Monthly archive

October 2015

October 2015 SDR – Voice for the Defense Vol. 44, No. 8

Voice for the Defense Volume 44, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

A court of appeals has jurisdiction to review the Board of Immigration Appeals rejection of a non-citizen’s motion to reopen, even when the Board rejects the motion as untimely or it rejects a motion requesting equitable tolling of the time limit. Reyes Mata v. Lynch, 135 S. Ct. 2150 (2015).

        D, a citizen of Mexico, was convicted of assault and deported in 2010. His appeal to the Board of Immigration Appeals (BIA) was dismissed after his attorney failed to file an appellate brief. D moved to reopen his case based on ineffective assistance of counsel, but the BIA denied D’s motion as untimely because it was filed after the 90 days allowed. D appealed the BIA’s denial of his motion to the Fifth Circuit and argued that the BIA should not have enforced the filing period limitation because his attorney’s failure to file a brief deprived him of due process. The appellate court held that such a motion was subject to the complete discretion of the BIA, and thus the appellate court lacked the jurisdiction to review the decision. The Supreme Court granted certiorari on this issue: Did the U.S. Court of Appeals for the Fifth Circuit err in holding that it did not have the jurisdiction to review a BIA decision not to suspend the 90-day filing limitation?

        Yes, precedent established that circuit courts of appeals have jurisdiction to review an alien’s appeal of a BIA decision to deny a motion to reopen proceedings. Although the U.S. Congress has limited the appellate courts’ authority over BIA decisions in other ways, this authority has remained in place. Additionally, while the appellate courts may lack jurisdiction to decide the merits of whether the case should be reopened, the lack of jurisdiction over that issue does not affect the appellate court’s jurisdiction over the BIA’s decision to deny the motion. The Court reversed the Fifth Circuit and remanded.

To convict a defendant of distribution of a controlled substance analogue, the Government must prove that the defendant knew that the substance constituted a controlled substance analogue. McFadden v. United States, 135 S. Ct. 2298 (2015).

        D was charged with distributing controlled substance analogues in violation of the federal Con­trolled Substance Analogue Enforcement Act of 1986, which identifies a category of substances substantially similar to those listed on the federal controlled substances schedules, 21 U.S.C. § 802(32)(A), and instructs courts to treat those analogues as schedule I controlled substances if they are intended for human consumption, § 813. Arguing that he did not know the “bath salts” he was dis­tributing were regulated as controlled substance analogues, D sought an instruction that would have prevented the jury from finding him guilty unless it found that he knew the substances he distributed had chemical structures and effects on the central nervous system substantially similar to those of controlled substances. Instead, the district court instructed the jury that it need only find that D knowingly and intentionally distributed a substance with substantially similar effects on the central nervous system as a controlled substance and that he intended that substance to be consumed by humans. D was convicted. The Fourth Circuit affirmed, holding that the Analogue Act’s intent element required only proof that D intended the substance to be consumed by humans. The Supreme Court vacated the Fourth Circuit’s judgment and remanded for that court to determine whether the error was harmless.

        As held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits, § 841(a)(1) of the Controlled Substances Act required the government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act. In other words, 21 U.S.C. § 841(a)(1) required the United States to establish that a defendant knew he was dealing with a controlled substance, and, when the substance was an analogue, that knowledge requirement was met if the defendant knew the substance was controlled under the Controlled Substances Act or Analogue Act, even if he did not know its identity. The knowledge requirement was also met if the defendant knew the specific features of the substance that made it a controlled substance analogue. The appellate court did not adhere to § 813’s command to treat a controlled substance analogue as a controlled substance in schedule I; thus, it did not apply the mental-state requirement in § 841(a)(1). Furthermore, the district court’s jury instructions did not fully convey the mental state required by the Analogue Act.

Fifth Circuit

District court erred in dismissing 18 U.S.C. § 48 charges against Ds on the ground that the statute was unconstitutional. United States v. Richards, 755 F.3d 269 (5th Cir. 2014).

        Unlike the 1999 version of § 48, which was held unconstitutional under the First Amendment in United States v. Stevens, 559 U.S. 460 (2010), the 2010 reenactment of the statute covered only depictions that were obscene under the test of Miller v. California, 413 U.S. 15 (1973). Thus, the new version of the statute covered only speech that was unprotected by the First Amendment. The Fifth Circuit also rejected Ds’ argument that § 48 violated the First Amendment under R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); although § 48 regulated a content-based subclass of proscribable speech, it did so based on the secondary effects of that speech (namely, the torture and killing of animals). Moreover, § 48 served that interest in a reasonably tailored way and was a permissible regulation of a subset of proscribable speech.

District court did not abuse its discretion in dismissing, under the Speedy Trial Act, the first indictment against D without prejudice, and thus it properly denied D’s mo­tion to dismiss the second indictment. United States v. Blevins, 755 F.3d 312 (5th Cir. 2014).

        In this prosecution for drug and gun charges, the seriousness of the charges, the absence of prejudice to D, and most of the other relevant factors weighed in favor of dismissal without prejudice.

        (2) The indictment adequately charged and gave D notice that she was being charged with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The fact that the indictment included surplus language pertaining to a “use or carrying” violation of § 924(c) was, at most, a technical defect that did not obscure which of­fense was being charged. Any ambiguity in the charge’s language was cured by the caption of the charge.

        (3) Where a penalty enhancement information under 21 U.S.C. § 851(a) was filed in connection with a first indictment that was dismissed without prejudice for a Speedy Trial Act violation, that information was no longer valid for the new prosecution resulting from filing a second indictment. The propriety of sentence enhancement thus turned on whether the penalty enhancement information filed during the second prosecution was valid; because that required the resolution of factual questions about whether D received proper notice of the second information, the Fifth Circuit vacated the enhanced sentence and remanded for a determination of whether the second information was properly filed and served on D.

        (4) District court did not err in denying D’s motions to suppress evidence; she failed to show any alleged misrepresentations in the affidavit for her arrest warrant were so significant that there was no probable cause for her arrest. Furthermore, the entry into, and search of, D’s home at the time of the execution of the arrest warrant did not violate the Fourth Amendment; the arrest warrant allowed the officers to enter the home to arrest D once they had a reasonable belief that she was there, which they did because she answered the door. Once inside, the police could reasonably perform a protective sweep. Finally, D’s consent to search was not involuntary; a suspect need not be given Miranda warnings before consenting to a search.

        (5) District court did not err in denying D’s motion to suppress statements said after she was given Miranda warnings. Unlike Missouri v. Seibert, 542 U.S. 600 (2004), there was no evidence that the Mirandized statements were the product of a deliberate earlier questioning “outside Miranda.

District court did not err in declining to suppress D’s first two confessions based on lack of prompt presentment to a magistrate; the delay was reasonable for both of those confessions. United States v. Boche-Perez, 755 F.3d 327 (5th Cir. 2014).

        Even though these confessions were made outside the six-hour “safe harbor” period set in 18 U.S.C. § 3501, such con­fessions still do not warrant suppression if the delay was reasonable under the pre-§ 3501 McNabb/Mallory line of cases. The Fifth Circuit declined to address the third confession because, even if it should have been suppressed for lack of prompt presentment, the error was harmless; furthermore, the confessions were all voluntary. Finally, the failure to give fresh Miranda warnings before the last confession did not taint that confession, because D had been given Miranda warnings before each of his two earlier confessions; additional warnings were not required.

District court did not err in denying D’s motion to suppress his interrogation video because the totality of the circumstances supported the conclusion that D was properly apprised of his Miranda rights and that his confession was knowing and voluntary. United States v. Anderson, 755 F.3d 782 (5th Cir. 2014).

        (2) In this prosecution of D for aiding and abetting bank robbery (in violation of 18 U.S.C. §§ 2113(a) and 2), where a po­tential defense witness (an uncharged passenger in D’s car the day of the robbery) initially agreed to testify for D but then changed his mind and exercised his Fifth Amendment right not to testify, there was no viable claim of governmental interference with the defense witness because an on-the-record colloquy between the witness and his attorney showed that the witness’ decision not to testify was a result of a deliberative pro­cess free and clear of government intimidation.

        (3) District court did not err in refusing to admit evidence that pleading co-defendant had robbed another bank about two weeks before the robbery that was the subject of the trial here; district court did not err in refusing to admit the interrogation video of an uncharged passenger in D’s car because D did not establish why the interrogation video fell under a hearsay exception; finally, district court did not err in excluding evidence of pleading co-defendant’s mental condition because D did not provide any reason why this was error.

        (4) Prosecutor’s argument that an uncharged participant in the bank robbery was facing life in prison in state court was improper because it referenced facts not in evidence at trial; however, that improper comment did not warrant reversal because (i) the jury was instructed to disregard the comment and was several times instructed that the attorneys’ arguments were not evidence; (ii) the comment had nothing to do with D; and (iii) the other evidence of D’s guilt was more than sufficient to convict D.

        (5) District court did not err in sentencing D as a “career offender” under USSG § 4B1.1; although Texas burglary of a habitation is not necessarily the generic “crime of violence” of “burglary of a dwelling” under USSG § 4B1.2 (because Tex. Penal Code § 30.02(a)(3) is not generic “burglary”), here the judicial confession from D’s prior Texas case makes clear that D pleaded guilty to an offense that meets the elements of generic burglary.

D was not entitled to a certificate of appealability on his claim of prosecutorial vindictiveness because there was no evidence of actual vindictiveness. Jordan v. Epps, 756 F.3d 395 (5th Cir. 2014).

        Where (1) Mississippi capital defendant entered into an agreement for life without parole in exchange for his promise not to challenge his sentence, (2) but then he successfully challenged his sentence on the ground that life with parole was not a permissible statutory option at the time, and (3) on remand, the prosecutor refused to offer the same life-without-parole agreement, and successfully sought a death sentence at trial, D was not entitled to a certificate of appealability (COA) on his claim of prosecutorial vindictiveness. The fact that the prosecutor refused to enter into a new sentence agreement due to D’s previous violation of his agreement not to challenge his sentence did not establish actual vindictiveness. Nor did D make out a claim of presumptive vindictiveness; under Fifth Circuit law, no presumption of vindictiveness arises where there is no change in the charges filed or punishment sought. Here, D was always subject to the death penalty that was ultimately imposed on him.

One D’s challenge to venue was waived by his failure to specifically make a venue argument in his motion for judgment of acquittal; even if it were not waived, venue was proper in the Eastern District of Texas because venue is proper in conspiracy offense in any district where the agreement was formed or an overt act occurred. United States v. Rodriguez-Lopez, 756 F.3d 422 (5th Cir. 2014).

        (2) In this prosecution for conspiracy to distribute marijuana, it was improper for prosecutor to refer, in closing argument, to second D’s counsel as “lend[ing] [his] credibility to representing drug traffickers and firearms dealers[.]” “Disparaging defense counsel’s motives for representencing a criminal defendant is a foul blow.” However, the district court did not abuse its discretion in denying second D’s motion for a new trial on the basis of this remark, given the district court’s prompt rebuke of the remark, the curative instructions given, and the strength of the evidence against the second D.

        (3) District court clearly erred in applying to second D, pursuant to USSG § 3B1.1(b), a three-level enhancement for managerial or supervisory role in the drug conspiracy.

District court reversibly erred in denying D’s motion to correct his presentence report under Fed. R. Crim. P. 36. United States v. Mackay, 757 F.3d 195 (5th Cir. 2014).

        Fed. R. Crim. P. 36 permits a district court “at any time [to] correct a clerical error in a judgment, order, or other part of the record.” Because the presentence report (PSR) affects the right and obligations of the defendant, it is of like kind or character as a “judgment” or “order,” and thus is embraced by the term “other part of the record” as used in Rule 36. Moreover, the error in the PSR—referring to D’s drug convictions as involving cocaine, not marijuana—was not harmless; the Fifth Circuit reversed the district court’s order denying correction of the PSR and remanded with instructions to the district court to correct the clerical error in the PSR.

Court of Criminal Appeals

The search warrant affidavit for the residence, minus the drug-dog’s alert, established probable cause because the tip came from a concerned, good citizen whose detailed information was verified; also, one of­ficer smelled marijuana at the front door of the residence, and the other officer smelled marijuana on D and in D’s car after he saw D leave the residence with the suspected marijuana-growing operation. State v. Cuong Phu Le, 463 S.W.3d 872 (Tex.Crim.App. 2015, reh’g denied).

        “This case involves a search warrant based in part upon an alert from a drug-detecting dog. After the execution of the search warrant, but before a hearing on the motion to sup­press, the United States Supreme Court held in Florida v. Jardines[, 133 S.Ct. 1409 (2013)] that law-enforcement officers’ use of a drug-sniffing dog on the front porch of a home without a search warrant violated the Fourth Amendment. Consequently, this Court must determine whether the search-warrant affidavit—minus the drug-dog’s alert—clearly established probable cause. The trial judge held that it did not, and the court of appeals agreed. . . . We reverse because we find that when looking at the warrant affidavit as a whole, the independently and lawfully acquired information stated in the affidavit clearly established probable cause.”

D’s sentences should run concurrently because the remand for a new punishment hearing in D’s aggravated-robbery case caused the aggravated-robbery sentence to be removed from the stacking order, and the trial court did not choose to stack the new sentence onto the sentence in D’s heroin case. Ex parte Vela, 460 S.W.3d 610 (Tex.Crim.App. 2015).

        D was convicted of aggravated robbery and sentenced to life in prison. He was also convicted of possession of heroin and sentenced to 60 years. The trial court ordered that the heroin sentence be “stacked” onto (run consecutively to) the aggravated-robbery sentence. D appealed his aggravated-robbery conviction, and the case was reversed and remanded for new punishment. At the new punishment hearing, he again received a life sentence, but the trial court did not issue a new stacking order with respect to the heroin sentence. Applicant here complained that the Texas Department of Criminal Justice was treating his heroin sentence as if it were stacked onto the aggravated-robbery sentence. He claimed that once the aggravated-robbery case was reversed, it vanished for stacking purposes. He further contended that because the court did not issue a new stacking order with respect to the heroin sentence when he was re-sentenced for the aggravated robbery, the heroin and aggravated-robbery sentences should run concurrently.

        CCA granted habeas relief: “We filed and set this habeas application to determine what effect granting a new punishment hearing has on a stacking order. We conclude that the granting of a new punishment hearing removes the sentence from the stacking order. Because the trial judge in the present case did not issue a new order stacking the new sentence in the re-sentenced case onto the sentence for an existing conviction, applicant’s sentences are running concurrently.”

D’s convictions for indecency with a child by contact did not violate double jeopardy; a single count alleging sexual contact was not subsumed by a count alleging penetration because evidence of multiple incidents, of both contact and penetration, could have formed the basis for each count. Maldonado v. State, 461 S.W.3d 144 (Tex.Crim.App. 2015).

        D was convicted of 12 counts of aggravated sexual assault of a child and indecency with a child and sentenced to life in prison. COA vacated two of the convictions for indecency with a child on double jeopardy grounds. The State filed a petition for review, which CCA granted to consider whether the subsumption theory of Patterson v. State, 152 S.W.3d 88 (Tex.Crim.App. 2004), was still valid and if so, whether a single count alleging sexual contact is subsumed by a count alleging penetration when there is evidence of multiple incidents of penetration which could have formed the basis for each count. CCA reversed COA.

        “[T]he jury was presented with evidence of multiple instances of conduct involving different acts at different times over a span of many years. Thus . . . the jury very well could have found completely separate acts of indecency with a child by touching and aggravated sexual assault by penetration. We considered whether separate acts of indecency with a child were jeopardy barred in Loving v. State, 401 S.W.3d 642 (Tex.Crim.App. 2013). In Loving . . . the defendant’s indecency-by-exposure conviction was not jeopardy barred because the defendant’s conduct violated the indecency-with-a-child statute two separate times, both by contact and by exposure. . . . [COA] should have followed Loving rather than Patterson. Patterson is properly applied when, under the facts of the case, the jury could not have found separate offenses or separate acts. In Patterson, the exposure was not separate from the penetration and the legislature did not authorize separate punishments in that situation. . . . An offense may be factually subsumed when there is a single act that cannot physically occur in the absence of another act. . . . While it is true that penetration cannot physically occur in the absence of contact, the contact offenses here are not factually subsumed because there was evidence that separate and distinct indecency-by-contact offenses occurred at other times in addition to the contact associated with the penetration offenses. . . . Patterson is still valid but subsumption does not apply to the facts of this case.”

Due process did not prohibit the trial court from revoking D’s probation after a second revocation hearing, based on grounds that the trial court was aware of but did not consider at the first revocation hearing. Tapia v. State, 462 S.W.3d 29 (Tex.Crim.App. 2015).

        On two separate occasions appellant was brought before the trial court on motions to revoke deferred adjudication com­munity supervision and adjudicate guilt. After appellant’s first revocation hearing, the court continued appellant on deferred adjudication community supervision but sanctioned him to 21 days in jail. At the second revocation hearing, based on a new motion filed by the State, the court revoked ap­pellant’s community supervision, adjudicated him guilty of aggravated assault, and sentenced him to five years in the Texas Department of Criminal Justice—Institutional Division. COA reversed. CCA reversed COA.

        The trial court did not violate D’s due process rights when it revoked his community supervision under Tex. Code Crim. Proc. art. 42.12; COA erred by holding that it did, where the revocation occurred after a second revocation proceeding and was based on newly alleged drug and alcohol violations. Even though the trial court, the State, and D were aware of the purported drug and alcohol violations at the first hearing, such violations were not alleged in the first written motion to revoke and no evidence was presented at the first hearing in support of such violations; it was clear that the trial court had intentionally not taken the drug and alcohol violations into consideration when it made the decision to continue D’s community supervision after that first hearing.

Questions asked in a custodial interview about D’s name and phone number did not fall within the booking exception to Miranda; D’s name and phone number had incriminating value in themselves and did not simply lead to other incriminating evidence, as the detectives informed D that they had several names for him. State v. Cruz, 461 S.W.3d 531 (Tex.Crim.App. 2015).

        COA erred by reversing the trial court’s order suppressing the statements D made during a police interview relating to a murder charge. “We arrive at this conclusion because, though the questions may have been the type that would be asked during a booking procedure, the questions were not asked during a booking procedure, and the circumstances did not otherwise reveal that the questions were reasonably related to an administrative purpose. We also conclude that [COA] erred in holding that questions about the defendant’s name and phone number did not constitute interrogation. Consequently, we reverse [COA].”

D’s request for a pretrial determination of intellectual disability did not call for the execution of a ministerial act, and so COA erred in granting mandamus relief to the State to stop these pretrial hearings. In re Allen, 462 S.W.3d 47 (Tex.Crim.App. 2015).

        Facing two capital-murder charges, D sought a pretrial hear­ing requesting the trial judge determine whether he was in­tel­lectually disabled and thus exempt from the death penalty if convicted. Over the State’s objection, the judge granted the motions for a pretrial hearing. COA granted the State mandamus relief, finding the judge acted outside his authority. CCA conditionally granted D’s petitions for writ of mandamus to COA; the writs would issue in the event that COA failed to comply with this opinion.

        The uncertainty surrounding intellectual-disability determinations prevents labeling the judge’s actions a violation of a ministerial duty. It was error to grant the State mandamus relief finding a trial judge had no power to grant D’s motion for a pretrial determination of intellectual disability in capital murder cases because existing law did not support the conclusion, nor was it proper to interpret statutes, clarify precedent, or create law in a mandamus proceeding. Tex. Code Crim. Proc. art. 37.071, § 2, did not apply because, if a trial judge found a defendant exempt from the death penalty pretrial, the State no longer sought it. D’s motion was not nonjusticiable for lack of ripeness because the State’s death penalty notice had an immediate effect. Finally, when the trial judge was succeeded by another judge, Tex. R. App. P. 7.2(b) did not require abatement for the successor’s response because it did not apply to a Tex. R. App. P. 72 petition that was in front of CCA.

The jury should have been instructed pursuant to the jailhouse-witness corroboration statute because jailhouse witnesses testified to statements against D’s interest. Phillips v. State, 463 S.W.3d 59 (Tex.Crim.App. 2015).

        D was convicted of aggravated robbery. On appeal, D ar­gued that the trial court erred by failing to include a jury in­struction pursuant to the jailhouse-witness corroboration statute, Tex. Code Crim. Proc. art. 38.075(a). COA held that the trial court did not err, concluding that Article 38.075(a) did not apply because the jailhouse witnesses did not testify to any statements made by D that were “statements against [D’s] interest.” CCA vacated COA’s judgment and remanded for COA to conduct a harm analysis and address the remaining issues raised on appeal.

        The court should have included an Article 38.075(a) instruction in the jury charge because jailhouse witnesses testified to statements that were against D’s interest, in that he purportedly asked them to lie for him. A statement made by a defendant to a jailhouse witness can be against the defendant’s interest even if it does not expose the defendant to criminal liability. A statement that is against a defendant’s interest for purposes jailhouse-witness corroboration is one that is adverse to the defendant’s position. Here, the jailhouse witness’ testimony could be interpreted as evidence that D somehow tried to persuade them to say that they heard another man make comments indicating that he committed the robbery on his own—in other words, that D asked them to lie to help his position. That was precisely what the State argued to the jury: “Does an innocent person go around the jail asking people he’s just met to sign affidavits and lie for him?” CCA found that “D’s purported requests of the jailhouse witnesses to lie for him were offered against D at trial, can most certainly be interpreted as being adverse to his position, and thus were statements made by [D] to [the jailhouse witnesses] that were against [D’s] interest.”

Court of Appeals

Trial court reversibly erred by admitting into evidence the State expert’s retrograde extrapolation testimony under Tex. R. Evid. 702 during D’s DWI trial because the State failed to prove that the extrapolation was reliable. Veliz v. State, No. 14-14-00057-CR (Tex.App.—Houston [14th Dist] Aug 18, 2015).

        D appealed that the trial court erred in admitting retrograde extrapolation testimony because the State failed to demonstrate by clear and convincing evidence that the analysis of the testifying expert reliably assessed D’s blood alcohol concentration at the time he was stopped. COA agreed that the court erred in admitting the testimony; the expert did not explain her calculations or the science with clarity, she could identify few, if any, personal characteristics of D, and the only test was performed three-and-a-half hours after the stop. COA further held that the error affected D’s substantial rights; the error was not harmless given the State’s reliance on the expert’s testimony during closing arguments, the powerful persuasive effect of the testimony, the subjective nature of field sobriety tests, and the testimony undermining the non-extrapolation evidence of intoxication. COA reversed and remanded for a new trial.

D was egregiously harmed by jury-charge error that allowed the jury to arrive at a non-unanimous verdict where the two indicting paragraphs alleged two ways of committing the single offense of penetration. Williams v. State, No. 06-14-00219-CR (Tex.App.—Texarkana Sept 3, 2015).

        The trial court’s jury charge improperly allowed the jury to arrive at a non-unanimous verdict where the two indicting paragraphs alleged two ways of committing the single offense of penetration in Tex. Penal Code § 22.021(a)(1)(B)(i), the State presented evidence of two penetrations, as the complainant testified that D penetrated both her anus and her sexual organ, and the jury charge failed to require the jury to reach a unanimous verdict on the way D committed the crime. The error was egregious because there was compelling evidence presented that D sexually assaulted complainant in both manners alleged in the indictment, and the State erroneously explained that some of the jurors could find that D engaged in vaginal penetration while others could believe that he committed anal penetration. COA reversed and remanded for a new trial.

Going to Prison in Texas in 2015, Part 2

Going to Prison in Texas in 2015, Part 1” was featured in the September issue of the Voice.

IV. Some Special Considerations for Women

In the men’s units there are gangs, which we will discuss later. Women have their form of gangs too, but more often women gather together in groups based on relationships. A woman entering the Texas prisons should be just as cautious of quickly forming close relationships with other women or groups of women as should men be careful when considering the offers to join a gang. Gang members exist on the women’s units, but are not as prevalent as on the male units. Familial-type relationships seem to be the norm on the female units. In many ways, the approach can resemble the invitation to be in a gang, but it’s more of a one-on-one relationship. Women are more emotional creatures, and the stronger women will play on the emotions of the weaker ones, and will particularly set traps for a new offender. The pitch may be for protection, for so-called friendships, or need to ease the loneliness by having an emotional closeness with another person—and this can include a sexual relationship. Do not get that close to anyone for any reason.

New offenders are prime targets, especially those who go to the commissary regularly and get mail and visits on a regular basis. There are plenty of women who have been there for a long while, and they look for this. Perhaps they don’t have the support and the assistance the new offender has, and perhaps they are looking for that. Don’t go for it. Take your time, watch those who try to befriend others, and after close observation, pick your friends carefully.

Women in prison are notorious for taking a personal relationship with another offender extremely seriously. Do not think that the approach from another female offender is really about love or caring, because it is not. It is about control. If the “user” feels that the other party is pulling away, wants out of the relationship, or that there is an interest somewhere else, watch out. If there is a threat of loss of control of the relationship, there are instances where the offender pulling away has been beaten up or cut up over an attempt to cool off a relationship with another offender. Women in prison can be very petty and jealous and every bit as violent as any male prisoner.

Women in prison also intimidate or try to loudly “out talk” others by getting in their face. If this happens, do not respond and do not react. Reaction is exactly what the other party is looking for. An angry response or reaction gives the other offender the excuse to start a fight. Ultimately, following this advice will result in respect, and others will stop trying to bait the newer offender.

V. Standards and Behavior

A. Keep Your Business to Yourself

The best advice for newly entering men and women offenders is to OBSERVE, OBSERVE, OBSERVE. While observing, always keep in mind that you are also being observed, not just by other offenders, but by those who guard and manage the prison as well. Never comment on an incident that doesn’t involve you. If it’s not your business, avoid having anything to do with it.

I again recommend that offenders not discuss their case with anyone other than officials and committees, and then only when your file is on the table. Of course if your case is on appeal, do not discuss your case with anyone without your lawyer’s consent. If you talk about your case, an offender can be potential witness against you for any admission you make. Secondly, there is a pecking order in the prison. Everybody needs someone to look down on in prison. The offender who used a child for sex is considered the lowest of the low, as are rapists or any offense of a sexual nature. Offenders should not discuss the facts of their case, nor events surrounding the case. For example, if the conviction is of a sex offense involving a child, the last thing in the world that should be done is to tell another offender. It is no one else’s business anyway, and it is considered extremely disrespectful to ask another offender about his crime.

B. Old Joe or JoAnn Wants to Be My Buddy

The best advice I can give in this area is that when an offender tries to warm up to another, or do a favor, or ask a favor, it could lead to trouble. For example, if someone says, “take this envelope down the hall to that cell down there,” don’t do it. What if the contents of that envelope include an escape plot? If the escape plan is later discovered, and it becomes known you acted as delivery boy for the plot by passing the plan from one offender to another, you could wind up in serious trouble. Getting out of that kind of trouble could be real problems for the innocent offender, and could include new criminal charges. The point here is this: One goes into the prison alone, and one comes out alone. Nobody can do time for another. The rule is, “Do your own time.”

At times a correctional officer will befriend certain offenders. If this appears to be happening, watch out because it is dangerous for both the guard and the offender. Guards, like offenders, have good days and bad days. Guards are not supposed to develop any kind of personal relationship with offenders. The friendly guard that was kidding around yesterday is going to be the same one that writes you a disciplinary action today for the same behavior that was previously considered acceptable.

C. Hygiene, Grooming, and Clothing

If the new offender is thrown in a cell situation with someone who fails to meet good standards for cleanliness and good grooming, the first thing to do is to talk to that person to see if the matter can be resolved. If not, then the next step is to “go to someone with ‘rank.’“ Rank is someone at the level of lieutenant or above. Don’t go to a corrections officer with a complaint like this. They don’t want to be bothered. The offender should talk with a ranking officer.

It is a common error for other offenders to gang up on an offender who does not maintain an acceptable level of cleanliness or grooming. It is a terrible mistake to get involved in such an effort to fix the problem. There is a high likelihood that the attacking offenders will get a disciplinary action (or worse), and it will cost each of them a loss of class or time credit. In prison there are too many acts of retaliation among the offender population, and among offenders and employees. Seldom does any offender ever win in these situations.

An offender who keeps his appearance and living area neat, showers every day, and grooms himself reasonably well will likely be respected by other prisoners for the way he presents himself. He will also be healthier. Prison is rampant with diseases like hepatitis and staph infection. Like any enclosed place with lots of people in it, colds and viruses travel rapidly. Keeping yourself as clean as possible is the best way not to get sick. You should especially get used to washing your hands several times a day. Most prisoners are free to shower anytime they are in their cell block or dorm, and soap is free in TDCJ.

One of the daily rituals in regular TDCJ facilities is the daily change of clothing. As we said earlier, a set of boxer shorts, socks, and a set of white pants, shirt, towel, and rag will be issued, and each day there is a time at which these will be exchanged for a clean set. Clothing exchange may deviate from the norm in transfer facilities. Another exception to clothing exchange occurs if the unit is going through a “lock down,” when entry, exit, and movement within the prison is restricted and offenders are required to remain, for the most part, inside their cells. Clothing exchanges are rare during a lockdown.

D. What Is a Prison Lockdown?

Most people associate a prison lockdown with a riot, a prison break, or some major crime that has occurred and has heightened security at the unit. More often, lockdowns are a result of a routine unit security shakedown to search for weapons and other contraband. During lockdowns the entire unit will stop any and all offender traffic during such searches. The lockdown may involve one or more units. It can even be system-wide. During a lockdown, the offenders will be staying in their cells. Food in paper sacks called “johnnies” is brought up and served in the cell block. Lockdown status can last hours or days and weeks. At these times, clothing will not be exchanged every day. Times such as lockdown are when it is really important to have a good supply of hygiene and foodstuffs. Every prison has one lengthy lockdown per year while the entire facility is searched for contraband.

VI. Prison Life

A. Dorm Living and Cell Blocks

Some prisons have dorm-like living conditions, with each wing housing about 90 offenders. The bunks can be two high and very close together. When the offender first goes into prison, he will be housed in a dorm until he is assigned to a “real prison,” where most offenders live in two-man cells. Single cells are generally reserved for restrictive maximum-security situations. In “real prisons” there are rows of cells like you see in the movies. When you walk down the cell row, do not look into any cell except your own. What is going on in another cell is not your business. Never go into a cell that isn’t yours, even if invited. It is against the rules to be in any cell you are not assigned to.

B. The Chow Hall

The food in TDCJ is tolerable. The calorie content, fat, starch, and cholesterol levels are high. The meat is usually processed, and there are rarely any fresh vegetables. As in most institutional settings, everything is overcooked and devoid of flavor. However, the food in prison is generally much better than that in most county jails. Service is cafeteria style, with offender waiters refilling pitchers of water and tea. Breakfast is usually at 3:00 a.m., lunch around 10:00 a.m., and dinner at 4:00 p.m. Get used to eating fast. Guards like to run offenders through the chow hall quickly, and you usually have less than ten minutes to eat before a guard will tell you to get up.

C. Day Rooms

The day room is the center of any cell block or dorm. It is where offenders play games, watch TV, and visit. The day room has several metal tables and rows of benches in front of the two televisions. The noise can be deafening. Consider two televisions 15 yards apart, on different channels, turned to maximum volume. The programming is determined by a show of hands of the offenders who are sitting on the benches. If you like sports you’re in luck, but offenders do not watch a lot of news or educational programs. The most popular pastime other than watching television is playing dominoes. Scrabble and chess are also popular. When offenders play dominoes, it is a prison tradition to slam the dominoes against the steel table. The racket made by this eventually gets to where it really rides on the nerves. Several people slamming dominoes on multiple steel tables in addition to two competing televisions amongst twenty loud conversations makes a great deal of noise. Most prison commissaries sell earplugs because it can be very hard to sleep when the day room is full. As stated previously, this is also where the telephones are placed.

The day room is also where most fights occur. Many start over a disagreement about what to watch on TV. When a fight breaks out in the dayroom, you should head to your cell. One-on-one fights often evolve into riots, and in such cases the guards will simply write up everyone in the dayroom for fighting. If questioned by a guard about how a fight started, always say you didn’t see anything.

D. Recreation Yards

One advantage to prison is that you can get in pretty good shape there. Most rec yards have universal-style weights and basketball, volleyball, and handball courts. Many offenders exercise by walking or jogging around the perimeter of the yard. The recreation yard is also a place for offenders to meet and a place for trouble to develop. Just as in the day room, the innocent can be caught up in something he had no part in. TDCJ has a long history of disciplining everyone on the yard when trouble occurs. If trouble starts, get away from it, and stand with your back to the fence. Most offenders are called out for recreation several times a day. Most “real prisons” also have gyms, but they are not frequently utilized due to staff shortages.

E. Commissary

Your TDCJ ID card will have a magnetic strip on the back that works like a debit card. Purchases are limited to $95 every two weeks. Most prisoners are allowed to go to the commissary once a week, at the discretion of the unit. The items are similar to what you might find in a convenience store, but the prices are much lower in prison. $95 buys a lot of stuff. When a purchase is made at the commissary you’ll be issued a receipt. Keep recent receipts in a safe place as you may be asked to prove you bought the items in your possession. Never drop it in the trash, where it can be found by other offenders. Old receipts should be flushed. The receipt has valuable information on it, such as your TDCJ number and your account balance.

Some commissary items are designated as “special purchases.” These are items like tennis shoes, radios, hot pots, and fans. Offenders are allowed to possess only one of each of these items, and the warden must pre-approve each special pur­chase.

Effective September 1, 2012, the TDCJ Commissary and Trust Fund Department initiated a direct purchase program for friends and family member to allow them to make online purchases for offenders. The purchases will be made from an existing product line, with new products to be added later. Offenders can receive items purchased (through eComm) by family or friends in an amount up to $60 per calendar quarter. Offenders who are placed on commissary restrictions will not be eligible to receive commissary items from direct purchase.

This program will be accessible either through a link on the TDCJ website or the website. The merchandise purchased will be distributed to the offenders from the commissary at their unit of assignment.

F. Race Relations

One of the most regrettable issues in prison life all over the United States is pervasive racial animosity. It would be improper to lay blame for this on any group. Just remember that in prison, race is among the greatest of serious problems. Each offender must determine how he or she will deal with this issue. The U.S. Supreme Court proclaimed that prison cells must be integrated, so you will likely always be celled with a person of another race. The only exceptions to this rule are for security or other valid penal causes. Gangs in prison are racially based, and can be violent. Disagreements regularly arise over race and culture. Again, this is not just a problem in the Texas prisons, but all U.S. prisons. At the same time, I have come to seriously contemplate whether many prison administrators give tacit approval to racial separation in order to “keep the enemy divided.” Offenders seem to let their negative perception override the logical prospect of power that offender unity could bring to the prison system. It appears that both offenders and administrators are at fault in this regard, but I do not believe that the situation will change in my lifetime.

G. Hall Rules

The hallways and other traffic corridors in prison have yellow lines about two feet from each side of the wall. Offenders must always walk between the wall and the yellow line with their right shoulder nearest to the wall. The middle of the corridor is reserved for prison employees. The only time offenders are allowed to walk in the middle of the corridor is when being escorted by guards.

H. Personal Property

Different prison units have different types of storage space. A problem developed in TDCJ for offenders being transferred from a unit with a good amount of storage space to a unit with less space. In some cases there was no room for all of the offender’s belongings. Therefore, TDCJ developed a regulation limiting each offender to an area of approximately two cubic feet to store all personal items. Don’t buy more than you can store. If your property doesn’t fit into the limited area provided, prison employees are authorized to take it away. These regulations might be enforced with some latitude. Some wardens don’t enforce it at all. Also, if one has a complicated legal case that is on appeal, one can apply for more space in which to store the legal material. But this is a cumbersome process, and if the additional space is not absolutely necessary, do not get involved with applying for more space.

You should put a lock on the assigned TDCJ storage box. Plastic locks are sold at the commissary for ten dollars. Prison officials have a master key to all the locks, so they can search as necessary. However, as a general rule, guards are not supposed to open your storage box without you being present. The advantage to having a lock is so you can keep your things reasonably secure from other offenders.

H. Gangs

Gangs are a major problem in prison. They usually form around racial lines. It is very important for a new offender to remember upon entering prison that he will be viewed by some gang as a new prospect. It is not unusual that a new arrival will be approached by another offender who will try to get the newcomer indebted to him in some way or to recruit the new offender into a gang. They may offer protection from assault or blackmail. It is important to reject these entreaties. Gangs demand total loyalty and will eventually demand money, sex, or participation in some criminal activity. Gangs are the source of most criminal cases in prison. Offenders in gang are much more likely to get in trouble, and even membership in some gangs causes prison officials to place known members in administrative segregation—even if that offender hasn’t done anything that would normally merit solitary confinement. Perhaps of greatest importance, it will be very difficult for a gang member to be approved for parole once a gang tag is applied.

Those entering TDCJ with gang tattoos will be classified as gang members and placed in administrative segregation if their tattoo represents one of the “security threat groups” (STG). The list of STGs changes from time to time.

The only way to be returned to the general population once classified as a gang member is to formally renounce gang affiliation through the Gang Renunciation and Disassociation (GRAD) Program. Details are available on the TDCJ website.

I. Fighting

Fist fights are very common in prison. For younger prisoners they are often unavoidable. Older prisoners are usually not bothered, but at many prisons, it is not uncommon for a new arrival to be challenged. If this happens, the best thing to do is to try to defend yourself. If you refuse to fight, then you will be perceived as weak, and everything you have may be taken from you. Once an offender shows he will fight back he is rarely forced to prove it a second time. Never use anything but your fists. If you use anything but your fists—even a cup or a shoe—that may be considered “fighting with a weapon,” and that is a major disciplinary offense and may affect your parole date.

J. Jailhouse Lawyers

Jailhouse lawyers, often called “writ writers,” are offenders who are self-taught as lawyers. They seldom, if ever, have any actual legal background. Watch out when relying upon their representation or assistance. The law has changed regarding how many times you can appeal your conviction. You have only one chance at a writ of habeas corpus action. If the writ is not professionally done, end results can be horrible. One could waste this opportunity on a frivolous claim while a valid cause would be forever lost. Offenders should avoid allowing jailhouse lawyers from being involved in their case. In addition to the legal ramifications, using a jailhouse lawyer gives another offender information about your case that can be used to your detriment. I admit that in 40 years of practice in this area I have learned some things from jailhouse lawyers. However, I have spent more time correcting their work than learning from their expertise. The new convict only gets one opportunity for an appeal or one writ of habeas corpus, so it is best not to use a jailhouse lawyer with no legal education as the vehicle to travel down the post-conviction road. The prison does have a public defender service. Several lawyers in our firm have worked in that office. While it is a fact that the TDCJ has economic control over that office, there have been some excellent lawyers employed there. If you’re charged with a criminal case while in prison, a lawyer will be provided.

K. Grievances

If something goes wrong and you want to complain about it, the prison has a grievance process. If you are seriously mistreated and want to file a law suit against the prison or its employees, current law generally requires that one must exhaust all administrative grievance remedies before you can go into court. It does not matter whether it is a medical problem, a job loss, or lost good time through a disciplinary action, you must exhaust all administrative grievance procedures. There should be no fear to file a grievance if one believes it is justified. Offenders should pay close attention to what can and cannot be remedied through the grievance process. That is contained in the Offender Orientation Handbook. Also, the grievance process should only be used in very serious matters. Most problems are better solved informally by speaking to a ranking officer or writing the warden.

VII. Program Participation

A. Individualized Treatment Program

Participating in programs is not only the way to improve one’s life during and after prison; it also helps demonstrate that one is worthy of parole. The process of getting into programs starts almost immediately. Within the first 180 days of incarceration, a sociologist or a counselor prepares the offender’s Individualized Treatment Plan (ITP). This plan is placed into the offender’s file, but the offender may never see it. A case manager will typically advise the offender what programs they should complete, and what is available on their unit. The prison will expect an offender to complete the ITP courses recommended in the Individualized Treatment Plan. Common programs include substance abuse and anger management classes. Prison programming is extremely important when it comes to parole. I have had parole board members tell me that their policy is that an offender’s failure to accept or participate in a program can cause them to vote no. So whatever they tell you to take, take it. It may sound like nonsense, but one wants to pay close attention to the direction one has been provided. Otherwise the offender will be telling the Parole Board he is not interested in being released. However, if it is impossible to get into a program in the ITP, do not panic. The Parole Board recognizes that it is not always possible to get into the courses one needs according to the ITP. If an offender demonstrates that he has done all within his power to participate, the Board will not hold factors beyond his control against him.

B. Self Help

There are a lot of self-help programs in prison. Many prisons have frequent religious services and weekly Alcoholics Anonymous/Narcotics Anonymous meetings. Most people in prison are there because of some kind of substance abuse. Prison is a good place to address these issues through religion, A.A., or both. There is typically no official record of who attends church or A.A., but those who attend these meetings tend to be a little more agreeable and have a better attitude than the average prisoner. Also, people in the community usually attend these meetings, and it is a nice change of pace to interact with people who are not viewing life through prison bars. At the same time, religious services are times when many offenders gather in a single location, and as explained previously, that can be the opportunity for improper activity.

C. Chaplaincy

Every prison has a chaplain, although smaller units may share a chaplain. They represent most major religious denominations but nearly all of them are Christians. Those ministers who work in prison have a great challenge, and while they are limited by the prison in their ability to be as helpful as many would like, they are there to assist. If there is an emergency, the chaplain is the person the offender should seek out if the issue is a personal problem. It will be the chaplain who will come to an offender with a message of a death or serious illness in the family, and it is the chaplain who can arrange a special telephone call home in a family emergency. Our office has had many interactions with prison chaplains, and for the most part, they have been helpful. You should get to know the chaplain on your unit.

VIII. Parole and Mandatory Supervision

This section could be a book by itself, so I am only going to hit the high points. Getting out of prison is every offender’s goal. Parole and mandatory supervision are the two most likely methods leading back to the free world. For offenses committed after September 1996, all mandatory supervision is discretionary—which means there is no longer anything mandatory about it. Parole eligibility is determined in two ways. Initially one’s parole eligibility is determined by statutes. If a conviction involved a weapon or was one of several serious violent crimes, generally one will not be considered for parole until one half of the sentence is served, day for day. Generally, if the conviction is for a nonviolent crime and no weapon finding was made, one must earn one fourth of the sentence, with good time being applied to that calculation. Each parole consideration, after that initial consideration, is determined by the date of the decision of the parole panel who last voted the case.

A. Parole Panels

Over the years the Texas Board of Pardons and Paroles has gone through substantial statutory changes. There are now seven members of the board and fourteen commissioners who also vote. Each panel has one board member and two commissioners. To be paroled, most offenders need two of the three votes on that panel. If the conviction falls under one of the crimes known as Senate Bill 45, cases there is a different rule. Senate Bill 45 cases include:

1)   A life sentence arising from a parole-eligible capital murder charge;
2)   Aggravated Sexual Assault;
3)   Indecency with a Child by Contact, and
4)   Continuous Sexual Abuse of Young Child or Children;
5)   Continuous Trafficking of Persons; or
6)   Offense requiring 35 calendars for parole eligibility under Tx. Gov’t Code Section 508.145(c)

The statute regarding Senate Bill 45 cases requires two thirds of the seven board members to favorably consider the case. However, that is not exactly how things work. Since two thirds of seven equals a number that is more than four and five, the board has adopted a rule requiring that one subject to parole consideration fails if there are three negative votes out of the seven. In other words, if convicted of the three above-mentioned crimes, then all seven Board Members vote the parole case. If three of them vote to deny parole, one will not be paroled. At this writing this issue has not been tested in the courts.

B. Parole

Unless one is convicted of an offense listed as a 3g offense or Engaging in Organized Criminal Activity (TPC 71.02) or Directing Activities of Criminal Street Gangs (TPC 71.023) or Continuous Trafficking of Persons (TPC 20.A03), one will be parole-eligible when earned credit equals one fourth of the total sentence, with credit for any good time earned applying to that time. Being parole-eligible does not mean one will automatically be paroled. It means you have a chance. If you have a 3g sentence—meaning a weapon was involved—or a serious crime of violence is involved without a weapon—such as aggravated sexual assault—then one has to serve half the total sentence before being considered for parole.

In Texas to terminate a sentence, one must serve each and every day imposed in the sentence. For example, even if good time credit toward parole eligibility is acquired, that good time credit is not deducted from the sentence termination date. So, if one has a ten-year sentence and is released after three years of flat time, one will still owe a seven full years under parole supervision.

Few offenders make first parole, so do not count on it. After one is denied parole, the parole board will set the next date for one to be again considered for release. The board may set off the next parole consideration for up to five years if the conviction is for an offense not eligible for mandatory supervision, and SB 45 cases carry a mandatory three years set-off. The minimum set-off for all other cases is one year.

Drug cases with an affirmative finding that they occurred in a drug-free zone carry a five-year minimum for parole eligibility.

C. Mandatory Supervision

So long as one’s offense is eligible for mandatory supervision, there is another option for releases to supervision. Mandatory supervision applies when one’s flat time (day-for-day time) plus good time earned equal the whole of one’s sentence. Once this is attained, the person is eligible to be considered for mandatory supervision. For example, let’s assume the offender has a five-year sentence:

Flat time earned2.2 years
Good time earned2.8 years
Total time earned5.0 years

It is at this point that mandatory supervision will be considered. The offender is entitled to be notified at least 30 days in advance of the board consideration of a mandatory supervision case so the offender can provide information to the parole board. If the vote is favorable, the offender may be released to conditions similar to that of being paroled for a length of time on supervision equal to the good time earned. Thus, in the above hypothetical, if mandatory supervision was granted, the offender would be on parole supervision for 2.8 years after release.

IX. Offender Support Groups

There are a number of offender support groups. These groups of people are active in trying to improve the problems and alleviate some of the emotional trauma offenders and families suffer as the result of incarceration. The prison does listen, but it is our opinion the prison’s view of these groups is that they represent as much an annoyance as a benefit. The prison only takes these groups as seriously as the political climate requires. Certainly being a member of such a group may be an asset to certain people who have a loved one in prison. It is our opinion that these groups often have shortcomings, but we do not discourage membership; however, families are well advised to do their due diligence before joining. They are family support groups and as such, help people who have loved ones in prison realize that they are not alone. They can provide insights to dealing with problems common to families of those who are incarcerated. These organizations are not designed to be prison reform groups. The primary interests of the members are to get their loved ones out of prison. After that occurs, they usually lose interest in the organization. I have seen any number of these groups rise and fall. Deciding whether and which group to join is an individual decision. Membership will not likely hurt the offender, but how much good membership in an offender family organization will help the offender’s situation is dependent upon the quality of the individual organization.

X. Conclusion

After practicing post-conviction criminal law in Texas for 40 years, I have concluded that in this state neither prisons, nor the attitudes of prison employees, are going to change to any great extent. Being employed at the prison definitely requires hooking up to the “good ole boy” team if one wants to be considered for the serious promotions. Today I see the same types of problems with the Texas prison I saw when I was first employed there in 1973. There are some improvements, but there are also many new problems to replace those resolved by the Ruiz civil rights suits. The economics of doing business with state and federal prisons has become an industry that has gotten too closely intertwined with government. This appears to be something that should cause great concern, but I do not see substantial improvement on the horizon. Prisons have become such an important factor in the economic survival of some small Texas towns that some of those communities might fail but for the fact they have one or more prisons to provide employment for the local workforce. Few correctional officers I have known over the last 40 years enjoy what they do for a living. Few offenders want to be in prison. The combination and interaction of these two groups makes for a negative mix in the work place. As a result, the society that exists in prison is less than positive.

The best suggestion I know for someone entering prison for the first time is keep to yourself for the most part, do not discuss your case, learn to occupy your time in a positive way, and take advantage of every opportunity that comes your way. By all means, do not allow yourself to become obligated to another offender. Prison is a cold, hard place to be, but you can get through it, and this episode of life will one day be past history. 95% of everyone who enters prison will someday be released. Prison can be a real wakeup call and a turning point (good or bad) in life. There are many offenders, mostly ex-addicts, who told me that having to go to prison saved their lives.

When I was a young man we had to deal with the military draft. Once in the military, young men usually “got the message,” and the military became the vehicle that pushed an individual into being a responsible citizen. Today we no longer have the draft, and the element of drugs have been added to our social mix. Today we send the same young people that used to get drafted to prison. I have concluded the military did a much better job of turning out responsible people than is currently produced in our prisons.

Continuously Trying

Recently, I had a Continuous Sexual Abuse of a Young Child case in County A, Texas, which was outside of my home base in Austin, Texas. In the first of the “Sexual Abuse” allegations (as defined by Tex. Penal Code Ann. §21.02) in the indictment, (Exhibit A), it was undisputed that the alleged act was for an offense that occurred wholly in County B. The second allegation in the indictment (+30 days later with the same young child) was claimed to have taken place in County A. The indictment did not differentiate or allege where either act allegedly took place, other than the boiler plate language, “in the County and State aforesaid . . .”

I attacked the indictment on the grounds that County A did not have venue because both of the acts did not occur in County A. Not finding any direct authority for my claims, I scrambled and filed the following to support my position:

1.   A Motion to Quash the Indictment
2.   A Plea in Bar
3.   A Memo in Support

Predictably, the State opposed all of my efforts. Predictably, the Judge in County A ruled in the State’s favor.

The generous offer prior to my efforts was for the 25-year minimum, which we rejected.

We had prepared a decent defense. The child’s mother, my client’s wife, was on his side. He had a good job and no prior felony convictions. The alleged victim was the Defendant’s troubled step-child, who was not living full time at the home of her mother and my client. Two other step-children, who resided with their mom and my client, were also on our side. So was our hired-gun expert, a noted psychologist. That said, these cases are always difficult to win. High reward-high risk.

On the brink of trial, the offer came down to ten years deferred adjudication on an Indecency with a Child. Although not discussed, the reduced plea offer was thought to be, in part, be­cause we had created a colorable claim for appeal—i.e., challenging County A’s venue, based on an act alleged to have been committed in County B.

Unfortunately, we were between the proverbial rock and a hard place (no pun intended). If my client plead to the single County A charge, this could and would be used as leverage and evidence in a subsequent charge of Indecency with a Child, or Continuous Sexual Abuse of a Child, in County B. Ironically, the child’s original outcry would have given rise to proper venue in County B for the offense of Continuous Sexual Abuse of a Young Child, because the alleged victim claimed the sexual abuse acts happened “like once a month.” Obviously, I never pointed this out to the County A prosecutor.

Although I thanked the County A prosecutor for the new offer, I explained that I/we could only accept the offer if we could get an agreement from County B not to prosecute my client on the County B allegation. No County B charges were pending at the time. I also insisted (politely), that the County A prosecutor approach/contact the County B prosecutor with this proposition, as I felt like the County B prosecutor would probably hang up on me midway thru my request.

I was pleasantly surprised when County B agreed to forego their prosecution if we entered a plea in County A. Quietly, we were prepared to accept a 12.45, or another ten-year deferred to run concurrently. I do applaud the efforts of the prosecutor in County A for working through these complications.

Ultimately, I advised my client to accept the deal. He would be guaranteed not to face prison time, only a difficult probation and registration as a sex offender. He would not have to deal with a trial in County A or B, and possibly an appeal or two. This article does not address the sticky question of whether he would have a claim of double jeopardy in County B if he was to be acquitted of the continuous charge in County A.

Although all of this was somewhat complicated for a layperson to understand, I know my client got it. He certainly understood the freedom and expense side of the equations. We really did have a chance to win, but of course, we will never know. You rarely get to trial on your best cases in our business. Sometimes, the best battles are in pretrial. It is not about us, it is about our clients. Happy hunting!

Three Hots and a Cot

We have been privileged to have many authors take part as continuing contributors to Voice for the Defense. Buck Files has done yeoman’s work with his “Federal Corner,” Kathleen Nacozy and Tim Crooks have been steadfast with their “Significant Decisions Report,” and Stephen Gustitis has been wonderful with his “Off the Back” articles. I was recently contacted by Pat Priest—an excellent trial judge in San Antonio, Texas—regarding him also becoming a continuing contributor to Voice. I want to welcome Judge Priest and give everyone a little background on him. His articles will provide some levity to the magazine and provide a humorous look back at his practice of law.

Judge Priest began law practice in San Antonio in 1968. He originally shared office space with some
great San Antonio lawyers—Sam and Charles Biery, Leonard Davis, and Bobby Myers, and later with George Cooper and Mayo Galindo, and still later with Nick Rothe and Justice Tony Cantu. Like all of us starting out, he originally handled anything that came his way. Soon, however, it became clear to him that his area of interest was criminal law. He volunteered for felony cases with both the then criminal district judges—Archie Brown and Anees Semaan, soon thereafter adding Jim Barlow, Johnny Benavides, and Peppy Dial when the 186th and 187th District Courts were
created in Bexar County and Dial succeeded Semaan in the 175th.

Court-appointed work paid very poorly in those days. Most pleas earned a $10 fee, and trials paid about $50 a day. He wanted experience, however, and did not want to have to work for the DA’s office to get it. He had gone to night law school while working as a casualty claims adjuster and was tired of working for somebody else. He obtained considerable trial experience in a hurry. The cases he has written about were all in San Antonio or South Texas, in either state or federal court. Most, though not all of the cases he has written about, were jury trials.

Thanks to his friendship with Charlie Butts and David Evans, he was a founding director of TCDLA and is very proud of what the association has become over the years. He was an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at St. Mary’s University School of Law from 1979 through 1999. He has been on the bench (or, since 2000) retired from the bench since November 1980.

I greatly enjoyed Judge Priest’s articles when I read them, and I thought they would be a great addition to the Voice. I hope you enjoy reading them as much as I. Thanks, Pat Priest, for your contribution to the Voice and your support of TCDLA since 1979.

—Michael Gross


Stan’s back was really hurting him. Not only that, but he had only 35 cents, and the bus ride to downtown San Antonio cost four bits. Worse, even if he could get downtown it was still going to be a several block walk to the Salvation Army Mission.

They’d been nice at the VA Hospital for the first two weeks, but after he’d told them three days ago that he wasn’t about to let them cut on his back, they had turned downright pushy. Fact was, they’d made him leave, claiming they “needed the bed for someone who’d cooperate with the treatment program.”

They had given him three hots and a cot for two and a half weeks, and he was grateful for that. Still, he had served his country during that “Police Action” in Korea, hadn’t he, and so the country owed him a little something.

As he was walking by the Methodist Hospital, just down the road from the VA, a plan began to form in his mind. It may have been that some long-forgotten teacher in his not-so-memorable childhood had made him read O. Henry’s “Cop and the Anthem,” or maybe he dreamed it up all by himself.

However it came to be, Stan’s idea went more or less like this: He had no money, and no prospects of getting any. His back hurt so he could hardly get around, much less do the manual labor which was the only work for which he was qualified. He had no family, and no friends whose circumstances were much better than his own.

Clearly, the only place he’d have food enough and a warm place to sleep would be in jail. He’d just have to do something that would get him arrested.

Stan began to put his mind to it, but everything he thought of would just mean a night or two in jail, and then he’d be back on the street with the same problem. As bad as his back felt, a night or two wasn’t going to do it.

Although the plan was still not fully formulated in his mind, Stan walked into the lobby of the Methodist Hospital and “borrowed” a piece of scratch paper from a Candy Striper.

As he trudged on down the street toward the bus stop, it came to him. He was going to have to commit a felony, so he could get a nice long stay in the can.

As he thought about it, though, he remembered hearing that they make you do things like chop cotton in the Texas pen, and his back sure didn’t need that. Guess he’d have to think up a Federal felony, so’s he could get into one of those federal country clubs he’d heard so much about.

Trouble was, he couldn’t think of a Federal felony, and he sure didn’t want to do anything that had any chance of ending him up on the business end of a cotton hoe.

About that time, he came to the bus stop on Fredericksburg Road. Since he still hadn’t figured out quite what to do, he decided he might as well catch the bus toward town, as far as his 35 cents would take him. At least, if he ended up having to walk to the shelter he’d be that much closer.

He caught the next bus, and started toward town. By that time, he’d realized that robbing a federally insured bank was bound to be a Federal crime, and had resolved to do it. There were a bunch of big banks downtown, and some of them were bound to be federally insured.

The big concern about that, though, was that most of the downtown banks he had seen had armed guards working in them, and he sure didn’t want to get himself or anybody else shot.

Just at that moment, the bus came to a stop at a red light, where Fredericksburg Road crossed the Expressway, and there, right before his eyes—as if sent by God himself—was the Citizens National Bank, Member FDIC, a small suburban bank (actually located in suburban Balcones Heights, and not San Antonio) that would almost certainly not have an armed guard.

Stan got off the bus, walked over to the bus stop bench, and sat down. From the small paper sack he was carrying, which contained all of his worldly goods, he extracted a pencil. He wrote what seemed to be the appropriate note, exchanged the pencil for an empty paper sack, and walked in the bank.

When he got inside, he sat down on a chair and looked around the bank.

He saw that there were three or four teller positions open. He left his sack of belongings on the chair and, choosing the line with only one person in it, waited as patiently as his back pain would allow while the teller served that person.

When it came his turn, he moved forward to the counter. Smiling, he handed the teller the empty paper sack with one hand and, with the other, this note:


The terrified teller didn’t know what to do. Was Stan armed? Would he hurt anyone? Was he nuts? Who ever heard of a signed demand note from a bank robber?

Not knowing what else to do, he began stuffing money in the sack. When he had it about half full, Stan said, “That’s enough,” thanked him, took the sack, walked back to where his belongings were in the chair, and sat down.

The victimized teller still didn’t know what to do. Why was the man sitting there in the chair, and why did he just keep grinning like that? The neighboring teller, however, had realized what was apparently happening, sneaked into the back room and called the police.

It was more than five minutes, nearer to ten, before the Balcones Police arrived. By the time they got there, the word had spread to all the employees of the bank, and from them to the customers, that the shabby little man with the foolish-looking grin had just robbed the bank.

“What is he doing?” they all wondered. “Is he insane? Can this really be happening?”

Finally, Balcones Heights’ finest arrived. Running past Stan, they approached the teller who’d been robbed, but he was unable to speak and afraid to point at Stan, who was still sitting there with his foolish cherubic smile. After a bit, the teller who’d made the phone call came out from the back room and motioned to the officers to come over to her. They did, and after a whispered conference and glances over their shoulders at the still- grinning Stan, they made their move.

One cop grabbed Stan and threw him to the floor, while another grabbed both paper sacks. A third stood by, gun drawn, authoritatively ordering the now prone and agonizing Stan not to move.

Even in his pain, Stan remembered later, he wondered just exactly what the man thought he was going to do with 220 pounds of police officer square in the middle of his back.

Stan got his three hots and a cot in the Bexar County Jail for the next several weeks. Long enough, in fact, that by the time he was indicted by the Federal Grand Jury for bank robbery his back no longer hurt. He had accordingly also figured out several places he might rather be than the federal penitentiary, even a country club one.

It was a little surprising, frankly, that the United States Attorney went forward with the prosecution of Stan. The law, you see, requires more for a successful prosecution than merely showing that a prohibited act has been committed. It must also be shown that the act was committed with the requisite mental state, what lawyers call “mens rea” or “guilty mind.”

Bank robbery is not committed when there is no intent to appropriate the money to one’s own use, and it was crystal clear that Stan’s sole intent was to get himself arrested. The jury acquitted Stan, and the last time I saw him he was panhandling on the street of downtown San Antonio, waiting for a determination by the Social Security Administration on his claim for disability benefits. I don’t know how that turned out.

I was fairly well broken-in in state court when I tried Stan’s case, but his was my first Federal jury trial. In addition to Stan himself being among my more memorable clients, the fact that it was my first jury trial in the post office courthouse gives the case a special place in my heart.

October 2015 Complete Issue – PDF Download



20 | Going to Prison in Texas in 2015, Part 2 – By William T. Habern, David P. O’Neil & Debra Bone
28 | Continuously Trying – Article & Motions by Bruce S. Fox
36 | Three Hots and a Cot – By Judge Wayne Patrick Priest

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

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

President’s Message: The Badge – By Samuel E. Bassett


The tragic death of Deputy Goforth in Houston has again brought to the forefront the issue of law enforcement’s changing relationship with segments of our society. It is on my mind as I write this column in the days following his funeral, attended and watched by thousands in our state and in our country. It was shocking to learn that this father and husband senselessly lost his life simply for wearing the uniform.

As a criminal defense lawyer, I am in the midst of the constitutionally recognized tension between law enforcement authority and individual accused citizens. Every day I go to the courthouse, I am a player in the necessary stress between the two viewpoints. Our forefathers endorsed the necessity of the tension in the writing of the Constitution and the Bill of Rights. Obviously, the passing of over two hundred years has occasioned change in what defines abusive governmental power. Technology and media (social and conventional) are in the process of redefining the paradigm in new ways. Soon most police officers will be equipped with body cameras to further document all contacts with the public.

In Austin, where I practice, an activist group regularly patrols the entertainment district with cameras rolling to capture police contacts in conflict situations. These groups post questionable behavior on the part of police officers, often within minutes. This is an unprecedented phenomenon happening across our country. In some instances, the audiovisual evidence has stunned us, showing a clear abuse of police discretion on many occasions. In a few instances, video recordings have captured seemingly homicidal actions by police officers. The documenting of events is also shedding light on instances of racial mistreatment. A bigger question is being urged again—is there a pattern of disparate treatment depending upon your race? I believe that this turmoil will help us improve. The transition will carry a lot of rhetoric and misplaced anger. Unexamined activity by those with power almost always results in abuse of that power.

This reality has to be balanced against what I believe to also be true: the vast majority of law enforcement officers are honest, not racially biased, and have a very difficult job. Police officers are sworn protectors of our safety. They make great sacrifices to gain a badge and even more to maintain it. Imagine a career where the moment you start your shift, you are under the threat of harm and even death without warning. Further, imagine a career where a significant number of people you are trying to protect detest you simply because you wear the badge. This is why I strive to treat all law enforcement officers I meet in my work with the utmost respect, even though it is my job to rigorously challenge them at times. When possible, I always thank a police officer who has to appear in court on one of my cases, even if I oppose their viewpoint on that particular case.

Shortly after the tragic shooting of Deputy Goforth, hyperbole and extremism emerged. The comment of “All Lives Matter” added fuel to the fire. I was concerned that this comment was based upon an assumption that because the shooter was African American, his senseless killing of the officer was an indication of a war against law enforcement by that community. I thought the comment was an unnecessary stoking of the fire, but also understood it was made in a moment of grief and frustration. Those in power have a responsibility to be accountable for their words in difficult situations. It is argued that one cannot support law enforcement and also be supportive of an examination of racial prejudices. I stand for the proposition that you can detest abuse of power by law enforcement (racially motivated or not) while at the same time having the utmost respect for those who risk their lives to protect us every day.

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


The TCDLA board of directors met in Dallas on September 12, 2015. Sam Bassett, president, announced the following informational items:

President Announcements: Sam welcomed everyone to the board meeting and stated how excited he is to be here.

Recognitions, Sam Bassett: Sam gave recognition to Robb Fickman (Houston) for all his organization and work for the Declaration of Independence Readings.

Timothy Cole Exoneration Commission, Sam Bassett: Sam will participate on the commission as an advisor. John Convery is invited to continue to serve next year as TCDLA President or appoint someone.

NACDL Report

        Indigent Defense Report was given. John Convery will spearhead this issue and work with NACDL.

Charles Butts Memorial Scholarship: Sam has created a Charles Butts Memorial Scholarship, funded through the TCDLEI. You may donate through the TCDLA office.

NACDL Reception and Seminar, Sam Bassett: NACDL will have a Midwinter Conference on Mental Health February 17–20, 2016, in Austin. TCDLA and others will sponsor a Texas-style reception. Contact the TCDLA office if you would like to be a sponsor.

Fallen Heroes, Michael Gross: A moment of silence was given in recognition of fallen hero Charlie Butts, who was a founding father of TCDLA from San Antonio.

The following motions were passed:*

MOTION: Minutes—June 20, 2015
Motion to adopt the minutes from the TCDLA Board Meeting on June 20, 2015, in San Antonio made by Michael Gross, seconded by Susan Anderson—motion carries.

Motion to increase TCDLA 401k contribution for employees from 8% to 9.5% made by Susan Anderson, seconded by Bob Hinton—motion carries.

MOTION: FY 2015–16 TCDLA Budget
Motion to approve FY 2015–16 TCDLA budget made by Roberto Balli, seconded by Susan Anderson—motion carries.

MOTION: Check Signers—TCDLA Officers
Motion to approve TCDLA Officers as check signers—Sam Bassett, John Convery, Mark Snodgrass, David Moore, Kerri Anderson-Donica, and Grant Scheiner—made by David Ryan, seconded by Nicole DeBorde—motion carries.

MOTION: SABA Resolution for Jimmy Ellison
Motion to create a resolution for recognition of Jimmy Ellison, Executive Director of San Antonio Bar Association, made by Michael Gross, seconded by George Milner—motion carries.

MOTION: Adjourn
Motion to adjourn at 12:20 pm, made by David Ryan, seconded by Susan Anderson—motion carries.

TCDLA received notice from the Texas Court of Criminal Appeals of the following grant awards for fiscal year 2016 (September 1, 2015, through August 31, 2016):

Criminal Defense Lawyers Project$1,128,432
Public Defenders$33,036

TCDLA will maximize these grants and conduct 51 seminars in the coming year. Forty-eight will be held in cities across Texas. Twenty will be online on our TCDLA website. Working together with the public defender offices and our local criminal defense bars, we project that we will train 5,000 lawyers in fiscal year 2016.

We thank the Texas Court of Criminal Appeals for having the trust and confidence in TCDLA to provide quality continuing legal education to criminal defense lawyers across Texas. We thank in particular Judge Barbara Hervey, who is judicial oversight for the entire $18,000,00 Court Personnel Grant.

Special thanks to Sarah Roland (Denton) and John Hunter Smith (Sherman), our course directors for our first Successfully Defending Child Physical Abuse & Child Death Cases CLE held in Dallas in September. Thanks to their initiative and the lineup of speakers we had 72 attendees.

Special thanks to Laura Peterson (Garland) and Kameron Johnson (Austin, Travis County Public Defender), our course directors for the Defending Juveniles CLE held in Dallas in September. Thanks to their efforts and the speakers we had 65 attendees.

Special thanks to Tip Hargrove (San Angelo) and John Hunter Smith (Sherman), our course directors for our Upholding Justice One Client at a Time CLE in San Angelo in September. Thanks to their efforts we had 39 attendees.

Weren’t able to attend this year’s Rusty Duncan event? You can order the DVD and get CLE credit. Please go to our website for more information and to order.

Do you need CLE credit and can’t attend our seminar train­ing? Please call the Home Office (512-478-2514) for a list of the DVDs and accompanying CLE credit.

Don’t have a local criminal defense bar in your area? Would like to re-energize and jump-start your organization? 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.

*Minutes not approved by the Board

Ethics and the Law: Silence Is Golden . . . Sometimes


Keep your mouth shut. Don’t tell anyone else about it. It is part of an old proverb: “Speech is silver and silence is golden. Often the best choice is to say nothing.”

When your clients are the subject of criminal investigations, ethically you should warn them to keep their mouths shut and remain silent.

Your client needs to communicate with you, so it is better not to be silent with you. It is much better if you are not silent with your client. Silence may get you a grievance and a difficult client. All communications between the accused citizen and the lawyer are privileged communications. Many times the client will bring his wife, family members, or friends when the lawyer and client are communicating. Always advise the client of the privilege. Warn the client of the potential danger of his best friend or wife or husband or any other person suddenly becoming his enemy. If the client insists, write a simple note for the client to sign.

I, [client], waive the attorney/client privilege and permit my lawyer to communicate with my [spouse, cousin, friend, etc.]. My lawyer, [Robert Pelton], has advised me that there is a danger in doing this.


Always tell your client not to discuss their case with anyone. If your client understands and signs this waiver, then you can discuss the status or answer questions. The client may not be able to fully explain what is going on, and family or friends may be able to help.

The hotline has received several calls from lawyers and or family members or friends, employees, seeking facts or the status of the case. Mothers worry about their children. When a crying mother, whose son has a lawyer, calls or comes to your office asking for your advice and wanting to know why the other lawyer won’t talk to her, explain the attorney/client privilege. We recommend you call the lawyer and advise the current lawyer of this event. The rules permit this. The lawyer may have good reason to hide information from that certain person. If there is no valid reason, then a simple explanation to the lawyer that he needs to get a waiver from his client so the lawyer can tell the crying mother or father what is happening on the case may help. A lawyer who is serious will not mind that.

Clients in jail get lonely and scared because many of them do not have many people who really care about them. Try to see the client who is locked up, and encourage people to visit the client. Send a letter to just check in if you cannot go to the jail.

You are bound by the Texas Code of Ethics. Talking in hallways or elevators can be disastrous. It has been reported that in at least one courthouse in Texas recording devices have been discovered in hallways and elevators. A police officer out of uniform was in the hallway in a Houston courtroom listening to the defendant talk with a friend about his case. Of course the officer told the prosecutor of the conversation, and it was very unfavorable to the client.

At minimum, when you have a trustworthy person worried about their loved one, get a waiver from the client to give information about what is going on with case and court settings.

Many clients do not take their cases seriously. They may think it is no big deal. Do not make promises you cannot keep. If the client is totally unreasonable, then the best option is to decline the case.

What will the outcome be? You cannot and should not talk about the case results until you have all the facts covered. Investigate the case. Go to the scene of the alleged offense. Talk to all the witnesses. Even after getting discovery, you will generally find more witnesses that law enforcement did not talk to. Law enforcement people want to close the case. In a recent capital murder case where our client was a gang member, the deputy talked about all the tattoos and what they meant. He was very familiar with our client’s life, but when asked about the shooters, he had no information. When he was asked why there was not an investigation on the two shooters, he said, “No prosecutor asked us to find out about them.”

You are ethically bound to investigate law and facts. Most times it is best to have an investigator talk to the witnesses first. Tape-record and memorialize in writing—then you can talk to the witnesses. You will end up being a witness if the individual who was interviewed claims you lied or misled them.

Sometimes the truth hurts. It hurts more if you have not done everything ethically to find facts that may help your client. Reach out to a fellow lawyer if you need advice as a second opinion.

Bobby Mims is now working very diligently and ethically to find facts that will help him in a capital murder case. Without doing what Lawyer Mims is doing, his client will suffer and his case will make bad law which others will have to deal with.

Off the Back: Another Nuts-and-Bolts Primer on Batson Challenges – By Stephen Gustitis


Batson v. Kentucky is again front and center in the United States Supreme Court. On May 26, 2015 the Court granted certiorari in Foster v. Chatman (No. 14-8349, 2015 Term). The case is currently set for argument on November 2, 2015. In Foster, Georgia prosecutors struck all four African-American prospective jurors from the death penalty venire and provided roughly a dozen “race-neutral” reasons for their peremptory strikes. At trial (and on direct appeal) the Georgia court denied Foster’s claim of race discrimination under Batson, 476 U.S. 79 (1986). However, during collateral attack Foster obtained the prosecution’s notes from jury selection, which revealed an explicit reliance on race during the jury selection process. African-American jurors had been highlighted, identified by race, and ranked against one another. The Supreme Court granted certiorari to decide whether the Georgia courts committed error during State habeas proceedings by failing to recognize racial-motivated use of peremptories by the Georgia prosecutors. In Texas, the legislature enacted Tex. Code Crim.Proc. art. 35.261 to implement Batson.

Rarely will our Batson challenges involve such obvious use of race in the State’s exercise of peremptory strikes. Consequently, developing a Batson claim during jury selection is hard and detailed work, especially after a long and tiring day of jury selection. To effectively identify Batson violations, we need a thorough system for recording all aspects of the jury se­lec­tion process. One method is utilizing a spreadsheet to record each venire member’s race, gender, physical appearance, and other important attributes. Additionally, our system should record the number of questions asked of each juror, the type of questions asked, and all statements made by the juror. Hard work, indeed! Ideally, a separate member of our defense team prepares these notes. Accurate records will be critical for identifying similarities between venire members struck and those accepted by the State.

After the State exercises their strikes we must establish a prima facie case of racial discrimination. Essentially, we accuse the prosecutor of racial discrimination by virtue of their peremptories. Our objection must be reasonably specific. Invoking Batson or Article 35.261 will usually be sufficient to merit review. Make sure the entire voir dire examination, your objections, and your prima facie case are on the record. Furthermore, the record must be clear concerning the race of the jurors peremptorily struck by the State, as well as the race of other members of the jury venire. Once your prima facie case is on the record, the burden shifts to the prosecution to articulate race-neutral reasons for their strikes. Be sure these are on the record. Next, the burden shifts back to the defendant to rebut the explanations. See Williams v. State, 804 S.W.2d 95 (Tex. Crim. App. 1991), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). The trial court’s Batson rulings are reviewed on appeal under the clearly erroneous standard of review. See Gibson v. State, 144 S.W.3d 530 (Tex. Crim. App. 2004).

The prosecutor may be someone you work with every day… maybe even a friend. When challenging their strikes you are essentially accusing them of purposeful racial discrimination. You are also accusing them of lying about it. Another rarely articulated problem is the dynamic created between the judge and prosecutor when we make our Batson challenges. Is the trial judge predisposed to find in your favor? The prosecutor is someone the judge works with day in and day out. Are they likely to rule the prosecutor is both a liar and a racist?

Hence, you must be prepared to make a detailed and satisfactory record. Developing evidence to support racial discrimination can take several forms. Use the data compiled on your spreadsheet to argue that race-neutral justifications offered by the prosecutor were simply not true. Or assert the prosecutor mischaracterized the struck juror’s responses to voir dire questions. You may argue that the facts identified by the prosecutor, while true, were not disadvantageous to the prosecution (e.g., the minority juror had a close connection to law enforcement). Examine whether reasons given for a challenged strike apply equally to an accepted juror. This is called comparative juror analysis. Texas appellate opinions have stressed that comparisons of similarly situated jurors constitute perhaps the strongest evidence relevant to Batson claims. See Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1989)(opinion on rehearing); Esteves v. State, 849 S.W.2d 822 (Tex. Crim. App. 1993).

You may also compare the disparate treatment of minority versus non-minority jurors. For example, examine the number (or type) of questions asked of a minority panelist regarding family members involved in the justice system compared to the number of similar questions asked of non-minority panelists. Discuss the numerical use of strikes on minority jurors, as well (e.g., three of four African-American jurors struck). Remarkably, prosecutors may be trained to articulate satisfactory race-neutral reasons for striking minority jurors. See “Top Gun II Batson Training: Articulating Juror Negatives” in the Race Materials Bank at (select “Training and Resources”); see also Miller-El v. Dretke, 545 U.S. 231 (2005)(discriminatory training manual on exclusion of African-Americans from juries constituted evidence supporting Batson violation). Finally, be sure all relevant materials are made part of the record in the event your Batson claim is denied and your client is convicted—including jury questionnaires, information about denied discovery requests, and other pertinent materials.

The Batson challenge is still a viable weapon in our arsenal for protecting the accused’s right to equal protection of the law. More importantly, Batson helps us protect the right of minority jurors to participate in our system of criminal justice. When minority jurors are blocked from jury service, the trustworthiness of the judicial system is diminished. And scarcely does the minority community believe they received a fair shake from an “all-white” jury. Consequently, a good record system and effective comparative juror analysis may be key to our success at trial or on appeal. It’s really hard work, but so important as we safeguard the integrity of our client’s right to a fair and impartial trial.

Federal Corner: Judge Delgado-Colon “Skirted Near the Line” But Didn’t Cross It – By F. R. Buck Files Jr.


More than forty years ago, United States District Judge William Wayne Justice appointed me to represent a pro se petitioner who was seeking habeas relief in his court. This petitioner had also appeared pro se in a divorce proceeding and had been called to the stand by his wife’s lawyer. While testifying, he admitted to many acts of sexual intercourse with his young daughter. After that case was concluded, the trial judge had a statement of facts prepared and sent it to the local district attorney.

The petitioner was indicted, and he and the State entered into a plea agreement that resolved his case for a 25-year sentence. I do not remember the issue upon which petitioner was seeking relief, but it was obvious that he did a poor job representing himself in his divorce case.

At the habeas hearing, the State of Texas was represented by an assistant attorney general. I remember that the law and the facts were against me; however, I had a blessing. My opposing counsel was either inept or totally unprepared and could not ask a pertinent question without my objecting to it and having Judge Justice sustain the objection.

For a brief moment, I thought that a miracle had occurred and that I might actually prevail. And then Judge Justice dropped the bomb. He simply took over the case. Not surprisingly, he was able to ask the witnesses appropriate questions without giving me any basis for an evidentiary objection. He denied relief and remanded my client back into State custody. That was my introduction to judicial participation in the trial of a criminal or habeas proceeding—and I remember it well.

I was reminded of that experience when I read the opinion of a panel of the United States Court of Appeals for the First Circuit in United States v. Lanza-Vazquez, ___F.3d___, 2015 WL 5042806 (1st Cir. 2015) [Panel: Chief Judge Howard and Circuit Judges Torruella and Kayatta (opinion by Howard)].

In Lanza-Vazquez, the Court held that the judge’s alleged interceding on the prosecution’s behalf was not judicial bias; that the judge’s alleged association with the prosecution was not bias; that the judge’s alleged badgering of defense counsel was not bias; and that the defendants were not prejudiced by this alleged bias.

A Brief Synopsis of the Facts

In January, 2006, the leader of a drug-trafficking operation in Puerto Rico was murdered. A number of different individuals attempted to take over the operation and one was successful. As he consolidated power, a number of rival drug dealers and his own subordinates were either seriously injured or killed. Federal authorities began an investigation into the activities of this new drug ring, and in 2007, indictments were returned against 121 defendants who were charged with various drug and firearms violations.

For those defendants who chose to have a jury trial, the case took 18 days to try and resulted in numerous convictions. Two of the defendants, Lanza and Galán, raised issues on appeal as to conduct of United States District Judge Aida M. Delgado-Colon during the trial of the case. The Court found no reversible error.

Chief Judge Howard’s opinion reads, in part, as follows:

[Appellant’s Challenge to the Judge’s Conduct During Trial]

Lanza and Galán . . . assert two, interrelated challenges to the judge’s conduct during trial: (1) the judge purportedly intervened exclusively on behalf of, and associated herself with, the prosecution; and (2) the judge allegedly made improper comments about Galán’s attorney. The parties dispute whether these claims were preserved or whether plain error review applies. Given that the defendants cannot succeed under either standard, we need not dither. Under the usual framework for judicial bias claims, a party must still show (1) that “the [judge’s] comments were improper” and (2) that there was “serious prejudice.” United States v. Ayala–Vázquez, 751 F.3d 1, 24 (1st Cir.2014); see also United States v. Laureano–Pérez, ___ F.3d ___, ___, 2015 WL 4577763 at (1st Cir. July 30, 2015).

[The Defendant’s First Contention]

The defendants’ first contention is that the judge excessively interfered on behalf of, and associated herself with, the prosecution. They begin this argument by focusing on the instances when the court allegedly assisted the government. The defendants cite nearly twenty examples where defense counsel objected to the prosecution’s question, and the court, rather than merely ruling on the objection, responded by asking the witness a question in a non-objectionable way or by instructing the government on how to properly phrase the question. E.g., “So counsel, what you want to ask is . . . how [the list] comports to what he used to prepare”;
“[Y]ou stated that at the police headquarters you actually saw what was seized, is that correct?”; “[A]sk him if he was the arresting agent, he will say no, and then you will ask him if he knows who arrested them. [A]nd then he testified he alerted the other agents”; “He wants to know how did you get the latent print to look at from the object.” In doing so, the defendants say, the trial judge essentially doffed her judicial robe and joined the prosecution.

[Judges May Actively Participate in a Trial]

Of course, the mere fact that the judge intervened is not enough for us to find error. It is well-established that a judge “is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.” Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). He or she thus “has a perfect right—albeit a right that should be exercised with care—to participate actively in the trial proper.” Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997). We do not examine a single comment by a judge on its own but, instead, must view it in the context of the entire transcript. United States v. Espinal–Almeida, 699 F.3d 588, 607 (1st Cir.2012).

[“Skirting Near the Line but Not Crossing It”]

As a comprehensive review of this transcript establishes, the judge skirted near the line on discrete occasions but, on the whole, never crossed it. Broadly, the trial lasted 18 days and was a massive, multi-defendant conspiracy case which the court had the authority to move through expeditiously. Cf. Deary v. City of Gloucester, 9 F.3d 191, 194 (1st Cir.1993)(“The trial judge has discretion to maintain the pace of trial.”) Indeed, the judge was quite explicit that this was the court’s goal. See, e.g., “I ask that the government use the time [a 15 minute break] to identify the specific spots where they need to go because we need to move faster”.

[The Judge’s Pattern of Participation]

More concretely, a pattern emerges with respect to the judge’s participation. The court generally intervened after a party made a consistent (sometimes repetitive) string of objections, or when an objection was lodged immediately after the parties completed a lengthy bench conference discussing that very same evidentiary issue. In other words, the judge interrupted when the case was unnecessarily slowing down. While it is true that this was generally done to the ben­efit of the prosecution—though, contrary to what the defendants insinuate, not exclusively so—the interactions were largely driven by defense counsels’ own conduct. Defense counsel asserted a plethora of objections (often repeatedly so or after the judge had made her rulings clear), while the prosecution exhibited more restraint. Diligent defense of a client is certainly encouraged, but technical and repetitive interruptions may properly prompt the trial judge to intervene to proceed the trial. Indeed, the judge indicated this on several occasions by saying, for example, “Stop basically, you should stop objecting on the same grounds it is clear . . . You can further inquire on cross.” The judge was not, despite the defendants’ insistence, gratuitously interfering.

[Examples of When the Judge Allegedly Identified Herself with the Government]

With respect to this initial claim, Lanza and Galán also invoke instances where they allege that the judge affirmatively identified herself with the government and thus, in their view, turned the jury against the defendants. Three statements, at first blush, could appear fairly damaging. For example, at one point the judge said, “Then you get the name in, just to avoid the hearsay that you got . . . [b]ecause the jury is able to compare, corroborate, or discredit whatever the informant said. We need that in” (emphasis added). On another occasion, the judge alluded to the defendants’ guilt, stating that the “proper time” for an argument “would be at the sentence.” Finally, in response to a defendant’s objection, the judge said “the government does not have any interest to portraying something that is not and it is clear that the pictures were taken after the search was executed.”

[The Judge’s Statements Were Made Outside of the Jury’s Presence]

These statements in which the judge allegedly “associated” herself with the prosecution are ultimately not concerning. In a vacuum, each conceivably could be deemed problematic. In context, however, they were not inappropriate for the simple reason that the targeted statements were made outside of the jury’s presence. Since our focus centers on whether the statements affected the jury (or whether they are so egregious on their own as to demand significant scrutiny—which was not the case here), statements that occur outside of the jury’s presence are generally kosher. United States v. Rivera–Rodríguez, 761 F.3d 105, 111 (1st Cir.2014) (citing cases emphasizing that the analytical question for us is whether the jury perceived bias). Thus, this first claim respecting the judge’s intervention falls flat.

[The Appellant’s Second Contention]

In addition to claiming that the judge unduly assisted the prosecution, Lanza and Galán advance a second argument respecting the judge’s actions; they point to instances when the judge allegedly badgered Galán’s trial counsel. For example, the judge said, “I’m losing my patience with you,” and “I want you to pay attention because I don’t want you to open the door, and you are quite capable.” She further stated that he was “mumbling,” “exhausting her,” and was a “very hyper person and, how should I say, extroverted.” These statements, they assert, poisoned the jury against the defendants.

[The Judge’s Comments were Justifiable and Most Were Made Outside the Presence of the Jury]

Here, the court’s comments, again, were largely prompted by trial counsel’s conduct. Counsel regularly attempted to re-litigate matters despite the judge’s firm rulings or, at other times, simply lacked traditional courtroom decorum. For instance, he arrived late to court (on more than one occasion), spoke too loudly at counsel table or during bench conferences, and, at least once, simply walked out of the courtroom while the judge was speaking. It is understandable that the judge responded as she did. Equally relevant, the bulk of the statements that the defendants point to either occurred at sidebar or were made before the jury even entered the courtroom. Since the jury never heard most of these statements, and since the comments were justifiable, we find no error.

[Appellants’ Position that Any Error Would be Structural Error]

Even if we were to conclude that the judge’s interventions and comments were improper, and that the jury heard all of them, the defendants still cannot succeed. Rather than really engaging on the question of prejudice, they attempt to argue that we should view any error here as structural. In other words, the argument runs, the judicial interventions per se require reversal. The defendants thus posit that we can bypass any evaluation of prejudice.

[Circuit Precedent Requires Proof of “Serious Prejudice”]

That position, however, runs head first into our precedent which has consistently required proof of “serious prejudice.” We have recently defined that term as requiring “a reasonable probability that, but for the claimed error, the result of the proceeding would have been different.” Rivera–Rodríguez, 761 F.3d at 112. We have found such prejudice in the past where the judicial interventions related to an essential piece of evidence, bolstered a key witnesses’s testimony, or constituted a decree on an issue more properly reserved for a jury. See, e.g., Rivera–Rodríguez, 761 F.3d at 111–12; Espinal–Almeida, 699 F.3d at 606; United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir.2008).


As noted, the defendants have not offered much that might show serious prejudice. . . .

        Further, even if we were to strip away the judicial interventions highlighted in the fact section of the defendants’ briefs, there remains enough evidence (when viewing that evidence in a neutral way) to sustain the convictions.

My Thoughts

  • Judicial participation cases are rare—and thankfully so, because the odds are so stacked in the judge’s favor.
  • A judicial participation case from the United States Court of Appeals for the Fifth Circuit is United States v. Bustamante, 207 F.3d 659, 2000 WL 122502, (5th Cir. 2000)[Panel: Circuit Judges Wiener and Stewart (per curium)]. The opinion is quite similar to that in Lanza-Vazquez and contains, in part, the following:
    • A trial judge may “interrogate witnesses, whether called by itself or by a party.” Fed.R.Evid. 614(b). The questions must be geared to aiding the jury’s understanding and must be strictly impartial. United States v. Saenz, 134 F.3d 697, 702 (5th Cir.1998). We review such questioning for abuse of discretion. United States v. Zepeda-Santana, 569 F.2d 1386, 1389 (5th Cir.1978).
    • We find that the trial judge did not take a partisan stance, and observe that many questions at issue were open ended and could have elicited an answer favoring either side. We believe the questions were appropriate as seeking “‘only to clarify a witness’s testimony either for the court, for the jury, or for counsel.’” United States v. Williams, 809 F.2d 1072, 1087 (5th Cir.1987)(quoting United States v. Borchardt, 690 F.2d 697, 700 (5th Cir.1983)). The court may ask questions to clarify a witness’ testimony, “even if the questions elicit facts harmful to the defendant.” Saenz, 134 F.3d at 708. Viewing the trial judge’s actions as a whole, we conclude that his questioning did not deny Bustamante a fair trial.