Monthly archive

August 2014

July/August 2014 SDR – Voice for the Defense Vol. 43, No. 6

Voice for the Defense Volume 43, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

When challenging a pre-trial asset seizure, a defendant who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe he committed the crimes charged. Kaley v. United States, 134 S. Ct. 1090 (2014).

        Two defendants were indicted by a grand jury of scheming to steal and resell prescription medical devices. At a hearing on a 21 U.S.C. § 853(e)(1) freezing of assets involved in the offenses, the lower courts held that Ds were not entitled to challenge the factual foundation supporting the grand jury’s probable cause determination. The Supreme Court affirmed and remanded.

        Prior judicial precedent held that the probable cause standard governed the pre-trial seizure of forfeitable assets, even when they were needed to hire a lawyer. And judicial precedent repeatedly affirmed a corollary of that standard—i.e., a defendant had no right to judicial review of a grand jury’s determination of probable cause to think a defendant committed a crime. In combination, those settled propositions signaled defeat for Ds in the instant case because, in contesting seizure of their property, they sought only to relitigate the grand jury finding. In sum, if the question in a pre-trial forfeiture case was whether there was probable cause to think the defendant committed the crime, then the answer was whatever the grand jury decided.

A federal statute can be enforced on a portion of a military installation that is subject to a public roadway easement. United States v. Apel, 134 S. Ct. 1144 (2014).

        The Department of the Air Force owns land that Highway 1 crosses, and the Department has granted roadway easements to the State of California and Santa Barbara County. Near the main gate of Vandenberg Air Force Base is a designated area for public protesting that falls under the Highway 1 easements. D was barred from Vandenberg’s property in 2007 for trespassing. In 2010, while the order barring him was still in effect, he entered the protest area three times and was asked to leave. He failed to leave each time. D was convicted of three violations of 18 U.S.C. § 1382, prohibiting a person from reentering a military installation after an officer has ordered him not to. D appealed, arguing that the statute requires the base to have exclusive possession over the area. The district court affirmed the convictions. The Ninth Circuit reversed, holding that because the area is subject to an easement, the federal government does not have an exclusive right of possession, and so the convictions cannot stand. The Supreme Court disagreed.

        For § 1382, part of an Air Force base that contains a designated protest area and an easement for a public road qualifies as a military installation. There has historically been a great deal of variation in the ownership status of U.S. military sites around the world; there is no precedent to support the view that a statute does not apply on a base merely because the base does not have exclusive ownership of the land. Despite the easement, the area remained under the jurisdiction of the base commander.

Fifth Circuit

A defendant sentenced under the Mandatory Victim Restitution Act is only responsible for paying restitution for the conduct underlying the offense of which he was convicted. United States v. Mason, 722 F.3d 691 (5th Cir. 2013).

        In mortgage-fraud case, where one defendant was acquitted of the overarching conspiracy count and convicted only of substantive counts relating to one transaction, the district court committed reversible plain error in ordering that D to pay restitution for a transaction other than the one underlying his counts of conviction.

Although courts sometimes recognized extrinsic promises contained in cover letters submitted contemporaneously with plea agreements, here the email exchange took place weeks before D’s guilty plea, and copies thereof were not transmitted with the plea. United States v. Long, 722 F.3d 257 (5th Cir. 2013, writ denied).

        The government did not breach its plea agreement with D by supporting the presentence report’s recommendation for an aggravating-role enhancement where the written plea agreement was silent on the issue but a subsequent email exchange between prosecutor and defense counsel showed prosecutor’s apparent agreement not to argue for an aggravated-role enhancement under the Guidelines. Moreover, by D denying under oath that there were any promises other than those contained in the plea agreement, the record shows that D did not rely on the email in pleading guilty; also, it would have been unreasonable for D to rely on the email given the plea agreement’s integration clause stating that the written plea agreement constituted the complete agreement between D and the government.

Search of D’s entire vehicle exceeded the scope of D’s consent, which was limited to his luggage; this required suppression not just of the drugs discovered, but also D’s inculpatory statements, as these were not shown to be sufficiently attenuated from the taint of the unconstitutional search. United States v. Cotton, 722 F.3d 271 (5th Cir. 2013).

Louisiana state D was not entitled to equitable tolling excusing his belated federal habeas petition beyond the AEDPA’s one-year limitations period; D was not diligent in asserting his rights. Sutton v. Cain, 722 F.3d 312 (5th Cir. 2013).

        Moreover, D’s legal error (not signing a state petition for certiorari to be filed jointly with a co-defendant, thereby excluding himself as a party to that petition) was not an extraordinary circumstance preventing him from filing a timely federal petition. Nor was D entitled to statutory tolling; the Louisiana Supreme Court’s denial of D’s motion for leave to file an out-of-time petition for certiorari was not an adjudication on the merits restarting the AEDPA clock.

District court reversibly erred in denying D’s 28 U.S.C. § 2255 motion, in which he alleged ineffective assistance of counsel with respect to filing a notice of appeal; counsel’s duty to consult with D about appealing was triggered. United States v. Pham, 722 F.3d 320 (5th Cir. 2013).

        Under Roe v. Flores-Ortega, 528 U.S. 470 (2000), an at­tor­ney provides ineffective assistance if he fails to consult with his client regarding an appeal (1) where a rational defendant would want to appeal or (2) where the particular defendant rea­sonably demonstrated to counsel that he was interested in ap­peal­ing. Here, D satisfied the second category; counsel knew D wanted a probation sentence so he could take care of his sick wife, but got a prison sentence. Moreover, after sentencing, D said he was concerned about the sentence and wanted to do some­thing to get less time. This was enough, in context, to trigger counsel’s duty to consult with D about an appeal. The Fifth Circuit reversed the denial of § 2255 and remanded to give D an opportunity to file a direct appeal.

Texas courts did not unreasonably apply clearly es­tab­lished law by rejecting D’s Confrontation Clause chal­lenge to the admission of a soundless videotape of attempts to determine whether D’s 2½-year-old son could pull the trigger of the gun that killed D’s wife (D claimed the toddler accidentally killed his mother). Dorsey v. Stephens, 720 F.3d 309 (5th Cir. 2013).

        No U.S. Supreme Court decision clearly establishes the contours of the Confrontation Clause in a factual setting even remotely analogous to a soundless video of a child’s responses and actions during an interview with law enforcement officials; furthermore, even if the Confrontation Clause had been clearly violated by the admission of the videotape, that evidence did not have a substantial and injurious effect on the jury’s verdict. Nor did appellate counsel provide ineffective assistance by failing to raise the Confrontation Clause issue on direct appeal; D failed to establish that this was deficient performance or that D was prejudiced thereby.

When a state’s procedural framework makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance of trial counsel claim on direct appeal, the good cause exception applies. Ibarra v. Stephens, 723 F.3d 599 (5th Cir. 2013).

        In light of Treviño v. Thaler, 133 S. Ct. 1911 (2013), the panel majority granted rehearing in part, vacated its prior decision only to the extent inconsistent with Treviño, and remanded to the district court. Treviño held that when a state’s procedural framework makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance of trial counsel claim on direct appeal, the good cause exception from Martinez v. Ryan, 566 U.S. 1 (2012), applies.

Court of Criminal Appeals

Where D was convicted of aggravated robbery with a deadly weapon, the trial court did not err by ordering him to pay $294 in court costs because the bill of costs contained in the supplemental clerk’s record supported the charge. Cardenas v. State, 423 S.W.3d 396 (Tex.Crim.App. 2014).

        D was convicted of aggravated robbery with a deadly weapon. The judgment of conviction ordered him to pay $294 in court costs. CCA granted D’s petition for review to determine whether COA erred in holding that the record supported the assessment of $294 and to construe an article of the Texas Code of Criminal Procedure that allows a defendant to file a motion to “correct costs.” CCA affirmed, finding that there were a number of statutes to support the assessed amount of costs, and that convicted defendants have constructive notice of mandatory court costs set by statute. Furthermore, CCA was not required to construe Tex. Code Crim. Proc. art. 103.008, as D never filed a motion to correct costs.

Law enforcement could not, even with probable cause, activate and search the contents of an inventoried cell phone that was immediately associated with D at his lawful arrest. State v. Granville, 423 S.W.3d 399 (Tex.Crim.App. 2014).

        The issue is whether a person retains a legitimate expectation of privacy in the contents of their cell phone while that phone is temporarily stored in a jail property room. The trial judge granted D’s motion to suppress, concluding that the high-school student did not lose his legitimate expectation of privacy in his cell phone simply because it was being stored in the jail property room after D had been arrested for a Class C misdemeanor. COA and CCA affirmed that ruling.

        CCA granted the State’s petition for review but rejected its argument that a modern-day cell phone is like a pair of pants or bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, D did not lose his reasonable expectation of privacy in the contents of his phone merely because the phone was stored in a jail property room. An officer could have seized D’s phone and held it while he sought a search warrant; but, even with probable cause, he could not activate and search the contents of the inventoried phone without one.

The Double Jeopardy Clause was not violated because the gravamina of D’s two convictions differed; therefore, the allowable units of prosecution for the two offenses were not the same. Garfias v. State, 424 S.W.3d 54 (Tex.Crim.App. 2014).

        D was charged with aggravated robbery by threat and aggravated assault causing bodily injury and was convicted of both. D appealed that these multiple convictions violated dou­ble jeopardy. COA agreed and vacated his sentence for aggravated robbery. CCA reinstated D’s convictions: The gravamen of the two offenses in question, deemed the best indicator of legislative intent for an elements analysis, indicated that the Legislature intended to allow multiple punishments for aggravated robbery by threat and aggravated assault causing bodily injury. The offenses were not contained in the same statutory section, they were not named similarly, and they did not have identical punishment ranges.

Under Tex. Code Crim. Proc. art. 103.001, a bill of costs need not be in the record to support a particular amount of court costs. Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App. 2014).

        The aggravated robbery judgment against D ordered him “to pay all fines, court costs, and restitution as indicated above.” The amount of $234 was written in the blank labeled “Court Costs.” D appealed that there was insufficient record evidence to support the $234. COA ordered the district clerk to supplement the record with a bill of costs, if one existed, or an affidavit stating one did not exist. The clerk filed an affidavit stating that a bill of costs was not included in the record. Later, the clerk’s office filed a supplemental record including a document that appeared to be a bill of costs. COA concluded that the document was not a bill of costs and agreed with D that because “[i]t is undisputed that the record in the trial court at the time this appeal was filed did not contain any evidence supporting the assessment of $234 in court costs[,]” the trial court erred by entering a specific amount of costs. CCA reinstated the costs.

        The record was supplemented by a bill of costs. A bill of costs is sufficient absent a challenge to a specific cost or its basis for assessment. To afford litigants a “roadmap” for questions regarding court costs, CCA said “(1) a claim with respect to the basis of court costs need not be preserved at trial to be raised for the first time on appeal, (2) Appellant’s claim is ripe for review, (3) a record on appeal can be supplemented with a bill of costs, (4) the document in the supplemental clerk’s record is a bill of costs, (5) the court of appeals erred when it failed to consider the supplemental bill of costs, (6) a bill of costs need not be in the record to support a particular amount of court costs, and (7) the fact that most court costs (and certainly those discussed in this case) are mandated by statute and, thus, subject to the old adage that ‘ignorance of the law is no excuse,’ dispenses with the need for an ordinary sufficiency review.”

Trial counsel’s failure to request a sign language interpreter for deaf D constituted prejudicial error. Ex parte Cockrell, 424 S.W.3d 543 (Tex.Crim.App. 2014).

        Despite the Tex. Code Crim. Proc. art. 38.31 requirement of an interpreter for deaf defendants, none was provided for applicant, who was unable to understand a substantial portion of his jury trial. Applicant contended that his counsel rendered ineffective assistance by failing to seek accommodations for his deafness. He further contended that as a result of counsel’s errors, he was deprived of his constitutional rights to confront the witnesses against him, to understand the nature and substance of the proceedings, and to assist in his defense. CCA agreed and remanded for a new trial.

        “It is well settled that, if a defendant cannot hear, fundamental fairness and due process of law require that an interpreter be provided. The federal Constitution ‘requires that a defendant sufficiently understand the proceedings against him to be able to assist in his own defense.’ Article 38.31 . . . implements the constitutional right of confrontation, which includes the right to have trial proceedings conducted in a way that the accused can understand. It was trial counsel’s responsibility to ensure that applicant’s constitutional rights were not violated, and counsel wholly failed to do this.”

District court improperly declined to give prisoner D information regarding the costs of transcripts for a habeas application. In re Bonilla, 424 S.W.3d 528 (Tex.Crim.App. 2014).

        In denying relator’s request for information, the district clerk relied on statutory authority in Tex. Gov’t Code § 552.028 that broadly permits a governmental body to decline to give information requested by an imprisoned individual or his agent unless that agent is an attorney. “We conclude that when the information sought by an imprisoned individual relates only to the amount that it would cost to obtain trial and appellate transcripts for use in preparing an application for a writ of habeas corpus, application of Section 552.028 to deny the prisoner access to that information unconstitutionally infringes on his federal constitutional right to have access to the courts. Although relator has established that he had no adequate remedy at law and a clear right to relief, we decline to grant his request for relief in this application for a writ of mandamus because, while this case was under abatement, the district clerk provided the information to him and, therefore, his request for relief is now moot.”

The Supreme Court holding that forbids mandating life in prison without possibility of parole for juvenile of­fenders applies retroactively. Ex parte Maxwell, 424 S.W.3d 66 (Tex.Crim.App. 2014).

        Habeas corpus relief was appropriate here where D, a juvenile at the time of the commission of a capital murder offense, was given a mandatory sentence of life imprisonment without the possibility of parole under Tex. Penal Code §§ 19.03(a)(2), 12.31(a). Miller v. Alabama, 132 S. Ct. 2455 (2012), applied retroactively to this claim raised in a post-conviction proceeding because it announced a new substantive rule; it put a juvenile’s mandatory life without parole sentence outside the ambit of a State’s power. New substantive rules can apply retroactively in collateral proceedings under Teague v. Lane, 489 U.S. 288 (1989), and its progeny. Here, further sentencing proceedings were required to permit the factfinder to assess D’s sentence at life with the possibility of parole or without the possibility of parole after consideration of his conduct, circumstances, and character. CCA granted habeas relief and remanded for sentencing consistent with Miller.

Trial court’s error in barring defense counsel from questioning the jury panel on the differences between criminal and civil burdens of proof was a non-constitutional, harmless error. Easley v. State, 424 S.W.3d 535 (Tex.Crim.App. 2014).

        In voir dire, the judge prohibited defense counsel from comparing other legal burdens of proof to beyond-a-reasonable-doubt in criminal trials. COA found the judge’s ruling erroneous, but harmless after applying a non-constitutional harm analysis. CCA affirmed.

        CCA overruled its relevant cases, which held that barring defense counsel from asking proper questions of the venire is an error of constitutional dimension per se. The error in pro­hibiting defense counsel from questioning the panel on the criminal and civil burdens of proof did not affect a defendant’s right to counsel and was, therefore, a non-constitutional error to be analyzed under Tex. R. App. P. 44.2(b). COA correctly found the error to be harmless because counsel was free to question the venire concerning their concept of reasonable doubt, albeit in a different manner, and the evidence supporting D’s conviction was substantial.

D should be allowed his right to appeal even though he initially omitted the correct cause numbers. Gonzales v. State, 421 S.W.3d 674 (Tex.Crim.App. 2014).

        D pleaded guilty to four indictments for delivery of methamphetamine and pleaded true to the enhancement allegations. The charges were consolidated under a single cause num­ber for a jury trial on punishment. After being sentenced, D filed a pro-se notice of appeal, listing only the cause number used at trial. Before briefs were filed, D filed an amended notice with all four numbers. COA dismissed D’s appeals for the three causes that D originally omitted. Here, both D and the State alleged that COA erred. CCA reversed COA, and remanded the cases to COA.

        COA dismissed D’s appeals for lack of jurisdiction; not too long ago, this would have been in accordance with CCA jurisprudence. However, in 2002 the Rules of Appellate Procedure were amended to prevent just such a result. After this amendment, CCA noted that “defects in notices of appeal should not be described as affecting jurisdiction.” Further, CCA criticized its older cases as elevating “form over substance.” CCA provided “a more equitable path” that allowed appellants to cure “apparently any defects in notices of appeal” because Tex. R. App. P. 25.2(c)(2) holds that a notice is sufficient if it shows the party’s desire to appeal. The judgments here went against these considerations. Notice was not an issue; the State did not object to D’s amendment and readily conceded that it understood D’s desire to appeal all four convictions. Further, Rule 25.2(f) explicitly allows amendments for the purpose of correcting “omissions.” Here, it was clear that the one cause number had been used in trial for all four charges. D’s failure to list the three others was clearly an “omission.”

D’s appeal of court costs more than thirty days after the costs were issued in his deferred-adjudication order was untimely. Perez v. State, 424 S.W.3d 81 (Tex.Crim.App. 2014).

        In 2008, D plead guilty to burglary and was placed on deferred-adjudication community supervision, fined $300, and ordered to pay court costs of $203. He did not appeal. In 2012, the trial court adjudicated D’s guilt and assessed punishment at two years’ incarceration, a $300 fine, and court costs of $240. D appealed that the record did not substantiate the court costs, and that the list of costs was not a proper “cost bill” because it was generated well after the judgment and gave him no opportunity to object. D also argued that the list of costs was made of “screen shots” and contained no detail. COA agreed. CCA reversed COA and dismissed D’s appeal with respect to $203 of the costs.

        D’s failure to appeal $203 of costs within 30 days of being placed on deferred-adjudication community supervision constituted a procedural default under Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999); a defendant must raise issues relating to the original plea proceeding only in a timely appeal taken when deferred-adjudication community supervision is first imposed. Further, D waived his right to appeal when he pled guilty and was placed on community supervision.

        COA does have jurisdiction to consider the appeal of the remaining $37 of costs. CCA held in Johnson v. State, No. PD-0193-13 (Tex.Crim.App. Feb 26, 2014), that “a record on appeal can be supplemented with a bill of costs,” and the fact that most court costs are mandated by statute dispenses with the need for an ordinary sufficiency review. Because COA did not have the benefit of Johnson when it addressed D’s claims, CCA remanded to COA.

A trial judge may not, over objection, order an indigent defendant to pay for a SCRAM device as a term of his probation without considering defendant’s financial abil­ity. Mathis v. State, 424 S.W.3d 89 (Tex.Crim.App. 2014).

        COA properly found that the trial court erred under Tex. Code Crim. Proc. art. 42.12, § 11(b), by failing to consider D’s ability to pay for a Secure Continuous Remote Alcohol Monitor (SCRAM) device at sentencing; D presented two sworn affidavits of indigency and was appointed counsel at trial and on appeal, and there was nothing in the record that showed he would be able to find a suitable job that would allow him to support himself without undue hardship and also pay restitution, court costs, attorney’s fees, and the monthly SCRAM fees. However, COA erred by holding that the remedy was to simply delete the requirement. CCA reversed COA and remanded for the trial court to consider D’s financial ability in deciding whether to order him to pay for a SCRAM device.

CCA was not required to provide notice to the Texas Attorney General pursuant to Tex. Gov’t Code § 402.010 of its holding that Tex. Penal Code § 33.021(b) was unconstitutional; § 402.010 violated separation of powers. Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2014).

        In October 2013, CCA held that Tex. Penal Code § 33.021(b), barring sexually explicit online solicitation of a minor, was facially unconstitutional. The State alleged here that CCA erred by finding § 33.021(b) unconstitutional without first providing notice to the state attorney general pursuant to Tex. Gov’t Code § 402.010. CCA denied the State’s motion for rehearing. CCA held that § 402.010(a) and (b) were an unconstitutional violation of separation of powers, Tex. Const. art. II, § 1, where entering a final judgment was a core judicial power, which fell within that realm of judicial proceedings so vital to the efficient functioning of a court as to be beyond legislative power.

Court of Appeals

Trial court properly ordered garnishment of inmate’s trust account for $10,275.00 for the fine and costs from his possession of a controlled substance conviction because inmate received a copy of the withdrawal notice and had an opportunity to be heard when he filed his motion to cease garnishment. Nelson v. State, No. 06-13-00121-CV (Tex.App.—Texarkana Feb 13, 2014).

Trial court erred by rendering judgment against D for attempted escape as a third-degree felony because the jury charge did not include a finding that D used or threatened to use a deadly weapon. Musgrove v. State, 425 S.W.3d 601 (Tex.App.—Houston [14th Dist] 2014).

        The trial court also erred by entering judgment against D on his assault convictions as second-degree felonies: “The jury found appellant guilty of two counts of assault of a public servant, which is a third-degree felony. See Tex. Penal Code § 22.01(a)-(b)(1). The trial court properly enhanced the range of appellant’s punishment as to these convictions based on appellant’s prior convictions, but erroneously reflected in the judgment a second-degree offense. See id. § 12.42(a). Although Penal Code section 12.42 increases the range of punishment ap­pli­cable to the primary offense, it does not increase the severity level or grade of the primary offense.”

        Lastly, COA found error in D’s sentence for attempted es­cape, enhanced by the same prior conviction that was used as an essential element of the charged offense. “The use of a prior conviction to prove an essential element of an offense bars the subsequent use of that prior conviction in the same indictment for enhancement purposes.” Therefore, D’s 10-year sentence was void and illegal, and he was entitled to a new punishment trial under Tex. Code Crim. Proc. art. 44.29(b).

Trial court did not err by permitting a caseworker to tes­tify as an expert, even though her experience was al­most exclusively with the DA’s office, because she detailed her experience working with victims of domestic violence and their tendency to minimize or recant allegations. Salinas v. State, 426 S.W.3d 318 (Tex.App.—Houston [14th Dist] 2014).

        “Appellant first challenges Hutchinson’s qualifications because she had only ‘one frame of reference’ and ‘one type of training and belief’ after working for 12 years in the district attorney’s office. Appellant cites no authority suggesting that a witness must work with more than one employer to qualify as an expert. In any event, Hutchinson stated that she has worked in internships in a group home, a hospital, and another health care facility. She testified that she has two degrees in social work and has attended numerous ‘conferences, trainings and seminars where domestic violence was the [main] topic.’ . . . The record gives no indication that Hutchinson’s education, training, and experience were too limited or ‘one-sided’ to prevent her from qualifying as an expert.”

Trial court erred in denying D’s motion to suppress be­cause officers engaged in an illegal search when they intruded onto D’s curtilage to look in his kitchen window, a window not located near any established pathway to a door to the house. Sayers v. State, No. 01-12-00712-CR (Tex.App.—Houston [1st Dist] Mar 27, 2014).

        The circumstances presented did not justify a protective sweep, as the arresting officers, at the time they initially approached D’s house, did not possess an objectively reasonable belief, based on specific and articulable facts, that the house harbored individuals who posed a danger to those on the scene.

Reading Competency Reports: What Should Lawyers Expect of Competency Examiners?

Preface

Both courts and counsel are the statutory recipients of competency reports conducted by court-appointed examiners.1 Oft times the reports appear to be written in Sanskrit and are unintelligible either because of reliance on technical language to describe ordinary matters or because statutory elements are not addressed.2

In this article, we will look at the critical elements of competency that should be addressed by examiners and discussed in any competency report.

What Competency Is

The legal definition of competency is succinct and phrased in the negative—e.g., see Tex. Code Crim. Proc. Ann. art. 46B.003:

“Art. 46B.003. INCOMPETENCY; PRESUMPTIONS. (a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

More descriptively, however, competency should be thought of as a set of functional abilities that are task specific, and fluid— i.e., varying over time. A person is competent to perform specific tasks and may be competent in one arena, but quite incompetent in another. For example, few skilled attorneys are competent to perform neurosurgery, or prepare well-flavored barbecue for that matter. Competency in one domain may or may not be transferable to another, just as very facile litigators may not necessarily be competent appellate lawyers, though one area could inform the other. In trial, competency means that mere possession of rudimentary knowledge of procedures must be augmented with an ability to articulate the application of that knowledge in a specific case, and relate to counsel.3

As well, competency varies over time—just as skill in a sport activity, such as skiing, can vary over time, so would the knowledge of a defendant who is mentally ill and whose illness interferes with his/her capacity to think rationally.

What Competency Is Not

Competency to stand trial—in the present moment—is to be distinguished from sanity, which relates to the defendant’s state of mind at the time of the offense.4 These are different concepts, and relate to different points in time. Whereas competency applies to the defendant’s present knowledge of trial matters and his/her ability to assist counsel, sanity narrowly refers to the state of mind of the defendant at the time of the act with which charged. And more specifically, was the person suffering under such mental disease or defect that he did not know his conduct was wrong? These two states of mind may be far apart in time. It is quite possible to be incompetent now, but sane at the time of the offense and vice versa.

Competency to stand trial is also no measure of wisdom or general knowledge, though the obverse is also true—i.e., lack of general knowledge is not necessarily incompetence.5 If a defendant is unaware of some particular piece of legal knowledge, but quite capable of learning it if instructed, the person may or may not be deemed incompetent, depending upon the extent to which instruction can be offered quickly, as opposed to requiring some period of time and more formal instruction.

Nor, for that matter, is incompetence established by the mere presence of any particular diagnosis; neither psychosis nor mental retardation (now called an intellectual and developmental disability (IDD)) are dispositive of competence.6

At the same time, competency is not necessarily demonstrated by the defendant’s ready agreement with statements of counsel. In fact, too-ready acquiescence—just as too easily aroused negativism—may be indicia of lack of competence.

Collateral Information

Evaluations by experts conducted in a vacuum, without any collateral information whatsoever, are of little value. It goes without saying that unless the examiner is cognizant of the nature of the charges against the defendant, no opinion about the defendant’s capacity to appreciate the same is possible. Consequently, the statute requires that the expert be provided information “relevant to a determination of the defendant’s competency, including copies of the indictment or information, any supporting documents used to establish probable cause in the case, and previous mental health evaluation and treatment records.”7

In rare instances, a competence evaluation must be done without an interview with the defendant. This might be the case when a defendant refuses to speak with the evaluator, is only minimally cooperative with the evaluation, or is too impaired to participate in an interview. With sufficient collateral information, it may nonetheless be possible to render an opinion on the ultimate issue. For example, this might be the case if a defendant refuses the interview but there is a multitude of collateral information demonstrating that the person does not have, and has never had, a significant mental illness or intellectual disability. Such a report would obviously not contain quotes from the defendant demonstrating factual or rational understanding relative to the case at hand. It would then be up to the trier of fact to determine if the evidence presented by the evaluator met the preponderance standard.

Rendering such opinions is permissible both under the Rules of the Texas State Board of Examiners of Psychologists and the Specialty Guidelines for Forensic Psychology (2011), provided the limitations are clearly stated in the report. Art. 46B.025(a-1) prohibits the examiner from rendering an opinion solely on the basis of the defendant’s refusal to communicate, but the caveat above is “with sufficient collateral information.” Note, however, that intentional behaviors by defendants that are calculated to increase the likelihood of being found incompetent may result in sentencing enhancement. The opinion of the senior author in this article (MAC) was discussed in just such a circumstance. See United States v. Greer.8 In this case, the defendant entirely refused to speak with the evaluator.

Transparency

While Tex. Code Crim. Proc. art.46B.024 and .025 address the content of reports, it is incumbent upon examiners to exhibit transparency with regard to any and all sources upon which re­lied. Rule 705 of the Texas Rules of Evidence states that experts may be required to disclose the facts or data underlying expert opinion, and given the specificity of Art. 46B.024 and .025, there is every reason to disclose:9

  • All documents reviewed;
  • All persons interviewed;
  • Any and all tests or procedures utilized; and
  • Education, training and experience of the examiner relevant to the forensic services offered.10

This disclosure may be required by the Rules of Evidence,11 but also by the Specialty Guidelines for Forensic Psychology (2011).12 Total transparency in the evaluation process would necessitate listing all sources, all documents reviewed, all persons interviewed, and all tests or procedures used.

Documentation of Consent/Disclosure

Health providers commonly have a duty to obtain the fully informed consent of all persons who are either patients or subjects of evaluation. This duty is established by statute as well as rule.13 Competency evaluations, however, are of a different kind, and while it is possible that counsel may seek an ex parte order for such an evaluation wherein the participation of the defendant would be somewhat more voluntary, Art. 46B.021 contemplates that the evaluation is court-ordered and that the expert must state an opinion (Art. 46B.025) or explain why no opinion was given. In short, the consent of the defendant is not required. As a result, the burden on the examiner is to document making a good faith effort to advise the defendant as to the conditions of the evaluation, even if the individual is not capable of comprehending the disclosure. These conditions would include:14

  • The purpose of the evaluation, and who requested it
  • Who will have access to the information
  • The limits of confidentiality
  • Who employs the evaluator
  • Who pays fees
  • The approximate length of time to prepare a report.

Content of Report

A discussion of the contents of any competency examination must address the scope of the report itself and specifically that this examination is very focused, addressing specific statutory items, and including only clinical information directly relevant to the issue before the court. As such, a competency report is not a traditional clinical evaluation. In the more traditional evaluation, examiners may want to include a plethora of information about the defendant’s personal, educational, vocational, medical, and psychiatric history. Whereas, a shorter report that includes rudimentary and limited information about those areas may be more appropriate for purposes of evaluating competence. Put simply, reports that are excessively lengthy are to be eschewed—and very likely not read in their entirety. Information contained in an overly lengthy report may be more prejudicial than the probative value of the issue to be addressed.

Art. 46B.024 identifies factors to be considered in a competency examination. While, for the sake of clarity, some examiners may find it helpful to enumerate these areas, thus citing the statute,15 other examiners prefer to integrate each of the issues into the report itself without necessity for separation or division of the report or to integrate the elements into the sections specified by Dusky.

For example:

“Tex. Code Crim. Proc. art. 46B.024 requires that examiners consider specific factors in an assessment of competency:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings . . .”

With regard to this issue, and in order to be most helpful to the court, the examiner might provide specific examples illustrating the defendant’s knowledge of the charges against him—e.g., “The defendant stated he was charged with aggravated assault, and said that he believed he could face a sentence of 2–20 years of confinement.”

Important, however, is that reports are not constructed so as to describe defendant responses in some rote manner, such that any negative response on any one of the 46B.024 issues is ipso facto evidence of incompetency, as when a person claims a poor memory for events and is immediately opined to be incompetent.

The central issues to be addressed by a competence evaluator are whether the defendant has the necessary functional abilities (enumerated above) to have a factual and rational understanding of the proceedings and to be able to rationally consult with counsel in formulating a defense. If the individual does not have these abilities, the next question is whether the deficits are due to mental illness or Intellectual Disability. The evaluator must provide enough evidence for the trier of fact to make an independent decision on the issue of trial competence.

Factual Understanding

This is probably the most basic element of competence. As suggested above, the evaluator could demonstrate a defendant’s factual understanding with simple, straightforward quotations from the defendant such as: “The judge controls the courtroom and decides on sentencing.” Alternatively, a defendant may initially claim to have no idea what a judge does, but later explain in detail what the judge did in a previous case. A defendant may know his exact charge and possible sentences. However, he may have no idea which of the many offenses mentioned at the time of his arrest are actually being pursued. He may also have no idea what prison time could result if convicted. But he may be well aware that he needs to ask his attorney, who will be able to provide this information. On the other hand, the defendant’s responses to queries may seem nonsensical, such as “assault is what happens on the asphalt . . . I was a road runner but never in the movies.” Or, a defendant might express a delusional belief that although his charge says “burglary,” he is secretly being charged with treason so the president can arrange for his execution. In such an instance the evaluator could explain that loose associations and/or delusional beliefs are symptomatic of the thought disorder from which the person suffers.

Rational Understanding

Rational understanding has never been clearly defined by the courts, but it is assumed to involve the ability to reason and make reasoned choices. A rational understanding might be dem­onstrated by explaining what evidence and witnesses the prosecutor might use against him in court. However, a competence evaluator should avoid questions that might tempt a defendant to make incriminating statements and may choose to present hypothetical scenarios similar to the current offense and explore the individual’s reasoning about evidence, witnesses, and defenses. The evaluator may also explore rationality by asking about testimony in general: What are the advantages and potential disadvantages of having a defendant testify? The same could be done with the concept of plea bargaining: How would a defendant decide to accept or reject a particular offer? It would be important for an evaluator to report any bizarre or grossly irrelevant statements made by the defendant in this process. If a statement appeared irrational on the surface, how did the defendant explain it? For example, a defendant may say he would rather have prison time than probation, but then explain that he has been on probation before, always violates it, and then spends even more time in prison—he would rather just get it over with and be free and clear, without restrictions.

On the other hand, if a defendant lacks the ability to rationally understand his case or court proceedings, the evaluator would need to explain exactly how this links to his mental problems. For example, the defendant may insist that he needs to testify, not about his charges, but to explain the gospel so that the prosecutor will come to Jesus and become a priest. This may be a delusion resulting from a psychotic disorder. Alternately, the defendant may simply appear totally confused by discussion of his case and simply say the prosecutor is a good person who is trying to help him. This may be the direct result of Intellectual Disability that could be demonstrated with the addition of evidence from school records and previous functioning and evaluations.

Ability to Consult with Counsel

To be able to consult with counsel, the defendant clearly must know that the role of his counsel is to assist him in obtaining the most favorable result. A competent defendant may have a cynical view of attorneys and the courts, perhaps saying they are all working together. However, cynicism is not a mental illness. It would be important for the evaluator to report the degree to which the defendant could maintain attention, focus on elements relevant to his defense, and maintain appropriate demeanor during the evaluation. His history of behavior in courtrooms or other public forums could also be significant. It would also be important to demonstrate that the defendant can present self-serving information to his attorney. Can he suggest persons his attorney should contact? Are there records his attorney should obtain (e.g., mental health records)? Are there questions the defendant specifically wishes to explore with his attorney? And, as part of this discussion, does the defendant make any bizarre, nonsensical, or irrational statements? It would be critical for the evaluator to present evidence as to whether the defendant has decisional competence—the ability to reason about and make decisions a defendant must make to proceed with his case. Can he make a reasonable cost/benefit analysis of his various plea options? If the answer is “no,” once again the evaluator must link the lack of functional ability directly to his mental deficits.

Clinical Findings

As stated earlier, a competency evaluation is not specifically a clinical evaluation, and consequently, clinical findings should be limited. Historical review of the defendant’s personal and mental health history should be very focused upon those items specifically relevant to the court’s determination. Moreover, each key piece of information should be identified as to its source.

Diagnoses

Art. 46B.024 asks examiners to opine as to whether the defendant has a mental illness or is a person with mental retardation. However, diagnoses should be used sparingly. Diagnostic nomenclature has long been defined by the DSM, now the DSM V, published by the American Psychiatric Association.16 Beginning with the DSM IV, in 2000, mental health diagnoses have been offered in multiaxial format—i.e., Axis I referred to the clinical disorders, largely those that were the focus of treatment. Axis II diagnoses referred to more enduring personality characteristics, styles or traits, as well as limitations of intellect. Axis III had to do with medical diagnoses, Axis IV current psychosocial stressors, and Axis V was a global assessment of function. These familiar features are no longer in the DSM V. The changes in DSM V may prove helpful in forensic contexts as examiners will be required to identify whether the person has a mental illness or is a person with mental retardation (now called Intellectual Disability), but without reliance upon a cookbook approach—e.g., three of five criteria, etc. Description of symptoms is more important than global labels, especially in a forensic context. Nonetheless, it is important that the evaluator, who opines a defendant is incompetent, describe a recognized mental illness/intellectual disability and not simply a “syndrome” endorsed by a few practitioners.

In addition, important with regard to forensic evaluations is that the presence of any specific diagnosis is not per se evidence of incompetency, as incompetency has behavioral and cognitive components defined by statute. Diagnoses do aid in establishing the presence of a recognized mental illness or disorder. Diagnoses do provide an explanation for functional deficits. But diagnoses are not exact. Direct or cross-examination of an expert, for example, on the issue of whether the defendant has a schizophrenia or a schizoaffective disorder is less relevant than whether a difference in the diagnosis would predicate a different treatment plan.

Malingering

The term “malingering” is all too often used outside the context of its narrow, technical meaning. Malingering specifically means either creation of symptoms not otherwise existing or exaggerating symptoms that do exist, but in both cases for the purpose of specific advantage to the defendant. Such advantages need to be external, such as a presentation of symptoms in the hope of securing a transfer to what is perceived as better housing, or sig­nif­i­cant mitigation of sentencing, or even exculpation, as in being found not guilty by reason of insanity. The advantages may also be more psychological, such as generation of much at­ten­tion and sympathy. The advantages tend to be situationally de­ter­mined and goal specific.17

Because malingering has such a pejorative aura, the term “response style” has come into vogue as a broader and more in­clusive term, inasmuch as the presupposition of the use of “malingering” is that the subject’s behavior is conscious and intentional. Whereas, “response style” could include persons whose behaviors are far less intentional, such as in someone sim­ply trying to emphasize the need for help. The identification of a response style that may be affecting performance is quite dependent upon collateral information—e.g., descriptions from correctional or treatment staff as to the manner in which the defendant behaves when not in an evaluation context. A defendant who is confused and unable to read or make sense might well be seen as significantly exaggerating nonexistent deficits if collateral information describes the person as playing cards or dominos on the treatment unit, reading, etc.

Any discussion of malingering or response style must include a careful examination of the defendant’s history. Are the individual’s current symptoms consistent with past behavior/cognitions? In some cases, psychometric instruments (e.g., the Structured Inventory of Reported Symptoms, the Validity Indicator Profile) can provide an additional piece of evidence, but would never be dispositive in and of themselves.

Linking Psychological Deficits and Legal/Functional Deficits

Forensic evaluations are specifically designed to assist the trier of fact in making a legal determination. Consequently, every item in a report, and every conclusion in a report, should be relevant to the legal issue before the court. To be sure, as cited in Graham v. State, opinions of a mental health expert are but opinions, to aid the trier of fact, and a court may accept some of an expert’s opinion, all of it, or none of it.18 In Texas, the examiner is required to offer an opinion on the ultimate issue—i.e., competency—however, the weight given to that opinion is a matter for the trier of fact.19 If an examiner opines that a defendant is incompetent and the court so finds, then the mandatory statutory outcome of such a finding of incompetency is commitment to a mental health program for competency restoration.20 By the Texas Constitution, no person may be committed for men­tal health treatment save on “competent medical or psychiatric testimony.”21 On the basis of Graham et al., the trier of fact could find a person competent despite expert opinion to the contrary. Thus, while incompetency must be established by expert opinion, a finding of competency could be made despite the expert’s opinion.

The issue, however, is that diagnostic labels or technical descriptions or clinical findings are irrelevant unless specifically linked to some functional ability at issue before the court. As earlier noted, reports accompanying persons committed to state facilities often lack such linkage. An example of an inadequate evaluation might read as follows:

The defendant was diagnosed with mental retardation at age 8. He was in special education throughout school and reads only at the 3rd-grade level. IQ scores have ranged from 52 to 68. He answered all questions with “I don’t know.” With such severe intellectual disabilities, he could not consult with counsel, and in my professional opinion, he is not competent to stand trial.

Statutory Abilities

Texas has long adopted the Dusky22 standard for competency, i.e.

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person

In Dusky, the Supreme Court held that “it is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’” Id.

In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the United States Supreme Court specified that the standard for the various types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be considered the same. Justice Thomas wrote for the majority: “The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for ‘reasoned choice’ among the alternatives available to him. How this standard is different from (much less higher than) the Dusky standard—whether the defendant has a ‘rational understanding’ of the proceedings—is not readily apparent to us . . . [W]hile the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial . . . Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” Id., 509 U.S. at 397–399.

As noted, the Code of Criminal Procedure, however, operationalizes the Dusky standard into several abilities, described in 46B.024, which examiners must consider in constructing a report.

Ultimate Issue Opinion

Texas requires an opinion from the examiner as to whether the defendant is competent or not, or “explain why the expert is unable to state such an opinion.”23 However, an opinion is not merely a “yes” or “no,” but may include caveats clearly allowing the court to make the final decision. For example, an examiner could conclude that the defendant has a factual and rational understanding of the proceedings against him and has the ability to consult with counsel with a reasonable degree of rational understanding; however, should he be required to follow fast-paced courtroom procedures, testify, and be subject to cross-examination, his intellectual abilities probably would not be up to this task. It is then up to the court to determine if this is necessary in the particular case.24

Though there is controversy in other jurisdictions as to whether ultimate issue testimony is proper, in Texas, examiners must offer an opinion on competency or advise the court why such an opinion cannot be stated.25

Treatment

Examiners are required to offer fact statements to the court— i.e., if the defendant “is taking psychoactive medication,”26 and opinion as to whether the medication is necessary for the maintenance of competency, as well as the effect on the defendant’s “demeanor, or ability to participate in the proceedings.”27

Consequently, examiners should possess a sufficient degree of knowledgeability about the use of psychoactive medications and their properties to be able to answer questions from the court. As well, however, the examiner should comment both upon the nature of treatment given or needed as well as the urgency attached. Other issues include whether such treatment should be inpatient or outpatient and whether the defendant is likely to be willing or able to provide informed consent. Of course, upon a finding of incompetency there is a mandatory commitment for restoration, see Art. 46B.073, unless the person is released on bail and ordered to participate in an outpatient treatment program.

In Texas, it is also imperative that an examiner offer an opinion on the likelihood of restoration “in the foreseeable future,” where “foreseeable future” means the time frame available to the court for restoration—i.e., 60 days for misdemeanor cases and 120 days for felony cases, with a possible 60-day extension. Offering this opinion is crucial because Tex. Code Crim. Proc. art. 46B.071(b) prohibits commitment of a defendant for restoration if there is a finding that the person is unlikely to be restored in the foreseeable future. Rather, the court must then proceed under a 46B.102/103 commitment or dismiss, as per Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Consequently, the court must ensure that examiners offer such an opinion; otherwise there would be no expert opinion evidence before the court on the matter.

Distribution of Report

Tex. Code Crim. Proc. art. 46B.026 states that the examiner’s re­port should be completed not later than the 30th day after the issuance of the court’s order (though on good cause could be delayed). The report itself is to be sent to the court and to counsel for both parties. Often, examiners are not aware of the requirement to provide the report to counsel for both parties. Moreover, defendants sometimes demand copies of the report, but in this instance, have been given constructive notice of the content of the report through submission to counsel. As well, the report belongs to the court and the court controls distribution other than that identified by statute.

Summary

In the foregoing, we have discussed the statutory elements requisite to a competency examination, the elements of disclosure examiners must make to defendants, the necessity for inclusion in a report of all the sources upon which relied, the specific items to be addressed, and the distribution of the report.

Endnotes

1. Tex. Code Crim. Proc. Ann. art. 46B.026.

2. B. Thomas Gray, PhD, Joseph A. Black, MD, Linda K. Fulford, MEd, A. Dale Owen, AAS (2005), Evaluating Trial Competency Evaluations: Impact of Article 46B, Texas Psychologist, Vol. 56, Issue 2. This 2005 study at Vernon State Hospital found that fewer than 5 percent of examinations addressed all components, and almost 20 percent didn’t include even five of the ten statutorily mandated items.

3. See discussion in United States v. Duhon, 104 F. Supp.2d 663 (W.D. La. 2000), citing National Benchbook on Psychiatric and Psychological Evidence and Testimony (ABA Commission on Mental and Physical Disability Law, Sept. 1998), Chapt 7 at 169.

4. Tex. Penal Code § 8.01.

5. Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995).

6. Ex parte Briseno, 135 S.W.3d 1, 5–6 (Tex. Crim. App. 2004); Leyva v. State, 552 S.W.2d 158, 160 (Tex. Crim. App. 1977); Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex. App.—Dallas 1982, pet. ref’d).

7. Tex. Code. Crim. Proc. Ann. art. 46B.021(d).

8. See United States v. Greer, 158 F.3d 228 (5th Cir. 1998); discussed in Kroll, J. L. & Resnick, P. J. (1999), U.S. v. Greer: Longer Sentences for Malingerers, J Am Acad Psychiatry Law, Vol. 27, No. 4.

9. See also American Psychological Association (2011), Specialty Guidelines for Forensic Psychology, 10.07.

10. Id. Sec. 10.01 discusses focusing upon the legally relevant factors.

11. Tex. R. Evid. 703.

12. American Psychological Association (2011), Specialty Guidelines for Forensic Psychology, Sec. 9.02 would discourage reliance upon a single datum; Sec. 10.01 encourages attending only to evidence that is relevant to the case at hand; and 10.06, as well as 11.03, would encourage careful documentation of all sources utilized.

13. See Tex. Health & Safety Code § 313.001 et. Seq.; 22 TAC § 465.11.

14. Id. at 465.11.

15. Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an examination under this subchapter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;
(B) disclose to counsel pertinent facts, events, and states of mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;

(2) as supported by current indications and the defendant’s personal history, whether the defendant:

(A) has a mental illness; or
(B) is a person with mental retardation;

(3) whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from the mental illness or mental retardation, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

(5) if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant’s competency; and
(B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Acts 2011, 82nd Leg., R.S., HB 2725, eff. Sept 1, 2011.

Art. 46B.025. EXPERT’S REPORT. (a) An expert’s report to the court must state an opinion on a defendant’s competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:

(1) identify and address specific issues referred to the expert for evaluation;

(2) document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;

(3) in specific terms, describe procedures, techniques, and tests used in the examination, [and] the purpose of each procedure, technique, or test, and the conclusions reached; and

(4) state the expert’s clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert’s diagnosis, and state specifically any issues on which the expert could not provide an opinion.

(a-1) The expert’s opinion on the defendant’s competency or incompetency may not be based solely on the defendant’s refusal to communicate during the examination.

(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:

(1) the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant’s mental illness or mental retardation, if any, and the impact of the identified condition on the factors listed in Article 46B.024;
(2) an estimate of the period needed to restore the defendant’s competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and
(3) prospective treatment options, if any, appropriate for the defendant.

(c) An expert’s report may not state the expert’s opinion on the defendant’s sanity at the time of the alleged offense, if in the opinion of the expert the defendant is incompetent to proceed.

(d) The court shall direct an expert to provide the expert’s report to the court and the appropriate parties in the form approved by the Texas Correctional Office on Offenders with Medical or Mental Impairments under Section 614.0032(b), Health and Safety Code.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by: Acts 2005, 79th Leg., Ch. 1269 Sec. 1, eff. June 18, 2005. Acts 2011, 82nd Leg., R.S., HB 2725 Sec. 8, Eff. Sept. 1, 2011.

16. American Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders (5th ed. Tex rev.). Washington, DC; Author.

17. Richard Rogers, PhD, Michael J. Vitacco, PhD, Samantha J. Kurus, BA, Assessment of Malingering with Repeat Forensic Evaluations, Patient Variability and Possible Misclassification on the SIRS and Other Feigning Measures. J Am Acad Psychiatry Law 38:1:109–114 (March 2010).

18. Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978). “Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. The ultimate issue of criminal responsibility is be­yond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.” Id.

19. Id. at 952.

20. Tex. Code Crim. Proc. art. 46B.073.

21. Tex. Const. art. I, § 15-a; see also Tex. Code Crim. Proc. art. 46B.074.

22. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

23. Tex. Code Crim. Proc. art. 46B.025(a).

24. Id. at art. 46B.025(4).

25. See Tex. Code Crim. Proc. art. 46B.025(a); Fed. R. Evid. 704 ; Bryant v. State, 340 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d): “Opinion testimony that is otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. Tex. R. Evid. 704; Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (describing officer’s testimony that defendant had not been attacked); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001) (holding that lay witness properly offered opinion regarding defendant’s criminal responsibility). The admissibility of such testimony is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993); see also Conner v. State, 891 S.W.2d 668, 670 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

26. Supra at art.46B.024(5).

27. Id.

The Rules of Evidence: The Rest of Our Top 25

In our first article, we offered a summary of our top 12 rules of evidence for defending criminal cases. These rules are: 1) Rule 602, 2) Rule 402, 3) Rule 802, 4) Rule 403, 5) Rule 614, 6) Rule 615, 7) CCP Chapter 38, 8) Crawford, 9) Rule 404(b), 10) Rule 701, 11) Rule 702, and 12) Rule 104. These next 13 rules will also be important in most every criminal defense. They may not require as quick a response as the first 12, so there may be more time to look them up, but learning them will increase the defender’s confidence level in making objections and offering evidence. With these next 13, we move out of the comfort level of most prosecutors and even most judges, so they give us an edge in defending the case. These are summaries, and each rule will need to be studied over time in more depth, but for now, we give our next 13 in order of importance.

13

Rule 803(6) (hearsay exception for records of regularly conducted activity)

This is the first of our top 25 to be an exception to the hear­say rule. Rule 803(6) is the rule under which the pros­e­cutor will attempt to introduce telephone records, child-support payments, medical records, child protective services records, employment records—that sort of thing. The federal and state rules differ in the wording, but the result is largely the same. This used to be the “business records act” under 3737e. It can be proved by a witness or an affidavit (certification in the federal language) by asking the custodian of records if the record was made at or near the time the events were described and was made by a person with knowledge of the events and kept in the course of a regularly conducted business activity. Hearsay within the record still may be objectionable, and it is trumped by the Confrontation Clause and by Rule 803(8).

14

Rule 803(8) (hearsay exception for public records and reports)

Rule 803(8) provides a basis for excluding many expert reports of the prosecution witnesses, so it pertains to Rule 702. It speaks to many of the documents the prosecution wants to introduce in a criminal case. For example, the DPS chemist report may be excluded under this rule. Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990). This exclusion under Rule 803(8) also prevents its admission under the business records exception, Rule 803(6). Id. Just because the prosecutor has proved the document under the business records exception does not mean it is reliable and ad­mis­sible under 803(8)(B). Another nice aspect to this rule is un­der the language of the rule—it may benefit the defendant when it does not benefit the state. Rule 803 (8)(c) provides, “and in criminal cases as against the state. . . .” Differently put, there may be instances in which the same document excluded under the defendant’s 803(8) objection should be admitted over the State’s 803(8) objection.

15

Rule 803(18) (hearsay exception for learned treatises)

Rule 803(18) is important when Rule 702 (expert opinions) or experts are involved in the case. Whether it is the government or defense witnesses, the scholarly literature should be reviewed for the Daubert challenge. For example, the pathologist should be willing to admit the textbook she used is authoritative; then it can be used for cross-examination. “Doctor, you studied with Dr. Spitz in residency? He is one of the foremost authorities in this field? This is a current edition of his textbook and a version of the one from which you learned your profession? And of course you recognize it as authoritative in this field?” Then you can read helpful passages and ask for comment. On cross-examination, the learned treatise is offered as substantive evidence and not solely for impeachment. Tart v. McGann, 697 F.2d 75 (2d Cir. 1982); Godsey v. State, 989 S.W.2d 482 (Tex. App.—Waco 1999, pet. ref’d).

16

Rule 703 (bases of opinion testimony by experts)

Under Rule 703, the expert may rely on facts or data if of a type reasonably relied upon by experts in the field, whether or not the underlying facts are admissible into evidence. Con­frontation Clause issues still apply and trump this rule.

17

Rule 705 (disclosure of facts or data underlying expert opinion)

Rule 703 and 705 are usually argued together when considering the treatment of the expert’s opinion (see Rule 702, above). The expert can testify to opinions without first giving the underlying facts to support the opinion. The trial judge, however, can require they be produced ahead of time. Voir dire of the witnesses “shall” be given in a criminal case out­side the presence of the jury. The court should keep out the opinion if the facts are not sufficient. A limiting instruction on the use of the otherwise inadmissible evidence shall be given upon request.

18

Rule 608 (a witness’ character for truthfulness or untruthfulness)

Rule 608 may be used by the defense to show that a witness (including the client) who testifies has a reputation for be­ing a truthful person. It is sometimes used by the state to present a police officer who says the defendant who tes­ti­fies has a bad reputation for being a truthful person. Re­mem­ber, though, no witness, lay or expert, may testify that another witness is lying in particular testimony. Schultz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). Offering evidence about the truthful nature of a witness may elicit “have you heard” questions about specific acts of the fact witness that are inconsistent with a truthful nature.

19

Rule 404 (a) (character of the client or the complaining witness)

We visited Rule 404(b) (limiting the use of the client’s other crimes, wrongs, or acts) in the top 12. We now turn to 404(a). Even if the client does not testify, his character for be­ing a truthful, law-abiding, violent, honest, moral, or sober person may be presented. Being a non-murderer or a non-pedophile are not character traits. See Valdez v. State, 2 S.W.3d 518 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). The character traits of the complaining witness may also be presented under this rule, but they are limited in sex-offense cases by Rule 412. (Rule 412 does not make our top 25 because it only applies in sexual assault cases, but in those cases it is essential.)

20

Rule 609 (impeachment by evidence of conviction of crime)

Rule 609 will often apply if the client testifies in the guilt or innocence portion of the trial. This rule determines which convictions may be used against him—if they are fel­o­nies or crimes of moral turpitude, within the last ten years, and pending appeal in state court. In federal court, it is admissible even if an appeal is pending. Texas has a no­tice requirement. The document of the judgment of the prior conviction may be admitted under hearsay exception 803(22).

21

Art. 37.07 Sec. 3 and Federal Rule 1101 (Evidence of criminal record after a find­ing of guilty)

Once the client is found guilty, prepare for the admission of crimes or bad acts whether or not he was previously charged or convicted. These are much broader than the evidence allowed by Rules 404 or 609. We urge that we are entitled to a prior hearing under Rule 104 to determine whether there is evidence sufficient for showing beyond a reasonable doubt that the crime or bad act was committed by the defendant. Federal Rule 1101 is even broader because the rules of evidence do not apply to sentencing, and the judge does the sentencing. The counterpart to Federal Rule 1101 restricting the use of the rules of evidence in the Texas system is Rule 101(d)(1) (rules not applicable in certain proceedings).

22

Rule 1009 (translation of foreign language documents)

This is only a state court rule; there is no federal Rule 1009. However, we include it because it has arisen for us in every recent state court trial. It has become increasingly common for the police department to take a confession by audio or videotape. If it is in Spanish, the district attorney’s office will translate the transcript into English and either offer it into evidence or ask that it be used by the jury to help interpret the audiotape. This use was limited before the rule was passed. Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989). When the rule was adopted in 1998, it included a requirement that the translated document be served upon all parties at least 45 days before trial. After filing, it provides for objections to the translations.

23

Rule 901 (authenticating or identifying evidence)

Rule 901 requires that the proponent produce evidence sufficient to support a finding that the item is what the proponent claims it is. The rule then lists ten illustrations of ways of authenticating a piece of evidence. For example, an opinion identifying a person’s voice may be based on a person familiar with the alleged speaker’s voice and the voice to be identified.

24

Rule 611(b) (scope of cross-examination)

When cross-examination draws an objection, it is usually based on the proper scope of a cross-examination. The Texas and federal rules are different. The Texas rule provides for cross-examination on any matter relevant to any issue in the case, including credibility. Under federal Rule 611(b), the scope of the cross may be limited to the subject matter of the direct examination and matters affecting the witness’ credibility. An objection that the cross is beyond the scope of direct in state court is probably a misapplication of the federal rule.

25

Rule 704 (opinion on ultimate issue)

An opinion is not objectionable merely because it embraces an ultimate issue. Both lay witnesses and expert witnesses may give an opinion about an ultimate fact if it is helpful and will assist the trier of fact. Some opinions are rarely help­ful, such as whether or not a witness is telling the truth. The federal rule differs from the state rule because it specifically prohibits an expert from stating an opinion about whether the accused person has a mental state that con­sti­tutes an element of the crime charged or a defense. This rule arises because we still hear objections based on the common law doctrine that this will “invade the province of the jury.” Rule 704 rejected the common law rule for both lay and expert witnesses.

Those are our top 25. The summary, in order of importance: (1) Rule 602, personal knowledge; (2) Rule 402, relevance; (3) Rule 802, hearsay; (4) Rule 403, prejudicial; (5) Rule 614, “The Rule”; (6) Rule 615, produce witness’ state­ment; (7) CCP Chapter 38, voluntary statement and more; (8) Crawford, right of confrontation; (9) Rule 404(b), criminal history; (10) Rule 701, lay opinion; (11) Rule 702, expert opinion; (12) Rule 104, preliminary question hearing; (13) Rule 803(6), business records hearsay exception; (14) Rule 803(8), public records hearsay exception; (15) Rule 803(18), learned treatise hearsay exception; (16) Rule 703, basis of expert opinion; (17) Rule 705, disclosure of data on expert opinion; (18) Rule 608, truthfulness opinion/rep­u­tation; (19) Rule 404(a), character evidence; (20) Rule 609, impeaching with prior conviction; (21) Art. 37.07 § 3, criminal history in sentencing; (22) Rule 1009, translating foreign documents; (23) Rule 901, authentication; (24) Rule 611(b), scope of cross; and (25) Rule 704, ultimate issue.

Once you have these 25 tucked firmly away in your long-term memory, you will wonder how you ever walked into the halls of justice without them. This still leaves out many important matters, of course. We have not mentioned judicial notice in Article II or presumptions in Article III—these will more likely arise in civil trials. Nor have we touched on any of the important privileges in Article V. Although we have not mentioned separately Rules 401 and 801, their text is so important it should be committed to memory. More importantly, we have had no discussion of many other critical matters. The rules that govern evidence are still spread out despite the adoption of the rules. We will list another 75 important rules governing evidence—not with the idea of soon committing them to memory. It will probably suffice to know they are out there somewhere so you can hunt them down when you need them: Rules 101(d)(1), 103, 106, 406, 410, 412, 503, 504, 508, 509, 601, 607, 611 (a) and (c), 612, 613, 803 (1), (2), (3), (5), (9), (11), (16), (19), (21), (22), (24), 804, 805, 806, 902 , the remaining 8 Rules in Article X, and Federal Rules 1101 and Rule 105, Code of Criminal Procedure, Art. 38.05, 38.07, 38.071, 38.072, 38.073, 38.10, 38.101, 38.14, 38.141, 38.21, 38.22, 38.23, 38.25, 38.27, 38.30, 38.34, 38.35, 38.36, 38.37, 38.38, 38.39, 38.40, 38.41, 38.42, 38.43, 38.44 or such federal rules as 18 USC § 3500, 3502, 3504, 3505, 3509, 3510, and of course the 4th and 5th Amendments. So this will round out our 100, not necessarily in this order.

Learning the rules, even just the first 25, is a major un­der­tak­ing, perhaps similar to achieving conversational abil­ity in a foreign language. A high level of comfort with evi­dence rules is more like a fluency in a foreign literature. In our next article, we will describe techniques for learning evidence that will allow effective trial work. It is not quick. It is not easy. It is not for beginners, but it is effective and may just be the only way to get there.

Joseph “Sib” Abraham Jr.: West Texas Justice

As we stood in the El Paso heat, as our brother, Sib Abraham, was buried, a very well-respected 70-year-old lawyer came up to me. He had tears in his eyes as he looked at me and said:

For the first time in my life, I’m practicing without a net. As a new lawyer, the people I worked for took care of me. From the time I turned 30 years old, Sib was my net. He knew what to do, how best to do it, and how to do whatever it was as a gentleman. I don’t know what I’m going to do now.

This lawyer summed up the thoughts and fears of a number of lawyers in and out of the state of Texas. It summarized the feelings of the El Paso criminal defense bar to a tee. Every young lawyer who sought to earn his mark as a criminal defense attorney over the last 50+ years had been greeted early in his career by a gentleman (white-haired for many of those years) who stuck out a sincere hand and introduced himself: “Hey, bud, my name’s Sib Abraham. I don’t believe we’ve met. If there’s anything I can do for you, please call me.” And he meant every word of it. What each of us needed, Sib tried to deliver:

  • fight
  • fight hard
  • never compromise your principles
  • never compromise your client
  • be a gentleman

Sib would not represent a snitch. He would not charge a fee to a fellow lawyer who was in trouble. When all other defense counsel in a case wanted to cut and run, Sib said, “No.” When Sib said, “No,” it generally meant that whoever stuck with him was better off than those who took a plea and turned on the others.

Every lawyer I know has a Sib Abraham story. I could write a book about mine and a lot of lawyers have as many or more. Often, our conversations began with, “I was frustrated… ,” or, “A judge won’t let me… ,” or, “My client’s gonna get… ,” and ended with, “Hey, bud, we can fix this.” And we did. I won’t bore you with those stories here (see me at the bar, however) because I want to share an important lesson I learned from Sib.

Sib and I represented co-defendants in a major white-collar case. We’d been getting banged around pretty hard by the AUSA’s, federal magistrates and district judges. We gathered at Sib’s office. My son Jeep was a brand-new lawyer and was with me. Three very experienced lawyers and my son sat down to talk. We were throwing out ideas about how to extract our clients from their legal predicaments. As usual, everyone talked at once. Jeep started to say something and I talked over him, not realizing it. Sib stopped me and said, “Hold on, what do you think, Jeep?”

Jeep lit up like a Christmas tree. After he finished speaking, Sib said, “I like it,” and Jeep’s idea became a part of the motion we filed. His idea hasn’t worked yet, but it may someday. The important thing was that Sib valued a young lawyer’s opinion and wanted to hear it. Jeep’s own father didn’t listen to him. When Sib was dying, he and I had several conversations. In one of those, he told me how much he thought of Jeep. He said, “He’s a good son, a good, young, lawyer, and he listens.”

I thought, “And thanks to you, Sib, so does his dad.” Sib listened, he thought, and then he acted.

I will miss Sib Abraham. We talked every Saturday afternoon in the fall. He was in his office and I was in mine, both working. He’d call to see what college football game I had on. I knew what he had on his TV: Texas A&M. I know I’ll still call his number this fall out of habit. I’ve already called it once just to hear his recording.

I’m not sure how heaven works, but I do know this:

  • There will be a lot more acquittals;
  • the Aggies will play well in the heavenly league;
  • a lot of us will miss him, and will remember him when we fasten our briefcases to go to war. He’ll still be with us, however. We’ll still have a net.

He taught us all and taught us well. Thank you, my friend.

—Jim Darnell

 

When I first met Joseph “Sib” Abraham, in Corpus Christi in the early Seventies, we were both young Turks involved in the marijuana wars, defending those citizens caught up in the government’s futile effort to stamp out drugs. “Sib” represented a pilot from San Elizario, near El Paso, and I was defending a young idealistic Mexican-American from Robstown, near Corpus. The Feds theorized they and others had schemed airlifts of weed to finance Raza Unida political efforts, and the series of prosecutions sought to dismantle those upstarts. Sib was not happy with his client, a colorful daredevil accustomed to landing on dirt roads in the Brasada of South Texas at night, guided only by the headlights of pickup trucks stationed at each end of the makeshift runways. Sib, like many of us then and a few remaining stalwarts today, didn’t represent snitches, but his otherwise courageous pilot had succumbed to the prosecutors’ threats and siren’s song, against Sib’s advice that we had a winnable case if we stuck together. Sib’s honorable loyalty to his client, in spite of the guy cratering to save his own skin at the expense of his former compatriots, impressed me, almost as much as Sib’s dignity and strength—two qualities he would be known for all his life. The pilot enhanced his story, of course, to make it more valuable to the prosecution, which had failed to reveal to me the full extent of the promises they made the pilot (surprise, surprise!), but on cross in a pretrial hearing I got the pilot to waive his attorney-client privilege so Sib was free to reveal the truth to me. We became lifelong friends after that.

Through the years after that first meeting we fought back to back in the many battles we champions of the accused experience, and there’s no one I’d rather have my back than Sib Abraham.

I could tell many stories about our trials and friendship. There was a time many years ago when a “cousin” (the huge Syrian/Lebanese community of El Paso are all “cousins”; Sib pronounced me an honorary “cousin” decades ago, a high honor, indeed) was in trouble, and Sib was just too close to handle the case, so he asked me to. But he had prepared the case to be won, and all I had to do was parachute in and follow Sib’s brilliant lead. He was a master at strategy, quietly analyzing his cases, finding the prosecution’s weakness, and honing in on it. Yet he always earned the respect, often begrudgingly so, of the lawyers he went up against.

Another time Sib and I, and several other lawyers, represented co-defendants in a giant marijuana conspiracy with origins in and around El Paso, but filed in Houston so the prosecution could gain tactical advantage. Sib won his case with the jury, in spite of the judge treating all the defense lawyers like dog shit. His victory had a lot to do with the dignity with which he handled the judge’s conduct. (I had to win mine on appeal, based in part on that same conduct.)

And there was the time recently, when he and Chick Kazen (another “cousin”) and I were representing several clients together. Though sick and dying, he never let on, traveling frequently to Austin for meetings, strategizing, confronting adverse parties and lawyers in his gentle but effective way. We didn’t know how sick he was until a few days before he died, because Sib never sought sympathy for himself, only for the Hero he represented.

I went to see him hours before he died in his own home surrounded by the family he loved. Stalwart friend and great lawyer Jim Darnell was there, and together we got to visit with Sib. He was lucid and seeking no pity, but satisfied with the life he led, ready to go. Typical of his selflessness, on his dying bed he asked about me and my family, and about another case I’m handling for him. I promised him I’d do my best.

Now he’s gone, and I have a tough time imagining a world without him. He was always just a phone call away, even though we were separated by the breadth of our great State. He earned the universal respect of everyone who encountered him, Lawyers, Judges, Prosecutors, Jurors, and especially clients, for whom he always fought with all his many talents. He was a warrior in the purest sense of that word, and he did it with dignity and professionalism. He was a true Gentleman.

His beloved son, Billy, said Sib believed that what you say and what you do must always be in alignment. And Sib often said, “Live as if you were to die tomorrow; learn as if you were to live forever.” Sib lived his life like that. We are all better because Sib walked among us.

Adios, my friend.

—Dick DeGuerin

July/August 2014 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
18 | Pictures from the Annual TCDLA Fourth of July Readings
26 | Reading Competency Reports: What Should Lawyers Expect of Competency Examiners? – By Mary Alice Conroy, PhD, & Floyd L. Jennings, JD, PhD
34 | The Rules of Evidence: The Rest of Our Top 25 – By Ed & Sara Stapleton
38 | Joseph “Sib” Abraham Jr.: West Texas Justice – By Jim Darnell & Dick DeGuerin

Columns
7 | President’s Message
9 | Executive Director’s Perspective
13 | Off the Back
15 | Federal Corner
20 | Said & Done

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

President’s Message: Responding to the Call – By Emmett Harris

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Eight years ago when I walked into these pages as editor of the Voice I spoke about the nature of who we are, what we do, and why we do it. Having written in our last issue about renewing our attention to our purpose as defined in our bylaws, I wanted to remind you of my thoughts on the subject. Please allow me to redeliver that message as it appeared here in 2006.

whom shall I send,
and who will go for us

  —Isaiah 6:8

Jem Finch was devastated by the conviction of Tom Robinson. His father has lost a case Jem thought surely was won. The all-white, all-male jury had taken the word of the Ewells over the obvious innocence of Tom. One of the neighbors, Miss Maudie, said to Jem: “I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father’s one of them . . . We’re the safest folks in the world[.] . . . We’re so rarely called upon to be Christians, but when we are, we’ve got men like Atticus to go for us.” (To Kill a Mockingbird, Harper Lee)

We have been called upon to “go for” the accused. Just as surely as Isaiah’s God asked him the question in the title, we are faced with the question of who will stand and speak for the person charged with crime. Those of us who have answered that we will, and have taken on that responsibility as criminal defense lawyers, must surely realize that in a very real sense it is a calling. We do our society’s unpleasant jobs. We fight to make it safe. How we respond to this calling defines us—not merely as lawyers, but as human beings. I don’t know if we were all born to do it, but I do know that many of the men and women I have been privileged to meet through TCDLA must have been.

So why did Miss Maudie describe our job as “unpleasant”? Why did she suggest that we are responsible for people’s “safety”? It is unpleasant because too many people do not presume innocence. It is unpleasant because too many people do not place the burden of proof on the prosecution. It is unpleasant because too many people do not respect the defendant’s right to silence. It is unpleasant because too many people do not care if we do anything about it. It is critical to the safety of our society because too many people do not grasp how inclined they are to sacrifice their own constitutional rights, and what their lives would be without them.

Atticus had said: “Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects his personally. This one’s mine I guess.”

Let me tell you about one of mine. About 16 years ago I defended, unsuccessfully, a man who was convicted of rape based on the DNA testimony of a man named Fred Zain. I remember that, notwithstanding my cross-examination, the jury loved him. I thought he was an arrogant blowhard. What I did not know was that he was either the world’s leading incompetent forensic scientist or a perjurer. Four years later when Zain was found out, I was able to get Gilbert Alejandro returned from prison and eventually vindicated. There was, of course, no way to give him back the years he had spent locked up for a crime he did not commit. This case affected me personally in two ways. First, I felt personally to blame despite the fact that Zain had fooled many juries before mine. Second, I met a brilliant lady named Cynthia Orr, because she was handling a Zain case at the same time I was dealing with mine. Through her friendship and encouragement, I got involved in TCDLA. But for her I might still be relatively ignorant of our fantastic organization. Through TCDLA I have met, and am now privileged to call my friends, a number of modern-day Atticus Finches. Just being in their presence is a reminder of the scope and critical importance of our calling. They teach me why we must do our society’s unpleasant jobs and keep it safe. They also teach me how.

So I invite each of you to become more active in TCDLA. Talk to the officers and directors in your area, and discuss how you can become more involved. I look forward to serving you as editor of the Voice. I hope that I can contribute to it positively. I may make future references to Mr. Finch. I believe there is much for us to learn from him.

Now, listen as Jem’s little sister, “Scout,” watches her father’s lonely walk out of the courtroom:

I looked around. They were standing. All around us and in the balcony on the opposite wall, the Negroes were getting to their feet. Reverend Sykes’ voice was as distant as Judge Taylor’s: “Miss Jean Louise, stand up. Your father’s passin’.”

As you respond to the call to speak for the accused, may each of you be so blessed to have such said of you some day.

Emmett Harris
President

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

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Special thanks to Deandra Grant (Dallas) and Mark Thiessen (Houston), our course directors for the first annual Lonestar DWI: Blood 101 seminar held in Austin. Thanks to their efforts we had 253 attendees.

Special thanks to Kelly Pace (Tyler) and Rick Wardroup (Lubbock), our course directors for our CDLP Training the Trainers seminar held in South Padre in July. Thanks to their efforts we had 49 attendees. Kelly Pace, Chair of CDLP, and Vice Chair Jani Maselli (Houston) selected attendees from the training to speak at CDLP CLE seminars this coming fiscal year. There are a projected total of approximately 210 presentations at next year’s CDLP CLE. We want our presenters to attend the Training the Trainers seminar to help them prepare for their presentations.

Special thanks to Michael Gross (San Antonio), Bobby Lerma (Brownsville), Kelly Pace (Tyler), and Sheldon Weisfeld (Brownsville), our course directors for the CDLP Trial Strategies seminar held in July. Thanks to their efforts we had 65 attendees.

Special thanks to William Trantham (Denton) and his South Texas Grillers—Mel Bruden (Dallas), Richard Gladden (Denton), Pepe Flores (Austin), John Cantu (Austin), and Nitu Gill (Austin)—for cooking up a barbecue feast on South Padre Island beach. Special thanks to Bobby Lerma (Brownsville) for all of his help in the logistics of putting on the Beach B-Q and feeding close to 100 persons. We couldn’t do it without him.

President Emmett Harris (Uvalde) held his Members Orientation and Retreat at South Padre Island in July. Between the Boat Cruise, dinner and fireworks, and the Luau, a very good time was had by all. That included a large number of members with their families.

Please join us next year for the full week of events scheduled for July 8–12, 2015, at the Pearl Hotel in South Padre Island.

Special thanks to course directors Judge Leon Grizzard (Austin), Judge Herb Evans (Austin), and Joe James Sawyer (Austin) for Criminal Law Basics seminar held in Austin in July. Thanks to their efforts we had 70 attendees.

Special thanks to Robert Featherston (San Antonio), President of the San Antonio Criminal Defense Lawyers Association (SACDLA), and their leadership for allowing TCDLA/CDLP to co-sponsor the Against All Odds: Winning Trial Strategies seminar held in August. Warren Wolf (San Antonio) was the course director. Thanks to everyone’s efforts we had 90 attendees.

Special thanks to Jeff Blackburn (Lubbock), Mike Ware (Dallas), and Gary Udashen (Dallas), our course directors for the CDLP Freeing the Innocence in Texas: The Cutting Edge of Theory and Practice seminar held in Austin in August. Thanks to their efforts we had 186 attendees. We also had Cory Session and Audrey Edmunds address the attendees at the the dinner event.

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.

Off the Back: Never Give Up – By Stephen Gustitis

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Off the Back” is a phrase used in competitive road cycling describing a rider dropped by the lead group who, consequently, has lost the energy-saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. It’s difficult and lonely. Often you feel as if you’ll never catch up. Nevertheless, riding off the back does have one redeeming quality… it makes one a stronger and more determined rider.

The life of a criminal defense lawyer shares many of the characteristics of a bike rider off the back. Always preparing cases for trial, working long hours, managing a business, marketing, selling, maintaining a healthy home life, and all while providing clients the highest level of customer service is an endless struggle. Each month I will share ideas and experiences to assist my friends in the practice of law be more successful. Helping you shoulder this load and making us stronger by writing about the ubiquitous legal issues we encounter, but also writing about trial tactics, law office management, marketing a law practice, sales, technology, and other issues affecting the life of criminal lawyer.

I understand the life of a trial lawyer, probably all trial lawyers. I am, thus, not your competitor in this but your compadre. I mean to educate, enlighten, and maybe even inspire. Mostly, I want to help by sharing my practical knowledge developed over the last twenty years running a law business. And since only a trial lawyer truly understands the life of another trial lawyer, I say let’s work together “off the back” to become stronger, better informed, and more effective in the business and practice of law.

We can begin with the necessary mindset… the mindset of a warrior. “Never give up, never surrender” is Rule #13. A rule about the value of pushing forward even in the face of certain defeat. It’s our professional responsibility to fight until the end, until we have no more opportunity to fight, until we have no more energy to fight. It’s about fighting battles and won­der­ing why we don’t win. It’s about doing our best, but coming up short. Sometimes we retreat and regroup before we can attack again. But retreating is not giving up, it is not surrender. Retreat is necessary to find our energy and our center again. Our reason for pushing forward in the face of uncertainty and even defeat. We all need something pushing us from behind and pulling us from the front to keep up the good fight. It’s Rule #13. There will be no giving up! There will be no surrender!

Stephen Gustitis is a criminal defense lawyer in Bryan/College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and a retired amateur bicycle racer.

Federal Corner: Please Read Riley v. California—It’s a Big Case! – By F. R. Buck Files Jr.

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On June 26, 2014, the headline in The New York Times read, “Justices, 9–0, Rule Cellphone Search Needs a Warrant.” The day before, the Supreme Court had announced its decision in Riley v. California, ___S.Ct.___, WL 2864483 (2014), holding that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Chief Justice Roberts authored the opinion of the Court. All of the other Justices except for Justice Alito joined in the opinion. Justice Alito wrote an opinion concurring, in part, and concurring in the judgment. Few would have predicted that there would have been no dissents.

A. The New York Times’ Headline Exaggerates What the Court Held

The ruling of the Court was not, however, as broad as The New York Times’ headline would have suggested. Toward the end of opinion, Chief Justice Roberts writes what I would suggest might be called “A Memorandum to Law Enforcement Officers and Prosecutors” in which he says:

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U.S., at ___, 133 S.Ct., at 1561–1563; id., at ___, 133 S.Ct., at 1573 (Roberts, C. J., concurring in part and dissenting in part) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”) [emphasis added].

[Note: We aren’t that sophisticated in Smith County!]

Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U.S., at ___, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U.S., at ___, 131 S.Ct. 1849. In Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.” 433 U.S., at 15, n. 9, 97 S.Ct. 2476

        In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that such fact-specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at ___, 133 S.Ct., at 1559 [emphasis added].

B. The Facts in Riley and Wurie

For those who have not read the Court’s opinion, certiorari had been granted by the Court in two cases that were consolidated for argument: Riley v. California and United States v. Wurie.

The facts in Riley (taken from the syllabus) are as follows:

In No. 13–132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed.

The facts in Wurie (taken from the syllabus) are as follows:

In No. 13–212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions.

C. Cell Phone Searches Have Been a Hot Topic in Both Federal and State Courts

It is not surprising that the Court’s opinion in Riley has received such coverage. The search of a cell phone has been a hot topic. The numbers support this observation. I ran WestLaw queries in the allfeds and allstates databases and got these results:

  • search /s “cell phone” /s incident /s arrest—in the allfeds database, there were 184 cases; in the allstates database, there were 132 cases.
  • search /s “cell phone”—in the allfeds database, there were 1,688 cases; in the allstates database, there were 1,513 cases.

D. Chief Justice Roberts’ Comments About Cell Phones

These cases require us to decide how the search incident to ar­rest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.

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Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

***

Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.

        Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.

E. Chief Justice Roberts Framed the Issue before the Court

The two cases before us concern the reasonableness of a warrantless search incident to a lawful arrest. In 1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652. Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement. Indeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant. See 3 W. LaFave, Search and Seizure § 5.2(b), p. 132, and n. 15 (5th ed. 2012).

F. Chief Justice Roberts Slammed the Government’s “Materially Indistinguishable Argument”

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom [emphasis added].

G. Chief Justice Roberts Expanded the Logic Behind a Quote from Learned Hand

In 1926, Learned Hand observed (in an opinion later quoted in Chimel ) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

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H. Chief Justice Roberts Concluded His Opinion with References to James Otis and John Adams and “General Warrants” and “Writs of Assistance”

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’ speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

        Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

I. Chief Justice Roberts’ Holding in Light of the Trilogy of “Search Incident to the Arrest” Cases

Judge Roberts examined the facts in Riley and Wurie in the light of Chimel v. California, 89 S.Ct. 2034 (1969); Robinson; United States v. Robinson, 94 S.Ct. 467 (1973); and Arizona v. Gant, 129 S.Ct. 1710 (2009), and declined to extend Robinson to searches of data on cell phones, and held instead that officers must generally secure a warrant before conducting such a search.

THIS CASE IS TOO IMPORTANT FOR ME TO TRY TO SUMMARIZE ANY MORE THAN I HAVE ALREADY DONE. THIS IS ONE CASE THAT EVERY LAWYER WHO PRACTICES STATE OR FEDERAL CRIMINAL LAW MUST READ IN ITS ENTIRETY.

J. “Unanimous” Opinions

On July 2, 2014, there appeared in The New York Times an article by Adam Liptak entitled, “Compromise at the Court Veils Its Rifts.” In the article, we find these two sentences: “While the Court’s level of agreement this term was authentically high, the numbers overstate the case.” “A lot of unanimity is ersatz,” said David A. Strauss, a law professor at the University of Chicago.

The accuracy of Mr. Liptak’s thesis is shown by these two comments from Judge Alito’s concurring opinion:

First, I am not convinced at this time that the ancient rule on searches incident to arrest is based exclusively (or even primarily) on the need to protect the safety of arresting officers and the need to prevent the destruction of evidence. . . . This rule antedates the adoption of the Fourth Amendment by at least a century.

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This brings me to my second point. While I agree with the holding of the Court, I would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables [emphasis added].

My Thoughts

  • I really enjoy reading the opinions written by Chief Justice Roberts. Even when I disagree with his holding or his logic, I am impressed by the quality of his writing. In Riley, he goes from the visitor from Mars to Learned Hand to James Otis and John Adams—and it all makes sense.
  • So what’s next? The search cases based on exigent circumstances will probably be next on the horizon. We can only wait and see what law enforcement officers will say in support of their decisions to do searches without warrants because of exigent circumstances. These should keep us busy for a long, long time.
  • So what else should we be concerned about because of Riley? How about ipads and other tablets? It seems to me that the same rules should apply for them as for cell phones. Once again, we can wait and see.