re a credit to the association, Jack.

As our new Second Vice President, David Moore, noted, Bernie Tiede was released from custody in Carthage recently. David says that a huge reason for that was the courage that Danny Buck Davidson showed in doing what he felt was appropriate under the facts and the law. “I truly believe that his actions truly exemplify a prosecutor who takes his oath seriously regarding seeking justice,” said David. “I know that he will face undue and unfair criticism in many circles. I believe that we should do something as an organization to recognize his willingness to take a position with considerable risk of fallout because he believed it was the right thing to do.” Immediate Past President Bobby Mims, in a letter to Davidson, concurred: “The Board of Directors and the 3,500 members of the Texas Criminal Defense Lawyers Association commend you for your pursuit of justice in the Bernie Tiede case. As you know, everyone wins when justice is done, and we are confident that you are one of those elected officials who relentlessly pursues justice.”

Back at the end of March, Chris Raesz had what he described as the weirdest trial experience. He had spent months going to docket trying to get his client approved for pretrial diversion on the theft of an iPhone, finally gaining approval. And his client turned it down. So Chris put the case on the trial docket, whereupon the State offered deferred. And his client turned it down.
 So a trial it was. Chris notes that he presented two very good suppression issues (with the judge admitting that he wanted the GPS portion appealed), but both were denied. So Chris told his client that he thought he should absolutely not testify—when prior to trial he thought it would absolutely be necessary. His client listened this time and didn’t testify. Twenty minutes into deliberations and the jury came out with a big “not guilty.” As Chris says, “Sometimes our clients are smarter than we are.”

At the end of last month, Casie Gotro and Don Flanary scored a not guilty on a very tough Intox-Manslaughter in San Antonio. The case involved a BAC of .15 and the tragic death of a child. Don, who became a TCDLA Director at Rusty, says that both of them dug very deep and applied the powerful tools learned in their psychodrama experiences. Don credits his co-counsel, one of the TCDLA Pro Bono Lawyers of the year: “Casie was amazing to watch. I could not have done it without her! I am definitely headed to the Ranch now!” A hard-fought win for two of our best.
 Hall of Fame inductee Stan Schneider adds that Casie was a true road warrior: “She and I started a murder trial in Galveston on May 5th. Our client was convicted of manslaughter and sentenced to seven years in prison. She left Galveston immediately after the verdict and drove to San Antonio to start an intoxication manslaughter trial with Don Flannery on May 16th. The jury returned a two-word verdict yesterday at 5 p.m. She spent a month on the road in trial but helped obtain great results on two difficult cases.”

The Lubbock Criminal Defense Lawyers Association donated $10,000 to the Texas Tech University School of Law Foundation April 9, during a brief ceremony at the TTUSL Hunt Courtroom. LCDLA Immediate Past President David Hazlewood, along with LCDLA fundraising coordinator Jill Stangl, presented the check to TTUSL Dean Darby Dickerson.
 The gift is one of many in a series of donations LCDLA has made to the law school since 2005. Each year, the law school hosts the popular Prairie Dog Lawyers Advanced Criminal Law Seminar, sponsored by LCDLA, the Texas Criminal Defense Lawyers Association (TCDLA), and the Texas Criminal Defense Lawyers Project. This year, in conjunction with the seminar, LCDLA raised funds through its annual membership party, private donations, and t-shirt sales. TCDLA, which also held its quarterly board of directors meeting in conjunction with this year’s seminar, was instrumental in the fundraising effort.
 The money will benefit the Brendan Murray Criminal Defense Scholarship, which was created following his death on September 14, 2006. Brendan, son of longtime LCDLA and TCDLA member Brian Murray and wife Lynne, was a 22-year-old Texas Tech law student and TCDLA employee. He was a zealous advocate for the poor and oppressed throughout his life. Thus, the scholarship benefits worthy law students attracted to defending God’s children who have not yet attained perfection from those who have. To date, the fund has reached more than $92,000 from donations.