Monthly archive

December 2014

Twas the Week Before Christmas

In the spirit of the Christmas season and to remind our members never to give up on any motion, we want to share this motion with you and discuss some points on Motions for Continuances in State court. In the case of this motion, three other motions had already been filed and denied. In an act of frustration and desperation, we filed this one below, which was granted. In the motion, only the defendant names and case number have been changed. This has been published previously, but for those who may have missed it, I hope it brings a smile to your face at the end of a hard fought year for your clients.

Click here to read the full article (PDF)

November 2014 SDR – Voice for the Defense Vol. 43, No. 9

Voice for the Defense Volume 43, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Florida’s threshold requirement that defendants show an IQ score of 70 or below to submit additional intellectual disability evidence is unconstitutional because it creates an unacceptable risk that persons with intellectual disabilities will be executed. Hall v. Florida, 134 S. Ct. 1986 (2014).

        After Atkins v. Virginia, 536 U.S. 304 (2002), petitioner inmate argued that he should not be executed due to his intellectual disability. Petitioner, sentenced to death for murder, presented an IQ score of 71. The Florida Supreme Court affirmed the denial of this motion, holding that Fla. Stat. § 921.137(1) required that petitioner show an IQ test of 70 or below before presenting additional evidence of his intellectual disability. The U.S. Supreme Court reversed and remanded.

        The Court held that Florida’s cutoff rule violated the Eighth Amendment because it considered an IQ score as final and conclusive evidence of intellectual capacity and it failed to recognize that the IQ score was imprecise. IQ test scores should not be read as a single fixed number but as a range; each IQ test had a standard error of measurement, which should be considered. When a defendant’s IQ score falls within the test’s acknowledged and inherent margin of error, the defendant should be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. The Florida statute misused the IQ score on its own terms and barred evidence that must be considered in determining whether a defendant in a capital case has intellectual disability; accordingly, the Supreme Court held that it was invalid under the Eighth Amendment. While the statute may be constitutional on its face, the Florida courts have interpreted it too narrowly by relying only on an IQ test score—which itself is not infallible.

D was acquitted for double jeopardy purposes when the trial court granted D’s directed verdict motion upon the State’s refusal to present evidence to the empaneled and sworn jury. Martinez v. Illinois, 134 S. Ct. 2070 (2014).

        When the court swore in the jury and invited the State to present its first witness, the State was not ready and declined to present any evidence. D moved for a directed not-guilty verdict, which the court granted. The State appealed that the trial court should have granted its motion for a continuance. The Supreme Court of Illinois held that D was never at risk of conviction and, therefore, that jeopardy did not attach for purposes of retrying D on the aggravated battery and mob action charges. The U.S. Supreme Court reversed the Supreme Court of Illinois and remanded.

        “The question is whether the Double Jeopardy Clause [of the U.S. Constitution’s Fifth Amendment] bars the State’s attempt to appeal in the hope of subjecting D to a new trial. The Illinois Supreme Court manifestly erred in allowing the State’s appeal, on the theory that jeopardy never attached because D ‘was never at risk of conviction.’ . . . Our cases have repeatedly stated the bright-line rule that ‘jeopardy attaches when the jury is empaneled and sworn.’ . . . There is simply no doubt that D was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that [D] may not be retried. . . . [T]he trial court’s action was an acquittal because the court ‘acted on its view that the prosecution had failed to prove its case.’”

Chemical Weapons Convention Implementation Act § 229, which criminalizes the possession or use of “chem­ical weapons,” does not reach D’s state assault con­vic­tion, arising from her effort to poison her husband’s mistress by spreading chemicals on (among other things) a doorknob, causing only a minor burn easily treated with water. Bond v. United States, 134 S. Ct. 2077 (2014).

        D was convicted of possessing and using a chemical weapon, in violation of 18 U.S.C.S. § 229(a). The Third Circuit rejected D’s constitutional challenge, holding that § 229 was necessary and proper to carry out the Chemical Weapons Con­vention Implementation Act of 1998. The Supreme Court reversed.

        Because the federal constitutional structure left local crim­inal activity primarily to the states, judicial precedent gen­erally declined to read federal law as intruding on that unless Congress clearly indicated that the law should have such reach. The Chemical Weapons Act contained no such clear in­di­cation where the general definition of “chemical weapon,” although defined broadly, was not a clear statement that Congress meant the statute to reach local criminal conduct. The chemicals D used were not of the sort that an ordinary person would have associated with instruments of chemical warfare. Moreover, state laws were sufficient to prosecute D. Thus, § 229 was read consistent with the principles of federalism inherent in the federal constitutional structure.

Fifth Circuit

When D challenged the government’s use of peremptory challenges to strike five of the six African-American potential jurors, the court did not clearly err in determining that the government’s race-neutral explanations for the strikes were not simply pretexts for racial discrimination. United States v. Pratt, 728 F.3d 463 (5th Cir. 2013).

        However, in calculating the Guideline imprisonment range applicable to D convicted of Racketeer Influenced and Cor­rupt Organizations Act (RICO) conspiracy, the court committed re­ver­si­ble plain error in applying a two-level enhancement under USSG § 2B1.1(b)(8)(A) (because that special offense characteristic does not apply to a crime that falls under § 2S1.1) and also by miscalculating the value of the laundered funds (by using the total amount of loss). But for these errors, instead of a Guideline imprisonment range of 78 to 97 months, D should have faced a range of 70 to 87 months (and possibly lower). Although D’s 87-month prison sentence fell within the lower range, her substantial rights were affected because there was “additional evidence” that her sentence would have been lower. The Fifth Circuit remanded for resentencing.

In healthcare-fraud prosecution, district court abused its discretion in excluding evidence of D’s law-abiding character; however, the error was harmless given the overwhelming evidence that D knowingly submitted fraudulent claims, including D’s own signed admission. United States v. De Leon, 728 F.3d 500 (5th Cir. 2013).

        The district court did commit reversible plain error in assessing a $750,000 restitution order because the court included losses outside the temporal scope of the offenses of conviction as charged in the indictment. Accordingly, the Fifth Circuit vacated the restitution order and remanded for recalculation of the restitution amount.

In sentencing D convicted of food-stamp fraud at his two convenience stores, district court properly applied a two-level enhancement under USSG § 2B1.1(b)(9)(C) based on “a violation of a prior, specific judicial or administrative order, injunction, decree, or process.” United States v. Nash, 729 F.3d 400 (5th Cir. 2013).

        The factual predicate for the application of this enhancement was satisfied by a 2008 letter from the U.S. Department of Agriculture (USDA), in which the USDA (1) concluded that the food-stamp violations identified in an earlier letter had occurred, (2) imposed a civil money penalty, (3) warned that failure to pay the fine would result in disqualification from the food-stamp program, (4) warned that further food-stamp activity after disqualification would result in a fine and possible criminal prosecution, and (5) told D this was a final determination unless D submitted a written request for review. This letter was tantamount to the sort of “administrative warning” referred to in Application Note 7(C) of § 2B1.1.

District court abused its discretion in entering a preliminary injunction and stay of D’s execution based on the State of Louisiana’s failure to disclose the specific procedures for (and particularly, the drugs to be used in) executions. Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013).

        No appellate court has recognized the due-process right to disclosure of a state’s execution protocol, and the Fifth Circuit declined to be the first.

In prosecution for distribution of cocaine base, evidence that D was arrested 10 months prior with 21 grams of cocaine base and $3,522, along with evidence of D’s concurrent statement that he sold crack cocaine because he did not know how to do anything else and had mouths to feed, was not intrinsic. United States v. Kinchen, 729 F.3d 466 (5th Cir. 2013).

        Rather, it was extrinsic evidence subject to Fed. R. Evid. 404(b); nevertheless, the district court did not abuse its discretion in admitting the evidence. It was admissible to prove D’s motive, and the court did not abuse its discretion in holding that the prejudicial effect of the evidence did not substantially outweigh its probative value.

        (2) Under Dorsey v. United States, 132 S. Ct. 2321 (2012), D, whose crime preceded the enactment of the Fair Sentencing Act (FSA) but whose sentencing was after that date, was entitled to the benefit of the lower statutory minimum (five years) ushered in by the FSA. Nevertheless, the error in applying a higher statutory minimum was harmless, because it was clear that the district court’s upward-variance sentence was based off the Guideline range of 120 to 150 months, not off the erroneous statutory minimum.

Where prisoner D alleged that the Texas Department of Criminal Justice failed to accommodate several tenets of his religion, district court erred in granting TDCJ sum­mary judgment on D’s claim relating to his possession of a deceased relative’s hair because the record did not show that TDCJ’s prohibition was the least restrictive means of furthering TDCJ’s compelling interests. Chance v. Texas Dep’t of Criminal Justice, 730 F.3d 404 (5th Cir. 2013).

D’s felony conviction for assault under Tex. Penal Code § 22.01 was a “violent felony” triggering the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e); though D’s assault could have rested on a mens rea of only recklessness, recklessly causing bodily injury to another qualifies as a “violent felony” under the ACCA “otherwise” clause. United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013).

Government did not breach its plea agreement with D; government did not promise to file a motion for downward departure under USSG § 5K1.1, but rather clearly retained its discretion as to whether to do so. United States v. Barnes, 730 F.3d 456 (5th Cir. 2013), on denial of reh’g, 739 F.3d 182 (5th Cir. 2013).

        Furthermore, the U.S. Attorney General’s August 12, 2013, memorandum (directing prosecutors to decline, in some instances, to charge drug quantities triggering mandatory minimums) did not afford D any relief because it was issued after D was sentenced and because the memorandum stated that it was not intended to create any rights. On denial of rehearing, the Fifth Circuit held that the Attorney General’s August 29, 2013, memorandum on the same subject likewise did not purport to offer D any relief, as he had already been sentenced.

D’s New York state misdemeanor conviction for third-degree sexual abuse of a 15-year-old was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(A); “sexual abuse of a minor” is included in the definition of “aggravated felony,” and there is no requirement that an “aggravated felony” under § 1101(a)(43)(A) actually be a felony. United States v. Hernandez Ramirez, 731 F.3d 351 (5th Cir. 2013).

Court of Criminal Appeals

Trial court lacked jurisdiction to revoke D’s community supervision because the revocation was sought after the period of supervision expired; the period expired on completion of the stated duration of supervision rather than the date of expiration stated by the trial court. Whit­son v. State, 429 S.W.3d 632 (Tex.Crim.App. 2014).

        CCA reversed COA and remanded to the trial court. Nesbit v. State, 227 S.W.3d 64 (Tex.Crim.App. 2007), sets out the required end-date calculation and controls in the event of a conflict with a specified end-date. Because an order for community supervision takes effect on the date of its entry, the duration of this period includes this date and excludes the anniversary date on the final year. “In this case, the error began with the first extension; the trial court ordered an extension of one year—to April 4, 2007—yet the order erroneously specified an end-date two days in excess of one year. The error was repeated in the subsequent extensions, each of which extended supervision for a defined period of years or months. Accordingly, we conclude that appellant’s deferred adjudication ended on October 4, 2009, and the trial court, therefore, did not retain jurisdiction to grant the state’s motion to adjudicate filed on October 5 of that year.”

COA had jurisdiction to consider convicted D’s appeal of unfavorable findings from a hearing on DNA testing. Whitfield v. State, No. PD-0865-13 (Tex.Crim.App. May 7, 2014).

        In 1981, a jury found D guilty of rape and assessed 15 years’ imprisonment. In 2007, he moved for, and was granted, post-conviction DNA testing under Tex. Code Crim. Proc. ch. 64. After receiving the test results, the trial court held the required article 64.04 hearing and found no reasonable probability that D would not have been convicted had the results been available at his trial. D timely filed a notice of appeal. COA held that Chapter 64 does not authorize an appeal of unfavorable findings after post-conviction DNA testing is completed. It dis­missed the appeal for want of jurisdiction. CCA reversed COA and remanded to COA for further consideration consistent with CCA’s decision.

        “We think that the courts of appeals have been given authority to consider the sufficiency of the evidence as well as other grounds of appeal. The only limit that the statute placed on those courts was that they would not have jurisdiction of DNA-testing appeals in death-penalty cases. . . . [A]fter a final decision of a court of appeals of a DNA-testing appeal in a non-death-penalty case, the results of the proceeding may be used for an application for post-conviction habeas-corpus relief under Article 11.07.”

All the circumstantial evidence warranted the conclusion that a half-million dollars in D’s truck was the pro­ceeds of drug trafficking. Acosta v. State, 429 S.W.3d 621 (Tex.Crim.App. 2014).

        D, convicted of money laundering after officers found half a million dollars in cash hidden inside the speaker box of his tractor-trailer, argued that the evidence was legally insufficient to prove that the money represented proceeds from the de­livery of a controlled substance. COA rejected that argument. CCA affirmed. The cumulative force of the evidence was sufficient to prove, beyond a reasonable doubt, that the cash was the proceeds of the sale of a controlled substance, as a drug dog alerted on two bags containing cash, and this was cir­cumstantial evidence of a link between the $502,020 and a drug deal; the amount of the money, its packaging, and its location together constituted persuasive evidence that the money was related to drug trafficking, supporting D’s conviction for money laundering, Tex. Penal Code § 34.02(a)(1).

Applicant’s motion to stay his execution was denied be­cause his application did not satisfy the statutory re­quirements. Ex parte Campbell, 439 S.W.3d 925 (Tex.Crim.App. 2014).

        In 1992, D was found guilty of capital murder and sentenced to death. On direct appeal, CCA affirmed. D then filed four habeas applications, with arguments that his execution would violate the Eighth Amendment because he was “mentally retarded” and the jury should have determined that issue; of Brady and actual innocence; and of a Penry claim. CCA denied each application, including this one.

        “[T]he allegations do not satisfy the requirements of [Tex. Code Crim. Proc. art.] 11.071 § 5. Accordingly, the application is dismissed as an abuse of the writ. Art. 11.071 § 5(c). Further, we decline to reopen the prior writ applications in which applicant previously raised these claims.”

D failed to prove his actual innocence by clear and con­vincing evidence due to the sheer number of back and forth, inconsistent stories. Ex parte Harleston, 431 S.W.3d 67 (Tex.Crim.App. 2014).

        CCA denied D’s habeas application claiming actual innocence because even though the victim’s recantation of her al­le­gations of sexual abuse against D took place after D exhausted his appeals, and therefore was newly discovered evidence under Tex. Code. Crim. Proc. art. 11.07, § 3(d), the newly discovered evidence was not credible, as significant evidence showed that a witness testified untruthfully at the evidentiary hearing and the victim’s recantations and stories explaining why she recanted were inconsistent, implausible, and portions were factually impossible, and were contradicted by testimony adduced at trial.

D’s five convictions from a single home invasion violated double jeopardy. Cooper v. State, 430 S.W.3d 426 (Tex.Crim.App. 2014).

        D was convicted of five counts of aggravated robbery pur­suant to an indictment that named three different complainants, with all counts arising from a single home invasion. The jury found him guilty of all five counts and assessed his pun­ishment at 60 years’ imprisonment on two of the counts, 80 years on two other counts, and 65 years on the remaining count, all to be served concurrently. COA affirmed the judgments.

        D raised two grounds, both of which challenged COA’s holding that double jeopardy was not violated when he was convicted of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery. These grounds involve D’s convictions for two separate counts of aggravated robbery of each of two of the named complainants. “After reviewing the opinion of the court of appeals, the record, and the briefs of the parties, we conclude that appellant’s challenged convictions do violate the double-jeopardy clause. Accordingly, we sustain appellant’s grounds for review. We reverse the judgment of the court of appeals and remand[.]”

CCA upheld the State’s indictment amendment and trial court’s rejection of a hearing for D’s new trial motion. Perez v. State, 429 S.W.3d 639 (Tex.Crim.App. 2014).

        D was convicted of three counts of aggravated sexual assault of a child and two counts of indecency with a child by contact. He was sentenced to life in prison for each aggravated assault count and 20 years in prison, to run consecutively, and a $10,000 fine for each indecency count. COA affirmed. Here, D raised two issues: 1) whether the indictment was properly amended from its original 11 counts to 5, and 2) whether the trial court committed reversible error by not granting D a hear­ing on his new trial motion. Finding no error, CCA affirmed.

        Pursuant to Tex. Code Crim. Proc. arts. 28.10 and 28.11, D was given actual notice of the proposed amendments to the indictment and very clearly stated that he had no objections, and the changes did not add any new charges or alter the language of the old charges; such changes did not invade the province of the grand jury because the grand jury returned a true bill on all the charges for which D was tried and ultimately convicted. Second, there was no evidence that D or his attorney took steps to obtain a setting or attempted to get a ruling on a request for a hearing on his new trial motion.

In a habeas case alleging that a laboratory technician committed misconduct, resulting in false evidence, the State successfully rebutted the presumption of falsity and demonstrated that the technician did not commit intentional misconduct in D’s case. Ex parte Coty, 432 S.W.3d 341 (Tex.Crim.App. 2014).

        After malfeasance of a laboratory technician who worked on D’s case was discovered, D filed a habeas corpus application. CCA granted relief. However, before mandate issued, CCA withdrew its opinion, granted rehearing, and issued a briefing order to the parties. In January 2014, CCA issued a second opinion that set forth a new analytical framework to resolve claims of forensic technician misconduct. CCA then remanded the case to the habeas court to apply the principles of that opinion. The habeas court issued new findings of fact and conclusions of law recommending that CCA deny relief. CCA here affirmed the habeas denial, based on the State’s showing of detail and consistency in the chain of custody report and the technicians’ worksheets. Additionally, CCA concluded that even if the evidence of falsity had not been rebutted, the evidence was not material because an officer’s dashboard camera cap­tured the seizure, weighing, and field testing of the drug exhibit as well as a positive K-9 alert on D’s car.

An amendment to the Texas evading arrest statute was constitutional; COA properly upheld the denial of D’s pretrial habeas application. Ex parte Jones, 440 S.W.3d 628 (Tex.Crim.App. 2014).

        D was indicted for evading arrest with a motor vehicle and challenged that the 2011 amendment to evading arrest statute, Tex. Penal Code § 38.04(b)(2)(A), was facially unconstitutional because it violated the single-subject rule of Tex. Const. art. III, § 35(a), which states, “No bill . . . shall contain more than one subject.” D challenged the validity of a provision within that amendment that elevated the range of punishment, from a state-jail felony to a third-degree felony, for first-time offenders who evade arrest with a motor vehicle. Thus, if D was incorrect in his constitutional challenge, the amendment was valid and his offense was punishable as a third-degree felony; if he was correct, his offense was punishable as a state-jail felony.

        CCA concluded that the bill, described in its title as relating to a tire-deflation-device offense and evading-arrest-with-a-motor-vehicle offense, did not violate the single-subject rule because the provisions had the same general subject, imposition of criminal penalties described in the Texas Penal Code for offenses involving motor vehicles, and had a mutual connection in that their enactment was intended to better protect law enforcement and the public from actors who evaded arrest. In accordance with the Texas constitutional prohibition against judicial invalidation of a bill for title deficiencies, the court considers the title only for limited informational purposes in deciphering a bill’s subject or subjects.

Officers had reasonable suspicion to detain D because circumstances combined with an anonymous tip contributed to their suspicion that he was selling drugs, and the officers were diligent in calling for a K-9 dog to confirm or dispel their suspicion; although D originally had standing to challenge the search of the borrowed van, he abandoned his standing when he fled from the van and officers. Matthews v. State, 431 S.W.3d 596 (Tex.Crim.App. 2014).

        D was charged with possession with intent to deliver co­caine. He filed a pretrial motion to suppress the cocaine offi­cers found during a warrantless search of a van he had borrowed. After hearing the evidence, the trial judge ruled that D’s original detention in the patrol car was reasonable and that he lacked standing to challenge the search of the van. A jury then found D guilty. COA affirmed, agreeing that D lacked standing to challenge the van’s search and upholding D’s detention, even though it was based largely on an anonymous tip. CCA affirmed.

        Although D originally had standing to challenge the search of the borrowed van, he abandoned any expectation of pri­vacy (and hence his standing) when he fled from the van and officers. Second, the officers had reasonable suspicion to sup­port D’s detention that was not based solely on the anonymous tip but on the location and time of night, and D’s act of fleeing increased their suspicion and further justified his con­tinued detention to await the arrival of a drug dog.

A juvenile’s claim that his mandatory life without parole sentence violated the Eighth Amendment was not forfeited by his failure to urge his claim in trial court. Garza v. State, 435 S.W.3d 258 (Tex.Crim.App. 2014).

        In 2011, a jury convicted D of capital murder for his involvement in a stabbing death for the purpose of stealing a car. The State waived the death penalty because D was a juvenile. Immediately upon conviction, D was sentenced to life with­out parole pursuant to Texas Penal Code § 12.31(b), as it existed at the time. No sentencing hearing was conducted, and “[n]o objection was voiced to the procedure employed or to the imposition of the sentence imposed.” D appealed the sentence arguing that because he was a juvenile, the sentence violated Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding that the mandatory imposition of a life-without-parole sentence upon a juvenile is unconstitutional). COA held that by failing to object in trial court, D forfeited this claim on appeal. CCA reversed COA.

        COA’s decision conflicted with Ex parte Maxwell, 424 S.W.3d 66 (Tex.Crim.App. 2014). “Maxwell’s Miller claim was not subject to procedural default. This implied holding was a condition precedent to granting relief; it was a threshold through which the Court allowed Maxwell’s claim to pass. With­out it, the Court could not entertain the merits of Maxwell’s claim consistent with our established case law, much less grant relief on it. Maxwell’s result decided the issue before us today: substantive status-based or individualized-sentencing claims under the Eighth Amendment and embraced by Miller are not forfeited by inaction.”

D’s confession that he threatened complainant by pointing a gun at her, took her property, and shot her was sufficient to prove capital murder; there was also sufficient evidence to support his death sentence. Soliz v. State, 432 S.W.3d 895 (Tex.Crim.App. 2014).

        Appellant was convicted of capital murder, specifically an intentional murder in the course of committing or attempting to commit burglary or robbery. Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071 §§ 2(b) and (e), the judge sentenced appellant to death. Direct appeal to CCA was automatic. Appellant raised eighteen points of error. CCA found them to be without merit.

        D’s confession that he threatened complainant by pointing a gun at her in her home, took her property, and shot her was sufficient to prove his guilt of capital murder. “Moreover, there was ample corroborating evidence,” including a witness’s testimony, forensic evidence connecting the gun recovered from his vehicle to the bullet and shell casing from complainant’s home, and his fingerprint inside her home. There was also sufficient evidence to support his death sentence because a rational trier of fact could have found a probability that he would commit criminal acts of violence constituting a continuing threat to society; the jurors weighed his evidence of brain damage and partial fetal-alcohol syndrome along with other relevant evidence and made a normative judgment that the evidence did not warrant a life sentence.

Court of Appeals

Trial court erred in determining that the Director of the Children’s Advocacy Center of Paris was the proper outcry witness and in exempting this Director from the witness exclusion rule; however, these errors were harmless. Allen v. State, 436 S.W.3d 827, 832 (Tex.App.—Texarkana 2014).

        “To be admissible under Article 38.072 of the Texas Code of Criminal Procedure, outcry testimony must be elicited from the first adult to whom the outcry is made. . . . [T]he child’s statement to the witness must describe the alleged offense, or an element of the offense, in some discernible manner and must be more than a general allusion to sexual abuse. . . . On appeal, the State argues that [complainant’s] statements to [another witness] were not an outcry because they amounted to nothing more than a general allusion to sexual abuse. We disagree. . . . [Complainant’s] statements to [the other witness] establishing how, when, and where the offense alleged in the State’s indictment occurred constituted an outcry for purposes of Article 38.072 of the Texas Code of Criminal Procedure, and the fact that they were made to [the other witness] made her the proper outcry witness in this case. [Complainant’s] tes­ti­mony alone was sufficient to convict [D]. Therefore, we are reasonably certain that the admission of [the Director’s] testimony did not influence the jury verdict or had but a slight effect. Accordingly, we find that the trial court’s error in allowing [the Director] to testify as the outcry witness in this case was harmless.”

        Furthermore, the trial court erred in allowing the Director to remain in the courtroom during complainant’s testimony. COA found this harmless: “After reviewing the entire record, however, we have fair assurance that the error either had no influence on the jury’s deliberations or had such a slight effect that it was imperceptible.”

The evidence was legally insufficient for D’s DWI conviction; no direct or circumstantial evidence appeared of record enabling a reasonable fact finder to infer that D operated his vehicle while intoxicated. Murray v. State, 440 S.W.3d 927 (Tex.App.—Amarillo 2014).

        The State convicted appellant of driving while intoxicated; thus, it was obligated to have shown, beyond reasonable doubt, that appellant was “intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code § 49.04(a). COA rendered an acquittal.

        “CCA has held that a person operates a vehicle when the totality of the circumstances demonstrate that he ‘took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.’ . . . Texas troopers found appellant alone, reclining, asleep in the seat of his pickup in the cold early hours of a January morning. The vehicle was parked on a private drive near a fireworks stand with its radio on. Though a portion of the vehicle remained on a shoulder adjacent to the roadway, none was on the roadway. Furthermore, while its motor was running, its transmission was not engaged; that is, it was in park. No signs of containers holding alcoholic sub­stances were found around the vehicle. How long appellant and his vehicle were at the locale went unmentioned, as did the time at which he arrived there. Moreover, the trooper who first encountered and then awoke appellant acknowledged that appellant was not operating the vehicle in his presence. The same trooper also testified both that a sleeping person is not operating a vehicle and that he did not know if appellant had consumed beer at the scene or elsewhere.”

COA reversed the denial of D’s motion to suppress; officer lacked reasonable suspicion. Jaganathan v. State, 438 S.W.3d 823 (Tex.App.—Houston [14th Dist] 2014).

        “Because the arresting officer lacked reasonable suspicion to detain appellant for violating the ‘Left Lane for Passing Only’ sign, we conclude that the trial court committed harm­ful error when it denied appellant’s motion to suppress. We reverse and remand.”

Jury Persuasion in Criminal Cases: Utilizing “Solution Selling” Techniques

“Winning isn’t everything… It’s the only thing.”

—Vince Lombardi

Introduction to Salesmanship

The fundamental to good selling technique is to teach customers why they want to do what you want them to do. Good salesmanship does not involve brow-beating or overwhelming a customer. The foundation to making a sale is to gently lead someone to do what you want them to do.

Before you can sell a product, your prospective customers have to trust you. They must see you as more credible than your competition. Accordingly, the jury must believe you are more direct and honest than the prosecutor, witnesses, or judge. You cannot be seen as trying to conceal information, spin facts, manipulate, or lie. You must be the one person they can count on to calmly and objectively present them with the truth.

Before a venire appears, you need to think about how you want them to see you. Are they going to see you as belligerent or cooperative? Manipulative or forthright? Obstructive or facilitating? Comfortable or nervous, patient or anxious? The impression you make in voir dire is the filter through which the jurors will interpret your actions, and those of your client, during every moment of trial and deliberations. Their respect and trust for you as an individual from the very start translates directly into how much credence they are to give your theory of the case, your evidence, and your client.1

First impressions count. You must be seen as the most open, honest, and trustworthy person in the courtroom; determine what it will take for the jurors to see you that way. You need them to bond with you, trust you, and be willing to follow your guidance. What can you do to sell yourself as the individual they can most rely on during this unfamiliar process?

There is no single answer. All lawyers have their own style, and you will never be trusted if you try to communicate in a way that does not fit. You have to access the parts of you that can be nakedly open and be able to gracefully acknowledge criticisms and trouble areas in your case. Only by being as candid with the jurors as possible can you get them to trust you to the point that they sit a little straighter and listen a little more closely when you speak. Lawyers that jurors trust are hard to beat.

Jury selection is not just about jury picking, and a good argument can be made that jury picking is not the most important part of jury selection. What you need to focus on is selling your­self to the jury. By the end of voir dire, every fair-minded venire member should trust you and want to see you win. While you want to disqualify as many jurors as possible who are not fair-minded, everyone who is not challengeable for cause should be acceptable.

Once you have the jury’s trust, do not squander it at trial. Do not try to get a witness to say something he or she did not mean to say. Give witnesses a chance to retract any statements that were not what they really meant. Jurors will see through your putting words in a witness’ mouth. Even if the testimony helps, the bond you have lost through trickery will come back against you. Use Motions in Limine to keep out what can be kept out, but be flexible enough to incorporate the bad facts into your defense. You must maintain your credibility even at the expense of some challenging moments.

Every trial represents a problem a jury must resolve: You need to offer the jurors the best fitting, most logical solution to that problem. You want them to trust you enough to feel confident accepting the solution you have to offer, because then they can safely rely on your expertise and integrity. The most irreplaceable selling skill is to bring about the belief that you are the most steadfast person in the courtroom. If you do not do this, you will lose. If you do this, you are going to be hard to beat.

Solution Selling Techniques

The term “solution selling” was coined by Frank Watts in 1975 based on his experiences at Wang Laboratories. “Solution selling” refers to a “consultant” sales approach. When a consultant is hired by a company, he or she handles the job in this manner:

1. Reviewing the client’s needs: Your starting point is understanding the clients and their needs and your ability to meet those needs.2 The clients are tasked with determining the facts of an incident they know nothing about. Consider the duties of the client, how they must perform them, and on what facts they will have to base their decision.

2.  Evaluating data: Because the jury has to determine the facts, their most urgent need is to decide what, and whom, to believe. Consider the evidence anticipated, what facts are beyond dispute, and what, and whom, the jurors will have to believe or disbelieve in order to vote “not guilty.” If there are facts beyond dispute, acknowledge them and take them off the table as early as possible, lightening the jury’s duty and making yourself more credible at the same time. Stick to fights you can win.

3. Presenting recommendations: The consultant’s service is to provide a solution that meets the client’s needs. The jurors need to be comfortable with their verdict; your role is to present them with a way to be more confident about acquitting your client than with the alternative. If you are their most dependable resource, in the end they will feel most confident relying on your theory of the case.

4. Addressing client concerns: Remain flexible and adapt your services according to the evidence. Listen to what the prosecution offers and adjust accordingly, both in content and tone. Observe the jury’s reactions and avoid using a scripted presentation. Instead, read the moment and adapt with grace and flexibility. Some of the best moments in trial come from things you had no way of anticipating. Be prepared to embrace whatever opportunities arise.

When someone hires a consultant, they begin by evaluating the credentials, experience, and reputation of various candidates, and selecting the one who appears to best suit their needs. But jurors are stuck with the lawyers hired by others. The first thing you must do is convince them that you are the right consultant for them. The jurors did not get to check you out beforehand—you must prove yourself to them now.

By acting as a consultant, the competitive climate jurors may anticipate is neutralized, as the jurors come to see you not as an adversary but as a trustworthy, objective resource. They understand you are trying to sell your theory of the case, but as you focus on the reasons why they want to accept your theory (and as they should already trust you more than your adversary), yours will be the theory they rely on.


Preparation begins with developing a credible theory which, if believed, will logically result in acquittal. Preparation makes your time at trial more effective. Your theory gives you an active plan to empower the jury to acquit. Trial prep dramatically improves the probability of success and may include the following:

1. Study and Understand the Needs of Jurors: Get to know the average person in that jurisdiction to learn and understand how he or she thinks about the issues involved in your case. Go to school meetings, Little League games, town meetings, art receptions, civic meetings, etc. Get your hair cut near the courthouse and listen to your hair dresser or barber. You need to do more listening than talking.

2. Discuss your theory with people you meet: Let average folks respond to the facts in the case, see which arguments they find compelling, and which they disbelieve. In most cases, we cannot afford to run mock trials or focus groups, but for the price of a cup of coffee or a beer, you can test your theory on friends from the community.

3. Read: Read books on the subject of juries, group decision-making, and the art of jury selection. There are numerous studies on these topics that trial lawyers should be familiar with.

4. Join clubs or other organizations as a rank-and-file member: Attorneys are notorious for providing leadership. You cannot learn how others think by leading and talking as well as you can by following, listening, and observing. From this, you can observe how others act and what motivates them to make difficult decisions—exactly what you plan on asking jurors to do.

We tend to spend our time with like-minded individuals. We begin to think everyone thinks somewhat like us: Generally, nothing is further from the truth. Your circle of friends cannot prepare you nearly as well as an occasional conversation with strangers at a diner or local watering hole.

As important as it is to know your local community, this is even more critical when you have a case out of town. Read the local papers and listen to the local radio. At the very least, talk with local criminal defense lawyers about the local community and attitudes.

Evaluate the Evidence and Potential Witnesses

You need to know what the evidence will be so you will know which facts are most likely to influence the jury’s decision and how to incorporate those facts into your theory. You need to base your decisions on evidence, not assumptions or wishful thinking. Discovery and investigation are outside the scope of this article, but the first step has to be absolute mastery and organization of the facts.

The ability to marshal evidence without delay builds massive credibility before the jury. If the documents you need are right at your fingertips, the jury sees you know and understand what matters. You are prepared, in control, and reliable. If you have to rifle through boxes of papers to find what you need, you will look confused and will lose credibility. Mastering the evidence and knowing what to expect lets the jury see you know what really happened—and makes them feel confident in following your lead.

Draft a Theory of the Case

Make sure that your theory is internally consistent, and that to an average juror it ultimately leads to one logical conclusion—not guilty. The theory must take into account (and as much as possible depend on) all facts beyond dispute and be credible to an average person. Make sure the rest of the evidence you need will be admissible.

What most scares you about the case? Is there something you may not be able to keep out that can destroy your theory at trial? Is there something you may not be able to get admitted that your theory depends on? If you are not confident the evidence will conform to your theory, you are not ready to go to trial.

Not every case presents a good trial case. If you cannot come up with a winning theory supported by the facts, ask your­self why the case is going to trial. What needs to change for you to have a winnable case, and what control do you have over that? Is the case about sentencing issues? A stubborn client? A dogmatic prosecutor?

Prepare Mentally

Convince yourself that you deserve to win. The jury must see you as sincere and confident—or they will give the verdict to the person in the courtroom who is sincere and confident. No matter how guilty you know your client to be, the jury needs to see you as the proud champion of his righteous cause.

If the jurors do not see you as believing in your case, they will not believe in your case. If they do not think you trust your client, they will not trust him. If you do not project a confident belief in your case, you are going to lose.

Developing a Presentation Plan

Once you have your theory, you need to develop logically flowing themes to communicate your necessary facts to the jury. You need to know how you will conduct each phase of trial—from voir dire, opening statement, cross-examination, presentation of witnesses, re-direct, to final argument, complete with backup plans in case the evidence does not develop as anticipated. (It never does. Anticipate where the surprises are most likely to lie.)

You need to know what evidence you will introduce, through which witnesses, and why that evidence is admissible. You need to know what evidence you need to keep out, and why that evidence is not admissible—and how to respond if the judge lets it in anyway. With good planning, you can present your theory seamlessly. Without it, your best opportunities are doomed. An evidentiary checklist should be made to ensure that every necessary fact gets admitted at trial.

Establishing a Trial Objective

Every aspect of trial needs a specific theme with specific objectives directing that aspect. This must be done with discrete steps to forward your theory of the case. While a case can have only one theory, you can use as many themes as you need: You can have a theme for a witness, an event, a piece of evidence, or to re-frame the prosecution’s theory. Creating a theory and supportive themes before trial adds direction and confidence. For each stage of trial to be effective, that stage has to lead to some action in the minds of jurors that advances the selling process toward acquittal.

Your attitude, posture, facial expression, and eye contact communicate to the jurors how you feel about the case. Studies show that on meeting someone for the first time, a judgment is made within the first seven seconds. Nonverbal cues have over four times the impact on that impression as verbal statements. Practice before a mirror if necessary.

1. Attitude: Jurors pick up on your attitude immediately. As in sales, jurors respond to confidence, enthusiasm, and hu­mility.

2. Posture: Status and power are conveyed by height and space. Standing tall, pulling your shoulders back, holding your head straight are all signals of confidence and competence.

3. Smile: A smile is an invitation, a sign of welcome. It says “I am friendly and approachable.”

4. Make Eye Contact: Eye contact transmits energy and indicates interest and openness. Practice by noticing the eye color of everyone you meet.

5. Raise your Eyebrows: Open your eyes slightly more than normal to stimulate the “eyebrow flash” that is a universal signal of recognition and acknowledgment.

6. Lean in Slightly: Leaning forward shows you are engaged and interested.

Voir Dire

For decades, we have learned voir dire is about selecting jurors. Forget that. You will use it to bond with the jurors and establish yourself as their advocate and expert. If the jurors are to look to you as their most reliable source of information, you need to establish a consulting relationship with them from the beginning.

Start voir dire by distinguishing yourself from the prosecution and grabbing the venire’s attention. Where did the State try to manipulate the jurors, talk down to them, minimize their bur­den, or oversimplify the issues? Find ways to be more honest and to provide a fuller, more complete picture of the case and the juror’s role. Do not try to out-slick the State or upstage them with a flashier presentation. Voir dire is about rapport.

Digital presentations can turn into crutches, and create a bar­rier between you and the venire. You would not use a PowerPoint presentation to get close to a date; you would use eye contact, compassion, and good listening skills. Those are the same skills you need to use to bond with jurors. Showing them a picture can be part of it, but do not let that become a distraction.

Rapport is the mutual comfort and understanding that develops when you and the jury share a common interest—fairly resolving the case and seeing justice done. Allow each juror to believe you are speaking directly to him or her using appropriate emotion and vulnerability. Maintain eye contact; smile when appropriate. Like Paul Harvey used to say, your purpose is to give the jury the “rest of the story.” Make them anxious to hear it.

When rapport exists, it is easier to connect with the jury and move comfortably through the trial process. A positive relationship established at the beginning of jury selection provides a receptive jury for the balance of the trial.

To help ensure the jury relies on you and is comfortable with you, you need to present yourself as a warm, emotion-filled professional who is trying to give them full and accurate information. Be confident, not pushy, and help them to realize what a patriotic, necessary role they are playing as jurors. Pump them up: You need them to have a sense of pride and independence in the task in which they are about to engage.

Make sure during voir dire and opening statement that they understand how cross-examination can serve as your proof. Jurors sometimes discount or tune out cross-examination, thinking the “main point” of the testimony has already been delivered. Make sure they anticipate cross-examination as where they get the “rest of the story.”

At the end of voir dire, every juror must commit to vote for acquittal if they have any reasonable doubt. A commitment to act is more than a commitment to passively evaluate evidence and vote accordingly. You want each juror so committed that even if the rest of the jurors vote to convict, he or she is pledged to hold firm in the face of the entire group. Therefore, never secure a commitment to act in a routine manner. Make their com­mitment to give you your verdict, if earned, a rock-solid decision on their part.

Opening Statement

If jurors are unsure where you are leading them, they will not trust you and will become defensive. They do not want to feel “tricked” or pressured to embrace the unacceptable. You need to let them know where you are going, how you are going to get there, and why they should follow your lead.

Initially, jurors are “information gatherers.” They need to know, clearly and memorably, how the evidence will support your theory, and why they should want to vote “not guilty.” You need to guide them, using the same themes you want them to re­call during trial. By doing that, you script the language through which they will filter the evidence.

Do you hold onto your secrets hoping to ambush the State, or reveal your secrets and attempt to obtain a commitment to act from the jurors? Unless you can get the prosecutor to leave the courtroom while you engage in voir dire, it is impossible to ob­tain a commitment to act without revealing your theory of the case. The idea that secrecy and surprise will win is almost al­ways flawed. Juries begin making decisions far too early in the process for you to keep the best information for later. Let the jury know early and often that you expect an acquittal, and how you are going to earn and deserve it. They will admire you for your openness and for your willingness to make an honest commitment to them.

You already know what the bad facts are, and you know the jurors are going to learn them. State up front what the bad facts are and that they do not change your theory, and that even with those bad facts you are entitled to an acquittal because of “the rest of the story.” Embrace the ugly facts and show that those facts do not justify a conviction.

Do not over-promise or over-sell. Your client and your witnesses are flawed people, and those are flaws the jury is going to have to accept. If you try to hide those flaws, you will lose cred­ibility when the State inevitably proves them up. If you discuss them with confidence and sympathy, they will accept that those flaws are not grounds for a conviction.

Do not let the prosecution turn the case into an emotional tug-of-war. Share the grief and pain of any victims to minimize any potential sympathy vote. Criticize your client, berate him if necessary, to show that you can condemn his decisions without believing he is guilty in this case.

Let them know what weaknesses to anticipate in the prosecution’s case. You are there to help them understand the issues and evidence. Let them know they might hear the “rest of the story” in your case in chief or during your cross-examination. Anticipate their questions and, where possible, give answers. At this point the jurors are experiencing anxiety and suspense; ease their minds by letting them know what to expect.

Close by letting the jurors know that if they will trust you, they will feel good about their verdict. Let them know you are going to ensure that by the time trial is over, they will have the facts needed to make the right decision, and you and they will leave proud of the justice system and the roles each of you has played after finding your client “not guilty.”

Finally, secure the right to proceed before you close. Make sure they understand what you have told them and are ready for you to move on to the presentation of testimony.

The Evidentiary Phase:

The Importance of Obtaining Permission to Proceed

As testimony begins, consider the opening statements. Are you as confident as you were before? Is there anything you learned that makes you uncomfortable that you must prepare for? You have an opportunity to reconsider what witnesses you will need and adjust course as necessary.

As you question witnesses, make sure the jurors are following along. If the right to proceed has not been established, jurors get left behind. Look for glazed eyes or a confused or absent look. Pause between issues, and glance towards the jurors before beginning a new line of questioning. Make sure the jurors are clear on what has just been discussed before you proceed.

Always make sure that the jury is ready for you to move on to a new issue, and that they understand when you are about to do so. Request permission from the witness (acting as a surrogate for the jury) to move on, or nod toward the jurors to ensure they know you are moving on. By getting the permission of the jury to proceed, you ensure the jury has accepted what you have just presented to them as true and are ready to open their minds to the next issue.

There are four potential outcomes of this segment—two positive, two negative:

1. Closure (positive): You make a recommendation, and the jury accepts the rec­ommendation to act when requested to do so. For example: “Officer, if our jury finds it important to understand the sequence of events clearly, may I ask one summary question?” (What witness will say “no”?)

“Officer Smith, isn’t it true that Mrs. Seymour never said that my client threatened her with a knife until she had some time with her frantic mother, who previously insisted to you that her daughter would never engage in an extortion attempt unless she was in fear for her life?”

Allow a moment to pass before releasing the witness. A combination question reasserts the most important elements of the testimony, while an elongated pause provides the jury time to close the issue before moving on to the next one.

2. Advancement (positive): You have moved forward, but not won yet. At the conclusion of each issue, establish what will take place after the juror accepts that which you need them to accept from the immediate segment. For example:

“Officer, having fully explored her opportunity to discuss the facts with her mother before her statement was taken, I would now like to move to the fingerprint issue. Are you prepared for me to do that?”

That question is asked of the witness while simultaneously glancing at the jury for some sign they are prepared to move forward. You want to make sure that you have moved forward on this issue before you go on to the next one.

3. Stagnation (negative): Stagnation occurs when you have ended testimony on an issue without an agreement to move forward. The jury did not buy what you tried to sell, or for their own reasons, they were not ready for you to move for­ward and may be feeling rushed. If you encounter stagnation, stop what you are doing immediately. You are starting to lose the sale, and if you do not retrace your steps you will assure a loss. The element that is causing stagnation must be essential to your theory of the case, or you would not have wasted time with it. The jury is going to need to accept this element in order to move forward. You are going to need to re-focus. You may need to ask more questions and spell the issue out more plainly, or use a different witness who can establish the issue with more clarity. Consider what the problem is, and how best to communicate that issue to the jury. You need to think hard, but remain calm. You have time. These moments are among the few times at trial process when you are free to ad-lib. If you “cannot get there from here,” you need to find an alternate route.

4. Termination (negative): Termination occurs when the ju­rors simply dig in their heels and refuse to make any further commitment in your favor. The jury tuned you out because you either lost your credibility or failed to give them the evidence they need to acquit. Ignoring the needs of the jurors on an element necessary for acquittal will cause you to encounter termination. Once you have lost the jury this way, it is extremely rare to get them to re-engage with you.

The Presentation Strategy

The presentation you give should be organized, yet flexible and concise enough to adapt to the needs of the jurors. By doing this, you will cover all the evidence you need, regardless of interruptions or anything unexpected. Spend as much time as the jury needs to accept your evidence as to each area of interest.

Review what you need the jury to accept in order to win. These are the facts that prove your theory of the case. Once your theory is proven, each juror is committed to vote for an acquittal. Your objective is an acquittal, and that comes from jurors who feel better about a vote to acquit than a vote to convict.

Avoid too much repetition. You do not want jurors asking themselves: “Why does he say the same thing over and over? How stupid does he think we are?” This is among the most common of juror complaints.

Proving the Benefits

This is the “workhorse” of trial. The proof you present during trial convinces the juror that your solution provides the benefits he or she needs. During closing, you need to answer the juror’s (unstated) question: “What does this evidence do to help me decide?

“Presentation Chains” delineate the decision-making process by focusing on the jurors’ expected benefits. A presentation chain consists of several elements:

1. Solution description: Begin your presentation by reiterating the solution you are there to present—your theory of the case. This sets the stage for each theme or fact you use to prove your theory.

2. Specific facts and features: This describes relevant characteristics and merits of your solution that relate to the needs of the jurors. This shows how the overall evidence best fits your theory of the case.

3. Describe the advantage: This is where you provide a description of how each fact contributes to your theory and how it is interwoven with the other facts necessary for your theory of the case.

4. Describe the benefits: Benefits are the reason a juror buys your theory of the case. Benefits are the jurors’ expected emotional satisfaction that the evidence will provide by giving them a sense of certainty in their verdict. These relate to the success criteria established when assessing jurors’ needs. Benefits are the “what’s in it for me?” for the juror.

5. Provide evidence: Outline the specific, focused evidence that your solution delivers the promised benefits. The jury needs to see where they will fit in with your solution. For a lawyer to receive an acquittal, the juror must achieve something for himself or herself. They must be proud of their verdict, be proud of having mastered the evidence and instructions, and feel satisfied that they have done their patriotic duty in acquitting your client.

6. Confirm Acceptance: This is where you need to evaluate how well the jurors have accepted your theory. This has to be done through observing their body language as you walk them through the testimony and watch their reactions. You cannot wait for the verdict to analyze how well they accepted your theory—by then it is too late to respond. You must constantly be watching for signs of acceptance or rejection as the case progresses.

Managing Resistance

Resistance surfaces through the sales process as a natural way to reduce the risk involved in making decisions. The ability to anticipate, identify, analyze, manage, or prevent resistance is a key to successful selling. This requires knowledge of resistance timing and the basic types of resistance. Understanding the elements of resistance is important because you rarely get to ask probing questions of a juror.

The timing of resistance indicates the mental state of the juror. Know where you are in the sales process when the resistance occurs. Pay attention to the jury. When they begin to lose interest—change directions. Abandon what you were doing and move on to something relevant to them. You will not succeed unless you are willing to adapt to a subject the jury finds important. Every juror is different and every trial is different; your need to adapt and respond to juror resistance is a constant.

When you identify juror resistance (through observable actions, inactions, or reactions), take a moment and reorganize your thoughts. Evaluate the importance of the issue you are presenting, and go at it from a different direction by using a dif­ferent witness or through a different pattern of questions if that issue is essential to your theory. If the evidence is not essential to your case, move on to the next issue. You are out to win the war; it is normal to lose insignificant battles along the way.

Jurors will not hear your evidence if you are pursuing a line of questioning in the face of jury resistance. Find another way to get there. The longer you allow resistance to build, the less credible you become as resistance shifts from blocking out that one issue or that one witness to blocking you out.

There are different types of resistance: Depending on the type of resistance you encounter, you may seek to respond differently.

Rejection occurs early in the selling process and is usually emotional in nature. Securing the jury’s attention and getting them interested in listening to you must be done early. If a lawyer is unable to do this, the jury will reject the intrusion until they see a benefit. The benefit they need to see from you is that you will be their most trusted purveyor of valid information during the trial.

The jurors must see you as a candid, open, and honest consultant. When you have a need to keep inadmissible evidence from the jury, do it discretely with private conferences before the bench. Motions in Limine need to cover all possible areas you may wish to keep from the jury. It is critical the jury believes you are providing them with all the accurate and valid relevant information available.

Failure to secure a jury’s attention and get them interested in what you say early in the trial assures you of a loss. Afterwards, jurors explain they never bought into the attorney’s theory of the case. When an attorney loses because of juror inattention, jurors do not mind facing him after trial because they never established an emotional bond with him and have no need to protect his feelings from rejection. When jurors tell you that you did a good job with what little you had to work with, there is a good chance they had tuned out and never even noticed what you were presenting.

Objections to your information typically occur in the middle stages of trial and are usually factual or logical in nature. They reflect doubt about your theory of the case, emotional objections to an acquittal, or concerns about whether your theory of the case conflicts with the rest of the evidence.

It is much easier for a juror to convict than to acquit. Jurors are terrified of placing guilty people on the streets. If your theory does not match the evidence to provide the benefits the jurors need, the verdict will let you know you failed. It is critical that your theory of the case, if believed, be logical and meet the emotional needs of the average citizen.

Stalling sometimes occurs toward the end of the trial process. Stalling is an emotional response to the difficult decision you are asking them to make. During this time the jury is under maximum pressure to make a decision. A stall usually indicates a juror does not have a compelling reason to make a decision or has concerns about the validity of the decision you are asking him to make.

Stalls can result from simple indecision to a deep conflict concerning your recommendation. A juror may even retreat from the decision process altogether. Jurors express a stall by deferring to the majority, or by deferring to authority. By understanding that most juror indecisiveness comes from a stall, you can take steps to minimize the pressure on the jurors by providing them with a socially accepted, compelling reason to vote not guilty.

All of this points to the absolute necessity of having a comprehensive theory for the case. Without a theory, supported by evidence, many jurors will become indecisive at the time when they are under the greatest pressure to make a decision—in the jury room, where you have absolutely no chance to refocus them. You lose.

Closing the Sale

Your goal in closing is to reestablish yourself as a friendly, reliable consultant who has helped them in this process. Your ability to win is directly associated with how much the jurors trust you, how credible they believe you are, and (perhaps to a larger degree than even they realize) whether they want you to win. Be the lawyer they want to see win.

At this point, you have spent days, maybe weeks establishing your credibility. Do not lose it on closing. Make sure your comments are supported by facts and evidence, and tell your entire story. Do not leave unanswered questions hanging.

Let them know your job is both difficult and important. Re­mind them that your client is counting on you in spite of the incredible resources of the State; if the State waives opening argument, let them know that is not fair, even though the law allows them to do so.

This is not the time to be stoic—the jurors need to feel your anxiety over a possible conviction and empathize with you. The State tends to present cases as abstractions and dehumanize defendants: Let them know that you are responsible for a real person’s future, and that this case has frightened you from the start, because you were not sure that you would be able to clearly present all the facts the jury needed to see to make the right decision.

Make your closing memorable by using the same themes that you used throughout trial and that you want to resonate in the jurors’ minds when they deliberate. Show them how your theory is better supported by the facts and that the prosecution has the burden. Reduce stalling by reminding them that if they are not certain what the right verdict is, that uncertainty can be grounds for reasonable doubt.

Assure that jurors feel patriotic and proud about their decision. Voting not guilty is hard: It means saying no to authority figures, and jurors need to be reminded that the law puts them above those authority figures. Even if those authority figures did the right thing based on what they knew at the time, the jury now has the “rest of the story” and the instructions of the Court.

Finally, harmonize the motives of the jurors—reaching a verdict they can be proud of—with your solutions. Ask rhetorical questions and observe signs the jury has accepted your theory of the case. Once they have indicated affirmative acceptance, stop. Thank the jury. You just won your case.


People make decisions for a variety of reasons, often having more to do with emotion than logic. We really never know why we decide what we decide; we just know we use facts to jus­tify—perhaps to rationalize—our decisions. Decision making is an emotion-driven process.

When presenting your case, you must give the jury facts that will help them justify to other people, and themselves, why they did what they did. The decision to acquit must logically flow from your theory of the case, and your theory of the case must be supported by the evidence. But in addition to those facts, there is always an emotional connection with that decision. As a trial lawyer, you must connect with the jury on that emotional level.

Trial lawyers must have ready, quick access to their emotions and be willing to be completely open and emotional before the jury to make that connection. This invites the jury to follow your lead. Do not underestimate the factual part of your case, but you must try your case in an emotionally open manner so you can make the type of connection with the jurors that motivates them to do what you want them to do. They never should feel your hand on their back pushing them. You need to forge an empathic bond with them if you are to win.

Winning a trial occurs when you successfully utilize the solution selling techniques discussed here. Be open and emotional with the jury and present the evidence in an honest, helpful manner that empowers jurors to leave the trial feeling justified in, and proud of, their decision. A jury that feels empowered to acquit, that is given a factually supported case for an acquittal, and that wants to acquit, usually will.


1. How the jurors view your client is part of this. His appearance must mesh with your theory; e.g., if you need to show your client was taken advantage of, he needs to appear as gullible. His image cannot contradict your theory of the case. However, that is a topic for another article and will not be discussed at length herein.

2. In this context, the client is the jury, not the defendant.

Not Guilty v. Goliath: Conquering Giant Blood Tests Using the Disconnect Defense

Finally the day has come: Written on the face of the State’s file, in big red letters, is the blood test result. Most attorneys cringe when the lab result reveals a blood alcohol concentration over a 0.15. Now, the district attorney may legally enhance the original Class B misdemeanor Driving While Intoxicated 1st (“DWI”) to a Class A DWI, thereby increasing the punishment range to $4,000 and one year in jail.2 Additionally, jurisdictions that have a pretrial intervention program (“PTI”)3 may refuse to allow clients with over a 0.15 to participate in the program. And psychologically, most attorneys think that defending a blood test DWI case, let alone a high blood test case, is impossible.

The gravity of a high blood test result is a tremendous weight the jury must overlook. A high blood test result is an immense burden for the defense attorney to overcome. However, human common sense can relieve this massive burden, thus turning the defense attorney and jurors into modern-day heroes who together can courageously slay the giant blood test result. Using the disconnect defense (“DD”), the skilled trial lawyer will be able to empower jurors to trust their common sense and not blindly accept science or the gas chromatograph (“GC”). This article will encourage and enlighten the modern day “David” to conquer giant blood test cases and save the innocent.

Choose the Battleground

The story of David versus Goliath begins as Saul and the Israelites face the Philistines near the Valley of Elah.4

In present day, defense lawyers do not usually choose where to battle the Giant; it’s always in the courtroom. In rare cases, a trial lawyer may change the courtroom, judge, or prosecutor based on bias, past history, or other legal argument. Some territory is friendly and some hostile: You must be knowledgeable of actual particularities and rules of the Court. Additionally, know the personalities, strengths, and weaknesses of the jurisdiction, court, judge, and prosecutor. Texas Criminal Defense Lawyers Association, county listserves, mentors, and elder attorneys with stories of battles fought long ago are extremely valuable resources. In order for the DD to succeed, the battle must occur on reasonably fair ground. In the case of extremely hostile territory, the battered trial attorney may still prevail with jury nullification sympathy.

Choose the Fighter

Twice a day for 40 days, Goliath, the champion of the Philistines, comes out between the lines and challenges the Israelites to send out a champion of their own to decide the outcome in single combat, but Saul and all the Israelites are afraid. David, bringing food for his elder brothers, hears that Saul has promised to reward any man who defeats Goliath, and accepts the challenge.5

Similar to the Philistines, the State proudly presents and struts a high blood test result around, daring any defense lawyer to challenge this giant result. The defense bar, like the Israelites, must wait for the right fighter/case to challenge the State. The knowledgeable trial attorney knows that not every giant can be conquered.

The patient trial attorney waits for the right case: where the client is physically and mentally “normal” and any loss of faculty may be rationally explained. Examples of items useful in explaining a loss of physical faculties are (1) medical rec­ords of back, leg injury, inner ear problems, vertigo for poor performance on the One Leg Stand (“OLS) or Walk and Turn (“WAT”);6 (2) a height and weight chart to determine if they are 50 pounds or more overweight;7 (3) a demonstration of the client’s boots or heels in court;8 (4) a diagram of the angle of the ground;9 or (5) evidence of brain tumor, brain damage, or natural nystagmus for the Horizontal Gaze Nystagmus (“HGN”).10 The DWI trial attorney needs to show the jury how easy the Standardized Field Sobriety Tests (“SFSTs”) are to fail and how normal the client’s test results were.11 In the event the client chose to invoke his rights and refused all the SFSTs, educate through voir dire and cross-examination that invoking a constitutional right is not illegal. Additionally, help the jury recognize that any refusal was clear and coherent, and the client stood still and stable the entire time. The right DD case is one where the reasonable suspicion and probable cause for the arrest are non-egregious and rationally explainable. Make the case rest solely on the reliability and accuracy of the giant blood test.

Weapons and Armor

“Don’t worry about this Philistine,” David told Saul. “I’ll go fight him!” Saul reluctantly agrees and offers his armor, which David declines, taking only a staff, his sling and five stones from a brook.12

Notice that David was not only willing to fight, but also knew that he had better aim without excessive armor. The courageous trial lawyer not only protects the innocent through battle, but also trains for battle and is a master of legal and scientific weaponry. Any trial attorneys who want to or may want to fight DWI blood test cases should enroll in blood CLEs; enroll in DWI CLEs; educate themselves through reading articles and transcripts; and observe and assist other trial attorneys in battle.13

The educated, blood DWI trial lawyer knows gas chromatography, infrared spectroscopy, and mass spectrometry. In an effort to provide a brief generalization of headspace gas chromatography flame ionization detection (HSGC-FID), it is important to start with the actual blood draw site. The physician, qualified technician, chemist, registered professional nurse, emergency medical technician, or licensed vocational nurse14 must use a sterile solution, not ethanol, to cleanse the site/arm in concentric circles.15 Usually the drawer uses iodine, betadine, or povidone-iodine. The drawer then inserts a needle in the vein of the arm and blood is drawn into a pressurized test tube called a Vacutainer.16 The Vacutainer is usually grey topped and may contain a variety of chemical components, so it is important to research the manufacturer of the Vacutainer and the additives.

Most grey-topped BD Vacutainers contain an anti-coagulant (Potassium Oxalate) and preservative (Sodium Fluoride)17 and must be properly inverted 8–10 times.18 Arguably, if these steps are not strictly followed then the third prong of Kelly is violated.19 Most jurisdictions draw blood into two Vacutainers, which are then packaged and transported to a laboratory. The chain of custody is critical to determine how the blood was transported and ultimately delivered—i.e., whether it takes days to get to the lab, sits in the trunk of a car, sits in an unsecure location, is shaken, is contaminated, etc. Once at the lab, the lab’s chain of custody should list every time the Vacutainer is moved or analyzed.

Next, an analyst will prepare the client’s blood for testing by adding the client’s blood to N-Propanol and a salt in a smaller vial. N-Propanol is called the standard since it should never exist in a living person’s blood. Note that the analyst programmed the GC/computer before the test is even run to know exactly how much N-Propanol is being analyzed. The client’s mixture is then capped and heated. According to Henry’s Law, “At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid.”20 Or in plain language, the blood alcohol concentration should be the same in the gas above the liquid at equilibrium. The vial is then placed in an autosampler, and the autosampler then withdraws an amount of headspace gas (HS) with an automated needle and injects the gas into the injector port of the GC. The carrier gas, usually either helium or nitrogen, helps push the sample through the column(s). Inside the column(s), ethanol and N-Propanol are separated from each other due to their unique attractiveness (retention time) to the walls of the column. Then, ethanol and N-Propanol will come out (elute) at a particular time and order based on their unique retention times. The compounds will then travel through a flame ionization detector (FID).

The FID is connected to a computer that registers the burst in flame and transmits that detection into a graph (chromatogram). The source code in the computer then measures the area under each peak on the chromatogram. The computer measures the area underneath the N-Propanol peak and has been programmed to relate that particular area with the amount of N-Propanol added by the analyst. The computer then uses that calculation as the benchmark to measure the amount of ethanol present in the sample.21 In the end, the GC does not directly measure the amount of ethanol in the sample, but rather indirectly measures the amount of ethanol in relation to an alleged known, exact amount of N-Propanol.22

There are many intelligent lawyers and scientists, but their intelligence may confuse juries. Real experts must be able to teach basic GC to the average Texan. The trial lawyer knows that a case is not won by making the expert, judge, or prosecutor look uneducated. The skilled trial lawyer is able to teach this complex science and measurement in a way the everyday juror can understand. Although the burden rests with the State to prove the blood result is reliable and accurate, most often the defense counsel must actually simplify the science in order to make any problems with the analysis understandable.

Strike Swiftly, Accurately, and Without Mercy

David and Goliath confront each other, Goliath with his armor and shield, David with his staff and sling. David hurls a stone from his sling with all his might and hits Goliath in the center of the forehead.23

Like David, the trial attorney knows the power of the DD. In order to throw a rock from a sling, you must first place the rock in the sling, then twirl the sling very fast, and ultimately release the rock at the precise moment with precision and accuracy.

a. Getting the Sling Ready

The preparation of the sling comes in voir dire. The trial lawyer needs to sow the seeds of doubt in the jurors’ minds. Incorporate a discussion about what people may look like at high alcohol concentrations. Most jurors will agree that they could not determine if a stranger was a 0.08. Take them one step further: What about a 0.16, twice the legal limit? About half of the jury will say they could tell if a stranger was twice the legal limit because that person will be stumbling, slurring his speech, and obviously drunk. Then, ask how many jurors could tell if someone was 0.24—three times or more over the legal limit? It may be easier to ask if any juror could not tell if someone was that intoxicated. When questioned about signs of intoxication at three times over the legal limit, jurors often say vomiting, passing out, or absolutely belligerent or wasted behavior.

Be wary of the juror who submits tolerance as an excuse for looking normal. Explain that tolerance only masks ordinary actions one does while intoxicated. So in the case of SFSTs—abnormal exercises—tolerance will not mask the effects of alcohol.24 Help the jury realize that people exhibit tolerance by being able to walk and talk normally while intoxicated, and that these are things they “practice” when they are intoxicated. Unless the client is practicing SFSTs while intoxicated, tolerance cannot mask the effects of alcohol on abnormal exercises such as the SFSTs. Additionally, ask the jury this: What if you went to dinner, had a couple glasses of wine, were pulled over and passed the SFSTs, do you go home, or does the State get to say you have a tolerance? Tolerance is eating your cake and having it too. Make the jury scared and skeptical of the State arguing tolerance.

Since we are not allowed to discuss the facts in voir dire, relate the information the jury just gave you about extreme alcohol results with a common household machine—i.e., stopwatch, thermometer, or a bathroom scale. Next, show them a simple picture of an obese man, a child grinning and playing outside, or a very skinny person. Then ask: What if I told you this. Right now, this obese person ran a 4.5-second 40-yard dash according to my stopwatch; the child has a 114-degree temperature; or the skinny person weighed 350 pounds on my bathroom scale. What would you say to me? Most say: No way!

Now, relate dire consequences with this measurement: What if we bet $10,000 or jail time that the measurement is right, and I am telling you, “Trust me, it is accurate and reliable.” Ask the juror: What do you want to happen? Most jurors will shout out: Prove it! In any DWI case, the State will argue the blood result of intoxication is per se at 0.08, but the State must prove the result is accurate and reliable beyond a reasonable doubt. Let the jury recognize the need for proof over blind acceptance of a machine’s reading.

Next, relate the common everyday machine example to problems with blood testing. Go down the row of jurors relating blood testing issues one by one and ask them how it makes them feel. For example with the stopwatch: What if I told you I was paid by the parents of this student to time how fast he ran the 40-yard dash in hopes of getting a track scholarship to a Division I school? I have timed tens of thousands of students and never been wrong. Only I would ever know if I was wrong. I use my stopwatch and I line up all the kids I’m timing, then I time them all and get a printout at the end. I know the order of the kids, so based on that order I can tell you what the student ran. The order does not printout the student’s name, but actually a unique identifier that I supplied them. Also, my stopwatch does not actually time the student, rather it measures their speed in relation to how fast an NFL running back ran the 40, and I program that speed to be 4.5 because I know that running back ran that fast, absolutely. Also, I have no idea whether the student even looks like a Division I track star. Lastly, when my fellow employee checks my work he just reviews my numbers and is not physically present during the timing. Break down these statements by asking a juror one statement at a time: Would that make you feel more or less comfortable with my procedure? In the end, after all the statements are exposed, ask the jurors this: Would you trust my result or do you want that student to prove it?

b. Twirl the Sling With Everything You’ve Got

Eighty to ninety percent of jurors make up their mind after opening statement.25 In opening, tell the jury what really happened, tell them how normal the client looks and where they can clearly see normal mental and physical faculties. Freely disclose that the case is all about the accuracy and reliability of the blood test result. Tell the jury that the blood test result is an indisputable conflict with the tangible evidence. This indisputable conflict of a ridiculously high number versus the client’s normal mental and physical faculties defies logic and common sense.

Use cross-examination of the officers to minimize any alleged loss of the client’s mental and physical faculties. Again, show the jury how unfair the SFSTs are by educating the jury on how the tests are actually administered. Expose that the officer took a 40-hour course to be certified by the National Highway Traffic Safety Administration (“NHTSA”) to administer SFSTs. Additionally, the officer was only graded at the end of the course. The officer was not graded on the first day after just learning how to administer the test only one time. And, if the officer missed 3 questions on the certification test, he did not fail. In fact, the officer received credit for every correct answer. Moreover, the officer has never taken a test where he did not receive credit for correct answers. If you have a 100-question test and miss 3, what is your score? Would you ever take a test where you did not get credit for the answers you got right? Most seasoned officers will volunteer that NHTSA requires this type of grading, and “scientists” developed the grading system. A good jury will recognize the unfairness of the NHTSA grading method.

The jury should also truly understand these tests in case they wanted to try them, after the trial is over. Start with either test and walk through the exact instructions and break down how many specific instructions are given in each test (15 for walk and turn, 13 for one leg stand).26 How many times did the officer give the client the instructions? How many times does the officer demonstrate the test for the client? Does the officer allow the client to practice before being graded? Was the client allowed to practice for over 40 hours before he was graded on his administration of these tests, like the officer was allowed to do? Is the client told the clues the officer is looking for? Did the officer tell the client it only takes 2 clues to indicate intoxication? Did the officer tell the client that injuries, age, or weight may affect the results? Make sure to write these answers on your display board for each test. Next, walk through each clue and show the jury how meticulous and subjective the clues really are.

Furthermore, attack the Horizontal Gaze Nystagmus (HGN) test by educating the jury that the officer did not state any clues on the video and only wrote down these clues once the client was arrested for DWI. Additionally, NHTSA does not define how far the eye must jerk in order to be counted as a clue, or how many times the eye must jerk. Another issue, the client usually gets every single clue on the HGN, but rarely triggers all clues on the Walk and Turn or the One Leg Stand—tests where the jury can see the clues with their own eyes. In fact, the jury must “trust” that the officer saw all of the clues on the HGN. Most jurors will appreciate the defense attorney revealing just how easy these tests are . . . to fail.

And lastly, ask each witness whether the client urinated themselves or asked to use the restroom. The existence of a high blood alcohol concentration generally means large volume of alcohol consumed. Every experienced drinker knows that it is only a matter of time until you have to urinate frequently because your body cannot physically retain all of the liquid.27

Now the case is all about the reliability and accuracy of the blood test . . .

c. Deadly Strikes

1. The Blood Drawer

David hit Goliath only once in the forehead, which caused the giant to fall. Cross-examination of the blood drawer should revolve around proper site preparation and handling of the Vacutainers. Remember a physician, qualified technician, chemist, registered professional nurse, emergency medical technician, or licensed vocational nurse28 may draw the blood. This area of questioning is ripe for Kelly challenges that the proper forensic procedure was not correctly performed in this case. However, if the drawer did proper inversions or cleansing technique, do not be afraid to admit and congratulate them. Not only does it show knowledge of phlebotomy on your part, but also shows that you are not attacking every witness and just “throwing spaghetti at the walls,” as the State likes to argue.

A real and valid problem with improper cleansing of the site is the chance of candida albicans affecting the blood result. C. albicans is a yeast that can cause falsely elevated ethanol levels in blood.29 It is absolutely necessary that the drawer properly cleanse all of the dirt, bacteria, yeast, or fungus from the site of needle insertion. C. albicans contamination is a hotly contested defense with literature existing from both the State and defense point of view. Bottom line, the analyst never tested for C. albicans and assumes that: (1) the nurse properly cleansed the site; (2) no C. albicans was introduced externally into the sample; and (3) no C. albicans resides inside the client.

Whether the Vacutainers were properly inverted can affect the blood results as well. The preservative and anticoagulant must be mixed homogeneously throughout the blood. If not, then the blood can coagulate (clot) or ferment. The definition of ethanol concentration in blood is based on grams of ethanol per 100 milliliters of whole blood, not serum or plasma.30 If the blood clots, then serum will begin to form.31 Since ethanol is hydrophilic, it will stay in the serum and produce a falsely elevated ethanol result (18–59% high) when the serum is tested, and not whole blood.32 Whoever inverts the Vacutainer is responsible for proper inversion technique: two full 180-degree turns is one inversion.33 If the inverter of the tubes plays games about the ease of mixing liquid and powder, ask how many times they need to stir the cocoa, Tang, or baby formula into the liquid before it is homogeneous.

The blood analyst assumes proper cleansing technique and inversions are performed on the Vacutainers. The blood drawer and person who inverted the tubes are prime targets for blood suppression based on the third prong of Kelly. Additionally, the drawer very rarely remembers the client and should not have any opinion of intoxication. Lastly, this witness will likely agree the client never asked to use the restroom.

2. The Analyst

The Analyst is the smartest and most dangerous witness of a blood test trial. The State proudly displays the analyst as the smartest person in the room, knowing far more about science than everyone else. In fact, some analysts may even refer to themselves as “scientists.” The trial attorney should read the résumé and classes taken by the analyst and politely educate the jury on the true foundation of their knowledge. For example, a certain Harris County analyst attended the following classes: “How to Be a Good Expert Witness,” “Expert Testimony Training for the Prosecutor and Scientist—Part 1,” “Expert testimony Training for the Prosecutor and Scientist—Part 2,” and “Law and Forensic Science.” Additionally, this same analyst has prepared tens of thousands of vials and currently testifies that she has never made a mistake. Furthermore, this same analyst only testifies on behalf of the State and has never testified that the result is inaccurate or that the State has ever made a mistake. The jury needs to recognize that this analyst is not an independent “scientist” who works for an independent lab. Rather, this is the State’s puppet.

After exposing an analyst’s bias, begin the cross-examination with basic science every juror learned. Begin with the Scientific Method and write it on a butcher pad for all the jurors to see:

(1) Develop a question;
(2) Conduct background research;
(3) Develop a hypothesis;
(4) Test the hypothesis through experimentation;
(5) Analyze the data;
(6) Draw a conclusion; and
(7) Report the results or retest.34

Commit the analyst that there is no “Trust Me” step.35 In fact, if conducting true science, the analyst should adequately document the entire test so that it can be reproduced and the exact same results achieved. There is no “trust me” in science.

Once the Scientific Method is established, walk the jury through the blood testing procedure. Make sure to point out that the analyst assumes the blood draw was done properly and the proper inversions occurred. Discuss the issue of C. albicans and reveal that the analyst never tested for C. albicans. Next, move through the process of gas chromatography while simplifying it for the jury. After the jury, the Court, and State understand gas chromatography, begin revealing the problems with the individual GC/machine. It is absolutely necessary that all discovery materials are reviewed by a defense expert.36 The defense expert will often times find problems with the State’s lab, but may ultimately conclude that any problems would not affect the result in the case. The skilled DWI trial attorney knows how to develop those simple problems into big reasonable doubt. The DD does not require a defense expert.

One of the biggest fears of any analyst or laboratory is switching samples. Unlike breath testing, blood is not tested one sample at a time. Blood samples are loaded on to a tray and numerous subjects are placed into an autosampler, which feeds into the GC. This differs from breath testing where the officer administers the breath test to one subject at a time and the result comes out immediately. What if 35 people blew and a printout of the results in the order received was produced? Better hope no one messed up that order.

Ask the analyst if the technical reviewer who is on the blood test result physically observed the order and double-checked the order. Usually, just one analyst makes all 70–90 vials at a time and places them in the machine. Most analysts—when asked “How do we know you didn’t mess up the order?”—will simply say, “Trust me,” or, “I don’t make mistakes.” Obviously, this is a moment to refer back to the basic scientific method and remind the analyst there is no “trust me” in science. Furthermore, most analysts do not even write the client’s name on the vial in the autosampler; most write only the case number or some other numerical identifier.

Examine the entire batch/run that includes the client’s sam­ple. Look for similar numbers, look for possible switches with 0.000s or under 0.08, and look at the samples just before and after the client’s. Blood testing procedure has a tremendous possibility for human error in switching vials. Ask the analyst how many blood sample vials they have prepared versus how many times they have testified at trial. What is the likelihood that anyone would ever question or confront them about a mistake? Who would know if they switched vials? The only way to get caught would require the right defense lawyer willing to try a DWI blood case and an innocent client professing innocence in order to even challenge whether a mistake was made.

If defense counsel knows the science and assumptions of retrograde extrapolation, retrograde the result as high as possible with as many drinks possible to have occurred at the time of driving. Afterwards, cross-reference the result with Dubowski’s table on common characteristics at that level.37 Challenge these characteristics with actual tangible evidence in the case: the video and offense report. Ask the analyst if the client looks like that ridiculous number on the video. Most, if not all, never watch the video. The trial lawyer should pause and look at the jury. The jury should understand that the puppet is willing to testify to intoxication without even watching the video. And then finally ask the analyst: “If the result does not match the evidence, what is prohibiting the analyst from retesting the blood for C. albicans and the client’s DNA?”

Finish the Fight

Then David ran over and pulled Goliath’s sword from its sheath. David used it to kill him and cut off his head.38

Exhausted from battle, the closing argument is time to finish off the giant blood test. The jury requires courage and righteous indignation to send the client home. Who is really the villain? Is it the high blood test? No. It is the government, working together with law enforcement, accepting bad science from a law enforcement lab, and convicting the innocent on biased science. The ridiculously high blood test result that does not match the tangible evidence defies common sense. The trial lawyer should remind the jury that it was revealed in opening statement that an indisputable conflict between the blood test result and what jurors would hear and see would exist, and yet the State still has no excuse. An indisputable conflict in the evidence equals rea­sonable doubt. The fact a person can be that intoxicated, yet look that normal, and never have to use the bathroom defies common sense and science. Either the client’s body defies the laws of science and they are an alien, or the result is wrong.

Texans need independent labs for forensic science—a lab willing to acknowledge a mistake without fear of losing jobs or incurring enmity from a police agency and district attorney’s office. Scientists and labs make mistakes, but only independent scientists admit mistakes. Real science is not expected to be per­fect. Empower the jury to stand up for the people of Texas. The defense lawyer cross-examined every witness, fought the DA, and dealt with the judge without ever asking for help. Now is the time to ask the jury for help. Ask the jury to help you stand up for your client and the people of Texas. Remind the jury that when this case is over, they will remember their verdict for the rest of their lives. Remind the jury that when they go home and their friends and family ask about the case and if there was anything wrong with the blood, if they sit silent, they know deep down they are not telling the whole truth. The jury can and should be proud of a “not guilty” verdict. Ask them to stand proud and remember the day they stood up for the people of Texas against the giant government. A “not guilty” verdict is a giant cry for better forensic science in Texas.


1. Thank you to my associates, Mark Metzger and Shelby Burns, for their editing.

2. Texas Penal Code Section 49.04(d) states, “If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.”

3. Harris County.

4. Holy Bible, 1 Samuel 17:2–3.

5, Holy Bible, 1 Samuel 17:8–27.

6. “The original research indicated that certain individuals over 65 years of age, back, leg or inner ear problems, or people who are overweight by 50 or more pounds had difficulty performing this test.” National Highway Traffic Safety Administration (“NHTSA”) Student Manual, Section VIII, p. 14.

7. Id.

8. “Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.” Id.

9. Requires a reasonably dry, hard, level, and non-slippery surface. Id. at 13.

10. Nystagmus may also be caused by certain pathological disorders. They include brain tumor and other brain damage or some diseases of the inner ear. Id. at 4.

11. See “11 Essential DWI Trial Tactics,” Mark Thiessen, HCCLA The Defender, Winter 2013, pg. 26. See also TCDLA Voice for the Defense, May 2014.

12. Holy Bible 1 Samuel 17:32–40.

13. Author recommends American Chemical Society (ACS) programs at Axion Laboratories; National College for DUI Defense (NCDD) Harvard Summer session; NCDD/TCDLA Mastering Scientific Evidence; TCDLA DWI seminars. Mark Thiessen cell is 832-654-3058; call me anytime for transcripts or articles ().

14. Tex. Transp. Code § 724.017 (West 2011). House Bill 434 (Effective September 1, 2013)

15. Concentric Circles—start from center of site and counterclockwise in ever-widening for 2–3 inches in diameter. Ruth E. McCall, Phlebotomy Essentials, IV:11 pgs. 280, 408 (4th ed. 2008).




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


21. A huge thank you to Axion Analytical Laboratories in Chicago, IL., Professor Harold McNair, Dr. Lee Polite, Justin McShane, Josh Lee, Katy Kennedy, the staff at Axion, Deandra Grant, Grant Scheiner, J. Gary Trichter, Troy McKinney, Doug Murphy, Glenn Neely, NCDD, and TCDLA for helping me understand gas chromatography.

22. Thanks to Justin McShane for everything.

23. Holy Bible 1, Samuel 17:48–50.


25. Johnson, James, “Jury Argument—Winning Techniques,” Michigan Bar Journal, Vol. 90, No. 3, p. 36 (March 2011);

26. See NHTSA Standardized Field Sobriety Testing Student Manual, August 2006, pp. X-3–5.

27. Except this one time where a lawyer, who shall remain nameless, proved me wrong, kind of.

28. Tex. Transp. Code § 724.017 (West 2011). House Bill 434 (Effective September 1, 2013)

29. Chang, J. and Kollman, S. E., “The effect of temperature on the formation of ethanol by candida albicans in blood,” Journal of Forensic Sciences, Vol. 34, No.1, pp. 105–109 (January 1989); Blume, P. and Lakuta, D. J., “The effect of microbial contamination of the blood sample on the determination of ethanol levels in serum,” American Journal of Clinical Pathology, Vol. 60, No. 5, pp. 700–702 (November 1973).

30. Texas Penal Code § 49.01.


32 Edward F. Fitzgerald, Intoxication Test Evidence, § 4:11.1, at 136 (1993); Edward F. Fitzgerald, Intoxication Test Evidence, § 19:13, at 9-12-13 (2d ed. 1995).



35. Thanks to Justin McShane for this approach.

36. Amanda Culberston, Gary Wimbish, or Janine Arivascu.

37. See Dubowski, Kurt M., “Alcohol Determination in the Clinical Laboratory,” Am. J. Clin. Pathol. 74: 747–750 (1980).

38. Holy Bible, 1 Samuel 17:50–51.

Science and the Narrative in Criminal Defense

[This note assumes a trial lawyer hired a mental health expert and told the expert to go see the client and then give the lawyer a call.]

The expert calls and says, “Great news—the defendant’s anterior cingulate cortex shows severe damage!” What do you do? Do you mumble, “That’s great,” and make a note “anterior cingulate cortex damaged” and smile at the phone? At that point, is that information equivalent to the auto mechanic explaining why your car makes the grinding sound? For most trial counsels (most human beings in general), information about the anterior cingulate cortex means very little. But that information could become a meaningful portion of your client’s defense. All you really need to make that information meaningful is context.

Context is how that piece of information fits into your defense. Like it or not, your defense plays as a story or narrative in the minds of the jurors. Jurors organize trial information into stories.1 Pennington, N. and Hastie R, “The Story Model for Juror Decision Making,” Inside the Juror: The Psychology of Juror Decision Making, Cambridge, New York: Cambridge University Press (1993), pp. 192–221. They blend case-specific information acquired during the trial with knowledge about events similar to those in question and form a story. Id. The pieces of the story interact in ways that alter their individual significance—each merges with what came before and flows into what follows. Baron, J. & Epstein, J., “Is Law Narrative?”, 45 Buff. L. Rev. 142, 148 (1997); see also Griffin, L., Narrative, Truth and Trial, 101 Georgetown Law Journal 281 (2012).2

The information about the damaged anterior cingulate cor­tex must merge with the other elements of the story before it can become meaningful. Without that merger, also known as context, the information by itself probably will not fit into the twelve stories generated inside the jury box. With a conscious attempt to merge the information and provide context, however, the information could jump from being left out of the story to a meaningful portion of the story.

Science lends meaning and credibility to the defense story because good science appears objective and verified. A story is believable to the extent that it involves observable or “knowable” facts—an element of the story provides meaning to the story by being equally observable or knowable. An element of the story, based on good science, can lend the story credibility or meaning.

Science attempts to sort that which is knowable from that which is not. Science is a determination of what is most likely to be correct at the current time with the available evidence. Scientific explanations can be inferred from confirmable data only, and observations and experiments must be reproducible and verifiable by other individuals. In other words, good science is based on information that can be measured or seen and verified by other scientists. McLelland, C., “The Nature of Science and the Scientific Method,” The Geological Society of America, (August 2006). When incorporated into a story, science, by its objective nature, makes that story believable. Incorporating science into the story involves only asking a few questions of your expert and your witnesses.

You could incorporate the information about the damaged anterior cingulate cortex into your defense story with two simple steps. First, find out how your expert could explain, in layman’s terms, that the client’s anterior cingulate cortex is damaged. (The expert tested the client and interpreted the results, but that is not really part of the narrative.) What could the client do if he were not damaged? What does the client have difficulty with because of the damage? Is there anything the client can do now to remediate the damage? Getting the expert to tie any mental health problem into “real world” behavior and “real world” consequences transforms story disrupting science into part of the story.

Second, bring in the investigator and explore how the client’s disability impacted his life before and after the offense. If the expert says that the damage often inhibits the perception of pain, ask the investigator if the client frequently fought as a child or adolescent, or if he took physical risks that impressed his friends or peers. A client with a very high threshold for pain, because of brain damage, experiences a very different risk in a fight than an average juror. Once the prosecutor presents evi­dence that the client fought as an adolescent or while in jail awaiting trial, you can follow up with questions about the client’s reactions after the fights—i.e., “Did he seem hurt? Did he complain about being injured?”

In another example, if the expert tells you that the damage often keeps patients from feeling strong emotional reactions to unique events, ask the investigator if the client seemed unimpressed by the traumatic events of his childhood, his mother dying, or his friend getting hit by a car. When the prosecutor presents evidence that the client is a cold, emotionless predator who did not even react to the trauma of his early life, you can second the prosecutor’s argument: No one ever saw the client react emotionally to trauma, and the expert will become part of the story. The client does not react emotionally to trauma because the part of his brain that would provide that reaction does not work.

Consciously or not, jurors pull evidence into the form of a story. If the evidence will not fit into a storyline, jurors will eschew the evidence and not the story. You can prevent the jury from leaving your expert testimony or “science” out of the story by linking the “real world” impact of the scientific conclusion into the established facts of the client’s life. Mitigation is in the eye of the beholder, and the expert testimony, by itself, might not appear mitigating to every juror. You can, however, entice the jury to consider your mitigation in every case by making it an objective, unassailable part of the defense story.


1. The Story Model approach is the most recent and widely accepted in both the legal and social science communities (MacCoun, R. J., Experimental Research on Jury Decision-Making, 30 Jurimetrics J., 223 (1989); Rieke, R. D., & Stutman, R. K., Communication in Legal Advocacy, Columbia, SC, University of South Carolina Press (1989)).

2. Jurors control the final story with generic expectations about what makes a complete story. Pennington at 193.

November 2014 Complete Issue – PDF Download



23 | Jury Persuasion in Criminal Cases: Utilizing “Solution Selling” Techniques – By Paul C. Looney & Clay S. Conrad
32 | Not Guilty v. Goliath: Conquering Giant Blood Tests Using the Disconnect Defense – By Mark Ryan Thiessen
39 | Science and the Narrative in Criminal Defense – By Gerald Bierbaum

9 | President’s Message
11 | Executive Director’s Perspective
13 | Ethics and the Law
15 | Off the Back
17 | Federal Corner
21 | Said & Done

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

President’s Message: Strength in Unity – By Emmett Harris


What does it mean when we say we are an association? How do we, all 3,000-plus of us, go about the business of associating? The secret is in deciding what we mean when we join efforts and interests in a common cause.

So I asked Shirley MacLaine to see if she could channel up former President John F. Kennedy and ask him if he had any advice for us. She did, and he said (you can see this one coming, right?): Ask not what TCDLA can do for you. Ask what you can do for TCDLA. All right. I was just messing with you. I didn’t really talk to Shirley, but it is not bad advice.

When we decide, as we have, that we have common interests and that we can benefit by the strength numbers provide, then we join or “associate” to pursue them. All 3,000 of us. We have committed to encouraging cooperation with each other and presenting the best continuing legal education product possible. Most of the time we succeed. Sometimes we hit a rough patch of pavement that tests the strength of our commitment to continue “associating.”

To each of you who have accepted the responsibility of serving on a committee, being a course director at a seminar, speaking at a seminar, or serving on the associate board or board of directors or as an officer, I say thank you. These services require significant amounts of time away from your practices and real self-sacrifice on behalf of the association. What I want you to think about is what has motivated you to do so. My hope is that self-promotion or ego massage is way down or off the list of reasons that have motivated you. We are all over the State of Texas handling everything from shoplifting to capital murder. Some of you take on varied misdemeanors and felonies. Some of you have more specialized practices. Each of you by joining this association has taken on responsibilities and duties owed to the whole group. You have accepted a fiduciary loyalty to the association. This is the price we all pay for the privilege of being a part of an association. It is a small and appropriate price, given the goals of TCDLA to encourage cooperation among members and to educate lawyers.

We may not always vote unanimously on a particular decision. We may occasionally find ourselves on the losing side of a particular question. It would be odd indeed if every vote were blindly unanimous. When there are differences and they are settled, then we move on as a united and effective association. To do otherwise would not do justice to the association and the responsibilities we have accepted as members. To march off to the tune of a pied piper would be a shame. Let that never be the case. This association needs the wisdom and input of every one of you. I’ve said it before. United we will stand. United our potential is limitless.

Executive Director’s Perspective: Training the Team – By Joseph A. Martinez


TCDLA members should be proud of what TCDLA accomplished regarding CLE for FY 2014 (September 1, 2013, through August 31, 2014). TCDLA/CDLP was the third-largest provider of CLE in the State of Texas. First was the State Bar of Texas with 268,631 hours. Second was University of Texas Law School with 70,688 hours. Third, was TCDLA/CDLP with 36,777 hours, provided through a combination of TCDLA and CDLP.

We know you have a choice in whose seminars you attend. We sincerely appreciate your support of TCDLA by attending our TCDLA seminars. Thanks to your attendance, TCDLA is able to provide outstanding services to our members. This includes our lobbying efforts at the upcoming 84th Texas Legislative session.

Special thanks to our course directors, Mark Stevens (San Antonio), Michael Gross (San Antonio), and Adam Kobs (San Antonio), for the 10th Annual Stuart Kinard Advanced DWI seminar held at the historic Menger Hotel in San Antonio in November. Thanks to their efforts we had 119 attendees.

Special thanks to Tony Vitz (McKinney), our course director for the TCDLA Round Top IV Advanced Trial Skills Workshop held at the unique Round Top Institute in Round Top. Special thanks to our faculty who trained our attendees to improve counsel’s communication with members of the jury. The training involved a component of self-exploration that experience shows improves and enhances the communication process. Special thanks to our psychodramatists, Katlin Larimer and John Nolte.

Special thanks to Silverio Martinez (Laredo), President of the Webb County Bar, for allowing TCDLA/CDLP to co-sponsor the Criminal Law Power Update seminar held in Laredo in late October. Special thanks to Claudia Balli (Laredo), Roberto Balli (Laredo), Oscar O. Peña (Laredo), and Rey Rodriguez (Laredo), course directors for the training. Thanks to everyone’s efforts, we had 51 attendees.

Special thanks to Carmen Roe (Houston), President of the Harris County Criminal Lawyers Association (HCCLA), for allowing TCDLA/CDLP to co-sponsor the Winning Warriors: Defending Trial Tactics seminar held in Houston in October. Thanks to their efforts we had 120 attendees.

Special thanks to Jaime Gonzales (Edinburg), Rey Moreno (McAllen), and Kelly Pace (Tyler), our course directors for Training Your Defense Team to Win seminar held in McAllen in November. The Training Your Defense Team to Win seminar is a unique training open to criminal defense attorneys who regularly represent the indigent, legal assistants, Texas judges, paralegals, social workers, investigators, mitigation specialists, and students. It will be held in the following locations. Please bring your staff:

January 16, 2015Austin
April 17, 2015Waco
April 24, 2015Longview
July 9–10, 2015South Padre Island

Special thanks to Ed Stapleton (Brownsville), Ken Murray (Texas Defender Service), and Rick Wardroup (Lubbock), our course directors for the Capital/Mental Health seminar held in South Padre Island in November.

Special thanks to Judge Guaderrama, chairman of the El Paso Criminal Law Group, for allowing TCDLA/TCDLEI to exhibit at their Criminal Law seminar held in Ruidoso, New Mexico, in November.

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.

Happy holidays to you and your family.

Good verdicts to all.

Ethics and the Law: In God We Trust—All Others Cash


Many stores and service businesses have signs that read “In God We Trust—All Others Cash.” This was a common phrase used by merchants in the early decades of the 20th century. It was the title of a book written in 1966. Growing up in Abilene, which had many small businesses, I often saw this sign in the window and by the cash register. These business owners had been the victims of bad checks, people who refused to pay their bill, phony money orders, cashier’s checks, and other deceptive ways of not paying their bill for goods or services. There were always people who wanted to run a tab, write a post-dated check, or tell my Dad, who had an auto repair shop, “I will pay you on Friday after I get paid.” Some must have forgot about Friday because one wall was lined with post-dated checks, hot checks, IOU statements, returned mail, and bills which were going to be “Paid on Friday.”

When lawyers sign on to a case and then do not get paid, they have a real problem. The client is going to have a million excuses for not paying. From an ethical standpoint, the lawyer must ask himself: Should I withdraw? Then the case is brought to the attention of the judge, and that will not be good for the client already accused of a crime. Or the lawyer can ask himself: Should I stay on the case and work for free? Many times lawyers do this because when they withdraw it is amazing how fast they fall from the good graces of the client and trigger an unfounded grievance. We receive many calls on the ethics hotline dealing with this issue.

Unless you are independently wealthy, you may want to consider doing what worked for Percy Foreman and Racehorse Haynes. Both made statements that one of the hardest things about being a criminal defense lawyer was getting paid. Both were very good at getting paid. My hero, Racehorse, has a closet filled with ostrich-skin boots and a Rolls Royce in the driveway. At the time of Percy’s death, several million dollars’ worth of bearer bonds were found in a coat hanging in the closet of the hotel room he kept in downtown Houston.

Within a few months of moving to Houston I attended a social function for a judicial candidate where Percy was the guest speaker. He warned a group of us who were law students that if we were entering the profession with the intent of making money, we were barking up the wrong tree. He said if we concentrated on doing a good job for our future clients, we would be rewarded for our work. Percy said that part of his clients’ punishment was paying his fee. Percy would take jewelry, appliances, cars, real estate, and various and assorted sundry for his fee. One of the last times Percy spoke in public before he went to lawyer heaven he said, “I am worth billions, but all I have is a few lousy million.”

When taking property in lieu of money, be wary… and make sure the property is not stolen, does not belong to another family member, is paid for, and is free of liens. At the time, getting a condo on Lake Conroe sounded like a great idea to me until I realized the maintenance fees were several hundred dollars a month. Wouldn’t you know, the client forgot to tell me that the fees were about two years past due. The condo was finally sold for enough to pay the maintenance fees, which resulted in no fee for me.

The practice of law has changed greatly since the days of Percy Foreman. Back then, there was no advertising. You would not see lawyers on television or the internet jumping on cars, crushing cars, or bragging about how many cases they had won or for how much money they had settled a case. The Yellow Pages used to be filled with full-page ads touting the skills of the advertising lawyer. Now techno-geeks extract big money from lawyers with claims of bigger and better websites and top-ten Google search results. Crooked outfits solicit lawyers to be published as part of the “top 10 lawyers in the state.” All it takes is a check. Supposedly this group is the subject of a state bar investigation. Bobby Mims has called it a hoax and so have many others. There is apparently no peer review. Lawyer Mims agrees with me that the best source of business is lawyer referral or past client referral.

Ethical rules were made for a reason. In a recent state bar video about Barratry, which can be found on the state bar website, the second speaker in the program nails the essence of Barratry on the head—CHEATERS. Cheaters are people who place misleading ads and hire runners to solicit cases. Penal code sections 38.12, and 38.01 discuss Barratry and the proof necessary for convictions. Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct further discuss these issues.

Get your client ethically, not with promises, runners, bribes, deals with bail bond companies, or other unethical means. No case, no client, and no amount of money is worth losing your profession, your dignity, and your freedom. Get your agreement in writing, and send a letter of acknowledgment of the agreement. Look at past issues of the Voice online to get examples of acceptable employment contracts.

The road to hell is paved with good intentions. What sounds like a good deal today is a nightmare tomorrow. Lawyers have to eat too and take care of families, house payments, car payments, insurance payments, and many other things, maybe even a vacation if they are lucky. All lawyers worked long and hard to get through school. They do not send out mail-order law degrees. Remember this when the client wants to pay $100 a month. Unless you are independently wealthy, you must be paid. Never forget: In God We Trust—All Others Cash.

Off the Back: Quick-and-Dirty Phlebotomy Basics – By Stephen Gustitis


The DWI blood test case is becoming the stock-in-trade of many law enforcement agencies across the state. Whether it’s a sample provided voluntarily after arrest, or obtained via search warrant following a refusal, defending blood tests are now commonplace for the DWI defense attorney. Making preparation more demanding is the technical nature of these cases. In fact, DWI blood tests may be on the list of most dreaded cases to defend. Nevertheless, prosecutors are relying on the blood tests, which compels defense lawyers to effectively defend them. Despite their complexity, blood test cases can be divided into easily digestible areas of inquiry. Our topic this month addresses the most vulnerable component of the DWI blood test case . . . the blood draw.

To exploit this vulnerability lawyers are obliged to become experts in phlebotomy essentials. I suggest you invest in good textbooks and get reading. My library includes: (1) Garza & Becan-McBride (2010), Phlebotomy Handbook, Blood Specimen Collection from Basic to Advanced (8th Ed), Upper Saddle River, New Jersey: Pearson Education, Inc. ($80 at Amazon); and (2) McCall & Tankersley (2012) Phlebotomy Essentials (5th Ed), Baltimore, Maryland: Wolters Kluwer ($65 at Amazon). I also utilize the Nurses Guide to Specimen Collection, published by Becton-Dickinson Diagnostics ($18 at Pulmolab). Once you become schooled you’re ready to astutely investigate your blood draw evidence. Since many police departments video the blood draw procedure, your analysis can be extremely detailed. With a video there’s no safe haven for the phlebotomist. Conversely, if the police failed to record the draw, make the prosecution pay. Demonstrate (through the State’s chemist) that a forensic blood draw is the pivotal moment in the testing procedure. Through your arresting officer demonstrate they possess the technology to video anything. Argue at closing that by failing to record the blood draw, the prosecution is compelling the jury to speculate about the draw’s efficacy.

One method used to attack the blood test is implication. In other words, press into service a good DWI video to suggest (indirectly) the blood test result must be erroneous. However, scoring direct points through the phlebotomist, employing a potential sample contamination theme, is more effective. If the blood sample was contaminated then the test result must be compromised. Your phlebotomy textbooks teach the procedures employed to obtain contamination-free samples. Consequently, when the phlebotomist fails to observe published procedures, you’re scoring potential contamination points. And, thankfully, there are a limited number of issues upon which to cross-examine. Further, phlebotomists are not accustomed to drawing blood for forensic purposes and aren’t accustomed to testifying. Their experience is limited to clinical blood draws, which are obtained to direct patient healthcare decisions rather than samples used to determine whether a citizen goes to jail.

Our refuge on cross-examination is a learned treatise on phlebotomy. See Tex. R. Evid. 803(18). A successful cross necessitates that your witnesses acknowledge some authoritative source on the subject of their testimony. Put another way, we want the learned treatise to corner them. Consider serving the phlebotomist with a subpoena duces tecum prior to trial compelling them to produce their own authoritative treatise. When they bring their favorite textbook to trial . . . use it to impeach them. Another method is persuading the trial judge to take judicial notice of your treatise pursuant to Tex. R. Evid. 803(18) and Tex. R. Evid. 201. See Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994)(courts authorized to take judicial notice of facts outside the record if they are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”). Consider filing a motion asking the court to take judicial notice of your sources. Include copies of the relevant chapters as exhibits, and admit them as a bill of exception if the court denies the motion. Equally important is demonstrating harm by showing how you would have cross-examined the phlebotomist with the treatise and argued those facts.

Following is a quick-and-dirty list of issues affecting the blood draw, sample quality, and integrity. Use this list as your starting point:

Hand Sanitization: Proper hand hygiene (prior to gloving) plays a major role in preventing infection and sample contamination (McCall p. 238; Garza p. 307);

Tourniquet Release: Release the tourniquet after the blood has begun to flow into the collection tube. Do not leave the tourniquet on for more than 1 minute, as test results may be affected (McCall p. 250; Garza p. 330; Nurses Guide p. 19);

Clean and Air-Dry Site: The puncture site must be cleaned with antiseptic (McCall p. 244). Clean the site with a circular motion using concentric circles moving out from the puncture site (McCall p. 245; Garza p. 331, 333). Allow the site to dry by evaporation as this process destroys microbes that can contaminate the sample (McCall p. 238, 245; Nurses Guide p. 26). Antiseptic does not sterilize the site; rather it inhibits microbial growth (McCall p. 244). Do not dry the site with unsterile gauze (McCall p. 246). Do not fan or blow on the site as this may recontaminate the site (McCall p. 246). Do not touch the site after cleaning it (McCall p. 246; Garza p. 331). Cleanse the site again if it is touched before the puncture (McCall p. 246; Garza p. 331);

Equipment Preparation: Check the expiration date on each collection tube (McCall p. 246);

Tube Filling: Blood tubes contain a vacuum and are designed to obtain a predetermined volume of blood. If the tube does not fill completely, that is evidence the sterile vacuum has been compromised (McCall p. 206);

Tube Mixing: Gently and completely invert the tube 3–8 times or according to manufacture’s recommendation (McCall p. 251; Garza p. 338; Nurses Guide p. 17, 20). Inadequate or delayed mixing can lead to micro-clot formation and affect test results (McCall p. 251; Nurses Guide p. 26).

I have yet to see even experienced healthcare professionals draw blood “by the book.” By using published phlebotomy basics to cross-examine the blood collection procedure, we can score legitimate points to argue at closing. Use this list as your starting point, get reading, and good luck at your next DWI blood test trial.

“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who 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. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.