Monthly archive

November 2015

November 2015 SDR – Voice for the Defense Vol. 44, No. 9

Voice for the Defense Volume 44, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Where teachers discovered red marks on a three-year-old who identified D as his abuser, the Confrontation Clause did not prohibit prosecutors from introducing those statements when the child was not available to be cross-examined because the child’s statements to his teachers were not testimonial. Ohio v. Clark, 135 S. Ct. 2173 (2015).

        A preschool teacher noticed facial injuries on one of her three-year-old students. When the teacher inquired about the injuries, the student indicated that his mother’s boyfriend, D, caused them. The teacher forwarded her concerns to a child-abuse hotline, which resulted in charging D with child abuse. Prior to trial, a judge ruled the three-year-old was incompetent to testify but refused to exclude the child’s out-of-court identification of D as his abuser. D was found guilty. D appealed that the admission of the out-of-court statements violated his U.S. Const. amend. VI right to confront witnesses. The Supreme Court of Ohio reversed the lower court and held that because state law required the teacher to report suspected incidences of child abuse, the teacher was acting as an agent for law enforcement when inquiring about the child’s injuries; therefore, the child’s out-of-court statements could only be admitted if the primary purpose of the teacher’s questioning was to address an ongoing emergency. Because the child was not in immediate danger of further injury, the out-of-court statement could not be admitted. The U.S. Supreme Court reversed the Supreme Court of Ohio and remanded.

        The Court held that the three-year-old’s statements to his teachers were non-testimonial because the totality of the circumstances indicated that the primary purpose of the conversation was not to create an out-of-court substitute for trial testimony. There was an ongoing emergency because the child, who had visible injuries, could have been released into the hands of his abuser, and therefore the primary purpose of the teachers’ questions was most likely to protect the child. Moreover, a very young child who does not understand the details of the criminal justice system is unlikely to be speaking for the purpose of creating evidence. Finally, the Court held that a mandatory reporting statute does not convert a conversation between a concerned teacher and a student into a law enforcement mission for purposes of the Confrontation Clause.

Any federal constitutional error that may have occurred by excluding the attorney for a defendant in a capital murder trial from part of the Batson hearing was harmless. Davis v. Ayala, 135 S. Ct. 2187 (2015).

        D, a Hispanic man, was charged with three counts of murder and one count of attempted murder. During jury selection for his California state trial, the prosecution used seven preemptory challenges to exclude each black or Hispanic prospective juror. D contested the prosecution’s preemptory challenges as a violation of Batson v. Kentucky, 476 U.S. 79 (1986). In accordance with Batson, if a party can make a prima facie showing that preemptory challenges are being used in a racially motivated way, the other party must give a non-racially motivated reason for their use of the challenges. The state court allowed the prosecution to give their non-racially motivated reasons in a closed hearing, from which D and his attorneys were excluded, and subsequently found the prosecution’s use of preemptory challenges was not racially motivated. D was not given the prosecution’s reasoning or a transcript of the meeting until after the conclusion of his trial. Additionally, after trial it was discovered that the vast majority of the questionnaires all the potential jurors had to fill out had been lost. D was found guilty of the majority of the charges against him and sentenced to death.

        The California Supreme Court found that the state court erred in excluding D from the Batson hearing, but that the error and loss of the questionnaires were harmless. D appealed to the Ninth Circuit; in accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the appellate court found that the California Supreme Court had not adjudicated D’s constitutional claims on the merits but determined the procedure used for the Batson hearing violated California state law. The Ninth Circuit reviewed D’s claims de novo and found that the exclusion of D from the Batson hearing, and the loss of the questionnaires, violated D’s constitutional rights.

        Here, the Supreme Court reversed D’s conviction and remanded to the trial court for a determination of whether the facts established a prima facie case for purposeful discrimination in the prosecution’s use of peremptory challenges. Habeas petitioners are not entitled to relief unless they can establish that the alleged error resulted from actual prejudice. This requires the reviewing court find there was more than a reasonable possibility that the error was harmful; there must be grave doubt as to whether the error had a substantial or injurious effect or influence on the jury. The Court also held that the California Supreme Court had adjudicated the case on the merits based on the language of the AEDPA, which meant that the highly deferential AEDPA standard applied to a federal habeas petition to review the state court’s decision; thus, a federal court cannot overturn a state court’s determination unless the decision was contrary to clearly established law or based on an unreasonable view of the facts. Because the record supports the state court’s interpretation of the facts, the federal appellate court erred in holding that the prosecution’s use of peremptory strikes was not harmless. The Supreme Court overruled Swain v. Alabama, 380 U.S. 202 (1965), to the extent that it required petitioner to establish a systematic pattern of discrimination in jury selection.

Fifth Circuit

Where D agreed to plead guilty to conspiracy to transport an illegal alien, but then withdrew his plea as a mat­ter of right before it was accepted by the district court, it was reversible error, at the later trial on that charge, to allow the prosecution to introduce evidence of the withdrawn guilty plea and related inculpatory state­ments. United States v. Escobedo, 757 F.3d 229 (5th Cir. 2014).

        Although the plea agreement for the failed plea purported to contain a waiver of D’s rights (under Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410) to keep out such evidence, the Fifth Circuit concluded that the plea agreement was ambiguous regarding whether that waiver provision was meant to be effective immediately or whether it was meant to be contingent on the court’s acceptance of the plea, which never occurred. Because an ambiguous plea agreement must be reasonably construed in favor of the defendant, the district court erred in reading the waiver as taking effect immediately rather than upon its acceptance of the guilty plea. Hence, the court also erred in allowing the government to introduce D’s withdrawn guilty plea and related inculpatory statements at trial. The Fifth Circuit reversed D’s conviction and remanded.

D was not entitled to a certificate of appealability to appeal the denial of federal habeas relief from his death sentence based on his attorneys’ failure to investigate whether he had “organic brain damage” mitigating his culpability, because there was a reasonable argument that D was not prejudiced thereby. Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014).

        Likewise, even if trial counsel provided ineffective assistance by failing to request a competency hearing, D could not establish prejudice. There was no evidence presented that D was incompetent (as opposed to simply mentally ill), and consequently D failed to show that there was a reasonable probability that, but for the alleged ineffective assistance of counsel, he would have been found incompetent to stand trial.

        (2) D was also not entitled to a certificate of appealability (COA) on his claim that he was intellectually disabled, thereby precluding his execution under the Eighth Amendment; along the way, the Fifth Circuit held that Hall v. Florida, 134 S. Ct. 1986 (2014), did not render unconstitutional the Texas Court of Criminal Appeals’ test for finding intellectual disability (see Ex parte Briseño, 135 S.W.3d 1 (Tex.Crim.App. 2004)). Hall simply dealt with the constitutionality of mandatory, strict IQ test cutoffs in making the intellectual-disability determination.

        (3) Finally, D was not entitled to a COA on his claim that his mental illness precluded his execution under the Eighth Amendment; no Supreme Court opinion prohibits the execution of mentally ill persons who are not legally insane.

Texas capital defendant was not entitled to a certificate of appealability to appeal the denial of federal habeas relief from his death sentence on his claim that he was intellectually disabled, precluding his execution; reasonable jurists would not debate the state court’s rejection of that claim based on the failure to make a prima facie showing of intellectual disability. Garcia v. Stephens, 757 F.3d 220 (5th Cir. 2014).

        Furthermore, reasonable jurists would also not debate the federal district court’s alternative resolution of this claim under de novo review because, even considering the evidence D presented for the first time in federal court, D failed to dem­onstrate that he had significantly sub-average intellectual func­tioning. Hall v. Florida, 134 S. Ct. 1986 (2014), did not cast doubt on the debatability of the decision denying habeas relief; unlike in Hall, Texas does not preclude individuals with an IQ score between 70 and 75 from presenting additional evidence of difficulties in adaptive functioning in support of an intellectual-disability claim.

        (2) D was also not entitled to a COA on his claim that his attorneys provided ineffective assistance by eliciting, from defense witness Dr. Walter Quijano (who was testifying for the de­fense on the question of future dangerousness), testimony that minorities (blacks and Hispanics) “are overrepresented in the . . . so-called dangerous population”; the state court reasonably concluded that Dr. Quijano’s isolated comment was not harmful.

Government’s appeal of dismissal of charge was not un­timely, even though it was filed 60 days after the initial dismissal, because it was filed within 30 days after the district court denied the government’s motion to recon­sider. United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

        Under United States v. Healy, 376 U.S. 75 (1964), a timely motion for reconsideration by the government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the court disposes of the motion for reconsideration. There was some tension between Healy and its progeny on one hand and Bowles v. Russell, 551 U.S. 205 (2007), on the other. The Fifth Circuit—in this prosecution of BP’s vice president of exploration for obstructing a congressional investigation into the 2010 explosion on a drilling rig (in violation of 18 U.S.C. § 1505)—elected to follow the directly controlling precedent (Healy) in the absence of further direction from the Supreme Court.

        (2) The Fifth Circuit declined the government’s request to hold the appeal in abeyance pending the resolution of D’s motion to dismiss the superseding indictment, because resolution of this appeal would clarify the proceedings below, and because the superseding indictment might also be dismissed.

        (3) The Fifth Circuit reversed the district court’s first basis for dismissing the § 1505 count against D—namely, that D could not be prosecuted under § 1505 for obstructing a con­gressional subcommittee; the Fifth Circuit interpreted the statutory class of “any committee of either House” to include congressional subcommittees. The Fifth Circuit also rejected the district court’s alternative basis for dismissing this charge—namely, that the indictment did not adequately allege that D knew of the pending congressional investigation that he allegedly obstructed; read as a whole, the indictment fairly imported the element of knowledge.

Immigrant’s 1998 conviction for auto burglary was an “aggravated felony”; a conviction for unauthorized en­try of a vehicle with intent to commit a theft therein (N.M. Stat. § 30-16-3(B)) constituted an attempted theft offense under 8 U.S.C. § 1101(a)(43)(G), (U), thus rendering immigrant ineligible to apply for cancellation of removal under § 1229b(a)(3). Garcia v. Holder, 756 F.3d 839 (5th Cir. 2014).

In alien-smuggling case, culminating in a vehicle crash where one alien was severely injured and died months later after being air-lifted back to Honduras, district court did not err in applying to Ds a 10-level enhancement under USSG § 2L1.1(b)(7)(D) based on that death. United States v. Ramos-Delgado, 763 F.3d 398 (5th Cir. 2014).

        This enhancement does not require proof that Ds’ conduct was the proximate cause of the death; it does, however, impose a requirement of but-for causation. Here, the district court did not, on the record, clearly err in finding Ds’ conduct to be a but-for cause of the death.

Considering all D’s evidence, including that presented for the first time in federal court, reasonable jurists would not debate the district court’s decision that D’s ineffective assistance of counsel claim lacked merit. New­bury v. Stephens, 756 F.3d 850 (5th Cir. 2014).

        On remand from the U.S. Supreme Court in light of Tre­viño v. Thaler, 133 S. Ct. 1911 (2013), the Fifth Circuit once again denied death-sentenced Texas D’s request for a certificate of appealability (COA) on his claims of ineffective assistance of counsel (IAC); because the federal district court addressed the merits of D’s IAC claims, including the evidence presented for the first time in federal court, D already received all the relief available to him under Treviño and Martinez v. Ryan, 132 S. Ct. 1309 (2012)(which, Treviño held, applied with equal force to Texas). Because D did not present a debatable IAC claim, he was not entitled to a COA notwithstanding the district court’s procedural error in concluding that ineffective habeas counsel could not constitute cause for a procedural default.

The Fifth Circuit upheld D’s SORNA conviction because even though the Wisconsin statute of D’s prior conviction did not include a four-year age differential as an element, the Wisconsin judgment listed D as 24 years old. United States v. Gonzalez-Medina, 757 F.3d 425 (5th Cir. 2014).

        For purposes of determining whether D’s prior Wisconsin conviction for sexual intercourse with a child 16 or older (Wis. Stat. § 948.09) was a qualifying “sex offense” triggering a duty to register under the Sex Offender Registration and Notification Act, 42 U.S.C. §§ 16901 et seq., the age-differential portion of the exception contained in 42 U.S.C. § 16911(5)(C)(namely, that an offense is not a sex offense where it involved consensual sexual activity between a victim at least 13 years old and an offender not more than 4 years older than the victim) is not sub­ject to the categorical/modified categorical approach to prior convictions, but rather is a circumstance-specific provision that is subject to broader methods of proof than under the categorical/modified categorical approach.

D was not entitled to relief based on trial attorney’s fail­ure to research the statute-of-limitations because the in­dictment was, in fact, timely. United States v. Curtis, 769 F.3d 271 (5th Cir. 2014) (on reh’g).

        Federal D convicted of bankruptcy fraud under 18 U.S.C. § 152 challenged his conviction under 28 U.S.C. § 2255 for alleged ineffective assistance of counsel (IAC). Pursuant to Fed. R. Crim. P. 45(a)(1)(A) (which the Fifth Circuit said applied here), where D’s bankruptcy discharge occurred July 23, 2003, the statute of limitations did not begin to run until the next day; therefore, the indictment, which was filed July 23, 2008, was filed within (albeit on the last day of) the five-year limitations period.

        (2) Although criminal trial attorney failed to contact D’s bankruptcy attorney about the bankruptcy matter that was at the heart of the criminal charge, D was not entitled to § 2255 relief for IAC because he failed to show that had the criminal trial attorney contacted the bankruptcy attorney, what the criminal trial attorney would have learned would have persuaded him to advise D not to plead guilty and instead to insist on going to trial.

        (3) Although trial attorney’s apparent failure to get and look at evidence and discovery “was less than commendable,” D was not entitled to § 2255 relief for IAC where he failed to demonstrate that he was prejudiced by such deficient performance; he did not even allege that he would not have pleaded guilty but for this deficiency.

Court of Criminal Appeals

The admission of the supervising DNA analyst’s opinion, which was based on computer-generated data obtained through batch DNA testing, regarding the DNA match to D did not violate the Confrontation Clause; the analyst did not introduce evidence or testify regarding a formal report or assertion from a non-testifying analyst but used non-testimonial information to form an independent opinion, and D was given the opportunity to cross-examine her. Paredes v. State, 462 S.W.3d 510 (Tex.Crim.App. 2015).

        “Does the admission of a supervising DNA analyst’s opinion regarding a DNA match violate the [U.S. Const. amend. VI] Confrontation Clause when that opinion is based upon computer-generated data obtained through batch DNA testing? Neither this Court nor the United States Supreme Court has squarely answered this question. In this case, we hold that it does not. Consequently, we affirm the court of appeals’ holding that the admission of the supervising analyst’s testimony did not violate the Confrontation Clause.” This upheld D’s capital murder conviction and sentence of life in prison without parole.

Following D’s acquittal for capital murder, successive prosecution of D for burglary from the same incident was barred by double jeopardy. Ex parte Castillo, No. PD-0545-14 (Tex.Crim.App. June 3, 2015).

        D allegedly stabbed his estranged wife and stabbed and killed his wife’s boyfriend, after breaking into the boyfriend’s house. D was charged in two separate indictments; all the charges stemmed from the same incident. The first indictment alleged that D committed capital murder when he intentionally caused the boyfriend’s death while “in the course of committing or attempting to commit the offense of burglary of a habitation owned by” the boyfriend. The second indictment charged D with aggravated assault and burglary; the first count stated that D intentionally, knowingly, or recklessly caused serious bodily injury to his wife using a deadly weapon, and the second count alleged that D intentionally or knowingly en­tered the habitation of the boyfriend without his effective con­sent and “attempted to commit and committed the felony offense of aggravated assault[] against” his wife. Before the capital-murder trial, D moved to consolidate the indictments and for the State to specify how the predicate burglary for the capital-murder charge was committed. The State objected, and the trial court denied D’s motions. At the charge conference, D asked for lesser-included-offense instructions on murder and manslaughter, which the court denied. D was acquitted of capital murder. After his acquittal, and before his second trial for burglary and aggravated assault, D filed a pretrial writ application arguing that the second prosecution was jeopardy barred. The trial court denied D’s application, and D appealed. COA reversed the trial court and remanded for the second indictment to be dismissed. CCA affirmed in part and reversed in part.

        D’s successive prosecution for burglary was jeopardy barred under U.S. Const. amend. V, cl. 2, by his prior acquittal for capital murder because the burglary charge was a lesser-included offense of capital murder as pled, despite the fact that the burglary charge alleged a completed burglary and the other charge did not. D’s successive prosecution for aggravated assault was not jeopardy barred by his prior acquittal for capital murder, even though aggravated assault was within the proof necessary for the State to establish capital murder as charged, because the aggravated assault charge related to a different victim.

This subsequent habeas application failed to satisfy Tex. Code Crim. Proc. art. 11.071, § 5(a); CCA dismissed the application as an abuse of the writ without considering the merits of the claims. Ex parte Gonzales, 463 S.W.3d 508 (Tex.Crim.App. 2015).

        In 1995, D was convicted of capital murder and sentenced to death. CCA affirmed on direct appeal and denied relief on D’s post-conviction habeas application. D’s federal habeas petition was denied as to his conviction but granted as to punishment, and the case was remanded for a new punishment hearing; the Fifth Circuit affirmed the federal district court.

        The trial court held a new punishment hearing in May 2009. Based on the jury’s answers to the special issues, the trial court sentenced D to death on May 7, 2009. On May 8, 2009, the trial court determined that D was indigent and asked whether he desired appointment of counsel to file a habeas application. D stated that he wanted no appeals filed on his behalf and no attorneys appointed. Because direct appeal cannot be waived, the trial court appointed counsel to represent D on di­rect appeal. For the purpose of Article 11.071, the trial court found that D was proceeding pro se on habeas. CCA affirmed the judgment and sentence on direct appeal. When D failed to timely file a post-conviction habeas application, CCA issued an order stating: “Because of applicant’s expressed desire to waive habeas, the lack of any vacillation of that waiver appearing in the record, and applicant’s failure to timely file an application, we hold that applicant has waived his right to the review of an initial Article 11.071 habeas application. Any writ application filed hereafter by applicant . . . will be labeled a subsequent application and reviewed under Article 11.071 § 5.”

        The federal district court entered an order staying its proceedings for D to return to state court to consider his current unexhausted claims. D thereafter filed the instant post-conviction habeas application in the trial court in September 2014. D presented four allegations in the instant application. CCA reviewed the application and found that applicant failed to satisfy the requirements of Article 11.071, § 5(a). CCA dismissed the application as an abuse of the writ without considering the merits.

Nothing in the record suggested that D was deprived of actual notice of his transfer hearing from juvenile court to district court; even if there were defects in the service of summons, the statute permitted a waiver of defects. Ex parte Rodriguez, 466 S.W.3d 846 (Tex.Crim.App. 2015).

        D was a juvenile when he allegedly committed murder; he was certified to stand trial as an adult and transferred to district court, where he was convicted. In this habeas application, he claimed he was not properly served with a summons to the transfer hearing in juvenile court. He further claimed that as a consequence of that failure, the juvenile court did not have jurisdiction to transfer him and the district court did not have jurisdiction to try him. CCA filed and set D’s habeas application to determine whether the district court lacked jurisdiction and whether this claim should be barred under the doctrine of laches. CCA denied relief.

        Even though D received the summons after the August 1, 1995, transfer hearing and the summons did not mention the August 4 transfer hearing, CCA found that D was served with a summons for a transfer hearing, and any defects associated with that service were waivable under the unambiguous language of Tex. Fam. Code § 51.09, as the Family Code governs juvenile transfer proceedings. Although § 51.09 requires that the waiver be in writing or occur in a hearing that was recorded, such a waiver could have occurred at a recorded hearing on August 1 or August 4, with the record of the relevant hear­ing no longer being in existence. CCA did not have, and could not obtain, recordings of the hearings, and any uncertainty about whether the hearings were recorded had to be held against D, as the party attempting to disturb the juvenile court’s disposition in a collateral attack. Consequently, the rec­ord did not affirmatively establish that the juvenile court lacked jurisdiction to transfer the case, and therefore did not affirmatively establish the absence of jurisdiction in the district court.

Although D’s false-evidence claim was not subject to procedural default because its factual and legal bases were not reasonably available in an earlier proceeding, D failed to demonstrate that the introduction of false evidence at his trial violated due process. Ex parte De La Cruz, 466 S.W.3d 855 (Tex.Crim.App. 2015).

        “In this application for a post-conviction writ of habeas corpus, we consider a claim that the use of false testimony in a criminal trial violated a defendant’s due-process rights. We additionally consider whether such a claim may be subject to procedural default for failure to raise it at some earlier stage of the proceedings. We address these matters in the context of considering the false-evidence claim raised by [D] on his assertion that his 2000 conviction for murder was procured in violation of his due-process rights as a result of the introduction of false testimony from eyewitness Marcos Torres at his trial. Concluding that applicant’s present claim is not procedurally barred because he had no prior opportunity to fully litigate it, we reach the merits of his claim. We determine that the record fails to demonstrate that applicant’s conviction was procured on the basis of false testimony, and, alternatively, even assuming that false testimony was admitted at applicant’s trial, that testimony was not material to his conviction. We, accordingly, deny relief.”

        D’s claim was not procedurally barred because he had no opportunity to fully litigate it, as it was based on the 2011 amended autopsy report and the legal basis underlying the claim was not firmly established by the court until 2009. However, D failed to show that the introduction of false evidence at trial violated his due process rights where the new evidence that the deceased was shot twice causing two wounds to his head failed to adequately demonstrate that the eyewitness’ testimony was false, as the new evidence was only moderately different from the trial evidence that the deceased was shot once, causing two wounds to his head, and the deputy chief medical examiner’s new habeas testimony addressing the probable location of the shooting was largely redundant of the assistant medical examiner’s testimony on the same subject at trial.

In charging D with fraudulent possession of identifying information, the jury instructions properly did not limit the jury with respect to the number of separate tangible documents on which the identifying information appeared. Cortez v. State, No. PD-0501-14 (Tex.Crim.App. June 17, 2015).

        Police officer stopped a truck for a traffic violation, arrested the driver, and inventoried the contents of the truck, which included a folder containing identifying information of other individuals. D was a passenger in the truck. Later, police found D’s fingerprints on three of the documents in the folder. A grand jury indicted D for fraudulent possession of fifty or more items of identifying information. Tex. Penal Code § 32.51(b)(1), (c)(4). The indictment identified seven complainants and detailed the identifying information D possessed that belonged to each complainant. An amended indictment reduced the number of complainants to five, including the two com­plainants whose documents contained D’s fingerprints, and the State prosecuted D for the lesser offense of fraudulently pos­sessing ten or more, but less than fifty, items of identifying information, § 32.51(c)(3). In three application paragraphs, the court’s instructions permitted the jury to find D guilty of fraudulent possession of identifying information in certain amounts that would constitute a second-degree felony, a third-degree felony, or a state-jail felony. Each paragraph named the five complainants and delineated the identifying information. The jury found D guilty of the third-degree-felony offense.

        D appealed that the jury charge erroneously used “identifying information” in place of “item of identifying information.” He contended this permitted the jury to convict him of a higher level of offense by allowing it to count each piece of in­formation listed in the application paragraph as an “item of identifying information,” rather than requiring it to determine whether those individual pieces of information would have to be aggregated to form each item or items of identifying information. COA affirmed the trial court, and CCA affirmed.

        CCA said § 32.51 was ambiguous; although it enhanced the punishment range based on the number of “items,” the stat­utory language did not plainly define what constitutes “an item of identifying information.” The statute states, “A person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of: (1) identifying information of another person without the other person’s consent[.]” The statute elevates punishment depending on “the number of items” of identifying information, making the possession of one to four items a state-jail felony, the possession of five to nine items a third-degree felony, the possession of ten to forty-nine items a second-degree felony, or, alternatively, the possession of fifty or more items a first-degree felony; “item” could refer to each piece of information that identifies a person but could also be understood as a thing that contains a group of information that identifies a person, such as a single driver’s license. CCA analyzed legislative intent and concluded that because “item of identifying information” means any piece of identifying information enumerated in the statute that alone or in conjunction with other information identifies a person, and does not mean each document containing a group of identifying information, a court must not limit the jury’s consideration under Tex. Code Crim. Proc. art. 36.14 to each tangible document bearing multiple pieces of an individual’s identifying information.

There was no valid law on which to base D’s conviction for online solicitation of a minor because CCA previously held that Tex. Penal Code § 33.021(b) was facially unconstitutional. Smith v. State, 463 S.W.3d 890 (Tex.Crim.App. 2015).

        “A jury convicted appellant of possession of child pornography, two counts of sexual assault of a child, and online solicitation of a minor. . . . [COA] reformed the trial court’s judgments to delete the specific amount of assessed costs and affirmed the judgments as reformed. . . .

        “In [Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013)], we specifically held that Section 33.021(b) is unconstitutionally over-broad. The state does not challenge our prior holding as to the statute’s constitutional deficiency; it takes issue only with the procedural posture in which appellant seeks to apply that holding. . . . [I]n affirming appellant’s conviction for the online-solicitation offense, the court of appeals implicitly determined that there was no constitutional impediment to prosecuting that offense. Accordingly, we have determined that we have jurisdiction to review the court of appeals’ decision. And because this case involves a conviction under a statutory provision that we have previously determined is facially unconstitutional, addressing the merits of appellant’s challenge to his conviction under that very same statutory provision allows us to dispose of the case in the name of judicial economy if the proper solution of the issue is clear. . . . A Marin ‘category one’ right, which is not subject to forfeiture or waiver by the failure to object, is a right that was recognized as fundamental before the defendant made his present claim. Any defendant, convicted or not, may obtain relief from a conviction under a statute that has already been held void. Imagine that the Supreme Court holding that the constitution does not permit the execution of juveniles was interpreted by trial courts to not apply to juveniles who were tried before the . . . decision and who did not object at trial. . . . [W]e sustain appellant’s ground for review in petition number PD-1793-13, reverse the judgment of the court of appeals in its case number 14-11-00841-CR, and render a judgment of acquittal for the online-solicitation offense. . . .

        “The state’s petitions challenge the court of appeals’ treatment of the trial court’s assessment of court costs. After the court of appeals handed down its opinion, we decided Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014), which sets out a roadmap for resolving questions concerning court costs. . . . [W]e grant the state’s petitions for discretionary review in petition numbers PD-1790-13, PD-1791-13, and PD-1792-13, vacate the judgments of the court of appeals in those cases, and remand those three cases to the court of appeals for reconsideration in light of our Johnson opinion.”

Court of Appeals

D did not clearly and unambiguously invoke his right to counsel despite saying several times he wanted to get a lawyer; D was entitled to a new punishment hearing because the court erred by admitting extraneous-offense evidence about dismissed out-of-state charges since the danger of unfair prejudice outweighed the probative value for purposes of Tex. R. Evid. 403. Beham v. State, No. 06-14-00174-CR (Tex.App.—Texarkana Sept 18, 2015).

        D was convicted of aggravated robbery and sentenced to 25 years’ imprisonment. D appealed that the trial court erred in (1) denying his motion to suppress his statements because he invoked his right to counsel and to remain silent, and (2) admitting evidence of extraneous bad acts during the punishment phase because its probative value was substantially outweighed by unfair prejudice. COA affirmed D’s conviction, but reversed his sentence and remanded for a new punishment trial.

        “We are to evaluate whether Beham’s right to counsel was invoked based on the totality of the circumstances. . . . Beham signed a document stating that he understood and waived his rights, including his right to counsel. A review of the recorded interview fails to reveal an unambiguous request for counsel. Beham’s first statement, that he was ‘gonna try to see if [he] could get a lawyer’ fails to definitively request counsel. In his second statement, he said, ‘Aaahh, I [unintelligible] want to talk to the lawyer and see what’s going on.’ However, the unintelligible word or words could have been any number of different words, and because the statement is open to two or more reasonable interpretations, it is ambiguous. When [detective] again asked whether Beham wanted to talk, reminding him that he could terminate the interview at any time, rather than clearly invoking his right to counsel, Beham said he would see what [detective] had to say first.”

During D’s trial for capital murder and aggravated assault, even though the jury charge did not apprise the jury of the proper unanimity requirement as it did not specify the killing of any one of the deceased as the predicate murder and did not require the jury to specify which two or more of the deceased they agreed D murdered, the error was not egregious. Saenz v. State, No. 04-12-00238-CR (Tex.App.—San Antonio Aug 26, 2015).

        Five patients died and five or more patients suffered episodes of unexplained illnesses and cardiac arrest while undergoing dialysis treatment; D, a nurse employed at the dialysis clinic, was charged with five counts of aggravated assault involving five separate individuals and one count of capital murder also involving five different individuals. A jury found D guilty of capital murder and three counts of aggravated assault. In 2014, this court overruled each of D’s twenty-one issues and affirmed the trial court. CCA reversed this court’s holding regarding the jury charge and remanded for an egregious harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh’g).

        COA held the record did not establish egregious harm, and affirmed the trial court. The state of the evidence and the record as a whole substantially supported a finding of guilt with regard to each of the five capital murder victims, although both the jury charge and argument of counsel weighed in favor of egregious harm as the prosecutor exacerbated the error by telling the jury it need not agree as to the same two victims; the record clearly supported that any of the five victims could have served as the predicate murder as each murder was based on similar factual situations, and the jury rejected D’s ultimate defense by finding D guilty on three aggravated assault charges.

Fear and Loathing in South Texas

The sweet acrid smell of a freshly lit cigarette danced inside his nostrils, seeping into his unconscious brain, waking him. His eyelids twitched and tremored, but did not open. It was an auto somatic response; like a mother drawn to her crying babe. Not something sought out. It was more a keening allure; an impulse impossible to ignore. Vices. Lovely reliable vices.

Every fiber of his being longed for that cigarette.

“Cigarette,” he tried, feebly; his voice sounding like jagged shards of glass across an old middle school blackboard. More eye tremors. Then, suddenly, his right eye snapped open like an old-fashioned roller shade.

Where the hell am I?

A single bloodshot eye probed left and right, up and down. Then the pain came. It started slowly near his bladder, rising like the plume of an atomic bomb, laying waste to everything in its path. This is what Churchill meant when he described “total war.” It traversed his hips and attacked his reluctantly defiant liver and kidney in a pincer move. When the pain breached his cranium, he anticipated Nirvana.

Instead, his left eye opened and he rubbed them both, hard, removing the sleepy crust that effectively shaded him from the reality that it was 3 pm in Marfa, Texas.

Marfa?

He sat up and immediately felt the hunger beneath the pain. His empty stomach grumbled. Strike that. His naked stomach grumbled. Definitely not the Owl Farm. He was naked and in a strange bed—not uncommon. Still, he liked the lumpy and rickety racket box masquerading as a queen-size bed almost as much as he liked Nixon.

“Good morning, Sunshine.”

She was at the window. Her back was against the window frame, left leg dangling. With her right leg bent 90 degrees and wedged atop that old 1920s sill, she looked to him like a beautiful stone nymph guarding a flying buttress. Her skin glistened and she blew a stream of smoke out the window, breathing life into repose.

“I’m hungry,” she said.

Sunlight reflected off her long and untamed blonde hair as she stared out the window, bored. He knew then, he did not matter to her. He looked around, trying to piece it together.

Is this a brothel? Do I owe her money? Who the hell is she?

Thought and confusion jumbled together and disappeared into the misty fugue blanketing his preprandial brain. He stood slowly, uncertainly. His legs and ankles popped and creaked as his body assumed his weight. Damned hip. His knees ached. The soreness in his low back was a painful reminder of the Love Boat’s much earlier departure. Maybe not as good as I once was, but hopefully still as good once as I ever was.

He threw his arms back wide, let out a raspy growl, and staggered on pin-pricks to the bathroom. Too tired to stand, he sat on the toilet, holding his forehead in his hands, trying to piece together the night.

What the hell happened?

He remembered the Aurora Borealis. He had been in a lawn chair atop a Winnebago. Head thrown back and watching the Marfa lights with a baseball glove over his face. Watching the sinuous greens and blues and reds pass through the basket of the mitt like gossamer wisps. He could feel the lacing in the bridge of the mitt and the tiny knots that secured the webbing digging into his forehead. He could smell the oil and beneath it, old leather.

There she is.

He remembered. She had been dancing and twirling on top of the Winnebago, her head ensconced in a blonde corona, smiling and laughing at the night sky. He remembered the joint now, too. Was it laced? On his own breath he thought he could discern the unmistakably metal taste of opium. Or, maybe spinal fluid. Hopefully, opium. It definitely was not the plain Mary Jane. Marijuana was legal in Aspen, for crying out loud. And it did not do this. This was a new and strange trip.

Where was I before the Winnebago and the blonde and the bud? It occurred to him he was still on the can. He smiled again. David the Thinker meets David the Stinker. Suddenly, there it was: I am here for a story.

Fear and Loathing in South Texas.

Two days had passed since he had last checked in with the magazine. Hopefully not another Rumble in the Jungle. According to the rumble in his belly, it had been two days since he had done a lot of things. It seemed the drugs were finally wearing off. The psychoactive effects, anyway. Through prior dealings with both law enforcers and breakers, he had learned a few things to help him self-diagnose after self-administering. He had learned a bit about the half-lives of drugs. The half-life of any drug refers to the span of time during which one can expect to be in its throes. Talk about fun facts. For example, he had learned that the half-life of marijuana was inestimable; it depended largely upon the dosage and personal use history, along with some other variables.1 Drugs like cocaine were more predictable, at least in terms of how long the high might endure: 0.8 ± 0.2 hours.2 Opium’s window was 6 to 25 minutes,3 while mind-benders like acid/LSD were 2.5 to 4 hours;4 methamphetamine or amphetamines were around 12 hours.5 Alcohol usually lasted no more than a half-hour.6 He liked that he knew that. It was like an intellectual escalation matrix for drug-enjoyers.

He remembered landing at the airport in San Antonio. Fortuitous for all parties involved, the magazine had provided the convertible he had demanded: a red Oldsmobile sedan with white leather seats. He frowned.

Where the hell is my attorney?

Oscar Acosta esq. had been with him since the beginning and was an absolute necessity on any trip where things were bound to get weird. As one who eschewed pretense, he had not called the man by his Christian name—maybe ever. Affectionately, he called him Gonzo. Whether it was his bewitching style in the courtroom or their shared iconoclasm that garnered the sobriquet was irrelevant, anymore. He was the only man who could get him out of any pinch. Beatifics and honorariums aside, Gonzo was also the only other man he knew whose tastes matched his own debauched opprobrium.

Gonzo was more than his oldest and most lecherous friend. He was his only friend.

Finally, he remembered the goat. And not just any goat. This goat was the mayor—not euphemistically, either. He had come to Texas and discovered that the mayor of Lajitas was a goat named George.

It is almost too fantastic to believe!

He smiled, remembering the six-pack he had bought from the local Lajitas grocer. He had not picked the grocer for his groceries. He was the only grocery game in town. The only store at all, in fact. The town of Lajitas boasted a population of three, and its mayor was a goat. He remembered smoking a cigarette as he fed the mayor a bottle of Shiner through the fence.

God bless Texas.

“The good Doctor returns,” she said as he padded in and sat on the side of the bed opposite her. He looked askance, glimpsing bare back as she slid into her skinny jeans. He thought of the trip to Ojinaga, Mexico, before the girl.

The top was down and Gonzo was up front, rolling joints and drinking whiskey from the bottle. The Texas/Mexico border marked the mid-point of their afternoon sojourn. There, they left the convertible and made a river crossing. Donkeys were tied to the brush, their leads disappearing into nappy thickets. Beyond them, a small wooden-crate raft was beached ashore. For $5 the local proprietors let them mount their asses to ford the shallow river into Mexico. On the dry side, it was another ten long minutes struggling to steer the mighty beasts before they reached the small town center. He frowned, trying to remember how that place was supposed to have fit into his story.

Now I remember!

Drugs. Lots and lots of drugs. The town sat at the center of a bustling international drug trade. The low river made it easy. It beckoned. They came. Ojinaga was to the drug trade what Mecca was to Muslims. It beckoned. Gonzo and the Doctor came.

He remembered the farmacia and the stooped and leathery “doctor” who asked quite simply, “Que quiere?” He remembered the giddy rush of his response. Word spread quickly throughout the small town that two gringos were buying a large quantity of drugs.

Gonzo preferred the unprescribed medicinals-for-the-soul while the doctor shopped the pharmaceuticals. They each bought decorative Aztec leather pouches to conceal and carry their score. Gonzo bought cocaine, weed, mescaline buttons,7 a sheet of blotter acid/LSD,8 mushrooms,9 ecstasy/MDMA,10 and some tree bark the locals called DMT.11,12 The doctor packed his bag with Adderall, ephedrine, and a gluttonous portion of topical cocaine.13

Christmas in Mexico!

They found a local bar and were belly-up, planning the chronology of their drug discourse. They each ordered a beer with a tequila chaser. As a precaution, the doctor popped an Adderall and splashed it with his chaser. He thought about the long drive back to Marfa.

Through a combination of experimentation, trial, and error, the doctor had come to realize the most basic driving skills are not adversely affected by amphetamine dosages that were within the normal clinical range.14 That last scientific-sounding bit he had scrounged off a Ketamine-addled former doctor who bummed a cigarette from him in Aspen, years back. In fact, he had learned that where alcohol had been shown to have caused some driving impairment, the effects of amphetamine use actually enhanced driving ability.15 He also knew that although there is some evidence amphetamines can result in overconfidence or increased risk acceptance, the effects reported had been neither so strong nor so consistent as to justify much of any apparent concern.16

Giddyup.

Obviously, the doctor was also aware that known amphetamine abusers have been found to be involved in a disproportionate number of highway accidents,17 but he was not abusing it. He just wanted one pill to keep him awake and to counteract the depressant effects of the booze. Two beers and a shot over the course of a couple hours was not illegal. Still, to be safe, he ordered and ate a chicken quesadilla.

Gonzo opted for more bohemian fare. It was like a drug club sandwich: one mescaline button, one mushroom, and one ecstasy tablet all washed down with tequila. For good measure, he tore off a tab of acid and let it melt on his tongue. Gonzo’s idea of temperance did not translate to fewer drugs. Instead, he concentrated only on the root of the word, interpreting it to mean more drugs but with good humor. The doctor looked at his watch.

Ten minutes before that acid kicks in.

They settled up and took their booty in search of their asses. Gonzo barely made it to the car. As he stretched across the length of back seat the sky began to move and change color. Groovy. Doc knew Gonzo was not in any shape to drive. Psychedelics and driving were a poor mix, and definitely illegal.18 Gonzo was a gamer. But, even his mental and physical faculties had taken a backseat to the drugs. Doc fired up the convertible and slammed the gearshift into drive. With a roar of the engine they were back on the road, leaving that small little drug den in a cloud of colitas.

On the road, Doc’s Adderall kicked in, staunching the depressant nature of the alcohol. He felt alert and back to normal. No loss of faculty—mental, physical, or otherwise. If anything, he was more alert than normal, very aware of his surroundings.

As the blacktop unfurled ahead of him, Doc thought about the Adderall. He lapsed into a kind of pharmacological dogmatic trance: Adderall is a member of the amphetamine family, which is classified, pharmacologically, as sympathomimetic amines.19 Amphetamines are a powerful stimulant whose effects include general activation, appetite depression, and euphoria when taken in sufficient dosage.20 The recognized medical uses for amphetamines are largely for treating and controlling narcolepsy, childhood hyperkinesis (ADD/ADHD), and short-term appetite control.21

Despite its common uses, in Doc’s experience most cops still responded to its utterance as though it were the kind of substance concocted in cinderblock rooms over an aluminum-foil-covered metal spoon using a blow torch. Hell, even Doctor A. W. Jones knew that “[t]o convict a person for driving under the influence of a prescription drug, the prosecution ha[d] to prove the driver was impaired by the drugs or that the concentration in blood was higher than expected for normal therapeutic use, implying that the person had taken an overdose or was abusing the medication in question.”22 He shook his head, snapping out of it.

Damn narc.

He tried to focus on Marfa and the task at hand. But, as Gonzo giggled and laughed and shouted down the heavens from the back seat, Doc’s mind began to wander. He thought about Terlingua.

Need to up my ADD dosage.

In Terlingua there lay a gem—a bar hidden from most of the rest of the world. News of the place had reached Doc over the years in the form of whisper and legend. They could be there by nightfall. He looked in the rearview. Joyful tears ran down Gonzo’s cheeks as he traced the clouds with a finger, softly muttering the lyrics to a Grateful Dead song. They could land in Marfa, Terlingua, or on Mars, and it would not make any difference to Gonzo. Doc adjusted his course, heading north on Highway 118.

Viva Terlingua!

In less than an hour he found himself on the threshold of legend. La Kiva was everything he had heard about and more. Gonzo’s tears had dried and he was in the backseat with a fly swatter raving about the pernicious bats in the bat country. Odd. Best to leave him behind.

The misshapen wood door creaked as Doc passed over the threshold, almost hitting his head on one of many stalactites that descended from the ceiling like wicked pointing fingers. La Kiva was a semi-subterranean cave bar. Rock formations and the skulls of dead animals served as decoration. He approached a bar that looked to have been assembled with varnished driftwood. The owner, Glenn Felts,23 wiped his hands on a bar towel and took his order: a can of Pearl and a shot of Jack. Glenn delivered the libations and leaned against the bar proudly regaling Doc with its long and whispered history.

Laughter behind him. Doc turned as a man entered, shaking his head with a smile. He jutted a thumb over his shoulder, “Some crazy man running nekked around the parking lot.”24

Doc stood. “Time to go,” he said.

He shook hands with Glenn and promised not to share the secrets of his hideout with the world. Doc took stock of himself: two drinks in an hour, still not over the legal limit for this 170-pound male. He left to gather Gonzo for their trip back to Marfa.

“I need lunch, baby.”

Terlingua disappeared and he was back in Marfa in a room with the woman. She was dressed and standing in front of the mirror, twisting her hair into a ponytail.

Doc pulled on his shorts and peered out the window, squinting against the sun. Moving better now, he reached for his bucket hat and a pair of yellow shooting aviators. He buttoned his aloha shirt and grabbed his keys and wallet. They were out the door in less than two minutes. He still had not asked the girl her name.

His car was just as he had left it. The decorative pouch was still there on the floorboard behind the driver’s seat. George and Lajitas could learn a thing or two about dissuading the looters from the good folks in Marfa. As he started the car he wondered whether he ought to be driving. He felt fine, but the gaps in his memory left him wondering whether it was all a hallucinogenic illusion. Though the drugs were still technically in his system, he knew they were no longer psychoactive.25 Last night’s joint had been real, but its high had long since gone. Based on his chronic use history, Doc knew traces of the marijuana could linger in his blood and urine for up to five weeks.26 It was strangely comforting.

Doc wondered whether the joint had been laced: opium, LSD, embalming fluid, or PCP? The possibilities were endless. He knew people could soak a joint in just about anything to enhance its high. It was the intersection of ingenuity and degeneracy. He glanced at his passenger, curious.

Doesn’t matter, he decided. The effects of anything he had smoked or ingested last night had worn off. Mentally and physically, he felt normal. He put the car in gear and headed for the highway. Approaching the crossroad at 67 and 90, he saw a state trooper in his prowl car on the right in the parking lot of a Stripes.

When the trooper pulled out of the parking lot and made his none-too-subtle approach, Doc’s stomach dropped. He had not been speeding. It was the first thing he had checked upon seeing the unit. The trooper lit him up with rotating blues and reds and gave a short pop of the siren. Dutifully, Doc signaled a lane-change and pulled off the road into the parking lot of the Food Shark.

As Doc was putting the car in park, panic jogged his memory: the Aztec pouch. Ain’t got no prescriptions for any of that stuff! He looked into his future and saw felony possession—maybe even intent to deliver, based on the amount. They did not know him. They would never believe it was all for personal use and consumption. The blood drained from his face and not for the first time that day, he felt sick.

Be cool. Stay calm. Think.

The trooper did his cop-walk up the driver’s side. Doc watched him through the driver side mirror. He stopped just shy of the door handle.

“Laslo. Highway Patrol.”

“I wondered what that word on your shirt meant,” Doc mused.

“License and registration,” Laslo said, stern.

Doc reached for his wallet without fumbling it and retrieved his license without difficulty. “The car is a rental,” he said, abandoning the shtick. Laslo craned his neck and gave Doc’s passenger the fish eye. “Becky, I thought I warned you not to let me catch you out again?”

Becky.

Becky sat rigid, staring stoically out the passenger side window. She pretended not to hear. Laslo exhaled a frustrated snort and leaned back, eyeing Doc.

“I’ll be right back. Sit tight.”

Now or never. As Laslo returned to his prowl car to radio in the bona fides, Doc turned quickly in his seat, snatching the Aztec pouch. He opened the bag and closed his eyes. “Jesus, Gonzo.” Fortunately, it seemed to Doc that Gonzo must have ingested nearly all of his score. Still, he saw acid, buttons, ecstasy, cocaine, mushrooms, weed, and DMT. A gaggle of felonies just waiting to happen, except the weed, which was still only a misdemeanor in such a small quantity. He did not see another option. He had to act fast. Doc pitched forward, dropped his head low, and started shoveling the drugs into his mouth.

Becky turned and watched him, silently bemused.

The panic propelled his churning arms as he realized felony tampering charges would be added to the already-looming possession charges if Laslo interrupted his impromptu meal. He fought the gag reflex as his body tried to reject the calamitous array of tastes and textures being forced into his maw. He glanced up with his hand over his mouth and the last of the drugs inside. Laslo kicked open his patrol car door. Doc swallowed, figuring he had ten minutes before the roadside show became a shit show. Hell, death might even make a cameo appearance. He tried to calculate his impending doom.

He was not worried about the weed. It needed a heating agent to become psychoactive.27 The LSD was highly absorptive through mucous membranes.28 In about 20 minutes it would kick in like the Kool-Aid Man through a brick wall.29 Oh yeah! The mushrooms had an estimated time of arrival of about 45 minutes.30 The cocaine was already numbing his stomach; hopefully it would do no more than make him excitably sick.31 The natural acids already in his stomach should kill any major reaction to that. He was not worried about the DMT, either, as it needed a monoamine inhibitor (MAOI) to be psychoactive when taken orally.32 Oral ingestion was no worse than wasteful. And, he had eaten mescaline before. He hoped as it began to work it would induce vomiting,33 which would at least rid him of whatever undigested drugs remained. That was his fallback, his hope, anyway. Come on, mescaline! Don’t fail me now.

When Laslo made his return, he approached on the passenger side. He jutted his chin at Doc. “Becky. Who’s the guy?” He pressed on as though she had answered. “What are you doing here?”

Becky kept quiet, ramrod straight, staring ahead.

“Becky, I’m talking to you.” Laslo waved across her field of vision.

Over the boiling tumult in his gut, Doc heard something strangely funny. The back of the car shifted and there was an almost gentle heaving. There was a single, loud thud from inside the trunk, and then silence.

Laslo’s eyes darted to the trunk, back to Becky, back to the trunk, and widened in recognition. The car started moving again and Doc felt his stomach somersault gaily. From inside the trunk a thump, thump, thumping accompanied the sounds of muffled struggle.

“Is someone in the trunk?” Laslo asked, an octave above his prior refrain. He stepped away from the car and edged near the trunk, the heel of his left palm on the butt of his gun.

“That’s ridiculous! It’s a convertible. It’s a beautiful day; the sun’s out. Why would anyone get in the trunk?” Doc winked at Becky, impressed with himself. She rolled her eyes and sighed.

“Open it. Open it right now!” Laslo demanded.

Doc jutted a pontificating finger skyward, “I know my goddamn rights, Laslo, and you do not have my consent to search that trunk!”

There was a loud pop and the trunk swung open, mooting Doc’s point. He frowned his annoyance at the trunk. As it rose a clenched fist at the end of a meaty forearm jammed the lid wide open and Gonzo stood up behind it. He was shirtless and his pants were unzipped and showing more of him than Doc ever wanted to see, and hoped not to remember. Dirt and grime and grease from the spare tire mixed in a frothy mess obscuring Gonzo’s features. He gathered himself and jumped, but his foot caught something on the inside lip of the trunk. He crashed into the dusty, hot parking lot with a grunting thud.

Laslo took another step away from the car, unsnapping his holster as he did. His eyes darted front to back, front to back. “What the . . .”

Gonzo pushed himself up on all fours, looked ahead, and took a deep breath. His gut heaved and he groaned as he pushed himself to his feet. He hitched his pants and pulled up the zipper. Swaying, he reached up and slammed the trunk lid home and left his hand there for balance. “Damn, it’s hot in there.”

Laslo drew his weapon but kept it pointed at the ground. “Somebody better tell me what in hell is going on here.”

Gonzo waved his hand with a face suggesting this were some minor peccadillo. “Officer, I will discuss anything you want. But them,” he nodded at Doc and Becky. “I’m an attorney and they are my clients.”

“Clients,” Laslo repeated.

“Clients,” Gonzo confirmed.

“They had you in the trunk.”

Gonzo looked back at Doc and Becky and said, “Tsk-tsk. The inconvenience will be reflected in their next billing statement.”

He looked back to Laslo. “I appreciate your concern, but all is well here. We will certainly provide you with any identifying information you desire. Beyond that, we would like to remain silent.”

Behind the wheel, Doc lost his grip, the sky began to move, and he fell off the face of the planet. He did not know whether he was experiencing shock or a heart attack. His brain was too gripped to realize it was in the throes of his most heinous trip. The clouds began to race and the sky became a monochrome transition from blue to purple and then red. Watery acrylic rainbows began streaming up the windows. No, no, no, not now.

When Laslo saw the empty and bovine look of childlike wonder followed by anguish followed by wonder, he made a decision. “Everyone out of the car!” He grabbed his shoulder mic and radioed for backup.

Doc bit his lower lip in a desperate attempt to return to reality. He looked in the rearview; his bug eyes were completely dilated.34 He could feel his blood pressure skyrocketing.35 He imagined himself as the SpaceX rocket hurtling skyward, bursting through marshmallow clouds and rainbows made of real Skittles.36 He stuck out his tongue, hoping to taste the rainbow as he flew by.37 A cold sweat began creeping up his spine. He put his tongue back in his mouth. His gorge was rising. No good.

He tried to speak but the words would not come. The darkness—as he liked to think of it—was a creeping inevitability. He had explored the deepest depths of the so-called drug binge many times before. Drug binges were like IKEA.38 There was no getting out. No shortcuts. It had to run its course. All he could do was grin and bear it. He bore down and tried to think only of endurance.

Gonzo eyed Doc uncertainly, took a deep breath, and, approaching Laslo, turned on the 100-watt smile. He rubbed his hands together and, when he realized they were too dirty for that to accomplish much, wiped them on his pants.

“Allow me to introduce myself,” Gonzo said.

Laslo eyed Gonzo’s extended hand, but did not accept it. Quietly, Becky opened her door and stepped out, complying with Laslo’s earlier command. Inside, Doc looked to his right and fought back a scream. She jumped! Then, it occurred to him they had both been ordered to step out of the car. He wanted to get out, but was not sure he could. His limbs felt rubbery and uncontrollable.39 He did not trust them to respond on command. Subtlety probably is not an option.

Doc leaned right, pulling his knee as close to his chest as he could. He let out a short breath and donkey-kicked the door as hard as he could. The door flew open, rebounding as its springs recoiled with a terrible, shrill scream. He was free of the confines of the car but did not get out. When the door swung open his momentum forced him upright. He was still in his seat, left leg outside the car.

Slowly, he slid his right hand into his hip pocket and extracted a cigarette from the pack. With an expert flick he got his Zippo going. He cocked his head and stared at the flame dancing atop the lighter, mesmerized by the colors. He held his cigarette so it would light slowly. He watched the paper ignite and burn down in irregular scallops. He watched the advancing conflagration spark and then shrivel tiny brown-gold shrapnels of tobacco. The reds and oranges were brilliant, almost neon.

A pyrrhic victory, indeed.

He pulled deeply on the cigarette. He felt the smoke as it passed over his tongue and down his esophagus, tunneling its way from his throat to lungs. Slowly, he waved the lighter back and forth, mesmerized, feeling his lungs expand to capacity. He smiled as the lenses of his aviators refracted the tiny dancing light.

Laslo looked at Doc impatiently and then back to Gonzo. “Is he okay?”

Gonzo shrugged with an embarrassed smile. Laslo went around the front end of the car and stood in Doc’s open door, staring down at him. As Laslo loomed, Doc mumbled the words to “One Toke Over the Line,” and watched a sepia recording—like found footage—of the full concert on the inside of his aviator lenses.

“Out of the car,” Laslo said, grabbing Doc’s left arm above the elbow. The movement dislodged the Aztec pouch and it fluttered out of his lap and to the parking lot. “You on something?”

Doc looked up, nearly catatonic. He held Laslo’s menacing glare. He let himself be pulled up and out of the car. Laslo walked him to the front of his patrol car and said, “Sit here.”

Doc sat, thankful for the respite. He felt like the Scarecrow from the Wizard of Oz. He could barely stand, let alone walk. His face was ghostly white and the blood had drained from his lips, leaving them a sickly shade of pink. His left nostril was runny.40

“I felt your arm,” Laslo said to Doc. “No muscle contractions. No rigidity.”41

Do I look like some kind of muscle-bound beefcake, Doc thought, but could not say.

Laslo shook his head and pulled a penlight from his chest pocket. He waved it in Doc’s face. “I want you to watch my pen with your eyes and your eyes only.”

Doc smiled broadly as he watched the neon streamers tracking Laslo’s passing penlight.42 Finished with the horizontal passes, Laslo moved the tip of his penlight closer and closer until it touched the tip of Doc’s nose. “No convergence. None.”43

He looked up at Gonzo and said, “This dude is FUBAR.”

He strode away a few yards and motioned with his finger for Doc to follow, “I’m going to have you do a few more tests for me, okay?”

“I don’t recall you ever explaining a first test to him, Trooper Laslo,” Gonzo offered.

Laslo ignored that and said to Doc, “Understand?”

Doc nodded dumbly and instructed his brain to respond with, “Sure.” Unfortunately, with his slack jaw and gummy mouth the sound that escaped was an indecipherable squawk.44

Laslo pointed at a spot near his feet, “Can you come stand in this spot?”

Again the indecipherable squawk.

Laslo rolled his eyes and began reciting the instructions to a high-stakes balance and performance exam he called the Walk-and-Turn. After giving the instructions he finished with a practiced and polished partial demonstration. Doc remained on the hood of Laslo’s car the entire time, watching a single rogue ant scavenge a scrap of Twinkie from a discarded wrapper.

Laslo said, “Do you understand the instructions?”

Doc chuckled and burped.

“Sir, are you refusing to do the test? If you refuse, I’ll have no choice but to arrest you for DWI.”

Doc breathed slowly through his nose, feeling the little hairs inside quiver. Somehow, he found the strength and hoisted himself to his feet. He could barely see the ground. He thought of Eddie Murphy in “The Golden Child”: There is a ground. You’re making it look like there’s no ground. There’s a ground, Monty!

Doc could swear he remembered Laslo say something about an imaginary line. All he saw were lines. The parking lot had become the racetrack from the movie “Tron.” He looked around for his disc.

Laslo snapped twice to get Doc’s attention.

With an effort, Doc got his weight balanced over his feet and, starting high with his right foot, moved it in a wide looping arc up and forward. His steps were uncoordinated and wild, his arms crooked and akimbo like he was attempting to dance the Funky Chicken. He staggered and stumbled along a crooked line towards the back end of his rented convertible. Not seeing the car, Doc hit the bumper with his shins and tipped forward, fast. His momentum carried him end-over-tea-kettle into the trunk where he disappeared inside.

Inside the trunk, Doc was at first shocked and then calmed by the sudden darkness. He remembered the trooper and his tests. He thought about feigning sleep or trying to hide and could not decide which would be more effective.

Laslo’s face appeared above the open trunk. He did not appear to be amused. Absently, Doc wondered whether he could shape Laslo’s face like putty, and turn that frown upside down. “Damn, Mr. Thompson. There’s one more test.”

Laslo reached in and helped Doc up and out of the trunk, standing him at attention. He told Doc the last test was called the One Leg Stand. He explained its instructions and gave another practiced demonstration.

“I saw that on that movie, Karate Kid,” Gonzo said. “You want him to do the big roundhouse at the end? Or maybe sweep the leg?”

Again, Laslo ignored Gonzo, checked his watch, and nodded to Doc. “You may begin.”

In his mind’s eye Doc was doing an impressive version of the Russian River Dance. Reality was less moving. When he thudded down on the bumper and slid down onto the hot pavement, Laslo terminated the test. He grabbed Doc by the shoulder and helped him roughly to his feet.

“Turn around. Hands behind your back. You’re being detained for suspicion of DWI.” Laslo double-locked the cuffs around Doc’s wrists and led him to the front seat of his patrol car.

Doc plopped down, sitting painfully on his hands. Laslo shut the door and turned his back on Doc. He said something into his shoulder mic and stepped a few yards away from his cruiser and the others. Doc leaned his head back and it lolled atop his shoulders. The mescaline was finally kicking in. Not good. He felt the electric warmth rise quickly from his stomach into his throat. His head shot up and forward as he puked all over Laslo’s dashboard and computer terminal. The first volley triggered an avalanche. The force of the emesis contorted Doc’s body and he turned left, thrusting against the seat belt. When it was over, projectile vomit seeped and covered nearly every surface inside Laslo’s car. Doc spit on the rubber mat, looked up, and smiled for the dash-cam.

Outside, Laslo sub-vocalized a final response into his shoulder mic and returned to Gonzo and Becky. Laslo stopped within inches of Gonzo’s face. Gonzo looked nervously over Laslo’s shoulder, but said nothing.

“What in hell is going on here . . . counselor?”

Gonzo said, “It’s an interesting story, actually. My friend and I are here in Marfa to write a story for a national magazine. We wanted to experience and tell Marfa’s wonderfully compelling story. As you know, the town has garnered national attention as a refuge for relaxation and port-of-call for free spirits.”

“Unh-hunh,” Laslo dripped. “And then you ended up in the trunk.”

“Ah yes, that. Well, you see we were all having a riotous good time last night. I stepped outside for some fresh air. I guess I was outside longer than I thought. When I finally returned I realized I’d been locked out of our room.”

Laslo sneered at Becky and said to Gonzo, “These other two shut it down early, huh?”

Gonzo nodded agreeably. “Right. So, I decided I would just sleep in our rented convertible, here.”

“Lemme guess. You’re a sleep walker. That’s how you ended up in the trunk.”

Gonzo shook his head. “I’m fat and out of shape. Still, it was freezing. I thought the trunk would be warmer. I thought my friends would notice I’d left the lid slightly opened. But . . .” he trailed off.

“But, they didn’t.” Laslo finished for him.

Gonzo shook his head in agreement. “When I woke up we were moving and the trunk was closed.” He shrugged as though the whole thing were some minor misunderstanding.

As Gonzo spun his tale the reality of the previous night came to him in flashes. He saw the colors, the girls, the cactus, and the Marfa lights. That is when the demons had come. He had watched Doc and the girl clamber atop that rusted Winnebago, awaiting his turn. But, as the girl disappeared over the ladder the demons came for him. There had been so many. Like maniacal ghosts with razor teeth sweeping the grounds and swarming. There had been no time to ascend the Winnebago. He ran. He ran for the convertible. In the past, in the midst of a bad acid trip, he had always found refuge inside the trunk of a car. He had always been safe there. So, that is where he went. After he got in he assumed he would simply pass out.

He woke up in the middle of the night holding one of the Aztec pouches. He had hoped his own drugs were inside. Instead, he had Doc’s bag and Doc’s drugs: a bunch of Adderall, amphetamines, and topical cocaine. He preferred his own cache, but knew Doc’s stimulants could keep him alive and awake through the worst of a bad acid trip. He slept in fits and starts. Over the course of the night he emptied Doc’s bag. Now he felt fine, standing there with Laslo and Becky and spinning a yarn more colorful than a winter scarf. He felt fine. A little jittery, borderline invincible, and alert as hell.45

“What happened to your shirt?” Laslo asked, peering inside the trunk. It was empty but for a greasy spare tire and Doc’s empty Aztec-ian speed bag.

Gonzo remembered running his XXL aloha shirt up the flagpole last night. He remembered saluting it and crying as it snapped and fluttered in the wind. He remembered leaning against the pole like one of the hero’s on Iwo Jima. He looked at Laslo, “You sleep in a shirt?”

Laslo shrugged. “You okay to drive?”

Gonzo nodded in the direction of the patrol car. “And my friend? He has no odor of alcohol . . .”

“High as a kite. I’m taking him in for a blood test since he seems to be incapable of speech at the moment. Otherwise, I’d just ask him.”

“I see. Yes, sir, Mr. Trooper. And, to answer your previous question, I am perfectly okay to drive. I’m a little shocked at my friend’s behavior. I understand you have a job to do.”

Laslo nodded and turned to Becky. “You better get your ass in that car, right now. I bet the sheriff is worried sick. Don’t you have school tomorrow?”

“School?” Gonzo asked, worriedly.

“College,” Becky said, defiantly.

“Dammit, Becky. It’s an election year; you know that. We can’t have you running round like this causing trouble.”

Becky stuck out her bottom lip and frowned at Laslo. He jerked a thumb over his shoulder. Slowly, Becky walked back to Laslo’s patrol car. “You can come get him after we get his blood and book him,” Laslo said.

Gonzo said, “You’ll have a warrant, I’m sure.”

Laslo chuckled. “I’m sure that’s just what we’ll do, bother the judge with a warrant for blood on a damn dee-wee.” Laslo turned and headed for his car.

Gonzo hot-footed it to the convertible as soon as Laslo opened his door and was met with the sights and smell of Doc’s perdition. The sound of Laslo’s expletive-laced tirade chased him on the wind as he pulled back onto the highway and sped away.

Fear and Loathing in a South Texas Jail? The sound of that above Doc’s byline did not sound too appealing to Gonzo. Immediately, he began planning his friend’s legal liberation.

And, as luck would have it, fortune would smile upon poor Doc that day. Gonzo recruited a few of his legal friends: a Texas legend with a ranch down near Marfa46 and the Doctor’s old friend/lawyer, Gerry Goldstein. His legal team traipsed through the Marfan courts with their heads raised and their shoulders two ax handles wide. More importantly, they wielded one hell of a big legal stick.

In short order they reduced the State’s evidence to ruin. The acid in Doc’s vomit shorted the dash cam. So, no scene video. And, as Laslo had boldly predicted, Doc’s blood was forcibly drawn without a warrant in violation of Doc’s Fourth Amendment rights as expressed in McNeely,47 and any mention of intoxication by drug without a properly administered 12-step DRE violated Delarue, Delane, and Layton.48 In other words, Laslo’s opinion was little more than a hunch or guess. Gonzo felt sure the poor ADA would awaken from a midnight nightmare with the word “suppress” hot on his lips.

During trial, Gonzo listened along with the jury as the defense team attacked what remained of Laslo’s investigation. Obviously, his preoccupation with Becky and her impact on the polls reflected poorly on any suggestion that his investigation was properly done.

In the end, Marfa got its article and the cops a black eye. What the government called intoxication the defense called food poisoning. And, the jury reasoned, there simply was not enough evidence for them to rule out food poisoning, as the defense had suggested. Hell, there was not enough evidence to rule out neurotic tomfoolery, even. In a chiding tone, the foreman said Doc’s behavior was damned suspicious. But, he said, reasonable doubt carried the day. Doc was acquitted and allowed to return to his fortified compound at Woody Creek. He and Gonzo had survived, surely to ride again.

God Bless South Texas!

Notes

1. http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm. It should be noted that levels of marijuana or metabolite can show in urine for up to five weeks depending on dosage and usage. Id. See also Baselt, Randall C., Disposition of Toxic Drugs and Chemicals in Man, Tenth Edition pp. 1948–52 (2014).

2. http://www.nhtsa.gov/people/injury/research/job185drugs/cocain.htm. Cocaine or its metabolites may be detectable in urine for up to 10 days, depending on us­age, ingestion method, and dosage. Id. See also Baselt, pp. 511–513.

3. Opium is the most active substance in morphine. Both are narcotic analgesics. http://www.nhtsa.gov/people/injury/research/job185drugs/morphine.htm. See also Baselt, pp. 1399–1401.

4. http://www.nhtsa.gov/people/injury/research/job185drugs/lysergic.htm. LSD may be detectable in urine 2–5 days. Id. See also Baselt, pp. 1181–1183.

5. http://www.nhtsa.gov/people/injury/research/job185drugs/methamphetamine.htm. Amphetamines and methamphetamines can be found in the urine up to a week depending on dosage. Id. See also Baselt, pp. 122–125.

6. http://www.toxipedia.org/display/toxipedia/Biological+Properties+of+Alcohol. See also Baselt, pp. 782–784.

7. 3,4,5-trimethoxyphenethylamine.

8. lysergic acid diethylamide.

9. psilocybin.

10. 3,4-methylenedioxymethamphetamine.

11. dimethyltryptamine.

12. For purposes of Drug Recognition Evaluations (DRE): Cocaine is a stimulant, marijuana its own classification, and the rest are all hallucinogens. See NHTSA/USDOT Drug Evaluation and Classification Training Program; The Drug Recognition Expert School manual, p. II-1-3 (January 2007 edition).

13. All of these are DRE-classified as CNS stimulants.

14. Hurst, Paul M., Amphetamines and Driving Behavior, Accid. Anal. & Prev. Vol. 8, p. 9 (1976).

15. Hurst, p. 9.

16. Hurst, p. 9.

17. Hurst, p. 9.

18. Hallucinogens can cause dazed appearance, body tremors, synesthesia, hallucinations, paranoia, loss of coordination, nausea, disorientation, difficulty speaking, perspiring, poor perception of time and distance, memory loss, disorientation, and flashbacks. See NHTSA/USDOT, p. XIV-4-7.

19. Hurst, p. 9.

20. Hurst, p. 9.

21. Hurst, p. 9.

22. Jones, A. W. and Kugelberg, F. C., Concentrations of Scheduled Prescription Drugs in Blood of Impaired Drivers: Considerations for Interpreting the Results, Ther Drug Monit, Wol. 29, No. 2, April 2007.

23. RIP Glenn Felts. You are not forgotten.

24. “Hysterical behavior” may be exhibited by those on LSD. Baselt, p. 1182.

25. The psychoactive effects of marijuana and opium rely heavily on the usage, dosage, and method of ingestion. Additionally, the unique metabolism, history of drug use, rate of consumption, time of consumption, eating pattern, liver and kidney functions, and other unique factors of the individual may affect psychoactive effect and duration.

26. http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm.

27. Raw cannabis contains a lot of THCA, which is not psychoactive (and what’s the fun in that?). When you smoke weed, the THCA molecule loses its carboxylic group (COOH) in the form of water vapor and carbon dioxide and becomes THC. Long story short, THCA becomes THC and your cannabis becomes psychoactive. This process is called decarboxylation or decarbing. http://www.thestonerscookbook.com/how_to_decarboxylate_weed.php.

28. http://www.nhtsa.gov/people/injury/research/job185drugs/lysergic.htm.

29. Following oral ingestion, onset of the first effects maybe be experienced in as little as 20–30 minutes, peaking at 2–4 hours and gradually diminishing over 6–8 hours. Residual effects may last longer. Flashbacks may occur suddenly, often without warning, and may occur within a few days or more than a year after use. http://www.nhtsa.gov/people/injury/research/job185drugs/lysergic.htm. See also NHTSA/USDOT, p. XIV-5, which says 30–45 minutes.

30. http://www.tripproject.ca/trip/?q=node/15; http://www.shroomery.org/forums/showflat.php/Number/6360671.

31. See NHTSA/USDOT, p. X-3. http://www.nhtsa.gov/people/injury/research/job185drugs/cocain.htm.

32. http://www.thepsychonaut.org/entheopedia/dmt/.

33. See NHTSA/USDOT, p. XIV-5; http://www.erowid.org/chemicals/mescaline/mescaline_basics.shtml ; http://en.wikipedia.org/wiki/Mescaline ; http://www.shroomery.org/forums/showflat.php/Number/7391394.

34. Dilated pupils can occur from stimulants, hallucinogens, or sometimes cannabis. See NHTSA/USDOT, p. V-7.

35. Increased blood pressure can be caused by stimulants, hallucinogens, PCP, or inhalants. Dealing with a police officer can also increase one’s blood pressure. See NHTSA/USDOT, p. IV-9, VII-7. See also common sense.

36. Hallucinogens can cause hallucinations, synesthesia (transposing of sensory modes), paranoia, disorientation, poor perception of time and distance, and flashbacks. See NHTSA/USDOT, p. XIV-1-7.

37. Id.

38. It is not recommended to go to IKEA on hallucinogens. It is not recommended to go to IKEA alone, either.

39. A common indicator of hallucinogens is disorientation and uncoordinated movements. See NHTSA/USDOT, p. XIV-1-7.

40. Depending on the stimulant and ingestion technique, some may cause a runny nose. See DRE Summation Chart and lots of ’80s and ’90s movies.

41. Stimulants, hallucinogens, and PCP may all cause muscle rigidity. However, there is no baseline or definition of what flaccid or rigid is for a “normal” person. See NHTSA/USDOT, p. IV-25.

42. Only CNS depressants, PCP, and inhalants will cause Horizontal Gaze Nystagmus. See NHTSA/USDOT, p. IV-12, V-7. There are many drugs that do not cause HGN. Id. Vertical Gaze Nystagmus (VGN) is not produced by CNS stimulants, hallucinogens, cannabis, or narcotic analgesics. Id.

43. Lack of convergence is only caused by CNS depressants, PCP, inhalants, and cannabis. See NHTSA/USDOT, p. IV-14, V-5, V-7. It should be noted that irrespective of drug use, there are many individuals whose eyes are simply unable to converge normally. Id.

44. Hallucinogens can cause difficulty in speech. See NHTSA/USDOT, p. XIV-7. However, stimulants can cause a person to be talkative, euphoric, or have absolute self-confidence. See NHTSA/USDOT, p. X-3, 6.

45. Common indicators of stimulant ingestion are restlessness, euphoria, talkativeness, anxiety, super strength, absolute self-confidence, and increased alertness. See NHTSA/USDOT, p. X-3,6.

46. He shall remain nameless to protect his privacy. Those who need to know, know.

47. Missouri v. McNeely, 133 S.Ct. 1552 (2013); State v. Villarreal, __ S.W.3d __, 13-13-00253-CR, 2014 Tex.App. LEXIS 645 (Tex. App.—Corpus Christi, January 23, 2014), affirmed, State v. Villarreal, __ S.W.3d __, PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. 2014, reh. granted).

48. DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Delane v. State, 369 S.W.3d 412 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d.); Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009).

The Right to a Speedy Trial: Punishing the System for Making Us Wait

The right to a speedy trial is a constitutionally guaranteed right that is so accepted and recognized that many courts easily force or grant dismissals in cases almost automatically under certain circumstances. For example, in Bexar County there is a tradition that a second State’s continuance will automatically be denied. In part, this is because asserting speedy trial demands aligns perfectly with many judges’ desires to move their dockets. However, because of traditions such as Bexar County’s, lawyers can easily find themselves thinking of speedy trial in terms of local practice when, in reality, speedy trial hearings are more broadly useful. Criminal defense attorneys are not naturally in perfect harmony with a judge’s interest in hurrying things along, but helping hold the State’s feet to the fire by demanding a speedy trial for your client can be one of those times.

I. Speedy Trial Is a Fundamental Right

A speedy trial is a fundamental constitutional right, according to the seminal case Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Sixth and Fourteenth Amendments of the United States Constitution guarantee it to all accused citizens of this country, and it is further supported by Article I, § 10, of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure. “This right protects the accused from anxiety and concern that accompanies a public accusation, seeks to avoid impairment to a defense, and assures freedom from oppressive pretrial incarceration.” Bosworth v. State, 422 S.W.3d 759 (Tex. App.—Texarkana 2013, no pet.), citing Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The right to a speedy trial is so important that appellate courts that find a speedy trial violation has occurred will not reverse and remand, but reverse and render a judgment in favor of your client.

II. The Barker Factors

In reviewing a constitutional speedy trial claim, appellate courts will “apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components.” Cantu v. State, supra, 253 S.W.3d at 282, citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). In the leading United States Supreme Court case of Barker v. Wingo, the Court laid down a four-prong test for determining whether this right has been violated by the State. Review of the Barker factors involves both legal and factual determinations, but “[t]he balancing test as a whole . . . is a purely legal question.” Id., citing Zamorano v. State, supra, 84 S.W.3d at 648 n. 19. The four factors include:

1.   The length of the delay (from the time the defendant was arrested or accused);
2.   The government’s reasons for the delay;
3.   The defendant’s assertion of his right to a speedy trial; and
4.   Prejudice to the defendant because of the length of the delay.

Id.; Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014).

It does not constitute a violation of the defendant’s right to a speedy trial where the defendant fails to show prejudice from the delay. Knox v. State, 934 S.W.2d 678 (Tex. Crim. App. 1996).But prejudice is presumed if the delay is unreasonable. Bosworth v. State, supra. The State must rebut the presumption of prejudice. Gonzales v. State, supra.

A. Length of Delay

Length of the delay is measured from the time the defendant is arrested or formally accused. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003), citing United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “There is no set length of time constituting a presumptively unreasonable delay.” Bosworth v. State, supra, citing Cantu v. State, supra, 253 S.W.3d at 281. “On the other hand, courts have generally recognized a delay of eight months to be an unreasonable one and one which is adequate to trigger the Barker inquiry.” Id., citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (delay of 13 months from arrest to capital murder trial was prima facie unreasonable under circumstances). A delay that is presumptively prejudicial requires analysis of the remaining Barker factors. Barker v. Wingo, supra, 407 U.S. at 530; see Shaw v. State, supra, 117 S.W.3d at 889, citing Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (Twelve months is presumptively prejudicial and counts in favor of defendant; “‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry”).

The defendant bears the burden of demonstrating a lengthy delay and meets the burden by showing that the interval between his arrest or accusation and trial has crossed the threshold dividing ordinary delay from presumptively prejudicial delay. Doggett v. United States, supra, 505 U.S. at 651–52.

Moreover, Barker and its Texas progeny are concerned with post-indictment delay, which is addressed under the Sixth Amend­ment. If pre-indictment delay: (1) caused substantial prejudice to a defendant’s right to a fair trial; and (2) if it was an intentional device to gain tactical advantage over the defendant or for another improper purpose, the Due Process Clause of the Fifth Amendment would require dismissal of the indictment. State v. Ford, 410 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); United States v. Marion, supra; Spence v. State, 758 S.W.2d 597 (Tex. Crim. App. 1988).

B. Government’s Reason for Delay

The State may argue that the delay is unintentional or not the State’s fault. However, negligence on the part of the State does not justify excessive delay. Branscum v. State, 750 S.W.2d 892 (Tex. App.—Amarillo 1988, no pet.). Such negligence has lead to the dismissal of charges. See Phillips v. State, 650 S.W.2d 396 (Tex. Crim. App. 1983) (delay of 17 months; state was negligent in not finding defendant; no proof that defendant deliberately failed to move for speedy trial because of tactical reasons; and prejudice arose because defendant was deprived of his right to have federal sentence run concurrent, and he could not talk to defense witness, who subsequently died before trial).

Crowded dockets or lack of public resources for the criminal justice system do not justify a delay. In that regard:

        “Unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that such case must wait its turn… This approach… subverts the State’s own goals in seeking to enforce its criminal laws.” The right of the accused to a speedy trial serves not only substantial interests of society but those of the accused as well. Therefore, such may not be sacrificed upon the altar of practicality and reduced public treasuries.

Santibanez v. State, 717 S.W.2d 326, 330–331 (Tex. Crim. App., 1986), quoting Barker v. Wingo, supra.

C. Effort of Defendant to Obtain Speedy Trial

Although it is the primary burden of the government to bring an accused to trial, the defendant does bear the responsibility of asserting his right to a speedy trial. Barker v. Wingo, supra, 407 U.S. at 529–30. An accused’s failure to assert that right will make it difficult to prove he was denied a speedy trial. Id. at 532; see also Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (failure to timely demand speedy trial strongly suggests defendant did not really want trial and suffered no prejudice by not having one). “Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to make such requests supports an inference that the defendant does not really want a trial, he wants only a dismissal.” Cantu v. State, supra, 253 S.W.3d at 283 citing Barker v. Wingo, supra, 407 U.S., at 534–36.

Defense attorneys need to establish a record of demanding speedy trial, if possible. Unfortunately, we cannot always rely on judges’ notes, coordinators properly documenting resets, or a court reporter’s record since many resets occur without one. So, in filing a written request for a speedy trial alongside the standard pretrial motions, which are often ignored unless raised by the defense, you can establish a record favorable to supporting a request for a dismissal.

D. Prejudice to Defendant

The accused citizen is entitled to have any further proceedings arising out of the charges dismissed because of an unreasonable delay and its consequent prejudice. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (delay caused actual prejudice to the accused as a result of the deaths of two potential witnesses, the unavailability of another potential witness, and the loss of police records).

Claims which go to impairment of defense are not required to show prejudice. In Zamorano, the finding of prejudice was based on the evidence of financial cost, disruption of employment, and the length of the delay, which “support[ed] an inference of actual prejudice.” Zamorano, 84 S.W.3d at 654. The lack of particular evidence of impairment of Zamorano’s ability to present potential defenses did “not doom his claim.” Id. at 652 n. 49. In Stock v. State, prejudice was shown where the defendant was incarcerated for one year before trial, there was unrebutted testimony that the delay substantially interfered with Stock’s em­ployment prospects, and he was subjected to burdensome eco­nomic costs and travel requirements for trial settings and uri­nalyses; there was no discussion of impairment to his ability to present a defense. Stock v. State, 214 S.W.3d 761, 766–67 (Tex. App.—Austin 2007, no pet.).

Indeed, “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria . . . it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett v. United States, supra, 505 U.S. at 655–56. Further, an accused need not show actual prejudice—only some possibility of prejudice. Green v. State, 760 S.W.2d 50 (Tex. App.—El Paso 1988, no pet.).

Once presumption of prejudice arises, the burden switches to the prosecution to show that no serious prejudice occurred beyond that which ensued from ordinary and inevitable delay. Id. The government must justify the delay. Id.

There are three categories of delay. First, deliberate attempts to delay the trial to gain a tactical advantage or hamper the de­fense weigh heavily against the government. Second, more neutral reasons such as negligence, court congestion, or an understaffed prosecutor’s office weigh against the government. Finally a valid reason for the delay, such as newly discovered evi­dence like a concealed murder weapon, will not weigh against the government.If the record is silent and the government offers no reason for the delay, it will be placed in the neutral category and weigh against the government, though not heavily. United States v. Cardona, 302. F.3d 494, 498 (5th Cir. 2002).

The Barker Court also expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial:

        We regard none of the four factors identified above [length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant] as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related fac­tors and must be considered together with such other cir­cum­stances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

Barker v. Wingo, supra; Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (three-year delay was unacceptable).

III. Speedy Trial Practice

There are two types of speedy trial motions. The first demands a speedy trial. It may be filed alone or coupled with an objection to a State’s Motion for Continuance or with a request for a special setting, for example. The second demands a dismissal for a defendant who has been denied a speedy trial and may be filed as soon as your client has suffered significant prejudice as a result of delay. However, the likelihood of success too early in a case is low.

Both of these motions can be used together. For example, in my practice, I routinely file a Motion Requesting Speedy Trial with my standard pretrial motions and notices and then file a Motion to Dismiss for Lack of Speedy Trial after the State’s first continuance and often subsequent continuances, too. This way, I can establish one of the Barker factors by clearly showing that the defense has made effort to obtain a speedy trial early, but in a way that most prosecutors and courts will ignore. Then, when you have an advantage on the facts or posture of your case, you can use the second motion to get a hearing and fight for a dismissal. Otherwise, you may find yourself losing the advantage of delay and ending up in trial too quickly.

However, sometimes a speedy trial motion can help get a continuance. If your client’s case has been prejudiced, then a judge who rules against you on other Barker factors may be obligated to give a continuance. One of my clients, who was arrested for Assault–Family Violence towards his son, ended up getting divorced. His ex-wife then moved after breaking off contact. She was a witness and had previously given a statement blaming the son and providing a defense. After a private investigator was unable to locate her, we filed a Motion to Dismiss for Lack of Speedy Trial.

Unfortunately, the divorce happened quickly and the criminal trial court was fast. Although there was no denying that she was a material witness, there had not been much delay for trial. There was also the argument that she may not have really been a good witness for the defense after the divorce—which was probably true. Yet, the same judge who denied our Motion for Dismissal granted a continuance to attempt to locate the ex, even though she was known for denying defense requests for more time. I think the sales principle of asking for something big before settling for something smaller helped. So, there is room to ask for a speedy trial dismissal and still demand more time if you lose because the defendant’s case has been prejudiced.

Speedy trial motions requesting a speedy trial should always be filed before the State is actually ready to try their case. Although I favor filing them almost as soon as I am retained and preferably before the first court date, they can also be effective in challenging a continuance. In one case, I filed a Motion Demanding Speedy Trial after I heard the State was having witness problems. Although the missing witness, a truck driver who called 911 to report a drunk driver, was not absolutely critical to their case, he was definitely helpful. Judging that our case was unlikely to be dismissed by an unfriendly judge, I decided to push the State while the witness was on the road. After a fairly heated hearing during which the prosecutor admitted he could proceed without the driver, the judge ordered the State to trial out of concern that once the driver returned we would have another hearing looking for a dismissal. It was the State’s first request for a continuance. Generally, though, the request to get a speedy trial is most useful if the State does not respond. In those cases, it can be a powerful support to a Motion to Dismiss by establishing that the defendant has been diligent in asserting his right to trial.

Deciding when to file a Motion to Dismiss for lack of speedy trial is more complicated. The longer you wait, the greater some types of prejudice—such as financial hardship or incarceration. In theory, it would be appropriate as soon as your client has been sufficiently prejudiced—particularly if there is some incurable harm done to the defendant’s ability to obtain a fair trial. Usually, such harm results from missing witnesses, but it could be anything. For example, the police in one case inadvertently destroyed a dashcam video. We successfully argued that the destruction would not have occurred but for the State’s first continuance, and that because the video was potentially helpful to the defense, the defendant could no longer receive a fair trial.

Given that a delay of only eight months has been found presumptively prejudicial, and many courts would be hard pressed to bring a case to trial in that time, speedy trial motions can be used to attack a large percentage of cases. Although courts have found delays of years (up to five years in one capital murder) to be reasonable, most cases are less complex, allowing for significantly less delay. Defense attorneys should focus on the routine nature of their cases in arguing speedy trial. Often, prosecutors will help bolster the argument while they blame clogged dockets or lack of resources. That argument avoids counting heavily in the defendant’s favor under Barker but also serves to show that there is nothing unusual about the instant case that would justify a lengthy delay. After all, in a docket clogged with DWIs or drug cases, prosecutors should be able to try those cases as a matter of routine. Blaming the system also opens the door to critiques of the prosecutor’s office insofar as they contribute to the systemic problems causing delay. It feels good to remind a judge whose prosecutor has just pointed out how backlogged the judge’s docket has become that maybe all those cases would move faster if the DA’s policy to only offer maximum probation on DWI-2d offense cases was a little more flexible.

This is the true power of the speedy trial argument: It aligns the court’s interests with our own. It is an opportunity to use the criminal justice system’s constant drive to close cases in a way that favors accused citizens. It can also be used to force the State to trial before they are ready. If nothing else, a speedy trial motion on the day of trial can get the State riled up while helping to tell your client’s personal history to the judge and maybe earn your client some sympathy. The right to a speedy trial is an excellent way to keep pressure on the State beyond merely objecting to their requests for continuances. Defense lawyers who are mindful that local practices do not always encompass the full range of situations implicating the right to a speedy trial will find ample opportunities to challenge prosecutors who have come to rely on business as usual.

The Case of Seduction

The first case I ever handled in which a stranger actually paid me money to represent him was a criminal case in which the charge against the client was seduction.

No, it was not 1668, it was 1968. Seduction was an offense in the state of Texas until 1973, when we adopted what I still think of as the “new” penal code.

The offense was committed whenever a heartless rogue lured a young woman in the flower of her maidenhood to his bed by the malicious (because false) representation of his intent to make her his wife.

She had to be both young (under 25) and a virgin in order to be the victim of a seduction. Presumably, the legisla­ture thought that a woman over 25 ought to know the cad would not marry her and a non-virgin under 25 did not merit protecting.

The whole point of the statute, of course, was to preserve intact for the day a young woman was taken in marriage that indisputable emblem of purity, the maidenhead.

The history of the development of the statute is a short lesson in human nature. The statute originally simply provided that to induce a woman under 25 to share one’s bed by falsely promising marriage was a crime.

The first amendment to the statute was the addition of a proviso that a man could avoid prosecution for this offense by the simple expedient of marrying the woman; after all, if the intent is to keep our women “marriageable,” that purpose is very well served by the man who damaged the goods buying the bolt, as it were.

It does not take a great deal of imagination to guess that the next amendment to the statute provided that it was no defense to a seduction prosecution that the man married the woman, if he did not stay married for at least one year. Similarly, we can understand why the next amendment to the statute provided that the seducer must remain with his bride for at least two years in order to avoid prosecution.

This was the state of the law, then, when a handsome young soldier from Ohio, stationed at Ft. Sam Houston in San Antonio, came to be sitting across the desk from me, wearing a hangdog expression and bearing a letter from a San Antonio lawyer demanding that he marry the object of a particular night’s affection or face criminal prosecution.

“Can they do this?” he questioned. “Can they actually prosecute me just for sleeping with this girl?”

I tried to look as old, wise, and all-knowing as I could, and replied that it all depended, of course, on what promises, if any, he had made to the young woman to induce her to submit to his impassioned embrace.

“Promises!” he said, “I didn’t promise her a damned thing. The fact is, she practically threw me into bed.”

As we continued to discuss the situation, it became pretty clear that the young woman in question was one of a group of young women who liked to go to parties around Ft. Sam Houston and were well acquainted with the expectations of young soldiers on weekend passes. In fact, he said he had at least three friends who could be of assistance in proving that the lady’s status on the purity scale was no better than minus two.

The real problem, it seemed, was that the lady had simultaneously decided that she loved my client madly and discovered that she was pregnant. Leaving aside the question of whether he was the father of her unborn child, he was most insistent that he was not guilty on either requirement of the statute. That is, his acts (apparently there were several) had come no closer to a deflowering than had the preacher with Sadie Thompson, and the subject of marriage had not arisen.

The law on the civil side was equally antiquated; although my young client faced the (admittedly remote) possibility of going to prison, he had no legal obligation whatsoever with regard to the child, if he was its father, and no obligation to assist the mother of the child with any expenses incident to the child’s birth.

I was aware of all this as I was talking to him because it is just such anomalies as these which tend to draw the attention of law students as a moth to the light, and my law license was still off being framed when this young man came in to see me.

Knowing the law and knowing what to do with a particular situation are, however, two very different things. It was not nearly so clear to me then as it is now that one of the things lawyers frequently do on behalf of clients is to work out equitable solutions when following the strict letter of the law would benefit no one.

I knew that lawyers are not permitted to threaten criminal prosecution in order to gain an advantage in a civil matter, but was too naive to realize that the lawyer representing the young woman was more aware than I that neither party would be well served by a shotgun wedding. He was simply opening the bidding with the only suit his hand would support.

I spent about five hours in the library after the client left, trying to figure out what to do next. After I had found and read every case on the subject in the history of the State of Texas and the Republic which preceded it, I was, of course, no nearer knowing what to do than when I began. My client had a practical problem, not a legal one.

I spent the rest of that day and most of that evening, even after going home, trying to think what to do. I finally resolved that I would call the opposing counsel the next morning and advise him that his client’s prior history would not support a claim of seduction. I would then suggest that marriage was out of the question, that nothing but humiliation for his client would result from a prosecution of my stalwart, and hope that he would concur and the matter would be dropped.

Next morning, I went to the office full of resolve, prepared by having mentally gone through the script in (what I thought were) all its potential variations and devised an answer for any possible scenario.

I knew the lawyer, who was a well-established and highly regarded practitioner with a wide experience in the civil and the criminal law, and my knowledge of his reputation had played no small part in my nervousness about the call.

I placed the call. I was initially referred by the receptionist to the lawyer’s secretary, who tried to field my call for her boss, but I was having none of that. I was a lawyer, too, was I not, and entitled to speak directly with opposing counsel? She put him on.

To my surprise, he remembered me (I had handled an accident case with him while I was in night law classes, in my full-time job as a claims adjuster).

“Hello, Pat,” he said, “Long time no see. What can I do for you?”

I muttered something—I do not remember what—and told him what I was calling about.

“Oh, yeah”, he said, “that case. Well, listen, let me get straight to it, cause neither your client nor mine can afford for us to spend a lot of time on this. All I am really looking for is a little help on the hospital bills for the delivery. What can your guy handle?”

I was flabbergasted. That was not in any of my scripts. I finally managed to mumble something to the effect that I was glad he was not serious about criminal prosecution—“Only as a last resort,” he interjected—and that I would need to get together with my client (with whom I had thus far had only the briefest of conversations about his ability and willingness to help the girl with her medical bills).

I called the client in to discuss the lawyer’s proposal. He admitted he felt some moral responsibility in the matter, as the child might be his, and was more than happy to help with the hospital bills.

We worked the matter out, along the lines the other lawyer suggested, and everyone was happy.

I later learned that the lawyer had a similar conversation with lawyers representing two other soldiers, resulting in a little nest egg for the little one, in addition to payment of the expenses of parturition. I realized then, of course, just how good a bluff the other lawyer had run, and my esteem for him increased.

This case taught me a great deal, about human nature and about practical lawyering. In retrospect, I am glad I did not charge the client very much.

I am happy to say, incidentally, that both the civil and the criminal law have been changed since all this occurred. The offense of seduction no longer exists, but the unmarried father of a child born in Texas has the same obligation of support as a married one.

November 2015 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
20 | Fear and Loathing in South Texas: If Dr. Hunter S. Thompson Got a DWI in Texas in 2015 – By Mark Thiessen and Rick Oliver
30 | The Right to a Speedy Trial: Punishing the System for Making Us Wait – Article & Motion by Joseph Hoelscher II
37 | The Case of Seduction – By Judge Wayne Patrick Priest

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

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

President’s Message: Loss – By Samuel E. Bassett

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As criminal defense lawyers, we find ourselves in the midst of tragedies of life that redefine families, futures, and perspectives. How we learn to handle the emotions and practical effects of this aspect of our work can make all the difference in our effectiveness, our happiness, and our contribution to those we represent.

First, I’d like to talk about the loss a family suffers when their loved one is arrested and charged with a crime. Often, an arrest follows a downward spiral in a young person’s life tainted by poor decisions, substance use/abuse, and mental health challenges. It is easy to fall into the trap of blaming that person’s family or friends. However, I’ve had dozens of hard-working, caring parents in my office whose children have done some terrible things. Often, the answers on what to do are complicated and not simple. The solution is often a long-term treatment plan, either as a term of probation or following incarceration. One of the great joys in our work is when we see a struggling young person battle through challenges to come out a more caring, loving, and effective human being as a result of an arrest. We should hasten that process as their counselor at law.

Second, I’d like to talk about the loss that loved ones of a crime victim suffer, particularly in a serious felony case. As the lawyer for a person accused, there is nothing like the feeling you get when seeing the family of a deceased victim look at you and your client. How do you respond? Obviously, these answers are different for everyone, but my experience teaches me to make sure that you demonstrate sorrow in as professional a manner as possible. All the while, you must understand that they may be wholly unable to appreciate your empathy because you are associated with a person who has inflicted enormous pain on them. Do not be critical of them if they lash out, as you must understand they are acting in an instinctual and emotional context. It is always my hope that as they reflect on the process later, they will remember you as someone who always treated them with empathy and respect, even if there were disagreements about what should happen to your client. Don’t ever forget that your job and allegiance is to your client and you must do your job. A few years ago I was having dinner with a friend and noticed a familiar-looking woman walk in and look at me. I could not remember who she was at that moment. Soon, the waitress brought a drink over to me with a handwritten note: “It’s good to see you, Sam. I hope you are doing well.” It was signed by the mother of a murder victim, and I had been the lawyer for the defendant. I walked over, hugged her and we talked. I will keep that note forever.

I’d like to finally comment on how our system handles these difficult issues. In today’s criminal justice system, there are infrastructures within district attorney’s offices, police departments, and volunteer organizations to assist loved ones of crime victims. I believe that this is an improvement over times in which victims were essentially ignored in the process. I am also wary of the well-intentioned counseling of victims that a harsh punishment can assist them in finding peace. The allocution process now required can be healing, but sometimes I’ve seen it as unnecessarily divisive and hateful. I’ve given wide latitude to any loved one’s comments during an allocution. However, judges and prosecutors should do a better job of preventing tragic situations from evolving into a media circus. In a recent case in Austin, jurors were literally chased down the street by media who wanted to cross-examine them about their decision following an emotionally charged trial.

Each of you should take care of yourself and your own pro­cessing of these difficult situations. We are a profession that is more susceptible than most to depression, substance abuse, and difficulties in our personal lives. I have found that I do much better when I find healthy outlets to cope with the intense stress that can occur when we are dealing with difficult cases. To help others, you must first take care of yourself.

Executive Director’s Perspective: Many Thanks – By Joseph A. Martinez

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In less than 50 days TCDLA and CDLP have put on and/or co-sponsored nine quality CLE seminars. This would not be possible without the support of the course directors and speakers who donate their time to training lawyers across the state.

TCDLA was created by our founding mothers and fathers to do three specific activities: 1) lobby before the Texas Legislature, 2) write legal publications, and 3) put on quality continuing legal education. TCDLA is now in its 44th year. Thanks to our members whose generous support makes all of this possible.

Thanks to course directors Tip Hargrove (San Angelo) and John Hunter Smith (Sherman) for our CDLP Upholding Justice One Client at a Time seminar held in San Angelo in October. Thanks to their efforts we had 37 attendees.

Thanks to course directors Diana McCoy (Amarillo) and John Hunter Smith (Sherman) for our CDLP Upholding Justice One Client at a Time seminar held in Amarillo in October. Thanks to their efforts we had 24 attendees.

Thanks to course directors Tony Vitz (McKinney), John Ackerman (Sunset Beach), and Greg Westfall (Fort Worth) for the four-day Round Top V—Advanced Skills Training—Discovery the Story, held in Round Top. Thanks to them and our faculty we had 62 attendees.

Thanks to course directors Gary Udashen (Dallas) and Michael Ware (Dallas) for our Innocence Clinic for Students held in Dallas in October. Thanks to their efforts we had 68 attendees.

Thanks to course directors Rick Wardroup (Lubbock), Philip Wischkaemper (Lubbock), E. X. Martin (Dallas), and Larry Renner (Santa Fe) for our 13th Annual Forensics seminar. Thanks to their efforts we had 172 attendees. We want to give credit to Mike Charlton and Philip Wischkaemper, who came up with the idea for a forensics seminar 13 years ago.

Thanks to course directors Roberto and Claudia Balli (Laredo) and John Hunter Smith (Sherman) for our Upholding Justice One Client at a Time held in Laredo. Thanks to their efforts we had 42 attendees.

Special thanks to JoAnne Musick, President of the Harris County Criminal Lawyers Association (HCCLA), for allowing CDLP to co-sponor their first-ever Winning Warriors seminar held in Houston in October. The course directors were David Ryan (Houston) and Jani Maselli (Public Defender, Harris County). Thanks to everyone’s efforts we had 103 attendees.

Special thanks to Warren Wolf, President of the San Antonio Criminal Defense Lawyers Association (SACDLA), for allowing CDLP to co-sponsor their Jim Greenfield Memorial Nuts ’n’ Bolts seminar held in San Antonio in November. Thanks to everyone’s efforts we had 56 attendees.

Thanks to course directors Bobby Barrera (San Antonio), Michael Gross (San Antonio), and Adam Kobs (San Antonio) for our 11th Annual Stuart Kinard Advanced DWI held in San Antonio in November. Thanks to everyone’s efforts we had 109 attendees.

Thanks to our members, our TCDLA publications have been updated or are in the process for the new laws passed by the 2015 Texas Legislature. Please go to our website to order your updated publications.

On November 1, 2015, I celebrated 14 years as the Executive Director for TCDLA. I want to thank the Board of Directors for their faith and trust in me. I want to thank our membership for your frank and honest directions on what I should be doing to better serve members. I am honored to serve as your executive director, and I look forward to continuing to serve members in the years to come.

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 our 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.

Ethics and the Law: The War Never Ends

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November 11, 1918, marked the end of World War I. History books tell us that the bells rang and the “war to end all wars” ended. No veterans of that war are living today, and there are very few civilians who were alive on the 11th month of the 11th day at the 11th hour of 1918. In 1938, legislation was passed in the United States declaring November 11 to be “Armistice Day,” set aside to honor those who served in World War I. Since 1954, November 11th is known as Veterans Day. Virtually every family has a legacy from wars that have occurred since, including World War II, the Korean “conflict,” the Cold War, Vietnam, the Gulf, the Iraq, Afghanistan, and other lesser known and ongoing operations.

Dave Hood was a farmer in Cooke County, Texas, when he was called to serve in the army in World War I to fight in the war to end all wars. Dave and thousands of young men went over the pond to fight for America. He was still there on the 11th hour of the 11th day of the 11th month when the war ended in 1918. He heard the bells toll and the people rejoicing that the war was over. He came back to Cooke County to continue his life. Dave was never the same. Cousin Dave suffered from what was then called “shell shock.” Dave self-medicated with alcohol. Truth be known, his drinking got so bad that his wife (while he was passed out on the bed) sewed the sheets together and beat him with a broom. Despite his wife’s inventive efforts to make him stop, it never worked. Veterans Day was always special to Dave. Dave would walk to my granddad’s farm, which was nearby, and ask my Aunt Fannie to bake him a chocolate pie. He did every November 11th until he left this Earth.

 

My Uncle Lowell, who served with General Patton in World War II, also came back from the war “shell shocked.” He had been in a tank attack when his tank exploded, killing several of his buddies in the tank. A day later, after being trapped inside with his fallen comrades, Lowell was rescued and taken to an Army hospital in France to recover. After eight months he was sent back to battle. When the war ended, he came back to Anson, Texas, where he spent the rest of his life shaken by the war, self-medicating with all there was around—alcohol.

Doctors and therapists know a lot more these days. Shell shock, as they called it in the old days, is Post Traumatic Stress Disorder, or now known as “Post Traumatic Stress.”

In my era, many of us enlisted or were drafted into the military. Some served in combat while others were held in reserve. Two of my closest friends served in the 101st Airborne Division in 1965 and 1966. Frank survived, graduated from college, and became a huge success. My other friend, Robbie, who enlisted at age 19, survived but suffered from PTSD. He was constantly plagued by memories of the war. He was in a unit called Tiger Force , in long-range recon patrol. Robbie would be dropped in to observe the enemy and report his findings to his superiors. Robbie was one of those young men who would cut off the ears of the enemy he killed and wear them as souvenirs. To say he returned a changed man is an understatement. Robbie died a couple of months ago. Although he was decorated with multiple Bronze Stars, he wanted NO part of a military funeral.

Every client has a backstory. Ethically, to zealously defend our client, we have to get that story—in addition to the facts of the offense that the State is trying to sell. Some clients are forthcoming with their story, while others are not. We have to DIG DEEP.

With our clients who served in the military, forget the “THANK YOU FOR YOUR SERVICE” cliché. SPEND THE TIME SHOWING THE VETERAN YOU CAN DO MORE THAN JUST TALK A GOOD GAME AND GET THEIR RECORDS. A FORMER employee of mine kept telling me she was calling everyday to get records on our client without success. In frustration, I stripped her of the assignment and actually reached the powers that be on the phone. The records were emailed to me within ten minutes.

All avenues must be explored for dismissal, a not guilty verdict, or for punishment mitigation. School records, medical records, and military records must be obtained. Military records are particularly useful because unlike medical records that are likely shredded after ten years, or school records that were stored in a warehouse that was destroyed by a hurricane, THEY ARE ACCESSIBLE.

Below is a website that advises you how to get military records:

Military.com
National Personnel Records Center
1 Archives Drive
St. Louis, Missouri 63138
Fax 314-801-9195
Phone 314-801-0800
https://www.archives.gov/veterans/

The instruction and information sheet for a request pertaining to military records can be found at this link: http://www.archives.gov/veterans/military-service-records/. Click on “Submit your request by MAIL or FAX using the SF-180 Form.”

Getting military records can make a big difference in a veteran’s life. The records may help you get a case dismissed. It may help you mitigate punishment in the event of a trial or a plea. Pick up the phone and call if you need adult leadership. If all else fails, call 314-801-0800 to talk to someone about the records. The people who work these requests are generally very helpful. If this information is confusing to you, simply Google “How to get military records.” You will be thanking a veteran for his service by getting the records and using those records to show a jury, prosecutor, or a judge what the veteran is made of.

The Ethics Committee boasts several lawyers who served in the military, including retired Colonel Jack Zimmermann (Marines, two bronze stars for bravery), David Shepherd (Army), Don Davidson, (Navy), Joseph Connors, (Marines), Joe Pelton (Army and Texas Army National Guard—Infantry Officer Candidate school at Ft. Benning, Georgia, becoming a second lieutenant at age 20), and Robert Pelton (Army and Texas National Guard).

* Original artwork by Sam Pelton, grandson of Robert Pelton, in honor of Veterans Day

Off the Back: Forging Fear Into a Constructive Edge – By Stephen Gustitis

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When I was prosecuting habitually barking dog cases on a 3rd-year bar card, I wondered when my fear of jury trials would ever end. That was 1989. To this day I remain uneasy and agitated the morning a trial begins. In fact, I’m miserable. Until I speak my first words during voir dire, I’m frightened. I fear the beginning of my opening statement. I fear an imminent cross-examination for which I am properly prepared. I fear the start of a closing argument. I fear receiving a verdict. For the most part, I fear every aspect of a trial. Though I’ve trained myself to appear confident on the outside, I’m still afraid inside. And I’m reluctant to admit the best part of a trial is its conclusion.

My prompt this month came from Kevin Davis’ article “How Lawyers Can Turn Fear into an Ally,” published in the November 2015 edition of the ABA Journal. Kevin’s thesis was that fear is common among trial attorneys. But these same lawyers could learn to transform fear into an advantage. He described how lawyers fear not making good impressions or fear losing control of their case. They were fearful of looking foolish or appearing weak. They feared for their reputation. Lawyers were frightened by adverse rulings. They feared rejection by the jury. They dreaded their opponent. They feared losing. Kevin noted those fears might be realistic or even illogical. He observed that “fear had become part of the legal culture because lawyers, like soldiers, often feel engaged in battle.” “You’re dealing with an enemy that’s shooting back and you have to anticipate their moves and strategies.” In other words, there were people out there who actually got paid to get in our way, find our mistakes, and make us look bad.

Why share my foibles with colleagues, friends, and adversaries? Frankly, I hoped to inspire someone. Fear is a thinly disguised blessing. But it unnecessarily obstructs us from performing well, producing good results for clients, earning more income, or experiencing greater career satisfaction. At its worst, fear is debilitating and imprisoning. It can scuttle our effectiveness as trial advocates. It can hobble the successful administration of our law practice. Fear can even impede the sound application of our professional judgment. Consequently, the sooner we learn to forge our fears into constructive advantages, the sooner we unmask the blessing waiting just under the surface.

Necessarily, fashioning one’s fear into an edge becomes a powerful tool. A tool utilized for working harder than your opponent. An edge for uncovering clues that might unravel the prosecutor’s case. Rather than permitting fear to trigger fatigue, obsessive-compulsive behaviors or procrastination, it’s channeled into energy to prepare. One of my irrational aversions is never wanting to look like an idiot . . . especially in front of prosecutors, judges, court reporters, colleagues, and others who know a mistake when they see one. But understanding the facts and law better than our adversary guards us from ever looking like idiots. We have nothing to fear, win or lose. We can pride ourselves for knowing the case better than anyone else in the courtroom and for accepting the inevitability of making mistakes. And we can even teach ourselves to appreciate the value of learning from those mistakes.

Since realizing my fear of trying cases would never go away, I learned to accept it. Not just the feeling miserable part. But accepting fear as a necessary component of doing my best. The fear is temporary. In fact, once that dreaded cross-examination actually begins, the trepidation turns to excitement, anticipation and even a robust sense of accomplishment. Fear keeps us on our toes. To this end, we shouldn’t permit apprehension and anxiety to derail career satisfaction or a satisfying income. Rather, we can channel fear to productive use. Defense lawyers are compelled to overcome failure almost every day. Coping with our fears is just another part of it.

Federal Corner: A Non-Routine Border Search Issue – By F. R. Buck Files Jr.

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Sometimes words don’t mean what they should. Consider, for example, the words “border search.” Where would a border search be conducted? At the border. Wrong. If you go to WestLaw’s ALLFEDS database and type in the query “international airport” & “border search,” you will see that there have been 337 cases that arose out of border searches conducted at international airports.

Judges of the United States Court of Appeals for the Fifth Circuit have written opinions in 78 of these cases which were concerned with such offenses as those involving child pornography (United States v. Pickett, 638 F.2d 765 (5th Cir. 2010)); drugs (United States v. Mejia, 720 F.2d 1378 (5th Cir. 1983)); and currency violations (United States v. Berisha, 925 F.2d 791 (5th Cir. 1991)).

On September 29, 2015, United States Court of Appeals for the Second Circuit held that the search and copying of a defendant’s notebook by a customs officer at an international airport was justified by reasonable suspicion. United States v. Levy, __F.3d__, 2015 WL 5692332 (2d Cir. 2015) [Panel: Circuit Judges Hall, Lohier and Meyer (Opinion by Lohier)].

A Brief Synopsis of the Facts

David Levy was a target of a federal investigation into a series of stock manipulation schemes. A year earlier, Levy’s wife had been indicted for her participation in these same schemes.

Levy had returned to the Miami International Airport following a business trip to Panama. Levy himself expected to face criminal charges. At the Miami airport, United States Customs and Border Protection (CBP) Officers detained Levy after receiving information about the investigation of Levy from a Drug Enforcement Administration (DEA) task force. They detained Levy and escorted him to a holding area. Without Levy being present, the officers inspected his luggage and found a notebook that contained 18 pages of Levy’s handwritten notes. One of the officers examined and photocopied the notebook and then returned all of Levy’s items to him. Levy was permitted to leave the airport.

Within 72 hours, Levy was indicted on various fraud counts. Later, Levy was charged in a superseding indictment charging him with money laundering and other crimes in which the Government claimed Levy was engaged at the time that his notebook was examined and photocopied. All the charges arose from Levy’s participation in the stock manipulation schemes.

The following are excerpts from Judge Lohier’s opinion:

[An Overview of the Opinion]

The principal question presented is whether United States Customs officers at an international airport may lawfully and without a warrant examine and photocopy a document that belongs to a traveler entering the United States if the officers have reasonable suspicion on the basis of information supplied from another federal agency that the traveler is engaged in criminal activity unrelated to contraband, customs duties, immigration, or terrorism. We hold that such a search is lawful under the border search doctrine and that the District Court properly denied the defendant’s motion to suppress. We therefore affirm [emphasis added].

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[The Pretrial in the District Court]

Before trial, Levy moved to suppress the photocopy of the notebook that the CBP officer had inspected. The District Court denied the motion under the border search doctrine. As relevant here, the District Court agreed with Levy that the search of the notebook was a “non-routine” border search because “[t]he close reading and photocopying of an entrant’s documents goes beyond the general searching one expects at a point of entry” and may “intrude greatly on a person’s privacy.” United States v. Levy, No. 11–cr–62–PAC, 2013 WL 664712, at *6, *12 (S.D.N.Y. Feb. 25, 2013). But it held that the search was still justified under the Fourth Amendment because the CBP officers reasonably suspected that Levy was “engaged in a stock fraud conspiracy” [emphasis added].

        In denying the motion, the District Court also rejected Levy’s argument that CBP officers could not search material unless it related to a crime that CBP is authorized by regulation to investigate—that is, a crime relating to contraband or dutiable merchandise. To the contrary, the District Court determined, none of the cases upon which Levy relied in advancing this argument “limit[ed] the crimes for which customs agents may conduct non-routine searches if they have a reasonable suspicion.”

[The Trial in the District Court]

At trial, the parties stipulated that a photocopy of the notebook could be introduced as evidence. The Government relied on the evidence with some effect. Among other things, it used the names listed in the notebook to tie Levy both to various illegal trades and to certain unindicted co-conspirators who participated in the securities fraud schemes. The Government also referred to the notebook in closing argument, pointing out that Levy’s forgery of certain relevant documents could be proven by the handwriting in the notebook. Levy was convicted of all the counts against him and sentenced principally to a term of 108 months’ imprisonment. This appeal followed [emphasis added].

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[Routine Searches at the Border]

When the evidence at issue derives from a border search, we recognize the Federal Government’s broad plenary powers to conduct so-called “routine” searches at the border even with­out “reasonable suspicion that the prospective entrant has com­mitted a crime.” Tabbaa v. Chertoff, 509 F.3d 89, 97–98 (2d Cir.2007); see United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant. . . .”). It is well established that the Customs area of an international airport is the functional equivalent of a border for purposes of the border search doctrine. See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006) [emphasis added].

[Not Having to Answer the “Routine” Search Issue]

Had the CBP officer merely skimmed the notebook and returned it to Levy without copying it, we have no doubt that the inspection would have been routine. Cf. United States v. Arnold, 533 F.3d 1003, 1009 (9th Cir.2008) (holding border search of an electronic device permissible even without reasonable suspicion where “CBP officers simply had [the traveler] boot [the laptop] up, and looked at what [he] had inside”). Whether searching and copying the notebook here constitutes a “routine” border search that could be conducted without reasonable suspicion is somewhat more debatable. But for now we avoid resolving that question because the rec­ord of the Government’s criminal investigation of Levy prior to the inspection of his notebook supports the District Court’s ruling that the inspection was justified by reasonable suspicion [emphasis added].

[What Is the Level of Suspicion Required?]

The Supreme Court has instructed that “the level of suspicion the [reasonable suspicion] standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Navarette v. California, __U.S. __, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014) (quotation marks omitted). Reasonable suspicion requires only “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (quotation marks omitted) [emphasis added].

[The CBP’s Officer’s Level of Suspicion]

The CBP officer had such a basis in this case. Although Levy disputes this conclusion, a review of the allegations in the initial underlying indictment against Levy (filed within days of the search) and the allegations in the subsequent, superseding indictment confirm that the search was justified by the CBP officer’s reasonable suspicion of Levy’s ongoing criminal participation in securities fraud schemes. In fact, the level of suspicion was so high that Levy himself was aware of his status as a target of an ongoing federal investigation even prior to arriving at the airport, and his lawyer previously had contacted federal prosecutors about the investigation.

[The CBP Officer Could Rely on Information Provided by the DEA]

We also conclude that the CBP officer was entitled to rely on information provided by the DEA task force to justify the border search in this case. Official interagency collaboration, even (and perhaps especially) at the border, is to be commended, not condemned. Whether a Customs official’s reasonable suspicion arises entirely from her own investigation or is prompted by another federal agency is irrelevant to the validity of a border search, which we have held “does not depend on whether it is prompted by a criminal investigative motive.” United States v. Irving, 452 F.3d 110, 123 (2d Cir.2006)

***

[CBP Officers Are Permitted to Search and Review Documents & Items]

Levy argues that border searches conducted by the CBP, even at the prompting of another federal agency, should at least be confined to crimes that a statute or regulation spe­cifically authorizes CBP to investigate. We recognize that CBP officers focus primarily on contraband, dutiable merchandise, immigration fraud, and terrorism. See United States v. Flores-Montano, 541 U.S. 149, 153, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004); Tabbaa, 509 F.3d at 93. But (like other federal law enforcement officers) CBP officers are neither expected nor required to ignore tangible or documentary evidence of a federal crime. They have the authority to search and review a traveler’s documents and other items at the border when they reasonably suspect that the traveler is engaged in criminal activity, even if the crime falls outside the primary scope of their official duties.

My Thoughts

  • The next time that we have a border-search-at-an-international-airport case, it appears that we should begin our analysis of the search issue by first determining whether the search is a routine or non-routine search. If it is a non-routine search then we turn to an analysis of what the officers’ level of suspicion was.
  • If we have a Levy-type client, then the odds are stacked against him because of the officer’s knowledge of his alleged criminal conduct. If, however, our client is a Waldo Snerd-type—whom the officers have never heard of—then there is a possibility that we might prevail on a non-routine search argument.