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January 2016

December 2015 SDR – Voice for the Defense Vol. 44, No. 10

Voice for the Defense Volume 44, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D was entitled to have his Atkins claim considered in federal court because he satisfied 28 U.S.C. § 2254(d); the factual determinations underlying the state court’s decision—that D’s IQ score was inconsistent with a diagnosis of intellectual disability and that he presented no evidence of adaptive impairment—were unreasonable under § 2254(d)(2). Brumfield v. Cain, 135 S. Ct. 2269 (2015).

        D was convicted of murder in a Louisiana court and sentenced to death before Atkins v. Virginia, 536 U.S. 304 (2002), prohibited execution of the intellectually disabled. Implementing Atkins in State v. Williams, 831 So. 2d 835 (La. 2002), the Louisiana Supreme Court determined that an evi­dentiary hearing is required when a defendant “provide[s] objective factors” sufficient to raise “a reasonable ground” to believe he has an intellectual disability. After Williams, D amended his pend­ing state post-conviction petition to raise an Atkins claim. Seeking an evidentiary hearing, he pointed to evidence introduced at sentencing that he had an IQ of 75, a fourth-grade reading level, been prescribed numerous medications and treated at psychiatric hospitals as a child, been identified as having a learning disability, and been placed in special education classes. The trial court dis­missed D’s petition without holding a hearing or granting funds to investigate. D sought federal habeas relief. The district court found the state court’s rejection of D’s claim was both “contrary to, or involved an unreasonable application of clearly established federal law” and “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The court went on to determine that D was intellectually disabled. The Fifth Circuit reversed, finding D’s petition failed to satisfy 28 U.S.C. § 2254(d)’s requirements to give the state trial court and U.S. Supreme Court substantial deference. The Supreme Court vacated the Fifth Circuit’s judgment and remanded.

        D was improperly denied a hearing to determine whether he was intellectually disabled to pre­clude his death sentence based on an erroneous state-court finding concerning his intellectual capacity, since the prisoner’s low IQ raised a basis for finding a reasonable doubt that the prisoner was not intellectually disabled given the margin of error in IQ testing. The state trial court also erroneously found that D did not meet the criteria for impairment in adaptive skills since the evidence indicated that he was impaired in language skills and the ability to learn, and evidence of D’s mental health history diagnoses, and treatment suggested that D was impaired with regard to other adaptive skills.

Imposing an increased sentence under the Armed Career Criminal Act’s residual clause vio­lates due process. Johnson v. United States, 135 S. Ct. 2551 (2015).

        After petitioner D pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), the Government sought an enhanced sentence under the Armed Career Criminal Act (ACCA), which imposes an increased prison term on a defendant with three prior convictions for a “violent felony,” § 924(e)(1), a term defined by § 924(e)(2)(B)’s residual clause to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” The Government argued that D’s prior conviction for unlawful possession of a short-barreled shotgun met this definition, making the third conviction of a violent felony. The district court held that the residual clause does cover unlawful possession of a short-barreled shotgun, and imposed a 15-year sentence under ACCA. The Eighth Circuit affirmed. The Supreme Court reversed and remanded.

        The Court pronounced on the meaning of the residual clause in several cases, including James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1 (2011), and rejected suggestions by dissenting Justices in James and Sykes that the clause is void for vagueness. Here, the residual clause did not survive the prohibition of vague criminal laws, because the residual clause left grave uncertainty about how to estimate the risk posed by a crime and left uncertainty about how much risk it took for a crime to qualify as a violent felony. Standing by prior decisions would undermine the goals that stare decisis was meant to serve. Remand was warranted because imposing an increased sentence under § 924(e)(2)(B)’s residual clause violated U.S. Const. amend. V’s guarantee of due process since the indeterminacy of the wide-ranging inquiry required by the residual clause both denied fair notice to defendants and invited arbitrary enforcement by judges.

Fifth Circuit

In prosecution on charges of conspiracy to possess with intent to distribute meth, it was not error, under Fed. R. Evid. 404(b), to admit D’s prior convictions for possession and manufacturing of meth. United States v. Wallace, 759 F.3d 486 (5th Cir. 2014).

        Ds argued that their prior convictions for possession and manufacture of methamphetamine were not relevant because they were not drug conspiracy charges. However, under United States v. Gadison, 8 F.3d 186 (5th Cir. 1993), a prior conviction for narcotics possession or manufacture is probative of D’s intent in a prosecution for conspiracy to distribute. D argued the seven-year-old convictions were also too remote to be considered; the court held that remoteness may weaken a con­viction’s probative value, but remoteness is not a per se bar to admitting a prior conviction. In addition, any unfair prejudice was alleviated by the district court’s limiting instruction. NOTE: The Fifth Circuit did not hold that all prior narcotics convictions are per se admissible in a drug conspiracy case; rather, “[t]he government continues to maintain the burden of demonstrating in every case that a prior conviction is relevant and admissible under 404(b).”

        The Fifth Circuit also held that Alleyne v. United States, 133 S. Ct. 2151 (2013), did not overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that the U.S. Constitution does not require prior convictions to be treated like offense elements (i.e., charged in an indictment or proved beyond a reasonable doubt) even where they raise the statutory maximum (or, after Alleyne, the statutory minimum). Because the prior-conviction exception of Almendarez-Torres survived Alleyne, it was not unconstitutional to enhance Ds’ sentence under 21 U.S.C. § 851 notwithstanding the lack of a grand jury indictment charging the prior convictions and the lack of a jury finding beyond a reasonable doubt.

Where D was convicted, on his guilty plea, of a hostage-taking conspiracy (in violation of 18 U.S.C. §§ 1203(a) and 2), it was not error to apply a Ransom Enhancement because a demand for ransom is not an element of the underlying crime. United States v. Cedillo-Narvaez, 761 F.3d 397 (5th Cir. 2014).

        D was convicted of the underlying offense for kidnapping 18 undocumented aliens, holding them hostage, and calling their family members to demand ransom. D argued that because the court applied the ransom enhancement to his sentence, there was impermissible double-counting of the ransom ele­ment. However, the court held that a ransom demand was not an element of the offense of hostage-taking under 18 U.S.C. § 1203. In addition, double-counting was permissible unless the Sentencing Guidelines explicitly disallowed it; they did not in this case.

        D also argued that it was error to add a Vulnerable Victim enhancement to his sentence, because the victims’ status as undocumented aliens was already incorporated into the sentence for his conspiracy conviction. The court held that the District court did not plainly err in applying a vulnerable-victim enhancement under USSG § 3A1.1(b) based on victims’ status as undocumented aliens because an alien’s status is not a prerequisite to the offense of hostage-taking, and that characteristic is not already accounted for in the base offense level.

D, convicted of murder and sentenced to death, was not entitled to a certificate of appealability for any of his rejected claims for relief under 28 U.S.C. § 2255. United States v. Fields, 761 F.3d 443 (5th Cir. 2014).

        D was not entitled to a certificate of appealability (COA) on his claims of ineffective assistance with respect to trial coun­sel’s penalty-phase investigation, investigation of the charged crime, or alleged failure to challenge expert testimony about D’s future dangerousness. The evidence presented by D was duplicative of evidence considered by the jury, or may have led the jury to conclude that additional factors in aggravation were present. In addition, a mere failure to question certain witnesses is not ineffective assistance of counsel without some indication of what those witnesses would have testified to, which D failed to provide.

        D also failed to show that his competency fell below a stan­dard that would have required the district court to deny D’s request to represent himself. The court also decided that D’s requests for a COA on the grounds of, among other things, Brady violations, actual innocence, denial of DNA testing, and the wearing of a stun belt during trial, were meritless.

        Nor was D entitled to a COA on his claim that the district court required him to reveal privileged trial strategy, in violation of his constitutional rights, by requiring him to do a practice (“dry run”) cross-examination of one witness; the “dry run” was necessary to rein in pro se D’s excesses, and D still had a reasonable opportunity to cross-examine the witness.

District court did not reversibly err in denying D’s motion to suppress arising from a search of his airplane, la­ter found to contain marijuana; the search was a routine “ramp check,” which can be performed at any time under FAA rules, and the evidence found during the ramp check was sufficient to obtain the search warrant that disclosed the marijuana in the plane. United States v. Massi, 761 F.3d 512 (5th Cir. 2014).

        D was detained, and the ramp check conducted, because, among other things, D made a suspiciously large number of stops in his flight, stayed only 12 hours at his final destination, and had a prior conviction for drug trafficking. Although D was unlawfully detained by law enforcement (what had been a Terry stop transformed into a de facto arrest unsupported by probable cause), the good-faith exception of United States v. Leon, 468 U.S. 897 (1984), applied and precluded application of the exclusionary rule. When prior unconstitutional conduct has uncovered evidence used to obtain a search warrant, evidence uncovered by the search warrant is admissible if (1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant was “close enough to the line of validity” that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct; and (2) the resulting search warrant was sought and executed by a law enforcement officer in good faith.

Death-sentenced Texas D was not entitled to a certificate of appealability to appeal the district court’s denial of his claim that trial counsel provided ineffective assistance in eight specific instances, nor was D entitled to appeal the district court’s rejection of his claim that he was intellectually disabled and thus ineligible for the death penalty. Williams v. Stephens, 761 F.3d 561 (5th Cir. 2014).

        Enough evidence was presented at trial to establish that for each of D’s eight claims of ineffective assistance, D did not meet his burden of showing that “fairminded jurists” could not have disagreed as to the correctness of the state court’s de­cision. In addition, any errors were harmless because they were not prejudicial.

        D’s claim that he was intellectually disabled, and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2003), also failed on all three of the raised grounds. First, D objected to the use of the factors articulated in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004). Because the court had previously upheld the use of those factors, this claim failed. Second, D argued that because of his schizophrenia, the jury could not have found that he was not intellectually disabled; however, there was no “clear and convincing” proof that the jury’s finding was incorrect. Finally, D argued that the jury could not have reasonably rejected his claim that he was intellectually disabled under a governmental definition of that disability. The court rejected that claim because the jury’s determination, after weighing all evidence presented, was reasonable and not clearly and convincingly incorrect.

D convicted of being unlawfully present in the United States after deportation following a felony conviction was not entitled to reversal of his sentence where the district court applied an eight-level aggravated felony enhancement for a prior conviction of aggravated criminal contempt. United States v. Sanchez-Espinal, 762 F.3d 425 (5th Cir. 2014).

        The district court did not err in concluding that D had previously been convicted of aggravated criminal contempt under N.Y. Penal Law § 212.52(1). D argued his prior conviction was not an aggravated felony because the charging instrument alleged that he acted intentionally and recklessly; no violence is required to commit aggravated criminal contempt; and any injury, no matter how serious, suffices for a conviction. However, the Fifth Circuit held that a violation of § 212.52(1) is a “crime of violence” under 18 U.S.C. § 16(b), making D’s prior conviction an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F); the district court therefore did not err in applying an eight-level “aggravated felony” enhancement under USSG § 2L1.2(b)(1)(C).

D convicted of illegal reentry after deportation was not entitled, on plain error review, to resentencing; although it was error to run D’s illegal reentry sentence consecutively with a pending federal sentence imposed after revocation of probation, D failed to show his substantial rights were affected. United States v. Nava, 762 F.3d 451 (5th Cir. 2014).

        D was sentenced in the Northern District of Texas to 27 months’ imprisonment, to run consecutively to any sentence imposed upon a pending revocation of supervised release in the Western District. Under United States v. Quintana-Gomez, 521 F.3d 495 (5th Cir. 2008), the order to run the illegal-reentry sentence consecutively with the not-yet-imposed federal revocation sentence was clear and obvious error, satisfying the first two prongs of plain-error review. However, D failed to show that his substantial rights were affected, given that the Western District ultimately imposed a consecutive sentence anyway, and consecutive sentencing was the recommendation of the Guidelines.

District court lacked jurisdiction to revoke D’s supervised release; the Fifth Circuit vacated that court’s order. United States v. Juarez-Velasquez, 763 F.3d 430 (5th Cir. 2014).

        Time spent in state custody on a charge that was ultimately dismissed without conviction was not “in connection with a conviction” and hence did not toll the supervised-release period under 18 U.S.C. § 3624(e), notwithstanding that (1) D was subject to an administrative immigration detainer at the time of the state dismissal, (2) the district court later entered an ultra vires order that D should receive credit on a later federal illegal-reentry charge for the time in state custody, and (3) the Bureau of Prisons later granted that credit. Because there was no tolling, D’s supervised release expired before the warrant to revoke was issued and before the district court actually purported to revoke D’s supervised release. As the district court did not, therefore, have jurisdiction, the Fifth Circuit vacated the order revoking supervised release.

Court of Criminal Appeals

A defendant’s right to a public trial is forfeitable, and D failed to preserve his public-trial complaint for appellate review. Peyronel v. State, 465 S.W.3d 650 (Tex.Crim.App. 2015).

        D was convicted of aggravated sexual assault of a child under age 14. The jury fined him $10,000 and assessed his pun­ish­ment at 50 years in prison. During a break in the punishment proceedings, an unidentified woman that the record showed was “part of the defense” approached a juror and asked, “How does it feel to convict an innocent man?” At a conference following the comment and outside the presence of the jury, the court excused all punishment-phase witnesses from the courtroom on its own motion, but the State also asked the court to exclude from the courtroom “female members of the defendant’s family . . . during testimony. I just don’t want any of the jurors at this point to feel intimidated while having to make a decision.” Defense counsel then stated, “Your Honor, we’d respond to that by saying that’s too broad to exclude [D]’s wife and daughter to create the impression in the jury’s mind that he has absolutely no support whatsoever here.” The judge decided to exclude everyone in the gallery. On appeal, D argued he preserved a complaint for review that his right to a pub­lic trial was violated and that the closure of the courtroom violated that right. COA agreed that he preserved his claim, reversed the trial judgment as to punishment, and remanded for a new punishment hearing. CCA reversed COA.

        “We have never directly addressed the issue of whether a person’s right to a public trial is mandatory, subject to waiver, or can be forfeited through inaction. . . . [T]he majority of jurisdictions addressing the issue have held that the public-trial right may be forfeited. . . . [M]any courts cite . . . Levine v. United States, 362 U.S. 610[ (1960).] We agree with the majority of courts and hold that a complaint that a defendant’s right to a public trial was violated is subject to forfeiture. . . .

        “Appellant was worried about the perception of the jury if no one was present in the gallery to support him, but it is hardly clear from the record that Appellant’s argument was the functional equivalent of asserting that his constitutional right to a public trial was being violated. We agree with Appellant that he was not required to use ‘magic language’ to preserve his public-trial complaint for review, but Appellant had the burden to ‘state[] the grounds for the ruling . . . sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.’ Tex. R. App. P. 33.1. Instead, Appellant is now trying to ‘raise an abstract claim . . . as an afterthought on appeal.’ See Levine, 362 U.S. at 620.”

By requiring D to perform an analysis of the severability of the statute, COA did not properly address the merits of D’s argument that the consolidated court cost of Tex. Loc. Gov’t Code § 133.102 was a tax and thus unconstitutional. Salinas v. State, 464 S.W.3d 363 (Tex.Crim.App. 2015).

        A jury convicted D of causing injury to an elderly individual and assessed a sentence of five years in prison. Tex. Pen. Code § 22.04(a)(3), (f); Tex. Pen. Code § 12.34(a). After sentencing D, the trial court assessed a consolidated court cost of $133 pursuant to Tex. Loc. Gov’t Code § 133.102. D ar­gued that the consolidated court cost of § 133.102 was a tax. The trial court overruled D’s objection. COA considered D’s complaints about two evidentiary issues and his challenge to the constitutionality of the court costs and affirmed the trial court. D’s CCA petition challenged only the constitutionality of the court costs. CCA reversed COA and remanded for that court to consider D’s claim of facial unconstitutionality as to the consolidated court costs under the correct standards.

        “[COA] addressed appellant’s arguments under an incorrect standard when it required appellant to also address severability principles and to establish what the funds designated in Section 133.102 actually do. We emphasize that demonstrating what the funds actually do is not the same as demonstrating what the governing statutes say about the intended use of the funds. . . . We . . . remand this case to that court to address the question of whether, based upon the statute as it is written, Section 133.102 is unconstitutional on its face, without regard to severability principles or to evidence of what the funds designated in the statute actually do.” NOTE: Cf. Denton v. State, below, in which a court of appeals categorized § 133.102 court costs as a “tax.”

Sufficient evidence supported D’s conviction for failing to report as a registered sex offender because he was aware of his duty to register and told his parole officer he was going to move but failed to report in person the intended change of address seven days before he moved. Robinson v. State, 466 S.W.3d 166 (Tex.Crim.App. 2015).

        COA affirmed D’s conviction for failing to report under the sex-offender registration requirements, Tex. Code Crim. Proc. art. 62.102. CCA granted D’s petition to decide what de­gree of mental culpability the statute required and whether to consider a trial judge’s findings of fact and conclusions of law in a sufficiency of the evidence review. CCA affirmed COA.

        “We hold that a conviction under Article 62.012 [sic] requires knowledge or recklessness only to the duty-to-register element of the offense, and that an appellate court should disregard the trial judge’s findings of fact and conclusions of law in reviewing for sufficiency of the evidence. . . . [COA] properly applied a traditional review of the sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. The court’s initial analysis, which required a culpable mental state as to Robinson’s duty to register but not his failure to register, correctly applied the elements of the offense. To sustain Robinson’s failure-to-comply conviction, the statute requires that Robinson (1) knew or was reckless about whether he had a duty to register as a sex offender, and (2) failed to report in person to the local law-enforcement authority his intent to change his address, not later than the seventh day before. . . . Robinson himself testified that he was aware of his duty to register, so we find the evidence sufficient as to this first element.” As to the second element, CCA found “ample evidence from which a rational fact finder could conclude that D failed to provide the proper pre-move notification,” despite D’s testimony that he repeatedly attempted to provide notice but each time was turned away and D’s aunt’s testimony that he remained living with her.

D’s reply of “None” or “No, Your Honor” to the question of whether there was an objection to “the seating of the jury,” “the panel,” or “the jury as selected” at the conclusion of jury selection did not constitute a waiver of any previously preserved claim of error during voir dire. Stairhime v. State, 463 S.W.3d 902 (Tex.Crim.App. 2015).

        “Appellant argued on direct appeal that he was prevented from asking a proper question to the venire during jury selection. The court of appeals refused to address the merits of his complaint, however, holding that Appellant later waived any error he might have earlier preserved. Stairhime v. State, 439 S.W.3d 499, 507 (Tex. App.—Houston [1st Dist.] 2014). When the names of the twelve jurors were called out and the jury was empaneled, the trial court immediately asked whether either party had ‘an objection to the panel or as to the jury as selected[.]’ Id. Appellant answered, ‘No, Your Honor.’ Id. The court of appeals agreed with the State that by his response, Appellant waived ‘any complaints about the [conduct] of voir dire[.]’ Id. We granted Appellant’s petition for discretionary review to examine whether the court of appeals correctly regarded Appellant’s answer to constitute a waiver of his appellate complaint that he had been denied the opportunity to pose a proper question.” CCA overruled Harrison v. State, 333 S.W.3d 810 (Tex.App.—Houston [1st Dist] 2010, pet. ref’d), insofar as it was inconsistent with this opinion, and reversed COA and remanded to that court.

A cost of court “Related to DNA Testing,” assessed on D pursuant to the Texas Code of Criminal Procedure, was not an unconstitutional tax that violated the Texas Constitution’s separation of powers clause. Peraza v. State, 467 S.W.3d 508 (Tex.Crim.App. 2015, reh’g denied).

        D was indicted under separate cause numbers for two instances of aggravated sexual assault of a child. After D pled guilty to the two offenses, the trial court set punishment at 25 years for each offense, and each judgment contained a $250 court cost assessment for a “DNA RECORD FEE.” This DNA record fee is required to be assessed as a cost of court pursuant to Tex. Code Crim. Proc. art. 102.020, entitled “Costs Related to DNA Testing.” Article 102.020(a) provides that “[a] person shall pay as a cost of court: (1) $250 on conviction of an offense listed in Section 411.1471(a)(1), Government Code.” Article 102.020(h) directs that “[t]he comptroller shall deposit 35 percent of the funds received under this article in the state treasury to the credit of the state highway fund and 65 percent of the funds received under this article to the credit of the criminal justice planning account in the general revenue fund.” D appealed this fee assessment, claiming it violated the Texas Constitution. This argument was based on the language in Article 102.020(5 h) directing the disbursement of such court costs; D argued that by requiring the courts to impose this “tax” for the benefit of the state highway fund and criminal justice planning account, the Texas Legislature had reduced the courts to a tax-gathering agency of the executive branch, violating the separation of powers doctrine. The First Court of Appeals agreed with D and modified both judgments to delete the DNA record fee; the court held that the Article 102.020 fee was an unconstitutional tax, not a legitimate court cost, because it was neither necessary nor incidental to the trial of a criminal case. Six months before the First Court issued that opinion, Houston’s Fourteenth Court issued a contrary unanimous opinion in O’Bannon v. State, 435 S.W.3d 378 (Tex.App.—Houston [14th Dist] 2014, no pet.). Like Peraza, O’Bannon challenged the assessment of the court costs related to DNA testing, pursuant to Article 102.020, as facially unconstitutional by impermissibly compelling the courts to collect a tax. The Fourteenth Court held that O’Bannon failed to satisfy his burden to show that Article 102.020 was invalid in all possible applications and thus affirmed the trial court’s overruling of his challenge to the statute. Because of these conflicting opinions from the Houston courts, CCA granted review here. CCA reversed COA and reinstated the court costs.

        A court cost for DNA testing assessed under Tex. Code Crim. Proc. art. 102.020 was not an unconstitutional tax that violated the separation of powers clause under Tex. Const. art. II, § 1, because the statutory scheme allowed for such funds to be expended for legitimate criminal justice purposes. As long as a criminal statutory assessment is reasonably related to the costs of administering the criminal justice system, its imposition will not render the courts tax gatherers in violation of the separation of powers doctrine. D failed to show that it was not possible for Article 102.020 to operate constitutionally under any circumstance, including the fee benefits to the criminal justice planning account and state highway fund.

The offense of indecency by exposure was not necessarily subsumed within the offense of indecency by con­tact; double jeopardy did not bar D’s conviction for both. Speights v. State, 464 S.W.3d 719 (Tex.Crim.App. 2015).

        D was convicted of two counts of indecency with a child—one count of indecency by contact and one count of indecency by exposure. He appealed that his conviction for indecency with a child by exposure improperly subjected him to double jeopardy. COA agreed. CCA granted the State’s petition to decide whether, for double jeopardy purposes, indecency by exposure is “necessarily subsumed” within indecency by contact when, during the same incident, the defendant first exposes himself and masturbates in front of the child and then causes the child to touch his penis. CCA reversed COA to the extent that it rendered an acquittal for the offense of indecency with a child by exposure.

        Conviction for indecency with a child by exposure and indecency with a child by sexual contact did not subject D to double jeopardy because Tex. Penal Code § 21.11(a)(1) and § 21.11(a)(2)(A) admit of separate allowable units of prosecution and punishment for both the offense of indecency with a child by sexual contact and the offense of indecency with a child by exposure. For purposes of the indecency with a child statute, “sexual contact” may be accomplished by way of any touching by a person, including touching through clothing. § 21.11(c)(1). Thus, it is possible to commit indecency with a child by sexual contact without necessarily committing indecency with a child by exposure. It is also possible to commit indecency with a child by exposure without committing indecency with a child by sexual contact. A relationship of “exposure” to “contact” within the indecency with a child statute is similar to the relationship between different kinds of contact involving different parts of a body within that same statute, i.e., anus, breast, or genitals. Because § 21.11(a) prohibits the commission of any one of those acts, each act is a separate offense, and as such, a discrete allowable unit of prosecution.

Court of Appeals

D should have raised his complaint about the fine via appeal from the order deferring his adjudication of guilt as it was too late to complain once adjudicated guilty, convicted, and sentenced; assessing the fee was akin to the levy of a tax and fell outside the takings clause, Tex. Const. art. I, § 17. Denton v. State, Nos. 07-15-00181-CR, 07-15-00182-CR (Tex.App.—Amarillo Oct 8, 2015, reh’g denied).

        Appellant proclaimed that Tex. Local Gov’t Code § 133.102(e)(7), requiring a defendant convicted of a felony to pay fees for a public use, violated—as applied to appellant—the Takings Clause of Article I, § 17 of the Texas Constitution. COA overruled the issue and affirmed the trial court. “Assessing the fee in question as a court cost was and is not an exercise in what we commonly know to be eminent domain. Instead, it is akin to a levy of a tax. As such, it falls outside the scope of the takings clause.”

It was proper to deny D’s petition for nondisclosure of his criminal history, under former Tex. Gov’t Code § 411.081, because he was convicted of a misdemeanor during his community supervision period, even though the conviction was for an offense occurring before the community supervision period began and on the same date as the offense for which he was placed on community supervision, and even though he successfully completed probation for the misdemeanor. Wills v. State, No. 09-14-00373-CV (Tex.App.—Beaumont Oct 29, 2015).

        “[D] appeals from the denial of a petition for nondisclosure of his criminal history record information. We must decide whether, under the version of section 411.081 in effect before its amendment by the 84th Legislature in 20151, a person is entitled to an order of nondisclosure when that person is convicted during the community supervision period for an offense that occurred before the community supervision period commenced. See Act of June 18, 1993, 73rd Leg., R.S., ch. 790, 1993 Tex. Gen. Laws 3088 (amended in 2003, 2005, 2007, 2009, 2011, 2013, 2015)(current version at Tex. Gov’t Code § 411.084). We hold that the statute is unambiguous, and that a person is not entitled to an order of nondisclosure if that person is convicted of an offense during the period of community supervision regardless of when that offense was committed. Accordingly, the trial court did not abuse its discretion. We affirm the trial court’s order denying the petition for nondisclosure.”

The Right to Present a Defense: Help When You Really Need It

It may sound silly at first to say that our clients have a right to present a defense—of course they do. Even the United States Supreme Court has so ruled.1 This “right to present a defense” is a broad right that can allow you to present important, helpful material or exculpatory evidence to the jury when other more specific rules, like the hearsay rule or other state evidentiary laws, would seem to prevent you from presenting such evidence.

Here is how Professor Westen defines the right to present a defense:

A defendant has the right to introduce material evidence in his favor whatever its character, unless the state can demonstrate that the jury is incapable of determining its weight and credibility and that the only way to ensure the integrity of the trial is to exclude the evidence altogether.2

This right can help you overcome evidentiary or other barriers when you really, absolutely need to get potentially winning evidence in front of the jury, but the judge is saying that it is hearsay or that this statute says to “keep it out.”

Where does this right come from and how has it been used in the past? The right to present a defense initially derives from the common law right to compulsory process and the right to due process, and then became a named right through a line of Supreme Court cases.3

The right of compulsory process derived from English common law as the procedure for conducting trials moved from an inquisitional system process to an adversarial process.4 The right to compulsory process was incorporated into many state laws before the adoption of the Bill of Rights. When the framers of the new United States Constitution failed to specifically include a number of common law rights, the Bill of Rights incorporating these rights was drafted at the insistence of several states. James Madison is credited with including the right to compulsory process in these enumerated rights.5

The right to compulsory process was contested early in our nation’s history in cases involving Aaron Burr. Mr. Burr was accused by President Thomas Jefferson of plotting to start a war with Spain and to set up a new and separate government in the American west by force.6 Burr sought to subpoena certain letters from General James Wilkerson to aid in his defense. President Jefferson refused to provide them, relying on the concept of executive privilege and other defenses. Writing for the Supreme Court, Justice John Marshall ruled against Jefferson and ordered him to comply with the subpoenas. Marshall’s opinion in United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807), said that it would be “a very serious thing, if such letter should contain any information material to the defence, to withhold from the accused the power of making use of it.”

The right of compulsory process apparently was little mentioned by the Supreme Court until Washington v. Texas, supra.7 At the time of Washington’s trial, Texas had statutes that prevented a participant accused of a crime from testifying for his co-participant. Washington and his co-defendant, Fuller, were accused of a fatal shotgun shooting in Dallas. Fuller was convicted before Washington went to trial and was serving a 50-year sentence. Washington sought to put Fuller on as a witness because “Fuller was the only person other than [Washington] who knew exactly who had fired the shotgun and whether petitioner had at the last minute attempted to prevent the shooting.” Id. at 16. The trial court denied Washington’s request to have Fuller testify. The Court noted that “we have increasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law.” Id. at 18.

The Supreme court ruled that Washington had a right to call Fuller to testify for him, thus overriding the Texas statutes. The Court went on to name the right as the “right to present a defense”:

The right to offer the testimony of witnesses, and to com­pel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the de­fen­dant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s wit­nesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due pro­cess of law.

Id. at 19.

The next Supreme Court case demonstrating the right to present a defense is Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Chambers was on trial for the murder of a police officer. His theory of defense relied on the fact that another person who was present at the time of the shooting, McDonald, had told three of his friends that he had shot the officer, not Chambers. McDonald had also given a sworn statement to Chambers’ attorney admitting this. When the prosecution failed to call McDonald as a witness, the defense called him as their witness. After he denied making the admissions, the defense was prevented from cross-examining him as an adverse witness. This was based on Mississippi’s “voucher” rule. The defense then sought to introduce the testimony of the witnesses who had heard McDonald make the admissions, and the state objected because it was hearsay. The trial court judge agreed and did not allow Chambers to call these witnesses.

The Supreme Court reversed the conviction, holding that the voucher rule violated the defendant’s confrontation right, and that the exclusion of the hearsay testimony denied Chambers the right of compulsory process. Justice Powell believed that the excluded hearsay had several indicia of reliability and should have been admitted. Id. at 298. The court also held that the errors resulted in a denial of the defendant’s rights to a fair trial and due process. Id. at 302.

The Supreme Court affirmed this principle in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). The trial judge excluded hearsay testimony in the punishment phase of the trial that Green’s co-defendant had actually committed the offenses. Green and the co-defendant had abducted the victim from a store where she was working and raped and murdered her. The co-defendant had already pled guilty and been sentenced at the time of Green’s trial. Green was convicted of murder, and at his punishment attempted to present hearsay evidence that his co-defendant had confided to a close friend that he had killed the victim, shooting her twice after ordering Green to run an errand. Green was sentenced to death.

The Supreme Court held that the hearsay evidence was “highly relevant to a critical issue in the punishment phase of the trial . . . and substantial reasons existed to assume its reliability.” Id. at 97. Indeed, the state had relied upon that very evidence to convict the co-defendant earlier. Citing Chambers, the court ruled that “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. Thus, the state did not have a legitimate reason to keep evidence from the jurors that would help them assess the defense presented by the defendant, even though it was hearsay.

This principle was reaffirmed once again in Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). The 16-year-old defendant attempted to suppress his confession due to circumstances under which it was obtained: after being placed in a windowless room and questioned over a protracted period of time by six officers who refused to let him to call his mother. The trial judge refused to allow the jury to hear this evidence, ruling that he had already made a determination on the voluntariness of the confession. Crane was convicted and sentenced to 40 years’ confinement. The Supreme Court overturned the conviction, holding that it was error to prevent jurors from hearing tes­ti­mony about the environment in which the confession was taken by the police, because the manner in which it was taken was relevant to the reliability and credibility of the confession. The court found that the “Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense’” whether found in the Fourteenth Amendment’s due process clause or the Sixth Amendment’s confrontation and compulsory process clauses. Id. at 690.

In a 1987 case, Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court held that a defendant has the right to testify on her own behalf without undue restrictions. The defendant, charged with manslaughter, had undergone hypnosis prior to trial with a trained neuropsychologist. As a result of the hypnosis, defendant had remembered that the gun was defective and had misfired while she struggled with her husband. The condition of the rifle was corroborated by a weap­ons expert. The Arkansas court excluded the testimony resulting from the hypnosis as per se unreliable. The Supreme Court ruled that a State could not prevent her testimony by rules that are arbitrary or disproportionate to the purposes they are de­signed to serve. Without using the term “right to present a defense,” the Court still held that criminal defendants have a right to testify in their own behalf under the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment’s privilege against self-incrimination. Id. at 44. The court cited Washington v. Texas, supra, and Chambers v. Mississippi, supra, as examples where it had invalidated State rules that had excluded testimony vital to the defendant.

The most recent Supreme Court affirmation of the right to present a defense appears in Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). The issue was whether a criminal defendant’s federal constitutional rights were violated by a State rule of evidence that would not allow a defendant to introduce proof of third-party guilt if the prosecution had already introduced forensic evidence that, if believed, strongly supported a guilty verdict.

Holmes was convicted by a jury of first-degree murder, sexual conduct, burglary, and robbery and sentenced to death. The state relied heavily on forensic evidence—and the fact that the defendant was seen near the victim’s house within an hour of the time of the attack. Holmes attacked the forensic evidence at trial, and also attempted to show that the police had tried to frame him. He also attempted to present evidence that another person, Jimmy McCaw White, had attacked the victim—through several witnesses that said that White either acknowledged that Holmes was innocent or that he, White, had actually committed the crimes. Holmes also tried to present a witness who could say that a police officer had asked him to testify falsely. The trial court excluded the testimony and the conviction was upheld by the South Carolina Supreme Court.

The United States Supreme Court reversed, holding Holmes’ right to present a defense had been violated. The Court held that evidence rules that are arbitrary or disproportionate to the purposes they are designed to serve interfere with that right and must not stand in the way if they prevent a defendant from pre­sent­ing important evidence. As examples, the court cited Washington v. Texas, supra, Chambers v. Mississippi, supra, and Crane v. Kentucky, supra, at 325. The court said that specific examples of this are rules that “regulat[e] the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged.” Id. at 327. The only restriction on this is that the evidence offered must not be remote or speculative. Id.

The above cases have focused on overcoming hearsay objections and unique state statutes that prevent a defendant from presenting material and helpful evidence in defense, especially evidence showing that someone other than the defendant actually committed the crime. There are also other factual instances where the courts have ruled that the right to present a defense has been violated by actions of the prosecution, or agents of the prosecution, or even the judge presiding over the trial.

In Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the unusually harsh warnings by the trial judge made a defense witness unwilling to testify, in violation of the de­fen­dant’s right to a fair trial. After the prosecution rested its case, the jury was temporarily excused, and the defendant called his only witness, who had a conviction and was serving a prison sentence. The judge, on his own initiative, admonished the witness that:

[Y]ou don’t have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on.

Id. at 96.

He kept going. When he was finished, the defense objected that the court was depriving his client of his defense by coercing his only witness into refusing to testify. The motion was denied. The Texas Court of Criminal Appeals also rejected his objection, although it did not approve of the judge’s actions. The Supreme court overruled the appellate court, and, relying on Washington v. Texas, supra, stated that:

In the circumstances of this case, we conclude that the judge’s threatening remarks, directed only at the single witness for the defense, drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.

Id. at 98.

Other cases follow the ruling in Webb v. Texas: In United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998), a violation of the defendant’s right to present a defense occurred where the pros­e­cutor told a witness that he did not believe the defendant’s alibi defense and threatened perjury if the witness testified. In United States v. Thomas, 488 F.2d 334 (6th Cir. 1973), the defense witness decided not to testify after a Secret Service agent threatened him with misprision of a felony if he did testify.

So, how can you use the right to present a defense to get material, useful evidence to the jury when hearsay or other ob­sta­cles appear to present an insurmountable barrier? Here is an example of how I was able to convince a trial judge to allow the jury to hear hearsay identification evidence from an absent witness—evidence which tended to show that a third party may have committed the crime. (I have altered the facts because the actual case has been reversed on another issue and subsequently dismissed on speedy trial grounds.)

In this fictional case, the defendant was accused of using a tree branch to assault the victim outside his apartment on the sidewalk, causing serious injuries to the victim. The victim told the Austin police he had informed the defendant that his girlfriend had “given it up” to him quite readily because of his superior love-making abilities, abilities the defendant apparently lacked. The defendant denied that the victim ever said this to him, and offered evidence from a witness, a neighbor, who had seen the actual confrontation and picked out another person from a six-pack photo lineup. The lineup had been lost, but the neighbor, Mr. X, had given a sworn statement to the police describing the actual perpetrator. This description did not match the defendant. This witness was not available to testify in person because he was terrified of the actual perpetrator. He had gone into hiding and could not be served with a subpoena or otherwise brought to the court to testify.

A motion, followed by a brief, was filed to admit his statement. This was the argument contained in the motion:

1. Necessity of the Testimony for Defendant

 The Defendant absolutely needs to present the statements by Mr. X that he saw a man, who does not match the physical description of the defendant, outside his apartment committing the assault. Because the person he described does not match the physical description of the Defendant, his evidence is highly exculpatory and essential for Defendant to obtain a fair trial.

2. Common Law Rule and the Residual Hearsay Exception

 Under the common law, the trial judge has discretion to admit hearsay even if the hearsay does not fall within a specific hearsay exception. Imwinkelreid & Garland, Exculpatory Evidence, 3rd Ed., Copyright 2004, Matthew Bender & Company, p. 543. This right, often referred to as the residual hearsay rule, is now incorporated into Federal Rule of Evidence 807, which states:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the in­ter­ests of justice will best be served by admission of the state­ment into evidence. However, a statement may not be ad­mitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

 The residual hearsay rule has also been recognized the 3rd Court of Appeals of Texas in Muttoni v. State, 25 S.W.3rd 300 (Tex.Ct.App.—Austin 2000).

3. Defendant’s Right to Present a Defense

 A defendant has a right to present a defense that overrides the hearsay rule and other rules of evidence, where the proffered evidence is essential to a fair trial and has some indicia of reliability. Chambers v. Mississippi, 410 U.S. 284 (1972); Washington v. Texas, 388 U.S. 14 (1967); Green v. Georgia, 442 U.S. 95 (1979); Holmes v. S. Carolina, 574 U.S. 319 (2006).

4. Unavailability of the Witness

 Federal Rule of Evidence 804(a)(2) treats the refusal of a witness to cooperate as “unavailability”: “Unavailability as a witness” includes situations in which the declarant—

. . . (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

This standard has been adopted in Texas by the El Paso Court of Appeals in Rogers v. State, 845 S.W.3d 328, 331 (Tex.App.—El Paso, 1992, no petition):

“The determination of whether the efforts to secure the presence of the witness were sufficient to meet the test of [TRE] 804(a) is within the sound discretion of the trial judge. The test has been described as ‘good faith’ efforts undertaken prior to trial to locate and present that witness.”

6. Necessity of the Testimony for Defendant

 This evidence is highly exculpatory and essential for Defendant to obtain a fair trial.

7. Reliability Standard

 The defense does not have to show that the proffered hearsay statement is absolutely true to meet the reliability re­quirement. The defense has satisfied the reliability standard so long as a reasonable person could conclude that the hearsay statement is true. It is sufficient if the hearsay state­ment has “some semblance of reliability.” Welcome v. Vincent, 549 F.2d 853, 859 (2d Cir.), cert. denied, 432 U.S. 911 (1977). Under decisions of the U.S. Supreme Court interpreting the 6th Amendment’s compulsory process clause, the “testimony of a defense witness may not be excluded because there are doubts about the witness’ credibility if the testimony is ‘capable of being rationally evaluated by a properly instructed jury for its probative value and weight.’” People v. Cudjo, 6 Cal. 4th 585, 639, 863 P.2d 635, 670, 25 Cal. Rptr. 2d 390 (1993); Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases (1978) 91 Harv. L. Rev. 567, 627, fn. 167. “A requirement that the defendant corroborate the declarant’s entire statement . . . may run afoul of the defendant’s due process rights under Chambers v. Mississippi . . . If the issue of sufficiency of the defendant’s corroboration is close, the judge should favor admitting the statement. In most . . . instances, the good sense of the jury will correct any prejudicial impact.” Commonwealth v. Drew, 397 Mass. 65, 76–77, 489 N.E.2d 1233, 1241 (1986).

 WHEREFORE, the Defendant moves that this Court rule that either:

 1) Defendant’s right to a fair trial and to present a defense has been violated and the case be dismissed [always ask for more than your think you can get]; or

 2) Defendant be allowed to present all hearsay evidence of Mr. X’s statements to the Austin Police Department regarding the person he saw with a tree branch outside the apartment where the victim was assaulted and also allow defendant’s counsel to allude to such testimony in opening statements.

RESPECTFULLY SUBMITTED,

____________________________

Etc.

Based on this motion, I was able to present evidence to the jury, the neighbor’s statement to police, that he had seen another person outside the apartment who committed the crime, and who did not physically match my client. It was not enough information to win the case at trial, but it certainly helped to have this bit of evidence on the record for purposes of the appeal.

So, how will you use the right to present a defense? When you have evidence that is material and useful to your defense, evidence with some indicia of reliability, you can use this right to argue for the admission of the evidence if it would otherwise be excluded by the rules of evidence or other rule limiting the admissibility of a class of evidence. The Supreme Court cases cited above, and subsequent cases interpreting this right, pre­sent an invitation to be creative in using the right to present a de­fense in order to provide your client with a full and compelling defense.8 Sometimes evidentiary rules are just guidelines, and the right to present a defense is your trump card.

Endnotes

1. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

2. Westen, “The Compulsory Process Clause,” 73 Mich. L.R. 71, 159 (1974); see also Westen, “Compulsory Process II,” 74 Michigan L.R. 191 (1975), and Westen, “Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases,” 91 Harv. L.Rev. 567 (1978).

3. My initial education on this developing right, and some of the sequence of the cases reviewed here, came from the excellent, and much more comprehensive, article by New York attorney Mark J. Mahoney, “The Right to Present a Defense” (1989–2011). Additional, in-depth analysis on this topic can be found in Exculpatory Evidence: The Accused’s Constitutional Right to Introduce Favorable Evidence, Imwinkelried and Garland, 3rd Ed., Copyright 2004, Matthew Bender & Company. The right to present a defense is closely related to, but broader than, the right to present evidence that a specific third party committed the crime. See Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002).

4. Westen, supra, 177–79.

5. Id. at 90–91.

6. Id. at 102.

7. Id. at 108.

8. Another line of cases has held that a defendant has a right to rebut prosecution evidence. For example, see Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), holding that a defendant charged with capital murder had a right to have funds provided to hire a mental health expert on the issue of insanity. In Gardener v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the defendant was convicted of murder and sentenced to death. The sentence was partly based on information from the presentence investigation report, which was not disclosed to defense counsel. The Supreme Court held that it was a violation when “the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Id. at 362.

Do Not Be Afraid of Challenging the Show-Up Identification

Like more than a few of my court-appointed felony clients, Julius was angry, offensive, demanding, and adamantly refused any plea deal. He was 43 years old but looked 60, African-American, unemployed, short, stocky, dark-skinned with very short black hair. Julius was a career felon who was bad at his job. He sat in jail on the charge of attempted burglary of a habitation. He allegedly kicked in the door of a home he may have thought was unoccupied, but ran away without entering when he discovered that someone was indeed at home. He could not make bond because he had a blue warrant for violating his parole. He was on parole for burglary of a habitation, and had four prior convictions for—you guessed it—burglary of a habitation. He told me he did not do it. He yelled at me when I tried to discuss the evidence with him. He insisted he was not guilty.

THE OFFER

The prosecutor’s offer was 9 years TDC. Not much of an offer, you might say? I agree. But of course, she threatened to use the prior convictions to enhance it and then stack it. He rejected the offer and demanded a trial.

WITNESS

The witness was a 15-year-old boy, Drew, enrolled in the sixth grade, and at home alone on a school day at the time of the alleged break-in. Just a few red flags popped up. The questions ask themselves, right?

FACTS

Drew called 911. I completed a records request for the 911 call. Drew reported that he had been asleep at home around 10:00 a.m. when someone began banging on the front door. He took his time responding. When he got to the door it flew open and then back, and the man ran off when he saw Drew. Drew said he saw a heavyset, bald, 30–40ish black man with dark skin, standing about 5’7”, wearing blue pants and an orange shirt, no hat, no eyeglasses, no facial hair. Drew did not see the shoes. One might say that was a surprisingly detailed description, right? When police arrived they observed a shoe print on the badly damaged front door, which obviously had been kicked in. They took photos of the print and later tried to match it up with my client’s shoe. When that did not work in their favor, they said the shoe print was too partial to make a match.

Meanwhile, police were also searching the neighborhood for a suspect matching the 911 dispatcher’s description. The police stopped Julius, who was walking a few blocks over from the home. Julius was wearing a white shirt and dark pants but no jacket. We requested the booking photo, which showed Julius was not bald but had very short black hair. The police would later testify that Julius was the first black man they stopped and the only black man they saw walking in the neighborhood. He did not run from the police, and he produced ID. He carried a wallet, watch, key, and cell phone. He told officers he was going home. Julius was detained in a motel parking lot and allowed officers to pat him down, but he was agitated, angry, and mouthy.

Drew clearly told the 911 dispatcher that the suspect was wearing an orange “shirt.” He said it twice. But somehow the shirt morphed into an orange “jacket” when the police wrote up their reports. The police noted that it was 50 degrees on a January morning. When asked why he was not wearing a jacket, Julius told police he did not need one. The police did not agree. The police concluded that Julius must have ditched his orange jacket on the run, so they searched the neighborhood. They found a red, black, and white jacket, and red New York Yankees baseball hat sticking out of a drainage culvert up the road. The police decided that was the jacket the suspect must have been wearing.

The police put Drew in the back of a patrol car and drove him over to the parking lot to conduct a show-up identification of the suspect. My client was the only handcuffed black man surrounded by four or five white police officers in the parking lot. The police actually conducted a drive-by show-up. They drove Drew slowly past Julius, but they did not stop the patrol car. One officer held up the red, white, and black jacket next to Julius while Drew was driven past him. Drew immediately identified Julius as the person who kicked in the door of their home.

According to the police report, Julius “kept pronouncing his innocence” and “protesting his innocence,” but Julius refused to waive his rights and make a statement—so he must be guilty.

The police recorded their interview with Drew at the police department. He did not appear, look, or sound disabled or mentally retarded. We learned he was also in alternative school and had skipped school that day. Drew told the police that he was “face to face” with the guy who kicked in the door. The police then asked him a leading question: “Was it a red coat or orange?” Drew answered: “It looked orange to me, but it turned out red.” He wrote a statement in which he now described the suspect as wearing a “bright orange coat.” This differed from what he told the 911 dispatcher. Drew wrote down, “They took me to the hotel and showed me him and his jacket and that was him.”

While the police were out of the room, Drew told his mom that he was scared when he heard the banging at the door because he thought it was Mr.______, and he thought “they were coming to get me.” His mom understood what he was referring to, but we had no idea.

During the recorded interview, Drew’s mother, Diane, calls her father, Donald, and tells him to come down to the police station to see if it is the same guy he had seen loitering outside the home a few weeks ago. Diane tells the police officer that her dad can pick the guy out of a photo lineup. The police arrange a photo lineup for Donald. We later learned that Donald had served as a police officer in the same department for 20 years and retired. The photo lineup, results, and interview with Donald were not in the discovery I received. The prosecutor told me she did not have it.

Did I ask the prosecutor why Drew, a 15-year–old, was enrolled in sixth grade? Yes, and she did not know.

I did meet with the prosecutor to discuss the conflicts and contradictions in the statements and evidence. Did the facts seem to cry out for a dismissal? I certainly thought so. She was unmoved—take it to trial and risk an enhanced, stacked sentence or take the deal.

THE SHOW-UP

Drew’s out-of-court identification of my client did not pass the smell test with me, and it was the linchpin to the state’s case. Other lawyers and case law tended to support the opinion that the show-up ID would survive my challenge on a motion to suppress. While my client had nothing to lose, I wanted to be certain that my motion had a valid legal and good-faith basis.

CASE LAW

I almost always start my research in The Texas Criminal Lawyers Handbook, and this case was no exception. I have found it to be an invaluable tool over the years. The Handbook is authored by Robert K. Gill and Mark G. Daniel. I have heard Mark speak at many a worthwhile TCDLA seminar.

Of course, when challenging the show-up ID, the first question is, Who has the burden of proof?

The defendant has the burden to show the identification is unreliable by clear and convincing evidence. Delk v. State, 855 S.W.2d 700 (Tex. Crim. App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993); Bond v. State, 29 S.W.3d 169 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

If the defendant meets this burden, then the in-court identification is inadmissible unless the state can prove by clear and convincing evidence that the identification was of independent origin. Brown v. State, 64 S.W.3d 94 (Tex. App.—Austin 2001, no pet.); United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000). The test is whether, considering the totality of the circumstances, the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Id., citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Lo­serth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998).

The Court of Criminal Appeals has identified “five non-exclusive factors” that can be used to assess the reliability of an identification procedure: (1) the opportunity of the wit­ness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Loserth v. State, supra citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

When applying those factors to our case, the prosecutor could argue that Drew was paying serious attention to the person who had been banging on the door of his home and then kicked it in, had sufficient time to view him, made a fairly detailed description, was certain it was my client, and less than a half-hour lapsed between the incident and the identification. Unfortunately, the police officers mangled Drew’s detailed description to match their conclusion that Julius had to be the culprit.

As we all know, appellate courts love to throw in a “bal­ancing test.” The Houston appellate court concluded that some suggestiveness is always present in a show-up identification but must be balanced against: (1) the desirability of allowing the witness to view the suspect immediately after the commission of the offense while his memory is fresh and accurate; (2) the fact that the quick confirmation or denial of identification leads to the release of innocent suspects (but not in my client’s case); and (3) the fact that the release of innocent suspects frees the police to continue the search for the perpetrator of the offense (ditto). Louis v. State, 825 S.W.2d 752 (Tex. App.—Houston [14th Dist.] 1992, pet.ref’d).

And then there is the time-worn favorite “totality of circumstances” analysis using the following factors: (1) the opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness’ level of certainty; and (5) the time between the crime and the confrontation. Id.

And finally, there is always the Texas “two-step” analysis used to determine the admissibility of an in-court identification: (1) whether the identification procedure was impermissibly suggestive; and (2) if the identification was the result of a suggestive procedure, whether or not it gives rise to a very substantial likelihood of irreparable misidentification, examining the totality of the circumstances. Delk v. State, supra.

PRETRIAL MOTIONS

When viewing the facts in light of the case law analysis, I felt we had a shot. So I filed a plain vanilla Motion to Suppress Identification and a Motion to Suppress Evidence Obtained by Illegal Detention and/or Illegal Arrest of the Defendant. The odds on a district judge granting a suppression motion and letting a career offender walk are slim to none, but we had nothing to lose. As is often preached at TCDLA seminars, pretrial hearings offer the opportunity for additional discovery—and the witnesses’ answers can be used against them at trial.

THE HEARING

Despite my best efforts, I could not discover why 15-year-old Drew was still in the sixth grade, so I issued a subpoena duces tecum for school records to be brought to the hearing. The responding school official told me that Drew had serious disciplinary problems for fighting with other students, banging his fists on desks and walls, and violated his probation multiple times with positive UAs and refusing to attend class. Drew liked to smoke weed. Drew was not retarded. Drew was an unrepentant truant of average intelligence. He was in alternative school and would age out of the school system at age 18.

The prosecutor and I were both surprised when Drew showed up to the hearing in orange scrubs and shackles. He had been transported from the juvenile detention facility. His mom, Diane, and grandfather, Donald, were not happy with me because they believed I was forcing him to testify.

I had subpoenaed almost every officer who wrote a report in the case. The shift supervisor was not happy with me. She was there too. My paralegal overheard the supervisor complaining: “She’s court-appointed. Why is she doing this?”

I did issue a subpoena duces tecum to the officer who presented the photo array to Donald. I had not received a copy of the photo-array or report. During the police interview, Donald verified that just a couple of weeks earlier he had seen a black man standing outside the front door of Drew’s house. When Donald approached the man, he claimed he had the wrong house and left. Donald believed that the man was casing the house for a break-in. Donald did not identify my client in the photo array. In fact, he identified someone else.

The prosecutor asked me if she could take Drew on direct examination and I agreed. She spoke to Drew very carefully and very slowly—as if he were retarded. She navigated him through the events of that day. She tried to reconcile a red, white, and black jacket with an orange shirt. She sought to characterize the red in the jacket as tomato red because apparently tomato red is the new orange. She sought to show that though Drew may have had enough time to see the person at the door, he may have missed the other colors in his jacket. The hat could have been in his pocket.

By the way, Drew was slow to answer the door because he was afraid that it was the truancy officer. He did not want to return to juvenile detention.

Finally, the prosecutor asked him if the person he saw at the door was in the courtroom.

His answer: “No.”

I was very busy writing but stopped as his answer registered. I looked up at the judge. She looked at me. We looked at Drew then at the prosecutor then at the courtroom deputies.

It was a long pause.

The prosecutor repeated her question.

He repeated his answer.

The prosecutor informed the court that she would not ask Drew to make an in-court identification. After additional testimony from police officers, the judge denied my motion to suppress the evidence obtained by illegal detention or arrest.

After the hearing, the prosecutor informed me that she was going to send the hat and coat to the DPS lab for DNA analysis. If it came back with my client’s DNA, she would enhance and not waive a trial. I told her that I had already warned my client that she would do just that. In fact, I had anticipated that the prosecutor would threaten to take that action. I did warn my client prior to the hearing, and he still rejected the plea offer. He insisted he had not worn the jacket or hat—they were not his.

The DPS lab did not obtain any DNA samples from the hat or coat.

The prosecutor filed her dismissal.

I Am Alive Today Because I Listened to My Body

On August 12, 2014, I underwent open heart surgery at East Texas Medical Center Hospital in Tyler in order to relieve the 95 percent blockage in my widow maker and the significant blockage in two of my other coronary arteries. During my first conversation with my surgeon after I left the intensive care unit, I heard him say: “You were a ticking time bomb. You are like an automobile that made it to the shop the day before it broke down on the side of the road.”

Six weeks later, I had my last meeting with my surgeon. Just before we concluded, I could not resist asking, “If I had not had surgery, how much longer would I have lived?”

The response was chilling: “Two months. Three months. Maybe six months or a year. We know that you had 95 percent blockage in the widow maker. When it gets to 100 percent, you will die.”

I survived because I listened to my body. I am writing this article with the hope that it could help others learn from my experience.

The Events of the Preceding Twelve Days

At 5:00 a.m. on July 31st, I rolled out of bed to go upstairs to my man cave for an aggressive workout on my Schwinn Airdyne. Before my feet hit the floor, I knew that something was wrong. I woke my wife, Robyn, and told her we needed to go to the emergency room—now. When we got there, I explained to the ER physician that there was something wrong in my chest; however, I could not be more specific than that. I immediately had an EKG and then spent the next eight hours at the East Texas Medical Center Hospital. Lab work was done on several occasions, and I wore a monitor while I was there. At the end of the day, I was told that it did not appear that I had a heart issue; however, I should consider scheduling a stress test.

On August 7th, I had that stress test and learned that I had blockage in some of my coronary arteries. My cardiologist told me that he would need to insert stints to relieve this blockage. Since Robyn was out of town, I chose not to have this procedure on the 8th, but to schedule it for the 11th. Even though my cardiologist was optimistic, we discussed whom I would want as a heart surgeon if surgery was required. He alerted that surgeon and an anesthesiologist that we might need them on August 12th.

On August 11th, I went to ETMC and talked with my car­di­ol­o­gist and the anesthesiologist. After that conversation, I thought I would be going home sometime after lunch. When I came out from under the anesthesia, I learned that the blockage was too significant for stints and that I would have surgery the following morning.

What Is a “Widow Maker”

That noted medical journal, Wikipedia, gives us this information:

The left anterior descending artery also known as the ‘widow maker,’ is an artery of the heart.

        From the minute a widow maker heart attack hits, survival time ranges from minutes to several hours. Rapidly progressing symptoms should signal the need for immediate attention. Symptoms of initial onset may include nausea, shortness of breath, pain in the head, jaw, arms or chest, numbness in fingers, often of a novel but imprecise sensation which builds with irregular heart beat. Early symptoms may be mistaken for food poisoning, flu or general malaise until they intensify. A widow maker cannot kill instantly but induces cardiac arrest, which may do so within 10 to 20 minutes of no circulation. A victim with no pulse or breath is still alive, living off oxygen stored in the blood and may be able to be rescued if treatment is begun promptly within this window [emphasis added].

Lulled Into a False Sense of Security

In 2006, Robyn and I gave each other cardiac CT scans as Christmas presents—not exactly romantic, but each of our fathers had died of a heart attack or from complications following a heart attack. The results of my scan—confirmed by an angiogram—showed that I had moderate blockage in some of my coronary arteries. I took this news seriously and worked with my cardiologist and internist to address my condition.

My cardiologist scheduled a nuclear stress test each year for the next three years. None of the results of these tests indicated a worsening of my condition. Although my cardiologist continued to see me on an annual basis, he did not schedule any more stress tests for me.

My internist scheduled appointments and lab tests for me on a semi-annual basis. At each appointment, he would tell me that my lab results were pristine, and that he would not have a medical practice if all of his patients were as healthy as I was. He also prescribed medication to address cholesterol and blood pressure issues. After a year, my cholesterol level had dropped from 203 to 104, and I kept it below 110 for the next six years.

My responsibility was to eat properly and to exercise. I immediately became a vegetarian and, after three years, a vegan (a vegetarian who does not eat dairy products or eggs). At the beginning of 2014, I put fish back on my diet and became a seagan. Although my knees would not permit me to run or to walk long distances, I had a Bowflex and an Airdyne and exercised regularly. I thought that I was doing great, but heredity trumps hard work.

Were My Seven Years of a Healthy Lifestyle Wasted?

Not at all! My surgeon and my cardiologist each explained to me that my lifestyle had slowed the onset of the blockage to some degree. Because I was in excellent physical condition, I was a good candidate for open heart surgery. They also assured me that I would recover more quickly from the surgery because of my lifestyle.

How Could My Doctors Have Not Known of My Medical Crisis?

I thought that I had been asymptomatic for seven years and never mentioned anything to my cardiologist or my internist that would have indicated to them that I had a heart issue. Nothing in the laboratory results would have alerted them to that fact. Obviously, though, a stress test would have indicated that I had a significant issue. Why, then, did neither my cardiologist nor my internist suggest another stress test?

A respected local cardiologist wrote an article for our local newspaper in which he addressed how he determines who gets a stress test:

Stress testing is most often ordered in symptomatic or high-risk individuals to evaluate the probability that someone may have underlying cardiovascular or pulmonary disease, to estimate the severity of disease and to evaluate response to treatment Key words are “symptomatic”—stress testing is most appropriate in evaluating individuals with suspicious sounding symptoms, and “probability,” stress testing doesn’t deal in black and white answers about presence or absence of disease, but instead indicates how likely someone is to have underlying disease. People with a low likelihood of cardiovascular or pulmonary disease, people who don’t have symptoms, and people who are doing well on treatment often don’t need a stress test. Today we have very good evidence based guidelines that help direct us in our recommendations about who needs and doesn’t need a stress test [emphasis added].

But I Wasn’t Really Asymptomatic

How many times have we had a client say, “I would have mentioned this earlier, but I didn’t think it was important?” Now I understand how a client could fall into that trap. Although I did not realize it until several months after my surgery, I had a symptom that could have alerted my doctors to the need for a stress test—tiredness. Looking back, I remember feeling tired after walking to and from our two courthouses here in Tyler. Because I wear a three-piece wool suit year around, I thought at the time that the Texas heat was just getting to me. That mistake could have killed me.

The Road to Recovery

I thought that it would be a long journey from the intensive care unit at ETMC to being back in my law office and feeling better than I had in years, but I accomplished this in four months. When I left ETMC after seven days, I was exhausted by the three-mile ride to my home. Four days later, I was diagnosed with hospital-acquired pneumonia and had to spend another four days at ETMC. Then, I was really weak. By October 1st, though, I was able to return to my office on a limited basis and was back practicing law on a full-time basis by October 21st—and getting stronger every day.

The secret to my success? An absolutely fantastic cardiac rehabilitation program at ETMC. It was headed by a physician who was assisted by an RN and two clinical exercise physiologists who worked together as a team. They were magnificent. I went for one hour a day, three times a week for twelve weeks. At each session, they had me wear a heart monitor and checked my vital signs several times. When I began the program, this team held me back from doing too much exercise early on and then inspired me to work aggressively as I became stronger. When I finished the program in early December, the team told me that I was the poster child for cardiac rehab. [I have waited for a year to write this to make certain that my rehabilitation was as successful as I thought it was. It was.]

One Who Learned From My Experience

Two days after I had returned home from ETMC, Waldo came to my home and we visited about my experience. He was interested because he and I had similar lifestyles and because of the number of his friends who had required open heart surgery. Over the next several weeks, he became concerned and decided that he needed a stress test. When he mentioned this to his doctor, he was met with resistance. He was told that it was a waste of his time, and besides, his insurance carrier wouldn’t pay for the test. Waldo was not deterred and insisted on having the stress test. Four days after he received the results of his test, Waldo was scheduled for open heart surgery at Baylor hospital. He also had a triple bypass procedure—and he survived.

Do Not Worry About Being Embarrassed

When I was lying in the hospital bed on July 31st, I wondered if this was simply a waste of time for me and the doctors and nurses who were taking care of me. As it turned out, it was not. But even if it had been, there’s an old saying in every hospital emergency room in America: It’s better to be embarrassed than dead. If you ever have that feeling that something about your body just isn’t right, I hope that you’ll remember my experience.

Listen to your body and survive!

The Carving Doctrine and the Case of ‘Joe’ Friday

Every lawyer who has ever made a living defending criminal cases has been asked, not once but very often, how he or she is able to represent people who are known to be guilty. Most civil lawyers and virtually all non-lawyers are shocked to learn that criminal lawyers find representing people they believe to be guilty far easier than representing those whom they believe to be innocent.

That probably deserves a little explaining.

Let’s start with the admittedly technical but very important point that “guilty,” under our system, means either that a jury of one’s peers, having heard the evidence and been instructed on the law by the judge, has found one to be guilty or (a jury having been waived), a judge has so found.

Then, let’s recognize that for good or ill (for good, I think), we have adopted an adversarial system of justice. Such a system presumes that there will be a competent advocate on each side of the case, doing what he can to put the best face possible on his side of the case and to point to the deficiencies in the other fellow’s case.

In such a system, though, the advocate owes a great deal to the system itself (of which more presently). He is certainly not supposed to seek the truth (that is the function of the judge and jury) but is, rather, to serve the cause of his client, within the bounds of propriety and candor with the Court.

Thus, much as a professional debater might on any given day take the affirmative or the negative and argue with equal vigor, an advocate in a criminal case, whether prosecutor or defender, must be prepared to present his case and advocate against the case presented by his adversary, in order to ensure that a just result is reached by those charged with the responsibility of determining the matter—the jury or, in the absence of a jury, the judge.

Indeed, since the system presumes vigorous advocacy on each side of the case, the system fails, if it does fail, precisely to the degree to which one side or the other lacks a vigorous and capable advocate (or to the degree that a ca­pa­ble judge and/or a fair-minded jury may be lacking).

We inherited the adversarial system from England, and most countries of the world do not follow that system. Most countries employ the inquisitorial method, which places much greater reliance upon the police stationhouse statements of witnesses and defendants than does our system. Juries play no part in such a system, and the lawyers have the very dif­ferent function of assisting the judge in finding the truth, rather than advocating for either side. (Indeed, in Eastern Europe and the USSR in the 1970s, a so-called defense lawyer was under obligation to denounce his own client as an enemy of the state and publicly urge him to confess his guilt if the lawyer believed his client’s actions or thoughts to be contrary to the best interests of the state.)

Under our adversarial system, a lawyer may not present false evidence, nor may he knowingly allow his client to do so. Since his arguments to the jury must be based on the evidence that has been presented, the lawyer cannot argue untruths. It is absolutely forbidden that the lawyer on either side of the case express his personal belief as to the guilt or innocence of the accused, primarily because the lawyer’s personal belief is irrelevant but also because the lawyer’s personal belief may result from matters as to which no evidence has been presented, including confidential disclosures of his client.

The lawyer’s job, then, turns out to be precisely the same, whether his client is guilty or innocent. The reason it is so much harder to represent a client thought to be innocent is that the lawyer lives in fear that something which he, the lawyer, does or does not do will cause an innocent person to be convicted. On the other hand, if one has done one’s best and the client is nonetheless convicted, little sleep is lost over a guilty man being found so.

Though it doubtless does occur that guilty persons are found not guilty after a trial, our society has always deemed that to be an acceptable cost of the presumption of innocence and the guarantee of a fair trial. “Better that ten guilty men are freed than that one innocent man is convicted” has been our usual way of expressing the sentiment.

It is, of course, absolutely forbidden for a criminal defense attorney to become involved in representation of people charged with crime before the crime is committed. While we guarantee the right of counsel to all who have been criminally accused, we do not allow lawyers to counsel people on how to violate the law and get away with it.

This can become a real problem for a lawyer who regularly represents people engaged in ongoing criminal enterprises. A client who continues in his involvement in criminal activity after retaining a lawyer to represent him in a pending case will not see so clearly or so readily as the lawyer the impropriety of seeking or obtaining advice with regard to ongoing activity.

There was not a lot of organized criminal activity in San Antonio when I was in practice, and so this particular problem seldom arose for me. I did represent a number of defendants who had prior convictions, but most were small-time burglars and thieves with no organizational connections.

Interestingly, in retrospect, very few of these clients wanted or got a trial. Most were caught red-handed, had no defense, and simply wanted competent representation in negotiating a plea of guilty.

A client I will call Friday Meadows, though a drug dealer rather than a burglar or thief, exemplifies the type rather well. He had previously been to the federal penitentiary on a marijuana case when I first met him and had come to see me about representing him on some newly pending drug cases in a small community near San Antonio.

The police had come to his home with a search warrant and found quantities of methamphetamine, cocaine, and marijuana, along with about $25,000 in cash. By the time I saw him, he had been indicted in separate indictments for possession of the methamphetamine and the cocaine—and so had his wife.

Friday made no bones about the fact that he had long since decided he could not do as well at anything else as he could at dealing drugs and had no intention of trying to. By his strange lights, a periodic trip to the penitentiary was part of the cost of doing business, and it was worth spending a lot of his time in custody so long as he could live as well as he did when he was “on the street.”

He respected law enforcement officers who went about their work properly, without fabricating evidence or manhandling people. In his view, they were professionals and he was a professional, and as long as they all played by the rules, he had no complaints.

Friday’s major concern when he came to see me, and throughout my representation of him, was his wife. He made it clear to me that if the search warrant was “righteous” (and it was), he was willing to do whatever time he had to, but any deal had to include dropping the charges against his wife.

She knew what he was doing of course, but she was not involved, and he wanted her to walk away from the cases with the charges dismissed.

I told him I would see what I could do.

We had a unique rule in Texas at the time called the “Carving Doctrine.” It was a sort of Texas special rule on double jeopardy, and it provided that while the prosecutor could carve as large an offense as he might from the conduct of a defendant in a single “course of conduct,” he could only carve once.

In Friday’s case, this meant that since he had simultaneously possessed three different drugs, possession of each of which was a violation of the same statute (the Controlled Substances Act), he could be convicted of possessing only one. (This is, by the way, no longer Texas law, and today he could be charged with possession of all three.)

It had been several weeks since Friday’s arrest, during which time he had been ably represented by the lawyer who associated me in the case, Joe Cumpian of San Antonio.

Had the prosecution moved a little faster, they quite likely could have forfeited Friday’s $25,000 as being ill-gotten proceeds of his dirty business. They had not, however, and the time for doing so had passed under the applicable statutes.

This, too, figured in Friday’s plans, as that money would go a long way toward the support of his wife while he was off at the pen.

I went to see the district attorney of the county where Friday was charged, and we agreed immediately that he had only one prosecutable case against Friday, and that he really was not after Friday’s wife.

However, he explained, he could not negotiate a plea agreement with me that included a term of years, because his judge would not honor any such agreement.

That surprised me more than a little, because Texas law at the time (and to this day) provides that while a judge is not required to honor a plea bargain agreement between a defendant and a prosecutor that includes a recommendation by the prosecutor as to the defendant’s punishment, the judge is required to give the defendant an opportunity to withdraw his guilty plea and stand trial if he does not honor the agreement.

If this happens, the law specifically provides that the fact that the defendant offered to and did once plead guilty is not admissible against him on trial of the case.

This part of the rule is, of course, for the defendant’s protection.

The gain to the prosecution if the judge honors the agreement is that the defendant is then not generally allowed to appeal his conviction or sentence, so the prosecutor can close that file and get on to other matters.

“Where do we go from here, then?” I asked, and he explained that it would be necessary to secure the judge’s advance approval of any proposed plea bargain agreement.

He and I then agreed that under all the circumstances, if Friday would agree to accept a seven-year sentence and not even apply for probation, the cases against his wife would be dismissed.

I suggested we go see the judge. He told me to go on to see the judge without him. (This is a strict matter of professional protocol; it is forbidden to either counsel in the case to discuss the case with the judge without the other lawyer being present, unless the other lawyer gives his consent.)

I went to see the judge alone, as authorized.

After I set the matter forth for His Honor, he agreed that the proposition agreed upon by the prosecutor and me was a reasonable one.

Later that morning, Friday entered his guilty plea.

At that time, a defendant was allowed ten days after pleading guilty before being sentenced—ostensibly to allow for the filing of a motion for new trial, but in practice most often simply to give him ten days to put his affairs in order before going to the pen. We asked for our ten days, in accordance with pretty standard practice at the time. This time, however, we should not have done it.

When we returned ten days later for sentencing, the judge sentenced Friday to seven years and added a $10,000 fine, not previously discussed.

“Your Honor,” I said, “in my opinion you have just rejected my client’s plea bargain agreement, and he is entitled to withdraw his plea.”

“I agree with you, Mr. Priest. Would you like to have a moment to discuss the matter with your client?”

“If your Honor pleases.”

What had happened, of course, was that the judge had become aware of the $25,000 cash and the fact that it was too late to forfeit it. This was his way of at least getting $10,000 for his county.

I took Friday back in an adjoining room to talk. We both knew that he could not withdraw his plea because if he did, the prosecutor could and likely would press forward, not only with the prosecution of Friday but also with Friday’s wife.

I told him I would go see the judge in chambers (the prosecutor having again authorized me to do so) and see if I could get a reduction in the fine.

The judge bade me come in when I knocked on his chamber door.

“Judge,” I said, “is there any way we could talk about a fine of, say, $5,000?”

“Don’t bargain with me, Priest,” he said.” I understand you’re the Democratic nominee for a district bench in Bexar County, and unless the politics have changed a lot over there [remember, this was in the ’70s], that should mean you will be a district judge in a couple of months. I just wanted to give you a lesson in how to be chickenshit.”

“Judge,” I said, “you’re doing a real good job.” And he was.

Friday paid the money and did the time; I still haven’t passed along his lesson.

December 2015 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
22 | The Right to Present a Defense: Help When You Really Need It – By Wade Russell
28 | Do Not Be Afraid of Challenging the Show-Up Identification – By Mary Beth Harrell
33 | I Am Alive Today Because I Listened to My Body – By Buck Files
36 | The Carving Doctrine and the Case of ‘Joe’ Friday – By Judge Wayne Patrick Priest

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

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

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

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One challenge of life is to grapple with the reality that your time on Earth will pass, sooner or later. As the saying goes, “None of us are getting out of here alive!” In the context of our professional lives, this is also true even if we go on to other things after we leave the practice of law.

One of my goals as President is to cultivate young leaders in the criminal defense bar. This past week, we announced the winner of the 2015 Charles Butts Scholarship in the amount of $5,000 for a third-year law student with a demonstrated interest in criminal defense. This year’s winner, Allison Arriola, is a St. Mary’s law student with many accomplishments in her tenure as a law student. As those on the executive committee can tell you, the competition for this scholarship was fierce. We had twenty-one (21) applicants, and I would have been comfortable awarding the scholarship to almost any of the applicants. In fact, more than one executive committee member asked the question, “Can we give out more than one scholarship?” Congratulations to Ms. Arriola, and we look forward to awarding the scholarship to her at our February Board meeting and President’s trip to New Orleans. If you haven’t signed up, join us for some Federal Law CLE, a renewing of the TCDLA spirit, and perhaps a cocktail or two in the French Quarter.

What is apparent to me from reading the applications is that the future of a zealous criminal defense bar in Texas is bright. It is remarkable to me how many young law students see the need for the ideals of our Constitution to be carried out through zealous criminal defense. Another remarkable reality that I learned in reading the applications is the amount of indebtedness that can accompany a law degree in the 21st century. Many of the applicants report a student loan debt exceeding $100,000 for their college and law school education. Even more remarkable to me is that many of those same applicants intend to work in the area of indigent defense through either Public Defender offices or doing a majority of court appointment work. This attitude is inspiring to me.

My urging for all of you more experienced lawyers is to take a young lawyer or law student under your wing. The energy, enthusiasm, and idealism can rekindle your professional soul. We all need this from time to time.

Executive Director’s Perspective: Ringing in the New – By Joseph A. Martinez

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We hope all of our members and Voice recipients had a wonderful Holiday Season. We look forward to a very prosperous New Year.

Thanks to our course director, Rick Wardroup (Lubbock), for the CDLP Capital Litigation/Mental Health CLE in South Padre Island in November. Thanks to everyone’s help we had 77 attendees.

Thanks to our course directors, Tim James (Nacogdoches) and Jani Maselli (Houston), for the Upholding Justice One Client at a Time held in Nacogdoches in November. Thanks to everyone’s help we had 30 attendees.

Thanks to course directors Kerri Anderson-Donica (Corsicana), Marjorie Bachman (Austin), Heather Barbieri (Plano), and Jim Darnell (El Paso) for the Defending Those Accused of Sexual Assault seminar held in Austin in December. Thanks to everyone’s help we had 143 attendees.

Thanks to our course directors, Patty Tress (Denton) and Chris Abel (Flower Mound), for the 8th Annual Jolly Roger Hal Jackson Memorial Criminal Law CLE held in Denton in December. Thanks to everyone’s help we had 77 attendees.

The board of TCDLA takes very seriously the input of the attendees of our TCDLA/CDLP CLE. The evaluations turned in at the end of every CLE are compiled and shared with all of the speakers and board members. Speakers use the evaluations to improve their presentations.

TCDLA is now in its 45th year. Thanks to our members, whose generous support makes all of this possible.

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: Rudolph

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All of you have heard the song “Rudolph the Red-Nosed Reindeer” and are familiar with its main character, Rudolph. Rudolph was created in 1939 by Robert May, an employee of Montgomery Ward. Although sources vary as to whether May created the story of Rudolph to promote sales at the Christmas season, or to give as a gift to his young daughter to bring her comfort, May was doing his best to keep his job and comfort his child because Ms. May was dying of cancer.

May was picked on and bullied as a child, and the story of Rudolph was based on those personal experiences. Rudolph was Santa’s ninth reindeer, mocked by the other reindeer because of his shiny red nose. Like May, Rudolph was mocked and bullied, but in the end, Rudolph became the hero when he was chosen to lead Santa’s sleigh on a foggy Christmas Eve.

Johnny Marks, Robert May’s brother-in-law, actually wrote the song “Rudolph the Red-Nosed Reindeer.” My friend Carol Erickson remembers Johnny Marks, who served as a captain in the Army during World War II. Carol’s dad served in the same unit as Johnny. After the war, Carol remembered Johnny coming to her house wearing a red suit and driving a new red Cadillac. Johnny tried to pitch the song to many popular singers, including Dinah Shore, Perry Como, Bing Crosby, and Frank Sinatra, but none were interested. At the urging of his wife, my hero and family friend Gene Autry recorded the song in 1949. It was an immediate hit and became one of the top songs in music history, selling millions of copies.

“Rudolph the Red-Nosed Reindeer” has become a piece of modern folklore and a metaphor for overcoming obstacles, embracing our differences, and recognizing everyone’s unique potential. As you review the lives of your clients in an ethical manner, you may find a little or a lot of Rudolph in them. Your client may have come from a broken and dysfunctional home, or perhaps struggles with learning disabilities or mental issues. It is important to get your client’s full life history. The recommendation is that you go back three generations in your client’s life. No matter how bad and bleak the case looks, there may, and probably will, be some social redeeming qualities.

It is our job to zealously defend our clients in an ethical manner. If your client is a veteran, get all of his records, whether good or bad. Also get a copy of the school and medical records. Do not forget to have your client stop all social media, especially Facebook. Serious prosecutors will be checking to see what a defendant has posted. If your client is in jail, warn him to be aware letters can be read and may be used against him and to beware of phone calls from jail. Be mindful of conversations in the hallways at the courthouse. It has happened that bystanders including law enforcement have testified about what they heard.

Once your investigation is complete, you may find your “Rudolph” has a history that will help him guide the sleigh to a positive outcome, or produce mitigation of the punishment. Even the worst among us has done something right in life. The research done on the ancestors of your client may help explain and/or excuse his behavior. As my psychiatrist friend Geoff Grubb believes, only a very small percentage of humans are “Born to Be Wild.” The remaining commit crimes because of many factors: poverty, inferiority complex, peer pressure, opportunity, desperation, drugs, depression, mental disorders, overpopulation, politics, racism, TV violence, and regionalism.

Like Rudolph, your client’s life may be changed forever if given the chance. If your “Rudolph” has alcohol or drug problems, enroll them in AA or NA. Encourage them to get a job, go to school and church, and any other positive thing that will help get them back on the right track. Always remember: Santa Claus and the Grievance Committee are watching you.

In Texas, Santa has a longhorn named Rudolph that he uses to pull his sleigh. This sketch is courtesy of Sam Pelton.

Acceptance of Holiday Gifts by Judge and Staff

Opinion No. 194 (1996)

Question: Is it a violation of Canon 4(d)(4) of the Texas Code of Judicial Conduct for a judge, court coordinator, court reporter (and clerks and bailiffs) to:

1. accept holiday or seasonal gifts (assuming such to be commensurate with the occasion); or
2. attend holiday or seasonal law firm parties?

Answer 1: Yes. A judge may only accept a gift from a friend for a special occasion and then only if the gift is fairly commensurate with the occasion and the relationship. Canon 4D(4)(b). A Judge may accept any other gift only if the donor is not a party or person whose interests have come or are likely to come before the judge. Canon 4D(4)(c). Opinion No. 44. Texas Judicial Ethics Opinions Page 115 of 170.

The Committee concludes that a holiday or seasonal gift from a lawyer or law firm where a lawyer is not a friend is prohibited. Where a friendship exists, the gift must be commensurate with the occasion and the judge must be mindful of Canon.

2A and should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2B. Opinion No. 39.

Answer 2: No. A judge may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel. Rule 4D(4)(b) and Opinion No. 39 permits a judge to accept ordinary social hospitality. The judge should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2(A) and (B).

The answers above apply equally to the judge’s staff, court officials, and others subject to the judge’s direction and control. Canon 3C(2) provides a judge should require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. See Canon 3B(2) Code of Judicial Conduct, September 1, 1974, through December 31, 1993, and Opinions 110, 112, and 140 applying Code to court personnel.

Here is the main code provision that would apply to gifts:

Canon 4D:

(4) Neither a judge nor a family member residing in the judge’s household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge’s household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a family member residing in the judge’s household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge’s household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Ancillary to that would be the requirement to report certain gifts (depending on the value) in annual personal financial statements. That reporting requirement is for those officeholders who file reports with the Texas Ethics Commission or with the local county clerk per the Election Code. It is also generally covered under Canon 4I:

I. Compensation, Reimbursement and Reporting.

(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra- judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s family. Any payment in excess of such an amount is compensation.

(2) Public Reports. A judge shall file financial and other reports as required by law.

Finally, as you know, some gifts are illegal and could result in criminal charges under Chapter 36 of the Penal Code.

Off the Back: Getting Creative—Use Kelly v. State to Challenge Any Scientific Evidence – By Stephen Gustitis

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In a contested bond revocation hearing, not long ago, the State attempted to admit evidence our client violated a restricted zone using global positioning system (GPS) evidence. They further sought to admit evidence from a Secure Continuous Remote Alcohol Monitoring (SCRAM) device that she inappropriately consumed alcohol while on bond. On the day of the hearing, we noticed the only witness subpoenaed by the State was the office manager from Recovery Healthcare Corporation, our local GPS and SCRAM system provider. At the same time we pondered . . . “How much does the office manager really know about the scientific reliability of GPS and SCRAM?” Accordingly, before the witness testified about the alleged violations, we objected under Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), and asked the court’s permission to voir dire the office manager pursuant to Rule of Evidence 705(b) for an inquiry into their understanding of the facts and data about which they were about to testify.

Before scientific evidence is admissible pursuant to Texas law, it must meet three (3) reliability criteria. First, the underlying scientific theory must be valid. Next, the technique applying the theory must be valid, as well. And last, the technique must have been properly applied on the occasion in question. Kelly, supra. Before the scientific evidence is admissible, the trial court must conduct a hearing to determine whether the proponent of the evidence has established its reliability using the Kelly criteria. Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). The burden is on the proponent to prove admissibility by clear and convincing evi­dence. Fuller v. State, 827 S.W.2d 919 (Tex. Crim. App. 1992).

Additionally, seven (7) factors should be considered by the trial court in deciding whether the reliability criteria have been satisfied: (1) the extent to which the underlying theory and technique were accepted as valid by the relevant scientific community; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error in the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Kelly at 573. This “gatekeeping” determination is required whether the science at issue is novel or well established. Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997). Finally, once a particular type of scientific evidence is well established as reliable, a trial court may take judicial notice of that fact, thereby relieving the proponent of the burden of producing evidence on that question. Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).

Remarkably, the court sustained our Kelly objection to the GPS and SCRAM data. During the Rule 705 voir dire examination, we utilized the seven Kelly factors as grist for the cross-examination mill. And without surprise, the Recovery Healthcare office manager was neither qualified to establish the scientific reliability of GPS nor qualified to establish the reliability of the SCRAM system. Moreover, the prosecution was caught off-guard . . . a mistake I doubt they will repeat. Most importantly, though, our client slept comfortably in their own bed that night since the court properly exercised its function by determining the proponent of scientific evidence had not satisfied its burden to prove the evidence was scientifically reliable.

The teaching point was this. We understand Kelly has been used historically to compel trial courts to perform a gatekeeping function by excluding junk science. But Kelly stands for more than the suppression of unreliable scientific evidence. It forces the proponent of all scientific evidence to establish its reliability. For example, before urinalysis, drug field testing, cell tower data, or any scientific evidence a prosecutor may use against our client is admissible, it must be proven scientifically reliable. The Kelly objection applies during trial, motions to revoke probation, bond hearings, and other contested proceedings. Furthermore, overworked prosecutors may often be unprepared to prove-up the scientific reliability of their evidence. And like our recent experience, you may help your clients enjoy a good night’s sleep in their own bed after a well-fought motion to revoke hearing. Use Kelly creatively, and good luck!