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January 2015

December 2014 SDR – Voice for the Defense Vol. 43, No. 10

Voice for the Defense Volume 43, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

It was permissible for the Board of Immigration Appeals to interpret the Child Status Protection Act as providing a remedy only to “aged-out” non-citizens—that is, those who turned 21 while their visa application was pending—who qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. Scialabba v. Cuellar De Osorio, 134 S. Ct. 2191 (2014).

        Respondents, principal beneficiaries who became lawful permanent residents (LPRs), filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. The district court granted the Government summary judgment, deferring to the Board of Immigration Appeals’ determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under 8 U.S.C.S. § 1153(h)(3). The Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed and remanded.

        The statutory language requiring that the children’s petitions be automatically converted to the appropriate category with the priority date of the original petitions was ambiguous or at least unclear, and the agency’s interpretation was reasonable in requiring a new sponsor for petitions that could not be automatically converted from one family preference category to another. The principal beneficiaries who were family sponsored could not themselves sponsor petitions for their children until they became LPRs, the children’s petitions could not be automatically converted to another family preference category, and thus there was no original petition date to which the aged-out children’s petitions could relate back.

A gun buyer’s intent to sell to another lawful buyer in the future is a fact “material to the lawfulness of the sale” of the gun. Abramski v. United States, 134 S. Ct. 2259 (2014).

        D was accused of falsely claiming on a gun purchase form that he was the actual transferee/buyer of the handgun, which in fact he purchased for his uncle. D entered a conditional guilty plea for knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun, 18 U.S.C. § 922(a)(6), and for making a false statement “with respect to the information required . . . to be kept” in the gun dealer’s records, § 924(a)(1)(A). The Fourth Circuit and Supreme Court affirmed.

        The Supreme Court granted certiorari in light of a split among circuits over the materiality requirement of § 922(a)(6). D argued that the misrepresentation was not material to the lawfulness of the sale within § 922(a)(6) not only because his uncle was legally eligible to own a gun, but also because straw purchases were not illegal. The Court held that § 922, in regulating gun sales, looked through the straw purchaser to the actual buyer. The form that federal regulations required D to fill out (Form 4473) asked whether he was the “actual transferee/buyer” of the gun, and clearly warned that a straw purchaser (namely, someone buying a gun on behalf of another) was not the actual buyer. D falsely answered that he was the actual buyer. If the statute permitted straw purchases, identification and background check provisions would evaluate mere conduits. The misstatement was material even though the uncle was eligible to own a gun, as the sale could not have lawfully proceeded if D had revealed he was a straw buyer. D also was properly convicted under § 924(a)(1)(A) because his false statement was made on a form that the dealer was required to retain in its records.

A conviction under 18 U.S.C. § 1344(2), which makes it a crime to knowingly execute a scheme to obtain property owned by, or under the custody of, a bank by means of false or fraudulent pretenses, does not require the government to prove that a defendant intended to defraud a financial institution. Loughrin v. United States, 134 S. Ct. 2384 (2014).

        D was charged with bank fraud after he was caught forging stolen checks, using them to buy goods at Target, and returning the goods for cash. D requested to instruct the jury that a § 1344(2) conviction required proof of “intent to defraud a financial institution,” but the court held that such an instruction was unnecessary. The jury convicted D, and the Tenth Cir­cuit and Supreme Court affirmed.

        The prosecution was not required to show that D acted with intent to defraud the bank in order to find D guilty of bank fraud. While one clause of the statute requires the intent to defraud a bank, the second clause does not require it. Instead, this second clause only requires that the defendant intend to obtain any property under the control of a bank. The Court held that requiring these two clauses to be read as having the same intent would render the second one meaningless; the structure of the statute indicated that the two clauses had different requirements. However, because the second clause should not apply to any and all fraud where the defrauder receives a check, the Court stated that the specific language limited its coverage to circumstances where the defendant’s false statement “naturally induces” the bank to part with money in its control, instead of where a bank is only tangentially involved.

Fifth Circuit

District court properly denied Texas death-sentenced D’s motion for relief from judgment under Fed. R. Civ. 60(b)(6) and his motion for a stay of execution; a change in decisional law after entry of judgment does not constitute exceptional circumstances and is not alone grounds for relief from a final judgment. Diaz v. Stephens, 731 F.3d 370 (5th Cir. 2013).

        D asked the district court to reopen his previous federal habeas action and consider the merits of procedurally barred claims in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Treviño v. Thaler, 133 S. Ct. 1911 (2013). Because D did not show exceptional circumstances justifying relief from judgment, the district court did not abuse its discretion in denying D’s Rule 60(b)(6) motion; furthermore, because D’s motion for stay of execution depended on the availability of Rule 60(b)(6) relief in this case, the district court likewise did not abuse its discretion in denying a stay of execution.

Officers had reasonable suspicion that Ds were engaged in drug-trafficking activity based on a specific yet questionable informant’s tip. United States v. Powell, 732 F.3d 361 (5th Cir. 2013).

         (1) District court did not err in denying Ds’ motion to sup­press evidence garnered as the result of a vehicle stop/search; independently of the traffic-violation basis for the stop, police had reasonable suspicion that Ds were engaged in drug traf­ficking based on an informant’s tip. Even though the informant had credibility and reliability problems, the specificity, predictive value, and recentness of his tip more than compensated for these flaws. For the same reasons, the tip provided probable cause justifying the warrantless search of the vehicle; because the police had probable cause, they were permitted to move the car to a safer location (the police station) and remove a piece of the dashboard during the continuation of the search.

        (2) District court did not err in denying one D’s motion to suppress evidence obtained from a cell phone discovered during the vehicle search; by denying that the cell phone was hers, D voluntarily abandoned the phone, and thus lacked standing to make a U.S.C. Fourth Amendment challenge to its search.

        (3) District court did not, by allowing in nontestifying D’s statements at joint trial, violate a testifying D’s Confrontation Clause rights under the doctrine of Bruton v. United States, 391 U.S. 123 (1968), because the statements did not directly implicate the testifying D. However, the prosecution ran afoul of Bruton by directly and repeatedly cross-examining the testifying D with the nontestifying D’s statements. Nevertheless, this plain Bruton error was harmless in light of the substantial independent evidence against the testifying D.

D’s status as a police officer was an improper sentencing factor where there was no evidence that he used his position to facilitate his offense. United States v. Chandler, 732 F.3d 434 (5th Cir. 2013).

        Even on plain-error review, Fifth Circuit found that district court’s 420-month prison sentence—a 127-month upward variance from the Guideline range of 240 to 293 months—was substantively unreasonable for D convicted of engaging in a child-exploitation enterprise (a members-only online bulletin board for sharing child pornography), in violation of 18 U.S.C. § 2252A(g); the record showed that the district court’s primary reason for the upward variance was the fact that D was a police officer at the time of the offense. However, D’s status as a police officer was an improper factor to consider at sentencing where there was no evidence that he used his position to facilitate his offense. Because the district court’s consideration of an im­proper factor affected D’s substantial rights and because the Fifth Circuit found it appropriate to exercise its discretion to cor­rect this error even on plain-error review, the Fifth Circuit remanded for resentencing.

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), did not undermine Fifth Circuit precedent rejecting a U.S.C. Commerce Clause challenge to 18 U.S.C. § 922(g)(1), the federal statute proscribing possession of a firearm by a previously convicted felon. United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013).

        Furthermore, the district court did not clearly err in applying to D convicted of being a felon in possession of a firearm a four-level enhancement under USSG § 2K2.1(b)(6)(B) (for use or possession of the firearm in connection with another felony offense). Application Note 14(B)(ii) to § 2K2.1, which is authoritative, states that the enhancement applies “in the case of a drug-trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia”; the district court could plausibly find that to be the case here.

District court did not err in denying Texas death-sentenced Ds a preliminary injunction to restrain state officials from conducting executions with pentobarbitol from compounding pharmacies; Ds failed to show a likelihood on the merits of their claims under the U.S.C. Eighth and Fourteenth Amendments, U.S.C. Supremacy Clause, or access-to-the-courts doctrine. Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013).

Where D entered into a sentencing agreement with the government waiving his right to appeal his conviction and sentence in exchange for dismissing part of the government’s 21 U.S.C. § 851 sentencing enhancement (thereby lowering D’s mandatory minimum sentence), D could not, after receiving the benefit of his bargain, appeal his conviction. United States v. Walters, 732 F.3d 489 (5th Cir. 2013).

        Unlike for appeal waivers contained in plea agreements accompanying a guilty plea, there is no requirement that the district court specifically admonish the defendant about an appeal waiver contained in a post-verdict sentencing agreement. Here, the record showed that D’s appeal waiver was knowing and voluntary. Accordingly, the Fifth Circuit dismissed D’s appeal pursuant to the appeal waiver.

In trial for corruption-related offenses, D (a former mayor in Louisiana) was not entitled to an entrapment instruction because he did not carry his burden of showing a lack of predisposition. United States v. Nelson, 732 F.3d 504 (5th Cir. 2013).

         (2) The district court properly admitted, as co-conspirator statements, the statements made by a person involved in the corruption scheme about D’s inclinations towards corrupt activity. A conspiracy for the purpose of the hearsay exclusion of Fed. R. Evid. 801(d)(2)(E) need not be unlawful; the statement may be in furtherance of a lawful joint undertaking. Here, the district court did not abuse its discretion in finding that declarant and D were, at least, engaged in a common lawful scheme.

        (3) The district court properly allowed the government to introduce at trial the stipulated factual basis that D agreed to as part of his later-withdrawn guilty plea. Although Fed. R. Evid. 410 generally prohibits the use of statements made in connection with withdrawn guilty pleas, here D entered into a valid waiver of his rights under that rule.

        (4) Where D’s former attorney testified about the circumstances under which D had agreed to the factual basis for his plea and had waived his rights under Rule 410, her testimony violated the attorney-client privilege. The attorney went beyond permissible limits and testified to matters that went to the heart of her representation of D. Nevertheless, the admission of this impermissible testimony was harmless.

        (5) In assessing the amount of loss attributable to D under USSG § 2C1.1, the district court erred in assessing based on a letter D wrote supporting an EPA grant to the company by whom D was putatively being bribed. The amount of loss could not reasonably be determined; it might therefore be ap­propriate to use the amount of gain to D (i.e., the $10,000 bribe amount for writing the letter, rather than the $4,000,000 amount applied by the district court). The Fifth Circuit also directed the court to reconsider the loss amount attributable to a letter written by D on behalf of the company to private investors. Because the errors in loss valuation were not harmless (even though the district court made a significant downward variance in sentencing D), the Fifth Circuit remanded for resentencing.

Court of Criminal Appeals

CCA granted the State’s motion to permanently abate the appeal because D died. Brown v. State, 439 S.W.3d 929 (Tex.Crim.App. 2014).

        In the early morning of what would have been the last day of the guilt phase of D’s murder trial, D sustained a gunshot wound to the head. The trial judge ruled that D’s absence from trial was voluntary because there was evidence that the injury may have been self-inflicted; the court conducted the rest of the guilt trial and the entire punishment trial in D’s absence. D appealed the trial court’s refusal to hold a formal hearing to determine whether he was competent to stand trial after the gunshot wound. COA held that D should have been granted a competency hearing and remanded for a new trial. CCA granted the State’s petition for review on four grounds; finding that the trial court did not follow relevant procedures in Texas statutes and Supreme Court precedent, CCA remanded to that court in March 2014 for a retrospective competency hearing. In May 2014, the State filed a motion to rehear CCA’s opinion. D died, however, in June 2014, and the State moved to permanently abate the appeal. CCA granted the motion and dismissed the State’s motion for rehearing and the State’s petition for review, and withdrew the March 2014 opinion. COA was ordered to withdraw its opinion and permanently abate the appeal.

Although D provided some new evidence of his innocence in the form a recantation from the complainant, he failed to meet the actual-innocence standard in light of the lack of detail in the complainant’s recantation testimony at the habeas hearing and the jury’s rejection of evidence of the complainant’s pretrial recantation. Ex parte Navarijo, 433 S.W.3d 558 (Tex.Crim.App. 2014).

        “To establish that he is actually innocent of an offense of which he has previously been convicted, an individual seeking post-conviction relief on that basis must demonstrate by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Although [habeas] applicant, has provided some new evidence in support of his claim that he is actually innocent of the offense of aggravated sexual assault of a child, we conclude that he has failed to meet this standard because his new exculpatory evidence, which comes in the form of a recantation from the complainant some 13 years after his conviction, does not unquestionably establish his innocence when that evidence is considered in light of other incriminating evidence in the record. Furthermore, although the habeas court in this case determined that the complainant’s recantation testimony was more credible than her trial testimony and recommended granting relief on that basis, we disagree with the habeas court’s assessment that the matter of a recanting witness’ credibility is the sole deciding factor in an actual-innocence case, and we further disagree with its related determination that applicant has unquestionably established his innocence under Ex parte Elizondo, 947 S.W.2d 202, 206, 209 (Tex. Crim. App. 1996). We exercise our authority to reach the contrary conclusion, and, accordingly, deny relief.”

Evidence suppression was unwarranted because the U.S. Immigration and Customs Enforcement special agent who stopped, searched, and detained D had these powers as to felony offenses under Texas law. Guerra v. State, 432 S.W.3d 905 (Tex.Crim.App. 2014).

        A jury convicted D of unlawful use of a criminal instrument with intent to commit aggravated kidnapping or aggravated sexual assault; the jury also found that D used or exhibited a deadly weapon in the offense. D appealed that the trial court erred when it denied his motions to suppress evidence obtained from the stop of his vehicle and subsequent detention. COA overruled that claim and ultimately affirmed the trial court. CCA affirmed.

        Relevant portions of Tex. Code Crim. Proc. art. 2.122 designated special investigators: “The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search and seizure as to felony offenses only under the laws of the State of Texas: (3) Special Agents of the United States Immigration and Customs Enforcement[.]” In the context of interrogations, CCA has discussed the language of Article 2.122 and determined its limitations: “While the statute contains the word ‘only’ after the phrase ‘shall have the powers of arrest, search and seizure as to felony offenses,’ the word ‘only’ clearly modifies ‘felony offenses,’ indicating that federal officers do not have the powers of arrest, search, and seizure for misdemeanors. . . . [The agent], as such a federal officer, was not deemed a peace officer, but did ‘have the powers of arrest, search and seizure’ as to felony offenses ‘under the laws of the State of Texas.’ . . . Article 14.03 authorizes peace officers to make arrests without warrant. But as acknowledged by the state, [the agent] was not a Texas peace officer, thus the provisions of Article 14.03 do not apply to his actions, and he was constrained only by the provisions of Article 2.122. Further, [the agent] did not arrest appellant, he merely detained him, which he is authorized to do under Article 2.122.”

        Furthermore, the agent had reasonable suspicion to stop and detain D because facts known to the agent raised a potential for drug activity or criminal acts against children or law enforcement, felony offenses under Texas law, since, inter alia, D was slowly driving in an area with closed businesses and was looking at children in the area.

Trial court did not violate the Confrontation Clause by refusing to allow D to cross-examine two State witnesses concerning the nature of the witnesses’ pending felony charges because D did not demonstrate the relevancy of the proffered evidence to support his allegation that the witnesses were biased. Johnson v. State, 433 S.W.3d 546 (Tex.Crim.App. 2014).

        A jury convicted D of capital murder and sentenced him to life imprisonment without parole. At trial, D sought to cross-examine two State witnesses for bias by informing the jury of the specific felony charges—and punishment ranges—the witnesses faced in Harris County. However, the trial court limited D’s cross-examination to exposing the fact that the witnesses stood accused only of certain unspecified “felonies.” COA rejected D’s claim that the trial court’s ruling violated his U.S. Confrontation Clause right to effectively cross-examine adverse witnesses and affirmed D’s conviction. In this petition, D urged CCA to reverse COA on the rationale that “[m]erely informing the jury that the State’s witnesses had pending felony indictments is insufficient to accomplish what the Sixth Amendment right of confrontation intends[.]” CCA affirmed COA.

        The trial court did not violate the Confrontation Clause by refusing to allow D to cross-examine the witnesses about the punishment ranges of their pending charges because, even though the evidence may have probative value concerning the witnesses’ alleged bias, he failed to show that a reasonable jury might have received a significantly different impression of the witnesses’ credibility had he elicited that evidence.

The evidence was insufficient to support D’s conviction for resisting arrest with a deadly weapon under Tex. Penal Code § 38.03 because he did not use force against a peace officer, as the record indicated that D at all times held the gun at his side or pointed it at himself and never at officers or anyone else. Dobbs v. State, 434 S.W.3d 166 (Tex.Crim.App. 2014).

        The record was devoid of any evidence indicating that D threatened to use any kind of force against the officers but rather he threatened only to shoot himself. “Because we conclude that no rational juror could have found that appellant’s conduct constituted a use of force against a peace officer as required by the resisting-arrest statute, we hold that the evidence is insufficient to sustain appellant’s conviction. We reverse the judgment of the court of appeals and render a judgment of acquittal.”

COA erred by granting appointed counsel’s motion to withdraw and declaring D’s appeal frivolous without first satisfying D’s express request to access the appellate record to meaningfully respond to the Anders brief. Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014).

        When appointed appellate counsel files an Anders brief, the indigent appellant has a right to review the appellate rec­ord and file a response in the court of appeals, pointing out any reason why he thinks there are non-frivolous issues to be raised on his behalf, notwithstanding his appointed counsel’s evaluation of the record. Here, CCA addressed the question of who should bear the ultimate responsibility for assuring that the indigent appellant is allowed access to the appellate record in order to implement this right.

        CCA held that appointed counsel has a duty, once he has filed a motion to withdraw from representation with accompanying Anders brief, to assist the appellant in filing a motion in COA for access to the appellate record if that is what the appellant wants. Once such a motion is filed, COA has the ultimate responsibility to make sure that, one way or another (CCA shall not dictate how), the appellant is granted access to the record so that he may file his response (if, after reviewing the record, he decides to file one) before it rules on the adequacy of the Anders brief and appointed counsel’s motion to withdraw. “The judgment of the court of appeals is reversed and the cause is remanded to that court. After arranging for the appellant to have a meaningful opportunity to review the appellate record in accordance with the procedure we announce today, that court shall revisit its review of appellate counsel’s Anders brief and motion to withdraw in light of the appellant’s revised response, if any, and any response from the State.”

There was no evidence that D committed any affir­ma­tive “act” in the starvation of her child; however, be­cause the jury necessarily found D guilty of the underlying felony of injury to a child, and the evidence is sufficient to support this, the judgment must be reformed accordingly. Rodriguez v. State, No. PD-1189-13 (Tex.Crim.App. June 18, 2014).

        D was charged with felony murder for the death of her 2-month-old son. She was convicted and sentenced to 30 years in prison. D appealed, initially challenging the validity of the indictment. COA, however, determined that she had not preserved this issue for appellate review. Instead, COA re­quested supplemental briefing on whether it should analyze the sufficiency of the evidence to prove that D committed “an act clearly dangerous to human life in the course of committing the felony of injury to a child.” Concluding that the jury could have reasonably inferred that D committed acts that were clearly dangerous to human life in the process of starving her child, COA held the evidence to be legally sufficient to support the conviction. CCA reversed COA and remanded to the trial court to reform the judgment to reflect a conviction for injury to a child and for a new punishment hearing.

        All the conduct alleged in the indictment (starving and with­holding food, fluid, nutrition, and medical care) fell within the definition of an omission under Tex. Penal Code § 1.07(a)(34), and the felony murder statute, § 19.02(b)(3), required an affirmative act. The evidence showed only her omissions caused the infant’s death; the evidence did support the jury’s necessary finding of the underlying felony of injury to a child, § 22.04(a), requiring resentencing for that conviction.

Tex. Penal Code § 22.021 is not unconstitutional under the Fourteenth Amendment or Texas Constitution for failing to require the State to prove a defendant had a culpable mental state regarding the complainant’s age or failing to recognize a defense based on the belief that the complainant was 17 or older. Fleming v. State, 441 S.W.3d 253 (Tex.Crim.App. 2014).

        D was charged with aggravated sexual assault under Tex. Penal Code § 22.021(a)(1)(B)(iii), (2)(B). He filed a motion to quash the indictment on the basis that the statute is unconstitutional for failing to require the State to prove he had a culpable mental state related to the complainant’s age and for failing to recognize an affirmative defense based on the defendant’s reasonable belief that the complainant was 17 years of age or older. The trial court denied the motion. D pled “no contest” and appealed the denial of his motion. COA overruled D’s fed­eral constitutional claims and affirmed the trial court. CCA remanded for COA to consider D’s state constitutional claims, and COA again affirmed the trial court. D filed a petition for review, which CCA granted to consider whether § 22.021 is un­constitutional under the U.S.C. Fourteenth Amendment Due Process Clause and the Texas Constitution Due Course of Law provision. CCA affirmed COA.

        Because the sexual assault statute serves the legitimate state objective of protecting children, the court will not read a mens rea element into the statute. The fact that the statute does not require the State to prove mens rea as to the victim’s age places the burden on the adult to ascertain the age of a potential partner. Because § 22.021 requires no culpability as to the age of the victim, there is nothing for the defendant’s mistaken belief to negate and his mistake cannot be a defense.

Appellant’s filing of a timely and effective motion for new trial retroactively stayed the commencement of his community supervision until it was overruled by operation of law. Lundgren v. State, 434 S.W.3d 594 (Tex.Crim.App. 2014).

        D was arrested for DWI. He pled guilty, waived his right to appeal, and was put on community supervision. About a week later, he was arrested again. After his second arrest, D filed a motion for new trial and a notice of appeal in his first case. Later, the State filed a motion to revoke D’s community supervision, and the trial court did so. D argued that his filing of a timely notice of appeal and motion for new trial retroactively stayed the commencement of his community supervision; therefore, COA erred when it upheld the trial court’s ruling. CCA reversed COA and remanded.

        Under these facts, D’s timely and effective filing of a new trial motion retroactively stayed the commencement of his community-supervision term such that the trial judge erred in overruling his motion to quash the State’s revocation motion; hence, COA erred when it upheld the trial court’s ruling. D’s notice of appeal did not toll the commencement of his community supervision because his notice of appeal was defective; his notice of appeal was not effective because he had entered into a binding appellate waiver. Furthermore, the valid, express waiver of the right to appeal did not waive D’s ability to file a motion for a new trial.

D’s right to a speedy trial was violated because there was a six-year delay between his formal accusation by indictment and his arrest, the State conceded that it knew his address but completely failed to try to contact him, he timely asserted his right to a speedy trial, and the State failed to vitiate the presumption of prejudice by proving that he acquiesced to this “extraordinary” delay. Gonzales v. State, 435 S.W.3d 801 (Tex.Crim.App. 2014).

        CCA affirmed COA’s holding that D’s right to a speedy trial was violated because the factors laid out by the U.S. Supreme Court to assess speedy-trial claims favored D.

Court of Appeals

D was entitled to a new trial because the trial reporter was unable to transcribe portions of the record due to incomplete notes and inaudible cassettes from the original reporter who had passed away. Mendoza v. State, 439 S.W.3d 564 (Tex.App.—Amarillo 2014).

        “If, through no fault of the appellant, a reporter’s record is lost, destroyed or a significant portion of the recordings is inaudible, an appellant is entitled to a new trial, Tex. R. App. P. 34.6(f)(2), if that portion of the record is necessary to the appeal’s resolution and the lost, destroyed, or inaudible portion cannot be replaced by agreement of the parties. Id. at (f)(3), (4). . . . A new trial is appropriate when the missing portion of the record is necessary to the disposition of the appeal. . . . Here, the trial court determined that the missing portions of the reporter’s record are necessary for resolution of this appeal. Consequently, we reverse the trial court’s judgment and remand the cause for a new trial.”

The trial court violated D’s double jeopardy rights by including a complainant in the jury charge, and entering judgment on the jury’s finding, despite its earlier directed verdict on that complainant’s theft charges. Holcomb v. State, 445 S.W.3d 767 (Tex.App.—Houston [1st Dist] 2014).

        Furthermore, the evidence was insufficient to prove that D committed theft of property with an aggregated value of at least $100,000 under Tex. Penal Code § 31.03(e)(6) because the canceled checks drawn on the complainants’ accounts and made out to D and her husband during the relevant period totaled only $89,125. “A jury convicted [D] of theft of property with an aggregated value of between $100,000 and $200,000, a second-degree felony. See Tex. Penal Code Ann. §§ 31.03(a), (b), (e)(6), 31.09. . . . We reform the judgment to convict [D] of the third-degree felony theft of property with an aggregated value between $20,000 and $100,000, vacate the sentence, and remand to the trial court for a new sentencing hearing on the third-degree felony theft conviction. See Tex. Penal Code Ann. § 31.03(e)(5) (West Supp. 2014).”

The evidence was sufficient to sustain a conviction for manufacture of meth in an amount less than one gram because D admitted that he had recently manufactured meth; also, items consistent with a meth lab were found at his residence. Canida v. State, No. 06-11-00227-CR (Tex.App.—Texarkana Sept 26, 2014).

        D appealed his conviction for the manufacture of methamphetamine in an amount of more than one gram but less than four grams under Tex. Health & Safety Code § 481.112. COA (1) found the evidence legally insufficient to show that D manufactured more than one gram of meth, (2) reversed the trial court, and (3) rendered an acquittal. The State petitioned for CCA to determine whether COA should have reformed the judgment to reflect conviction of a lesser-included offense rather than an acquittal. CCA reversed COA and remanded in light of Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014). Thornton held that after a court of appeals has found the evidence insufficient to support a conviction for a greater-inclusive offense, in deciding whether to reform the judgment to a lesser offense, that court must answer two questions: (1) in convicting the appellant of the greater offense, must the jury have found every element necessary to convict the appellant for the lesser-included offense; and (2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either question is no, COA is unauthorized to reform the judgment. But if the answers to both are yes, the court is required to avoid the “unjust” result of an outright acquittal by reforming the judgment to a conviction for the lesser offense.

        In light of Thornton, COA (1) modified the trial court’s judgment to reflect a conviction for manufacture of a controlled substance in an amount less than one gram and (2) remanded for trial on punishment. The jury found D guilty of manufacturing meth in an amount of more than one gram but less than four grams. By its finding, the jury necessarily found all the elements of the lesser-included offense of manufacture in an amount less than one gram. Thus, the first prong of Thornton is met. Next was an evidentiary sufficiency analysis as though D had been convicted of manufacture of less than one gram of meth to determine if there was legally sufficient evidence to support a conviction for that; items consistent with the operation of a meth laboratory were found at D’s residence, including plastic tubing, stripped batteries, coffee filters containing a white powder, and a lime-salt container containing the final product of meth.

DNA Just Is: A Close Look at Article 38.43

I. Introduction

The proliferation of research and investigation into DNA—that fundamental building block of all living (and some non-living) things—brought with it the unequivocal assertion that DNA simply “is.” What DNA precisely is, however, differs slightly from the scientific community to the legal community. In both groups, DNA offers the promise of revelation—be it a revelation of who and what we are as human beings, or the revelation of truths significant to the outcome and disposition of criminal cases, even long after the initial verdict.

Article 38.43 of the Code of Criminal Procedure addresses evidence containing biological material. Every criminal lawyer should read and be familiar with the implications of Article 38.43. After all, considering the revelations that evidence containing biological material can offer, its collection, storage, preservation, and testing are immensely important.

II. Legislative History

The importance of DNA testing and preservation in the criminal justice system cannot be overstated. As of January 4, 2015, there have been 325 post-conviction DNA exonerations in United States history; 52 of those exonerations have come from Texas.2 The stories and sheer multitude of exonerations are familiar to all of us, as they should be.

The Texas Legislature took note of that in 2001 and passed Senate Bill 3—which created Article 38.39—for post-conviction DNA testing.3 The clear import of Senate Bill 3 was to assure that post-conviction DNA testing would be possible in certain cases via the procedural mechanisms contained in Chapter 64 of the Code of Criminal Procedure:

The importance of using DNA evidence to prove a prison inmate’s guilt or innocence after the inmate has been convicted and sentenced by a court is illustrated by the more than 70 people in the United States who have been exonerated and released from prison because of DNA testing. In Texas, post-conviction DNA testing has led to at least six persons being pardoned or freed from prison since 1997.4

In 2011, there were several important and notable revisions and additions to Article 38.39 by way of Senate Bill 1616.5 Most noticeably, the article was renumbered to what is now Article 38.43. Substantively, however, “biological evidence” is now defined in the statute; the statute defines who is charged with responsibility for preserving the evidence under the law; and the statute requires the Department of Public Safety to adopt standards to comply with the requirements of evidence preservation.

Again, as with Senate Bill 3, there is no question that Senate Bill 1616 is the legislature’s response to the multitude of DNA exonerations that deservedly enjoyed much widespread media attention. Specifically, in his statement of intent, the bill’s author, Royce West, said:

While Texas leads the nation in the number of persons found to have been wrongfully convicted, imprisoned, and later exonerated of crimes, mostly based on biological evidence, the state is largely without uniform standards or established best practices regarding the collection, retention, and storage of these materials. More than half of persons exonerated in Texas were convicted of offenses in Dallas County. This was possible because Dallas County had reliable, established policies and practices regarding the collection and storage of biological evidence.6

Senate Bill 1616 passed unanimously and became effective as soon as it was signed into law by the governor on June 17, 2011.

In 2013, the legislature added subsections (i) through (m) to address evidence containing biological material in capital cases. The specific statutory provisions are discussed, infra.

III. Statutory Provisions

A. What is biological evidence?

As previously stated, Senate Bill 1616 created several significant additions to Article 38.43. One of those additions was the definition of “biological material.” Previously, no definition of the term had been codified. Understandably, this lack of codification bred confusion and noncompliance with the statute’s very intention. Now, by definition, “biological evidence” means:

(1) the contents of a sexual assault examination kit; or
(2) any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other identifiable biological material that was collected as part of an investigation of an alleged felony offense or conduct constituting a felony offense that might reasonably be used to:

(A) establish the identity of the person committing the offense or engaging in the conduct constituting the offense; or
(B) exclude a person from the group of persons who could have committed the offense or engaged in the conduct constituting the offense.7

B. Who is charged with the responsibility?

With the passage of Senate Bill 1616, Article 38.43 now defines which individuals and entities are charged with the responsibility under Article 38.43. Of great note, defense lawyers are the one party excepted from the obligations imposed by Article 38.43. By its very terms, Article 38.43 applies specifically to:

. . . a governmental or public entity or an individual, including a law enforcement agency, prosecutor’s office, court, public hospital, or crime laboratory, that is charged with the collection, storage, preservation, analysis, or retrieval of biological evidence.8

Additionally worth mentioning, the statute imposes no duty on anyone to anticipate the development of new scientific testing techniques.9 It therefore logically follows that the statute is not violated if scientific testing likely enough to produce the requested results develops soon after conviction.10 Further, failure of a person in possession of such evidence to exercise rea­sonable care in predicting whether such new testing techniques will become available does not constitute a violation of the statute.11

C. What is the duty and how long does it last?

Absent a waiver of Article 38.43 rights, evidence covered by the statutory duty is to be preserved, as a general rule, for not less than 40 years.12 If there is an “unapprehended actor associated with the offense,” however, it must be preserved until the applicable statute of limitations has expired.13 If there are no “unapprehended actor[s]” involved and the defendant has been convicted or placed on deferred adjudication community supervision for a capital offense, the evidence must be preserved until the person dies, completes the sentence, is released on parole or mandatory release, or completes the term of community supervision.14

D. When, if ever, is it permissible to destroy the evidence?

Regarding destruction of evidence containing biological material, Article 38.43 provides the following:

The attorney representing the state, clerk, or other officer in possession of biological evidence described by Subsection (a) may destroy the evidence, but only if the attorney, clerk, or other officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:

(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant.15

Accordingly, if a written objection is not received from the defendant, his attorney, or the court within 91 days from receipt of the notice to destroy, then destruction is permissible under the statute. However, if such an objection is timely filed then destruction is impermissible. Curiously, Article 38.43 neither provides a remedy in the trial court for a violation of the latter scenario nor does it authorize an appeal to a court of appeals. It thus appears to be a rule without any enforcement mechanism; a rule without teeth.

E. How do you do it?

Article 38.43 never specifically articulates what constitutes “preservation of evidence” or how the task is to be accomplished. Rather, of upmost importance, the article requires the Department of Public Safety to adopt standards and rules to specify the collection, storage, preservation, and retrieval of biological evidence. Specifically:

The Department of Public Safety shall adopt standards and rules, consistent with best practices, relating to a person described by Subsection (b), that specify the manner of collection, storage, preservation, and retrieval of biological evidence.16

The statute allows counties with a population less than 100,000 to comply with the preservation requirements by promptly delivering the evidence to DPS for storage.17

F. Capital cases

As previously stated, in 2013, the legislature specifically addressed biological evidence in the context of capital cases in which the state is seeking death and added several subsections.

Subsection (i) requires the state to have collected all biological evidence that was collected in a capital case. Either the Department of Public Safety or an accredited lab is authorized to conduct the testing. Interestingly, the laboratory that performs the testing bears the cost associated with the testing.

A pretrial conference about the biological evidence is required under subsection (j) as soon as practicable after the defendant is charged with a capital offense for which the state has not affirmatively waived, in writing, the death penalty. If the state and defense agree which materials should be tested, there is no hearing and the testing proceeds in accordance with the statute. However, if there is disagreement among the parties as to what material should be tested, then a hearing is held. At the hearing, there is a rebuttable presumption that the biological material that the defense wants tested constitutes biological evidence that is required to be tested under subsection (i).

Subsection (k) addresses what is required statutorily if biological evidence is lost or destroyed as a result of DNA testing. If that happens, then the laboratory that tested the evidence is required to provide to the defendant—note that the state is not included in this notice—any bench notes prepared that are related to the testing of the subject evidence.

The obvious and logical question is what happens if biological evidence that should be tested pursuant to Article 38.43 is not tested. Subsection (l) provides the answer—the “exclusive remedy . . . is to seek a writ of mandamus from the court of criminal appeals. . . .” It is up to the defense lawyer to seek this remedy.

Finally, subsection (m) addresses additional testing of biological material. Specifically, any accredited laboratory may perform additional testing on biological evidence. Consistent with case law, the statute provides that the defense may make an ex parte showing of “good cause” to the court to request the additional testing of biological material. However, when the defense seeks this testing, the defense is required to bear the burden of this cost if the defendant is not indigent.

IV. Decisional History

As a result of its relatively recent passage, there has not been much decisional law addressing Article 38.43. As of February 10, 2014, a Westlaw search yields only 26 appellate cases, both published and unpublished, that cite and/or reference Article 38.43. The cases that are “most on point” are as follows:

Watson v. State, 96 S.W.3d 497 (Tex. App.—Amarillo 2002, pet. ref’d)
The court of appeals lacked jurisdiction to order the defendant released from incarceration due to the state’s failure to preserve DNA evidence in prosecution for rape, insofar as statute governing preservation of biological evidence did not authorize appeal and statute authorizing release of a convicted person was limited to the convicting court. Statute became effective April 5, 2001, and evidence at issue related to a trial held in 1997.

Brewer v. State, No. 05-02-00136, 2002 WL 31445286 (Tex. App.—Dallas 2002, no pet.)
Even presuming Article 38.43 created a liberty interest for the defendant, such testing conducted following de­fendant’s conviction for sexual assault afforded him all procedural due process he deserved; after conducting tests on biological matter obtained from victim’s skirt, DPS concluded that the defendant could not be excluded as a contributor to matter.

Johnston v. State, 99 S.W.3d 698 (Tex. App.—Texarkana 2003, pet. ref’d)
State did not act in bad faith in destroying evidence, possibly containing testable biological material, from defendant’s prosecution for aggravated assault, where evidence was destroyed in routine course of business along with evidence from other cases. The article itself does not provide a remedy when the state destroys evi­dence without following the procedure outlined in the statute. Therefore, the court of appeals lacked jurisdiction to grant the relief where the applicable provision of the Code of Criminal Procedure did not provide for such a remedy.

Johnson v. State, No. 14-02-01012, 2003 WL 751021 (Tex. App.—Houston [14th Dist.] 2003, no pet.)
Defendant’s post-conviction claim that he was deprived of his constitutional rights by the state’s failure to preserve DNA evidence for testing amounted to a request for habeas relief and was improperly raised by way of motion for post-conviction forensic DNA testing.

Chavez v. State, 132 S.W.3d 509 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Defendant’s allegation that the state destroyed material DNA evidence amounted to a request for habeas relief over which claim court of appeals had no jurisdiction; defendant, who was convicted by no contest plea to ag­gra­vated sexual assault of a child, alleged that his due pro­cess rights were violated when the state purportedly destroyed material DNA evidence, which claim amounted to request for habeas relief.

Cruz v. State, No. 09-04-511-CR, 2005 WL 3610242 (Tex. App.—Beaumont 2005, no pet.)
Appellant argued that the trial court did not have proper evidence upon which to decide to deny DNA testing be­cause the requested exhibits could not be found. How­ever, the record contains evidence that there are no ex­hib­its to test as such were destroyed years earlier in ac­cor­dance with Article 38.43. Appellant alternately argued that the exhibits were prematurely destroyed. However, he did not show or demonstrate that the exhibits were improperly or prematurely destroyed. Judgment affirmed.

Cormier v. State, No. 10-04-000236-CR, 2006 WL 408411 (Tex. App.—Waco 2006, no pet.)
The biological evidence in this case had all either been released or destroyed in accordance with Article 38.43. Appellant’s counsel filed an Ander’s brief, the court of appeals reviewed the record, and the judgment was affirmed.

Romero v. State, No. 07-05-0348-CR, 2006 WL 1911388 (Tex. App.—Amarillo 2006, no pet.)
The motion for DNA testing was properly dismissed with­out a hearing since there were no facts asserted to support the testing. Appellant was not entitled, as a matter of law, to a hearing on his motion for DNA testing, prior to obtaining testing. Neither can Appellant’s motion be construed as a post-trial plea of actual innocence. Finally, while the 2001 version of Article 64.01(c) would have required the appointment of counsel for a request for DNA testing, the current version applicable to this case only requires it if the convicting court finds there are reasonable grounds for the motion to be filed. In this case, there were not.

In re Bowman, No. 03-06-00183-CR, 2006 WL 2852495 (Tex. App.—Austin 2006, pet. ref’d)
Appellant filed a motion for appointment of counsel to pursue a motion for post-conviction DNA testing. Ap­pel­lant subsequently filed a pro se motion for DNA test­ing. Article 64.01(c) requires the appointment of coun­sel only if the trial court finds reasonable grounds for a testing motion to be filed. Appellant’s motion stated no such grounds. The trial court’s order dismissing, and effectually denying, Appellant’s motion for DNA testing is affirmed.

Woodall v. State, No. 2-06-101-CR, 2007 WL 117704 (Tex. App.—Fort Worth 2007, pet. ref’d)
Appellant challenges the denial of his motion for post-conviction DNA testing. The state contends that al­though it did have such evidence it was destroyed in ac­cor­dance with Article 38.43 as it would not have established the identity of the assailant or excluded Appellant as a suspect. In this case, identity was never an issue. There­fore, the trial court’s order denying the motion for DNA testing was affirmed.

Johnson v. State, No. 14-06-00317-CR, 2007 WL 925704 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
The trial court’s denial of a post-conviction motion for DNA testing is affirmed. The case occurred in 1978. The motion for DNA testing was filed in 2004. The state filed affidavits indicating it had searched for DNA evidence and none existed.

Pena v. State, 226 S.W.3d 634, 648 (Tex. App.—Waco 2007, rev’d, Pena v. State, 285 S.W.3d 459 (2009)
An adverse inference instruction was appropriate for the state’s destruction of plant material alleged to be marijuana.

Newby v. State, 229 S.W.3d 412, 414 (Tex. App.—Texarkana 2009, no pet.)
Clarifying that the legislature intended that post-conviction DNA testing be limited to determining the identity of a person, not a plant. In this appeal, Appellant wanted to retest the “marijuana” evidence; he asserted that testing would show the plants were “Texas State Hybiscus” plants rather than marijuana.

State v. Vasquez, 230 S.W.3d 744, 753 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
This appeal involves the state’s destruction of Appellant’s blood sample prior to his intoxication manslaughter trial. The court of appeals held that the due course of law clause of the state constitution provides the same protection as the due process clause of the federal constitution regarding the state’s destruction of potentially useful evidence in a criminal prosecution. Finding that the state’s destruction of the blood sample prior to trial in this case did not violate Appellant’s rights under the due course of law provision, the court of appeals held that “[n]ot all failures to preserve evidence in criminal cases result in the deprivation of constitutional rights.”

In re Kennard, No. 03-07-00308-CR, 2008 WL 899606 (Tex. App.—Austin 2008, no pet.)
The motion for post-conviction DNA testing was properly denied here because there were no issues as to Appellant’s identity as the perpetrator of the sexual assault for which he was convicted. Appellant admitted that he had sexual intercourse with the complainant on the night in question but asserted that it was a consensual act in exchange for drugs. Appellant conceded that identity was not an issue. Appellant argued only that if the DNA tests showed that the second spermatozoa contributor was someone other than the complainant’s fiancé, her credibility would be undermined.

Hurley v. State, No. 05-07-00597, 2008 WL 2454675 (Tex. App.—Dallas 2008, no pet.)

Hurley v. State, No. 05-06-00034-CR, 2006 WL 3528668 (Tex. App.—Dallas 2006, no pet.)
Appellant pleaded guilty to burglary of a habitation with intent to commit aggravated rape in 1977. In 2006, Ap­pel­lant filed a pro-se motion for DNA testing under chapter 64. The state represented that there was no evidence remaining that could be subjected to DNA testing. The trial court and the court of appeals found that biological evidence no longer existed. In response to Appellant’s argument that if there was no longer any evidence to test then it was destroyed in violation of Article 38.43, the court of appeals noted that Article 38.43 “does not provide for any relief by the lower court, nor does it authorize an appeal to a court of appeals.”

Westfall v. State, No. 2-08-242, 2008 WL 4052960 (Tex. App.—Fort Worth 2008, no pet.)
This appeal, by a pro se inmate, was dismissed for want of jurisdiction. Article 38.43 provides that the state may destroy DNA evidence if it does not receive an objection within 91 days after giving notice to the defendant, defense counsel, and the convicting court. The statute does not provide for any relief by the lower court, nor does it authorize an appeal to a court of appeals.

In re Bowman, No. 03-06-00183, 2009 WL 3400993 (Tex. App.—Austin 2009, pet. ref’d)
Request for appointment of counsel in connection with an anticipated post-conviction motion for DNA testing was properly denied.

Garcia v. State, 327 S.W.3d 269, 272 (Tex. App.—San Antonio 2010, pet. ref’d)
Identity that must be at issue for convicting court to order forensic DNA testing pursuant to Chapter 64 is that of the perpetrator, not that of the victim.

Quinn v. State, 2011 WL 3795233 (Tex. App.—Fort Worth 2011, pet. ref’d)
Appellant was convicted in 1995. Years later he filed a post-conviction motion for forensic DNA testing of evidence pursuant to Article 64.01 of the Texas Code of Criminal Procedure. However, since his conviction the DNA evidence had been destroyed. Because Article 38.39 (now 38.43) went into effect on April 5, 2001, Appellant had no recourse.

Napper v. Thaler, No. H-10-3550, H-10-3551, 2012 WL 1965679 (S.D.Tex.2012)

Ex parte Napper, 322 S.W.3d 202, 205 (Tex. Crim. App. 2010)
The state and federal appeals both concern post-conviction DNA testing and the widespread problems with the Houston police department crime lab. In his state appeal, the trial court initially recommended granting relief. However, the Texas Court of Criminal Appeals hesitated to find that the evidence at issue was potentially useful to Appellant and concluded that, while mistakes were made during the testing process, there was no proof that evidence was destroyed with “bad faith.” The court concluded that “[w]here exculpatory results were unlikely, an inference can be drawn that the DNA analyst was probably not acting with the intent to deprive the defendant of exculpatory evidence when he destroyed the sample.”
      As soon as the state appeal was denied, Applicant filed a petition for writ of habeas corpus under 28 U.S.C. Section 2254. He contended that the state violated his right to due process because two Houston police department crime laboratory workers consumed or destroyed “potentially useful” DNA evidence without affording the defense an opportunity to conduct independent testing. However, Applicant’s failure to show that the evidence (potentially useful or otherwise) was destroyed in bad faith was fatal to his federal claim under Arizona v. Youngblood, 488 U.S. 51, 56 (1988).

Lawrence v. State, 2013 WL 5948112 (Tex. App.—Texarkana 2013, no pet.)
Appellant was convicted of burglary of a habitation with the intent to commit aggravated sexual assault and sentenced to life in prison. He sought to have the trial court order post-conviction DNA testing pursuant to Chapter 64 on the gloves and boots worn by the perpetrator and the bed rail. Only the bed rail was available for testing. However, Appellant failed to carry his burden under Article 64.03(a). In denying Appellant’s motion for testing, the court of appeals noted that it would be impossible to determine whether any DNA on the bed rail came from the assailant or from someone who merely had access to the bed rail in some fashion.

State v. Swearingen, No. AP-77,020 (Tex. Crim. App. 2014)
The trial court granted Appellee’s fourth motion for post-conviction DNA testing. The state brings this appeal. The Court of Criminal Appeals reverses the trial court’s order finding that Appellee had not established that biological evidence exists or that, where it does, exculpatory test results would have affected his trial.
      The Attorney General has also been sought out for an opinion regarding Article 38.43. In 2012, the Harris County District Attorney sought an Attorney General opinion regarding preservation requirements of blood evidence under Article 38.43 in certain DWI cases.18 Seemingly, the Harris County District Attorney’s office was seeking approval for a trial court to destroy blood evidence seized in connection with an intoxication-related offense that had been concluded. However, they received no such approval. The AG opinion concludes that a court does not have authority to order the destruction of blood collected during the investigation of an intoxication-related misdemeanor offense after the underlying case has been finally resolved.

V. Sister Statutes

It would be impossible to analyze Article 38.43 and its implications without also mentioning the interplay it has with both the Michael Morton Act and Chapter 64 of the Code of Criminal Procedure.

A. Michael Morton Act

Even before the dawn of the Michael Morton Act (SB 1611) on January 1, 2014, Article 39.14 of the Code of Criminal Procedure provided that certain physical evidence was discoverable. Now, however:

. . . as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection . . . [of] objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.19

The Michael Morton Act, thus, made two significant changes with regard to the discovery of physical evidence. First, the discovery provisions are triggered by a request from the de­fendant. By its very terms, Article 39.14 does not necessitate an order from the trial court. Therefore, it is imperative to file a specific request for discovery in every case as soon as practicable. Second, and importantly, the discovery provision applies to the state as well as any person under contract with the state. This means the state cannot simply say the evidence is not subject to inspection because it is housed elsewhere.

Additionally, even though Article 38.43 does not impose an obligation on the defendant, in certain cases it is probably worthwhile to file a motion to preserve evidence. Such a motion is obviously in anticipation that evidence might not be preserved or might be destroyed before trial. In that instance, having filed such a motion at the inception of the case would give credence to the defensive argument that the destruction was done intentionally and with bad faith and also might convince the trial court to include a spoliation instruction in the jury charge.20

Biological evidence, as long as it is properly preserved and the chain of custody is maintained, can be retested, reevaluated, reweighed, etc. The obvious caution in retesting any evidence is making the state aware that such evidence was, in fact, retested. For example, a blood test in a DWI case that is retested may yield a lower alcohol concentration but still may be over the legal limit. In that scenario, the arguments that retesting is cost prohibitive or that the performance on the field sobriety tests does not match the resultant number will not work. It is imperative that all motions and orders to retest evidence be ex parte, under seal, and with explicit directions to the agency exercising care, custody, and control of the evidence.

B. Chapter 64

Chapter 64 is the procedural mechanism through which evidence containing biological material can be tested post-conviction. Specifically, Chapter 64 allows a convicted person to “submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.”21 This motion may request testing of evidence that was secured in relation to the offense compromising the underlying conviction and was in the possession of the state during the trial but either was not previously tested or, although previously tested, can be tested with newer techniques that can likely provide more accurate and probative results.22 A convicting court may order testing if the evidence in question:

i. still exists and is in a condition making DNA testing possible; and
ii. has been subjected to a chain of custody sufficient to es­tablish it has not been substituted, tampered with, re­placed, or altered in any material respect; and
iii. identity was or is an issue in the case.23

The convicted person has the burden of proof to show by a preponderance of the evidence that:

the person would not have been convicted if exculpatory results had been obtained through DNA testing; and the request for the proposed DNA testing is not made to unreasonably delay the execution of the sentence . . .24

Prior to legislative amendments in 2011, there was a requirement under Chapter 64 that the lack of previous testing had not been the convicted person’s fault. This proved to be quite an onerous requirement. That is no longer such a requirement.25

VI. Conclusion

Biological evidence is, has been, and will continue to be a vital part of the criminal justice system. Ideally, it is used to convict the guilty and exonerate the innocent. As science continues to develop and evolve, biological evidence becomes not only more commonplace in criminal investigations; it also becomes more critical. As science pushes forward, we come to understand that some past methods of scientific evaluation and testing are no longer the unassailable juggernauts that we once believed them to be—they can be controverted, disproven, and cast aside by new methods. It is precisely for this reason that evidence containing biological material be properly collected, stored, preserved, and analyzed. Article 38.43 is a merely a means of accomplishing that end.

Endnotes

1. Richard Dawkins, River Out of Eden: A Darwinian View of Life, 133 (1995) (“DNA neither cares nor knows. DNA just is. And we dance to its music.”)

2. The Innocence Project, available at http://www.innocenceproject.org.

3. See Acts 2001, 77th Leg., ch. 2, § 1, eff. April 5, 2001.

4. SB 3, House Research Organization Bill Analysis (March 21, 2001); available at http://www.hro.house.state.tx.us/pdf/ba77r/sb0003.pdf#navpanes=0.

5. See Acts 2011, 82nd Leg., ch. 91, § 27.002(1) (eff. Sept. 1, 2011), ch. 1248, § 1 (eff. June 17, 2011).

6. SB 1616, by West, Criminal Justice (August 25, 2011), available at http://www.capitol.state.tx.us/tlodocs/82R/analysis/pdf/SB01616F.pdf#navpanes=0.

7. Tex. Code Crim. Proc. art. 38.43(a).

8. Id., art. 38.43(b).

9. Dix & Schmolesky, Texas Practice Series, Criminal Practice and Procedure, Thomson West, Vol. 43B, Section 60:07, p. 896 (3rd ed. 2011).

10. Id.

11. Id.

12. Tex. Code Crim. Proc. art. 38.43(c).

13. Id., art. 38.43(c)(1).

14. Id., art. 38.43(c)(2).

15. Id., art. 38.43(d).

16. Id., art. 38.43(g).

17. Id., art. 38.43(f).

18. Tex. Atty. Gen. Op. GA-0992 (March 12, 2013), 2013 WL 2996993.

19. Tex. Code Crim. Proc. art. 39.14(a).

20. See State v. Vasquez, 230 S.W.3d 744 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that the Texas Constitution in this instance provides no more protection than the federal constitution, and that the defendant must prove that the intentional destruction of potentially useful evidence was done in bad faith); Pena v. State, 166 S.W.3d 274 (Tex. App.—Waco 2005) (Pena I), pet. granted, judgment vacated, 191 S.W.3d 133 (Tex. Crim. App. 2006) (the Texas constitutional requirement of due course of law provided more protection for the destruction of evidence than the federal constitutional requirement of due process. The Court of Criminal Appeals, in Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (Pena II), held that the issue had not been preserved for appeal).

21. Tex. Code Crim. Proc. art. 64.01(a-1).

22. Id., art. 64.01(b).

23. Id., art. 64.03(a)(1).

24. Id., art. 64.03(a)(2).

25. See Act of May 23, 2011, 82nd Leg., R.S., § 1, 2011 Tex. Gen. Laws 366.

The Five Emotional Stages Your Client’s Family Will Experience When Faced With a Criminal Charge

It is an emotional time for any family when they learn that a loved one has been charged with a crime. When the loved one admits to the crime or is convicted, those emotions are compounded. The emotional stages experienced by families during this time parallel the stages of grief and loss faced when a loved one passes. However, unlike losing a loved one, most families will experience a criminal charge only once (if at all), and there is nothing to prepare them for it. Also, because most families they know have never gone through this experience, it is easy for families to feel alone. Families will also face the stigma associated with a criminal charge, which can cause further feelings of isolation.

Recognizing where your client’s family is in the process of coming to terms with their legal situation is essential for making sense of the difficulties your client is facing at home. Below are the five emotional stages experienced by most families as they suffer with a loved one going through this process. It is important to note that not all individuals in a family will experience

1.   Denial and Isolation

        This can take many forms. For many family members, there may be a denial that a loved one has actually been charged, a denial of the implications of the charge, or a denial that the loved one was ever engaged in any criminal activity. This is a typical initial response to any traumatic situation, which helps us deal with the immediate shock. This will be temporary for the family but will assist them in transitioning to the next phase.

2.   Anger

        As the effects of denial wane, families become more aware of their true emotions. The initial emotion for them is likely to be anger. This anger will likely be directed toward your client, and can be displayed in a variety of ways. Anger may come and go over time. Family members may resent your client for having caused pain and bringing embarrassment into their lives. Family members will also be very angry with anyone who is perceived to have contributed to the criminal activity. This could include family of origin or business associates. If this anger is not handled constructively, further problems can result.

3.   Bargaining

        In an attempt to regain emotional control of the situation, families are likely to ask questions or make statements to themselves which imply that they could have had some control over your client’s criminal behavior. For example, a family member may say, “If I had only watched him more closely”, “If only I had not placed so many demands on him”, or “If only I had been nicer to him”. All of this will give the family a false sense of control. When it comes to dealing with a trauma, a false sense of control is more comforting than no control at all.

4.   Depression

        This is an overall feeling of sadness and not necessarily a clinical depression. There are two types of depression families will likely experience during this stage. The first type has to do with practical implications related to their situation. This may have to do with questions regarding finances, ef­fectively parenting the children, or hits to a reputation. Any­thing considered to be fallout of the legal process will be a primary focus during this stage.

         The other type of depression families are likely to experience has to do with your client personally. This involves questions related to what will happen to your client and preparing for possible time away from him/her.

5.   Acceptance

        During this phase, families will likely display withdrawal and feelings of calm. If your client is anticipating an incarceration period, they may experience their family withdrawing emotionally from them as a way of preparing themselves for their absence. Although this is not a period of happiness, it is also not marked by depression. It is more of a quiet acceptance of what your client has done and what is to come. It is also common during this stage that your clients will experience an emotional withdrawal from their family as they ready themselves mentally for the upcoming separation period.

Experiencing these emotional stages is a personal process that is unique to each individual. Although most families are likely to go through each of these stages, the pace and order in which they occur will vary by person. It is important that families do not become stuck in any particular phase—which may result in unresolved bitterness, anger, and depression. This can have long-term consequences for relationships and ultimately on your clients’ ability to successfully reintegrate with their families.

A Beginner’s Guide to Free Legal Research on the Internet

The TCDLA listserve is a great resource for bouncing unique questions off each other and seeking input on strategies from those who have “been there done that, got the t-shirt.” But a great deal of the questions posed could be answered just as easily by following an old acronym: RTFM (“read the freakin’ manual”). Lest we forget, that is where law school started for us—legal research and writing.

Back in the day, we were wooed by the likes of Lexis and West, who gave us free unlimited passwords and tables full of swag scattered throughout the law school, but upon graduation they expect that your thick-carpet firm will start picking up the bill. That is when reality sets in. I do not have thick carpet. I have thin business industrial carpet because my hard-working clients come in to my office with mud and tar on their boots, and their sticky kids get candy and juice everywhere. I could pay for those services myself, but then that cost would be passed on to the hard-working clients, and in short, those paid services are not necessary. Here is why.

Each time there is a simple “look it up” question on TCDLA’s listserve that I have time for, I first have to decide if it is a statute or case-law question. We will start with statutes.

The fact that you are reading this tells me that you have access to my first free resource for statutes—the TCDLA app. Go to the play store or the app store and download it now. Your organization put quite a bit of effort into it, and it works great. It does lack some of the state statutes (government code), and the search feature can be finicky. And I get tired of looking at my tiny phone screen, so I also consult http://www.statutes.legis.state.tx.us/Index.aspx. This is the official State of Texas resource. From this page, you can directly access each of the codes and browse through them. You really need to know where something is for this page to be useful, but it is great help for browsing related statutes once you know the number. Once you get to the statute you need, pressing Ctrl-f opens a box at the bottom of your screen that will allow you to search within the document. You can also access legislative history and not-yet-enacted bills through the link to the Texas Legislature online. That site is complicated and needs a completely separate how-to paper.

If you do not know where the statute is, click on the search tab. From here, you can search all the codes, or if you generally know where it is, just the code in which you think the statute is located. When searching, try to imagine how the text would be written and type that language. Use the same logic you use on google to find whatever you are looking for. Try different combinations, and do not finish words with multiple possible endings. For example, if you were looking for the time frame for the court to hold a probation revocation hearing, you would choose the code of criminal procedure and search for revoc hearing within, which produces seven results. The correct result is the fourth.

The state site is nice because the search terms are highlighted in red in your search results. If you know an exact phrase in the statute, search for it in quotations. For example, if you had a client arrested without a warrant, you can type arrest without warrant and you get 91 results. If you type “arrest without warrant” you get 6 results.

Once you have the statute number, you can search case law to see how the courts have applied it. This is free also. For this, there are a few free resources. I used to love lexisone, but it is no longer free. The state bar website has a free service, but I do not use it (http://texasbar.com/). Click on the casemaker logo in the center of the page and provide your bar number and password.

The free service I like is google scholar. From google, search scholar and click on the first result—or just go to http://scholar.google.com/. Select case law, then select Texas, then type your search. Again, use terms like you would see in the case. Imagine what an appeals court would say. For example, illegal search gets you 4,600 results, illegal search of glove box gets 94 results, and “illegal search of glove box” gets you no results because an appellate court would not write that phrase. But “search of his glove compartment” gets one result from 1984. Click on it and you can scroll down to the highlighted terms or phrase.

From here, you can read the case, search within the case from a tab at the top left or through the browser search I described earlier, or you can click “how cited.” This takes you to a list of the cases that mention this case. The text excerpts will be in the main part of the screen, and a list of related documents and citing documents will be in a list to the right. You can click on any of these and the link will take you directly to where your case was cited in that case. You can limit the search to just the Court of Criminal Appeals of Texas if you need to or—a trick I use to get cases relevant to my local court—include the city where the court is located in your search. For example, I might type “illegal searchAmarillo or “illegal search7th to try to get cases from the 7th Court in Amarillo. If you are searching a statute, use that as your term. For example, if you want to know about drug free zone, you get 7,630 results. For “drug free zone,” you get 823 results, and “481.134” gets you 212 results.

If you like a little more control or are getting too many results, from the results page click on the down-facing grey arrow near the top right and it will allow you to choose advanced search options.

Finally, if you just are not getting anywhere with your search, go out to regular Google or Yahoo or whatever you use and just search. Sometimes you can find a news release that cites the case you are looking for or, more often than not, a lawyer’s website where they have discussed the matter at length. I never rely on their analysis, but I do use that as a tool to find the right citations when my other searches have turned up nothing.

I like to try to answer the easy questions that can be solved with RTFM because I inevitably find something I’ve forgotten or never knew. When you know more about the law, you are a better lawyer and your clients benefit. For example, I was looking up someone’s simple question about a grand jury procedure and located Texas Code of Criminal Procedure Art. 20.20—which blew my mind because I had never seen that done on an indictment. I then searched “20.20” and found that the courts made it discretionary and not mandatory. Wonder what I found? What a great way for you to practice what you just read! RTFM!

December 2014 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
23 | The Prairie Dog Lawyers Advanced Criminal Law Course – By Chuck Lanehart
27 | DNA Just Is: A Close Look at Article 38.43 – By Sarah Roland
35 | The Five Emotional Stages Your Client’s Family Will Experience When Faced With a Criminal Charge – By Joel Caldwell & Christina Caldwell
37 | A Beginner’s Guide to Free Legal Research on the Internet – By Steven Denny

Columns
9 | President’s Message
11 | Executive Director’s Perspective
13 | Ethics and the Law
16 | Off the Back
18 | Federal Corner
21 | Legislative Gleanings
22 | Said & Done

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

President’s Message: The Sun Will Come Out Tomorrow – By Emmett Harris

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“The sun’ll come out tomorrow.
Bet your bottom dollar that tomorrow there’ll be sun.”
                                                                —Annie

We just closed the page on another calendar year. It’s a good time for reflecting on 2014 and gazing into 2015. Hoping not to sound like those “Holiday Letters” that we get, first, let’s take a look back at this past year.

Most of the statistics that follow are drawn from our fiscal year rather than a calendar year, because that is just how our home office keeps the records. These numbers cover FY 9/1/13–8/31/14. What they show is that our membership increased from 3,202 to 3,302. During that period we put on 53 CLE seminars and 38 online CLE events. During that period we trained 6093 lawyers across the State of Texas. Thank you, Kelly Pace (Tyler) and Jani Maselli Wood (Houston), our CDLP chair and co-chair, respectively.

Last July we launched a new Lone Star DWI seminar in Austin, which drew an attendance of over 250. Thank you, Deandra Grant (Dallas) and Mark Thiessen (Houston), our course directors.

Our long-standing DWI seminars, Top Gun in Houston and Stu Kinard in San Antonio, continued to thrive. Thank you, Grant Scheiner (Houston), Danny Easterling (Houston), Mark Stevens, Michael Gross, and Adam Kobs (all from San Antonio), our course directors, respectively.

Our presence at the Mastering Scientific Evidence (MSE) New Orleans seminar in late March, co-sponsored with the National College for DUI Defense, continued and has been extended in duration. Thank you, Bobby Mims, our past president.

Our Round Top IV psychodrama event was another success, thanks to Tony Vitz (McKin­ney), our course director.

Once again, under the able direction of Lydia Clay-Jackson (Conroe) and Tim Evans (Ft. Worth), we presented the inestimable Texas Criminal Trial College in Huntsville.

TCDLA’s membership has increased in number and diversity.

Looking ahead, we have added to the strength of our presence and voice in the upcoming legislative session. We are well equipped to resist erosion of the Michael Morton Act. Thank you, Allen Place (Gatesville) and Patricia Cummings (Austin).

Shortly after the conclusion of our 2014 Rusty Duncan Seminar, work began on 2015’s Rusty Duncan with the theme of “United We Stand.” It should be the best ever. Thank you Lance Evans (Fort Worth), Laurie Key (Lubbock), Dan Hurley (Lubbock), and Sarah Roland (Denton), our course directors for this year’s Rusty Duncan.

We just finished a fantastic 34th Annual Prairie Dog seminar in co-sponsorship with the Lubbock Criminal Defense Lawyers Association (LCDLA) in Lubbock, with attendance in the three CLE over 300. Thank you, Brian Murray, president of LCDLA.

In short, TCDLA continues to be a strong and dynamic organization. Now, not all of this occurred without some distractions. There were a few, but throughout it all, we remained united and dedicated to our purpose of training lawyers, and helping the citizens accused—i.e., those who can’t help themselves.

That is why, with the confident spirit of a little orphan named Annie, you can bet your bottom dollar that tomorrow for TCDLA there’ll be sun.

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

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TCDLA has the following outstanding DWI CLE in the months to come. We hope our members who defend those accused of a DWI offence will attend these CLE and support TCDLA.

March 26–28New OrleansMastering Scientific Evidence*
May 1Arlington8th Annual DWI Defense Project
July 2Austin2nd Annual Lonestar DWI Blood 101
August 21Houston13th Annual Top Gun DWI
November 12–13San Antonio11th Stuart Kinard Memorial Advanced DWI

*Co-sponsored with the National College for DUI Defense

“Training Your Defense Team to Win,” a CDLP grant 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. We have had very good participation through the first three of these CLEs.

“Training Your Defense Team to Win” will be held in the following locations. Please bring your staff and your defense team members:

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

Special thanks to Stephanie Patten (Fort Worth), Sarah Roland (Denton), and Mark Daniel (Fort Worth), our course directors for our seminar “Defending Those Accused of Sexual Offenses,” held in Fort Worth in December. Thanks to their efforts we had 156 attendees.

Special thanks to Chris Abel (Flower Mound) and Patty Tress (Denton), our course directors for the 7th Annual Jolly Roger seminar held in Denton. Thanks to their efforts we had 78 attendees.

A very special thanks to Brian Murray (Lubbock), President of the Lubbock Criminal Defense Lawyers Association, for allowing TCDLA/CDLP to co-sponsor the 34th Annual Prairie Dog Seminar held in Lubbock at the Texas Tech School of Law in January. Special thanks to Dean Darby Dickerson of the law school for allowing all of the training events to be held there. Very special thanks to Professor Pat Metze, who was very special liaison with the law school. Professor Metze also runs the Criminal Law Clinic at the law school.

The events included the following seminars:

Federal Law: Thanks to the efforts of Course Director Michael King (Lubbock), we had 62 attendees.

Nuts ’n’ Bolts & the Michael Morton Act: Thanks to the efforts of course directors Chuck Lanehart and Philip Wischkaemper (both from Lubbock), we had 72 attendees.

34th Annual Prairie Dog: Thanks to the efforts of course directors Taly Jacobs, Brian Murray, and Frank Sellers (all from Lubbock), we had 206 attendees.

LCDLA held a dinner/dance fundraiser to raise money for the Brendan Murray scholarships for worthy law school students. Since 2007, LCDLA has netted nearly $100,000 through proceeds of the event and private contributions.

Special thanks to Bill Trantham (Denton) and the famous Outlaw Grillers (Lubbock), who braved blistering cold winter weather to barbecue and cook Mexican posole (pork stew) for 200 attendees in the parking lot of the law school.

Don’t have a local criminal defense bar in your area? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Ethics and the Law: ’Twas the Week Before Christmas

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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.

Epilogue: Once this motion was granted, it gave us sufficient time to complete our preparation of the case in a proper manner. Because we had additional time, we were able to adhere to our duty-bound ethical oath: to zealously defend our client. Facts helpful to the defense are always hidden at the bottom of the well. That digging takes time and tenacity.

Time is the most valuable commodity to lawyer. Abraham Lincoln said, “A lawyer’s time and advice are his stock in trade.” If time is used wisely, our clients benefit. We all need time to work on our cases and explore all possible defenses or punishment options. We never have enough time.

On the flip side, judges and prosecutors want to move the docket. Prosecutors’ caseloads are huge and the statistics of open cases in their court are ever present on the mind of our judges. As defense counsel, we must be the gatekeepers to ensure our clients receive their right to effective assistance of counsel based on a thorough investigation of the facts. Without those facts our client cannot make his or her decision to move to trial or prepare for mitigation. This takes time. It is your job to get that time.

One Harris County judge who has since departed bragged that if a judge was still in court after 12 noon, he was not doing a good job. I was in court the day he made the statement to a local television reporter named Wayne Dolcefino. I told the judge to remain silent; but he like many let his alligator mouth override his hummingbird ass. It was on the 6 o’clock news. He told me the next day he would listen to me the next time. The next time never came because he was defeated in the next election and his comments made great propaganda for his opponent. An arbitrary “rocket-docket, move-it-along mentality” goes against the grain of our justice system to the detriment of the citizen accused.

All lawyers know that a continuance usually works in favor of a defendant, but it is routinely used by the defense as well as the state in accord with Article 29.03 of the Texas Code of Criminal Procedure.1 By and large, most continuances are reached by agreement with the State. When necessary, a well-drafted Motion for Continuance should contain exhibits. If the exhibits involve personal or confidential information, request an in camera inspection by the judge in your motion. Never underestimate the power of demonstrative exhibits. A picture is worth a thousand words. Don’t be shy. In the event your motion is objected to, and a controverting motion is submitted by the state, pursuant to Article 29.09 of the Texas Code of Criminal Procedure, your motion and your exhibits must stand alone to win the day. Do not rely on a stellar oral argument to get you by. Article 29.10 makes it clear the testimony shall be made by affidavit. If the continuance has become the 800-pound gorilla in the courtroom, use technology readily at hand. It is amazing how fast a motion for continuance will be granted when you have a photo of a swollen, bruised, battered or bleeding body part.

Happy holidays and best wishes for the new year.

Off the Back: Marketing Your Credibility Online – By Stephen Gustitis

Criminal defense lawyers are reservoirs of credibility. We work to establish it with prosecutors, judges, and witnesses… not to mention the juries who adjudge our clients’ fate. With potential new clients, from the moment they decide to call for the first consultation, until our case file is closed, credibility makes the attorney-client relationship work. Consequently, marketing our credibility is an important strategy to distinguish ourselves from the fierce competition for legal services. Although the personal referral is still the best way to establish trust with a new client, the trust-building process usually begins online as more people search the internet for goods and services. How do we utilize the internet to accomplish our purpose of building credibility and effectively marketing our services to potential clients?

It doesn’t matter whether you have a better service than your competitors if folks never get an opportunity to test your mettle. Most lawyers need an internet website presence that effectively captures attention, reflects their personal style, and begins to build credibility with a potential client. We know Google (et al.) is how most prospects locate your legal services. When a potential client clicks on your website link they have a serious problem. They are frightened, they want help, and they are very impatient. Accordingly, you have only minutes (if not seconds) to capture their incipient trust. This trust results in an appointment on your calendar. Your website presence must create an effective “first impression” or the person will quickly move on and avoid calling.

At a foundational level potential clients ask themselves “will I like this lawyer?” Attractive and interesting photographs on your website can help reveal your personality. Consider hiring a professional photographer to create high-quality action snapshots. Produce images of you working with others, walking to the courthouse, or researching at your desk. Consider photographs depicting landmarks or geographical points of interest, anything that might help you connect with the prospect. Above all, avoid “clip art” images. Clip art is prefabricated and looks false. It communicates a negative message about you. Potential clients are looking for a winner. Clip art does not communicate a winning brand. Hence, use original photographs demonstrating your success, attractiveness, and likability. Similarly, your website is strengthened by tranquil colors, appropriate white space to avoid a cluttered look, and simple navigation to thwart frustrating a person looking for information. A professional video can also effectively communicate your style and empathy for potential clients in trouble.

Next, is your website about the client or about you? Lawyer-centered websites rarely communicate empathy for the potential client. If people do not believe you care about them, they will not call. Remember that people don’t buy what you do; they buy why you do it. Consequently, avoid the trap of seeming self-absorbed and boastful. I admit there is a fine line between sell­ing yourself and appearing self-centered. I further concede that some consumers are attracted to a cocky presentation style. However, using language expressing empathy for a frightened person is the client-centered approach to marketing. Frankly, it works better. And beyond the marketing, potential clients must believe you genuinely care about their problems. So, communicate strength and compassion at the same time. Position images on your website to convey these same impressions.

Lastly, does your website content identify your expertise and competence? What questions might a person be asking? Answer those questions on your website utilizing well-organized navigation. Create content providing value to the client. In a like manner, third-party validation can build your credibility. Links to Super Lawyers, FindLaw, Avvo, and Martindale-Hubbell (etc.) signal your credibility to a potential client. Does anyone recommend you? Are there client reviews and testimonials on your website? Consider asking former clients for testimonials and utilize them with permission. Also, the importance of cultivating a strong online reputation cannot be overestimated. Your online reputation is an additional form of third-party validation. Potential callers scour the internet for reviews about you before they schedule an appointment. Sites like Avvo, Google+, and Yelp assist defense attorneys in building this auspicious reputation. Accordingly, develop office systems to regularly request positive client reviews. If (and when) you receive a negative review, address it immediately with a professional and thoughtful response.

In summary, impatient online consumers increasingly em­ploy the internet to pinpoint competent criminal defense law­yers. Although no marketing strategy is perfect, learn to use your online presence to compete in this fierce marketplace. After your website does its job, make sure you deliver what your website promised. Quickly return phone calls or emails generated from your site to schedule initial consultations. Get the client on your calendar within 24 hours, if possible. Assure that live people answer telephone calls during off-hours. Be available to the client when the client needs you!

Since we’re in the service business, the sooner we begin providing service the sooner our credibility builds. Lastly, do not forget that your website must be approved by the Advertising Review Committee of the State Bar pursuant to Part VII of the Texas Disciplinary Rules of Professional Conduct. Access the State Bar’s website for instructions on how to submit your site for review.

 “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.