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March 2016

March 2016 SDR – Voice for the Defense Vol. 45, No. 2

Voice for the Defense Volume 45, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The judge in D’s murder trial did not violate U.S. Const. amend. VI by dismissing a juror who provided equivocal answers when asked if he could impose the death penalty if D was convicted. White v. Wheeler, 136 S. Ct. 456 (2015).

        The Supreme Court held that the Sixth Circuit did not give the required deference to the state court’s ruling under the Antiterrorism and Effective Death Penalty Act of 1996 and failed to ask the critical question: Was the Kentucky Supreme Court’s decision affirming the trial judge’s decision so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement? In this per curiam opinion, the Court said: “The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis. . . . [T]his Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. . . . The petition for certiorari and respondent’s motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded[.]”

Fifth Circuit

District court did not err in treating illegal-reentry D’s prior Texas conviction for possession of 4 to 200 grams of cocaine with intent to distribute as a crime of violence under USSG § 2L1.2 and an aggravated felony under § 1101(a)(43)(B). United States v. Teran-Salas, 767 F.3d 453 (5th Cir. 2014).

        On the face of the Texas delivery statute, the offense of delivery could theoretically be committed in a way that did not qualify under USSG § 2L1.2 or § 1101(a)(43)(B), namely, by “administering” a controlled substance. However, the Fifth Circuit held that D had not shown a reasonable probability that Texas would prosecute under such a non-qualifying theory; under Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), this failure precluded a finding that D’s prior Texas conviction was non-qualifying. 

        Where death-sentenced Texas D filed for Fed. R. Civ. P. 60(b) relief from a judgment denying federal habeas relief, the motion was properly treated as a successive habeas petition because the claims it made—relating to evidence previously undiscovered because of ineffective assistance of counsel—were fundamentally substantive, not procedural as required under Rule 60(b). In re Coleman, 768 F.3d 367 (5th Cir. 2014).

        D was not entitled to relief on the successive petition because the claim was previously raised and rejected and, in any event, did not meet the standard for a successive petition. For these reasons, D was also not entitled to a stay of execution.

The offense of theft by deception under Texas law is within the generic definition of “theft”; therefore, D’s Texas theft conviction was a “theft offense” and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. 2014).

In sentencing D for a hostage-taking conspiracy, 18 U.S.C. § 1203(a), district court did not err in applying a six-level enhancement pursuant to USSG § 2A4.1(b)(1) for a ransom demand. United States v. Fernandez, 770 F.3d 340 (5th Cir. 2014).

        The ransom enhancement applies anytime a defendant demands money from a third party for release of a victim, re­gard­less of whether that money is already owed to the de­fen­dant. Thus, D’s belief that he and his co-conspirators were going to demand repayment of a debt was a sufficient ground to apply the ransom enhancement; it did not have to be foreseeable to D that the original scheme was going to morph into a classic kidnapping of another person with a demand for ransom.

Board of Immigration Appeals properly determined that D was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) due to his 18 U.S.C. § 554(a) conviction because under the modified categorical approach, § 554(a) was divisible and constituted the aggravated felony of illicit trafficking in firearms under 8 U.S.C. § 1101(a)(43)(C). Franco-Casasola v. Holder, 773 F.3d 33 (5th Cir. 2014) (on reh’g).

        Under Descamps v. United States, 133 S. Ct. 2276 (2013), the statute of immigrant’s prior conviction (18 U.S.C. § 554(a), prohibiting the export of “merchandise, article[s], or object[s] contrary to any law or regulation of the United States”) was a “divisible” statute; the statute sets out a finite, though lengthy, list of every U.S. statute or regulation that prohibits such export. Because the statute was “divisible,” it was permissible under Descamps to use the “modified categorical approach” to narrow the basis for immigrant’s prior conviction and, under that approach, determine that the conviction was for the unlawful purchase of firearms for export and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(C) (including “illicit trafficking in firearms” as an aggravated felony).

Where drug D’s first sentence reduction under 18 U.S.C. § 3582(c)(2) lowered his offense level under USSG § 2D1.1 sufficiently to cause his sentence instead to be calculated under the “career offender” Guidelines (USSG §§ 4B1.1 and 4B1.2), D was not entitled to a sec­ond sentence reduction under § 3582(c)(2), notwithstanding a further reduction in the offense level under § 2D1.1. United States v. Banks, 770 F.3d 346 (5th Cir. 2014).

        D’s new sentence was not imposed under § 2D1.1, but rather §§ 4B1.1 and 4B1.2, so the latest Guideline amendment to § 2D1.1 would not result in a lower Guideline range applicable to D.

Where D raised a meritorious sentencing issue for the first time in her untimely reply brief, the Fifth Circuit exercised its discretion to consider the brief and consider the issue, notwithstanding the usual rule that the Fifth Circuit will not consider issues raised for the first time in a reply brief. United States v. Myers, 772 F.3d 213 (5th Cir. 2014).

        (2) In this false-claims/fraud/identity-theft/tax-fraud case, it was a plain violation of the Ex Post Facto Clause (applicable to the advisory Sentencing Guidelines, as made clear in Peugh v. United States, 133 S. Ct. 2072 (2013)) to sentence D under the 2012 Guidelines in effect on the date of sentencing because the 2007 Guidelines in effect on the date of the commission of the offense were significantly more lenient. Particularly, due to a more stringent definition of who constituted a “victim” of the offense, D would not have received a six-level enhancement for 250 or more “victims”; because this raised D’s Guideline range from 46 to 57 months, up to 87 to 108 months, D’s substantial rights were affected, and the Fifth Circuit exercised its discretion to remand for resentencing.

        (3) The district court did not clearly err in applying to D a two-level “vulnerable victim” enhancement under USSG §3A1.1(b)(1). D knew she had gotten names and identities from a list of persons at a nursing home; D should have known that at least some people in nursing homes suffer from physical and mental disabilities that render them vulnerable.

D, stopped at the El Paso border crossing in a bus bound for Mexico, was properly prosecuted for being “found in” the United States after deportation in violation of 8 U.S.C. § 1326. United States v. Quezada Rojas, 770 F.3d 366 (5th Cir. 2014).

        Although a line of cases holds that an alien is not “found in” the United States if he voluntarily presents himself to immigration authorities when seeking entry into the United States, that rule has not been extended to the case of an alien, like D, seeking to exit the country. Likewise, although some cases hold that an alien has not truly “entered” the United States if he was never free of “official restraint” from the time he crossed the border, the “official restraint” doctrine has been applied only to persons entering the country, not to persons leaving.

Court of Criminal Appeals

It was error to determine D was entitled to have an original plea agreement presented to a second judge af­ter a first judge was recused. Rodriguez v. State, 470 S.W.3d 823 (Tex.Crim.App. 2015).

        D was charged with ten counts of sexual assault of a child and indecency with a child. Based on the advice of his counsel, he declined the State’s plea bargain recommending a 10-year sentence and proceeded to trial. The jury found D guilty and assessed a punishment of 8 life sentences and one 20-year sen­tence. He filed a motion for new trial claiming ineffective as­sis­tance of counsel. The trial judge granted the motion for new trial and motion to require the State to reinstate the plea-bargain offer of 10 years. The State reinstated the plea offer, and D accepted. After admonishing D and accepting his stipulations of guilt, the trial judge rejected the plea agreement and advised D that he could withdraw his guilty plea and go to trial or accept a 25-year sentence. D rejected the 25-year sentence and moved to recuse the judge based on demonstrated prejudice. The judge voluntarily recused herself, and a new judge was assigned. D filed another motion to require the State to re-offer the 10-year deal. The new judge declared the slate was wiped clean by the original judge’s recusal but that she would accept a new agreement if one were reached. The State offered a deal of 25 years and D accepted, pleading guilty to 5 of the counts in exchange for waiver of the other 5 counts. The judge accepted and signed the judgments of conviction.

        D appealed, claiming that he was entitled to a 10-year plea-bargain offer from the State, and that the trial court was required to accept the 10-year plea agreement. To determine whether D was prejudiced by his counsel’s deficient performance, COA considered whether D would have accepted the original plea had he been given competent advice by counsel, whether the State was likely to withdraw the plea bargain, and whether the trial court was likely to accept the plea bargain. Concluding that D was prejudiced, COA determined that the proper remedy was to require the State to reoffer the 10-year plea bargain and to have the agreement presented to a judge who had not recused herself. COA disagreed with D that he was entitled to specific performance of the plea agreement and stated that the new judge had the discretion to accept or reject the agreement.

        CCA reversed COA and reinstated the 25-year sentence. COA erred by finding the second judge was required to order the State to re-offer the 10-year plea a second time. The motion to recuse did not state any basis for prejudice on the part of the first judge, other than she had granted D’s motion for the State to re-offer a 10-year plea deal and then rejected that deal; the first judge’s comment that she was rejecting the deal because she had sat through the evidence was not a basis for finding prej­udice. Upon the voluntary recusal of the judge, however, the case started over from the beginning as if no plea negotiations had occurred.

Ds did not commit the crime of securing the execution of documents by deception by filing a false mechanic’s lien with a county clerk; Ds did not cause “another” to “execute” a document affecting property or pecuniary interests under Tex. Penal Code § 32.46(a)(1). Liverman v. State, 470 S.W.3d 831 (Tex.Crim.App. 2015).

        Ds filed mechanic’s lien affidavits in the county clerk’s office, alleging they performed “labor and/or materials” worth a certain amount on a house. As a result of these filings, the State charged Ds with securing the execution of documents by deception. The indictments alleged that Ds caused the county clerk to sign or execute the affidavits. Ds were convicted, fined, and placed on community supervision. COA reversed, holding that the evidence was legally insufficient because “the conduct of the court clerk filing and recording” the mechanic’s lien af­fi­davit in each case “was not the signing or executing of a doc­u­ment as contemplated by subsection 32.46(a)(1).” In this conclusion, COA held it need look no further than the two sub­sections of § 32.46. COA observed that subsection (a)(1) used the verbs “sign and execute” while subsection (a)(2) used “file and record.” CCA affirmed COA.

        “[COA]’s reliance upon § 32.46(a)(2) is misplaced, and we also conclude, contrary to various arguments advanced by the parties, that the text and history of that subsection is simply inconclusive with respect to the meaning of the term “execute” in § 32.46(a)(1). . . . The remaining question, then, is whether the county clerk’s acceptance of the document at the time of filing constitutes execution of the document by the clerk. We conclude that it does not. The Property Code characterizes the filing in question as the person claiming the lien filing the affidavit ‘with the county clerk.’ This language in the Property Code describes the county clerk as a mere recipient of the filing; the clerk need not have any active involvement in that occurrence. For many courts, electronic filing is now possible, and in those situations the entire transaction of receiving and acknowledging the filing may be handled by machine. We conclude that it is the filing person, not the clerk, who brings the mechanic’s lien affidavit into its final, legally enforceable form.”

CCA found, without a majority reason, that D was not entitled to habeas relief. Ex parte Marascio, 471 S.W.3d 832 (Tex.Crim.App. 2015).

        CCA’s entire opinion stated: “Applicant was convicted of three charges of felony Bail Jumping and Failure to Appear, and he was sentenced to eight years’ imprisonment for each charge, to run concurrently. In these applications for writ of habeas corpus under Article 11.07 of the Code of Criminal Procedure, Applicant contends that these multiple convictions violate the constitutional prohibition against double jeopardy. We filed and set these applications to determine several issues associated with Applicant’s double-jeopardy claims. We now conclude that Applicant is not entitled to relief. Relief is denied.”

CCA dismissed D’s habeas application because the final conviction D challenged was not the source of a later en­hancement; therefore, the later enhancement was not a collateral consequence of that conviction. Ex parte Cooke, 471 S.W.3d 827 (Tex.Crim.App. 2015).

        D was placed on deferred adjudication for family-violence assault in this Tarrant County case, and he was later adjudicated, Tex. Penal Code § 22.01(b)(2) (2000, 2006), (b)(2)(A) (2014). He filed here for habeas relief, claiming that a prior New Mexico conviction was improperly used for enhancement. His sentence in this case had discharged; he claimed, though, that CCA could still reach his complaint because he was suffering a collateral consequence of his conviction—namely, the use of the Tarrant County offense to enhance a third offense, a family-violence assault in Hood County. CCA disagreed.

        “Because applicant has discharged his sentence, the ques­tion here is whether he is suffering any collateral con­se­quence of his conviction. The only collateral consequence that has been alleged is the enhancement of the Hood County offense. . . . When applicant’s first Texas family-violence offense—the Tar­rant County offense—was committed, the assault statute provided that a prior family-violence-assault conviction alleged for enhancement had to be ‘under this section.’ Applicant’s claim is based on the ‘under this section’ language, which the parties and the habeas court agree would not include a conviction in New Mexico. But, as we shall explain, because a prior ‘conviction’ used for enhancement can be a deferred adjudication, the enhancement of the Hood County offense is not a collateral consequence of the Tarrant County conviction for habeas purposes. . . . [T]he conviction that resulted from applicant’s adjudication in the Tarrant County case—which is the conviction that he challenges in this proceeding—was not alleged in the Hood County indictment. The prior ‘conviction’ alleged for enhancement is the deferred adjudication. . . . [A]pplicant had not even been adjudicated when the Hood County indictment was returned. Moreover, applicant’s Tarrant County deferred adjudication would have been available to enhance the Hood County offense even if he had successfully completed his period of deferred adjudication and had never been adjudicated. And if that had occurred, he would clearly have had no remedy for the Tarrant County offense under [Tex. Code Crim. Proc. art.] 11.07 because he would not have a final conviction. In short, contrary to the parties’ contentions, the Tarrant County conviction that applicant challenges in this proceeding was not used to enhance the Hood County offense.”

The evidence was sufficient to show D had the requisite intent when he impersonated an assistant district attorney; he told an actual assistant district attorney that he undertook certain acts as an assistant district attorney upon which he intended the actual assistant district at­torney to rely in deciding whether to grant his “personal favor” in a friend’s case. Cornwell v. State, 471 S.W.3d 458 (Tex.Crim.App. 2015).

        D was convicted of impersonating a Dallas County assistant district attorney and sentenced to two years’ imprisonment. COA affirmed, holding the evidence was sufficient to show D impersonated a public servant with the intent to in­duce another to rely on his pretended official acts. Tex. Pen. Code § 37.11(a)(1). D conceded that he impersonated a public ser­vant but argued that the evidence failed to establish he did so with the requisite specific intent. CCA affirmed.

        “Section 37.11(a)(1) breaks down into two components, a culpable act component (actus reus) and a culpable mental state component (mens rea). It is essentially a nature-of-conduct offense with an accompanying specific intent. The State must prove both the conduct (impersonation) and the specific intent (to induce another to submit or rely). . . . We therefore focus on the second component of Section 37.11(a)(1), the culpable mental state and, specifically, the reliance theory: does the evidence show that Appellant had the specific ‘intent to induce another . . . to rely on his pretended official acts’? Does the phrase ‘pretended official act’ implicitly require a second actus reus beyond impersonation? Must an accused not only hold himself out falsely to be a public servant, but also ‘act as such,’ before it may be said that he intended to induce another to rely on that false impersonation?

        “[W]hile it is not necessary for the State to allege or prove a specific ‘pretended official act’—as an element, as under the former statute—it may be the case that, as a practical matter, the State will be unable to prove the requisite specific intent without evidence of such a ‘pretended official act’ upon which the accused intended to induce another to rely. For reasons similar to those that the court of appeals gave, we conclude that the evidence does establish that Appellant engaged in ‘pretended official acts’ upon which he intended [the actual assistant district attorney] to rely. . . . Appellant did not ask for this favor in his capacity as an ordinary citizen or concerned friend. The jury could readily have found that Appellant intended for [the actual assistant district attorney] to take into account his pretended official capacity as an assistant district attorney—including his pretended official act of telling her about his previous pretended official acts—and to rely on that in deciding whether to grant his ‘personal favor.’ By calling and speaking to an assistant district attorney as a purported member of the ‘same team,’ Appellant obviously hoped to gain her trust and good will. The jury was entitled to infer that Appellant believed his pretended status as an assistant district attorney, bolstered by his false claims of certain actions he had taken in that capacity, would render [the actual assistant district attorney] more predisposed to grant his request.”

CCA upheld dismissing the charge against D for violating Texas’ flag desecration statute; the statute was overbroad and covered expressive conduct protected by the First Amendment. State v. Johnson, 475 S.W.3d 860 (Tex.Crim.App. 2015).

        Based on constitutionality, the trial court dismissed the information charging D with violating Texas’ flag desecration statute, Tex. Penal Code § 42.11, arising out of D’s jumping from a sidewalk for a hanging flag, causing the flag to come off in his hand, and throwing it in the street. COA affirmed, find­ing § 42.11 was unconstitutional on its face because it was overbroad in violation of U.S. Const. amend. I.

        CCA affirmed. “With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its applications. And usually, a defendant does not have standing to challenge a statute on the ground that it may be unconstitutionally applied to the conduct of others. But under the First Amendment’s ‘overbreadth’ doctrine, a law may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in ac­tivity protected by the First Amendment. . . . [T]he Texas flag-destruction statute, by its text and in actual fact, prohibits a substantial amount of activity that is protected by the First Amendment, judged in relation to its legitimate sweep.”

Trial court erred by denying D’s request for an in­struc­tion on sudden passion where D testified he was scream­ing in panic before his accomplice stabbed the victim; D was awakened by the victim sexually assaulting him; the sexual assault, the stabbing, and D’s grabbing of the victim all occurred in a very brief timespan; and the jury could have deduced that the victim’s assault of D and D’s sudden reaction triggered a chain reaction that resulted in the victim’s death. Beltran v. State, 472 S.W.3d 283 (Tex.Crim.App. 2015).

        D was convicted of murder and sentenced to 70 years’ imprisonment. In a single issue on direct appeal, D asserted the trial court erred in denying his request for an instruction on sudden passion during the penalty phase under Tex. Penal Code § 19.02(d). COA affirmed and held that the court did not err in refusing the instruction because there was no evidence that D caused the victim’s death under the immediate influence of sudden passion. CCA reversed COA and remanded for an Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984) harm analysis.

        “In order to have raised sudden passion, the defense would have had to put on some evidence: (1) that [D] acted under the immediate influence of terror, anger, rage, or resentment; (2) that [D]’s sudden passion was induced by some provocation by McKnight, and that such provocation would commonly produce such passion in a person of ordinary temper; (3) that [D] committed the murder (in this case, as a party) before regaining his capacity for cool reflection; and (4) that there was a causal connection between McKnight’s provocation, [D]’s passion, and the homicide. We conclude that the appellate court failed to consider the evidence raising the issue of sudden passion and erroneously focused on the evidence tending to show that [D] did not act under the immediate influence of sudden passion.” Furthermore, the law of the parties did not apply at the punishment phase of trial, and therefore the conduct of the primary actor was not relevant to whether D was entitled to a sudden passion instruction.

D’s statements asserting a blood draw was conducted without a warrant were not enough to apprise the trial court that it must consider whether there were exigent circumstances to permit the warrantless search; D failed to preserve error with respect to his Fourth Amendment complaint for purposes of Tex. R. App. P. 33.1(a). Douds v. State, 472 S.W.3d 670 (Tex.Crim.App. 2015).

            “Are isolated statements globally asserting that a blood draw was conducted without a warrant enough to apprise the trial court that it must consider whether there were exigent circumstances to permit a warrantless search in a driving while intoxicated case, when the context of the entire record in a motion to suppress refers to a different complaint? We conclude that the answer to this question is ‘no.’ Because this record shows [D] failed to preserve his complaint that the search was conducted in the absence of exigent circumstances or some other valid exception to the warrant requirement, we sustain the State’s first ground in its petition for discretionary review that contends that the court of appeals erred by reversing his conviction for misdemeanor DWI. . . . We accordingly reverse the judgment of the court of appeals and render judgment af­firm­ing appellant’s conviction.” D’s arguments presented a challenge to the admissibility of the blood evidence only on the basis of the officer’s application of the mandatory-blood-draw statute, Tex. Transp. Code § 724.012(b). Nothing about D’s arguments indicated that he was further challenging the constitutionality of the search based on the fact that it had been conducted without a warrant.

Procedural Choke Points in 46B Competency Issues

In this brief article, I am going to focus quickly upon some fundamentals as may appertain to the issue of raising the issue of competency in criminal matters, interweaving special problems, or choke points in the process, of which there are a finite number, but at least ten.

  • Issuing orders for competency evaluations of persons not yet charged
  • Qualifications of experts
  • Issues with report contents
  • Report return and handling
  • Issues related to mandatory commitment
  • Contents of facility packet
  • Time frame of restoration order & date commitment begins
  • Dealing with restored defendants who decompensate
  • Dealing with unrestored defendants; and
  • Recognizing implications of an unvacated adjudication of incompetency.


Raising the Issue

Attorneys have a duty to represent clients with “competence, commitment and dedication to the interest of the client . . .”1 However, attorneys also have a duty to act so as to protect a client whose capacity, if not competency, is impaired.2 Nowhere is this duty more clear than when representing a client who may well be incompetent.3 The Supreme Court has held that it would be a violation of a person’s due process rights for a criminal proceeding to go forward when the person is incompetent. Competency, in Texas, has the statutory definition given in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (“test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him”), though stated in the negative:

(a)   A person is incompetent to stand trial if the person does not have:
        (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
        (2) a rational as well as factual understanding of the proceedings against the person.
(b)   A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evi­dence.

Tex. Code Crim. Proc. art.46B.003.

I argue that an attorney has a duty to raise the issue of competency if he or she has reason to believe the client may be incompetent. Failure to so do is to jeopardize the client’s rights and dishonor the intent of the law.

The standard to raise the issue is now any credible evidence, and if the court has any concern whatsoever as to the competency of the defendant, it should raise the issue, whether counsel does so or not.4 Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013) has a lengthy discussion on this topic: “In making this determination, a trial court must consider only that evidence tending to show incompetency, ‘putting aside all competing indications of competency, to find whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency.’ If so, then ‘evidence exists to support a finding [*44] of incompetency,’ and the statutory scheme requires the trial court to conduct a formal competency trial.” Id. at 692–693. This language certainly indicates that the bar is quite low for ordering an evaluation—that there must be “some evidence, a quantity more than none or a scintilla.”

Oddly, and citing both Montoya and Alcott, the Turner court, Id. at 692 n.31, stated that the bona fide doubt standard is the same as a “suggestion.” Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009) (“suggestion” means the same as bona fide doubt under former statutory provisions; hence,
“[i]f a trial judge has a bona fide doubt about the competency of the defendant, he or she shall conduct an informal inquiry to determine if there is evidence that would support a finding of incompetence”); cf. Alcott v. State, 51 S.W.3d 596, 600–601 (Tex. Crim. App. 2001) (under the former statutory scheme, bona fide doubt triggered competency inquiry during which the trial court must determine whether there is “some evidence” to support a finding of incompetency so as to trigger a formal competency hearing). I would argue that the reference to a “bona fide doubt” in the mind of the trier of fact refers to the degree of certitude or lack thereof that the court has about the likelihood of incompetency. Whereas a “suggestion” of evidence from any source is somewhat more external to the trier of fact, somewhat more objective, than the statement about doubt in the judge’s mind. In any event, however, whether or not the bona fide doubt standard is the same as a suggestion, “a quantity more than none or a scintilla” represents very little evidence required to trigger an order for a competency evaluation. This is said, notwithstanding the fact that in Texas, competency to proceed pro se requires a higher standard.5

As a quick aside, there are six standards of evidence in 46B.

  • That quantum of evidence required to raise the issue of incompetency, triggering an informal inquiry by the court—i.e., a mere suggestion.
  • Evidence obtained in informal inquiry sufficient to warrant an order for a competency evaluation—i.e., a suggestion of evidence from any credible source, more than a scintilla.
  • Evidence required for a court to defeat the presumption of competency—i.e., a preponderance of the evidence.
  • Evidence necessary for a mental health civil commitment by a criminal court in 46B.102 of a person either found un­likely to be restored, or sent for restoration and not restored, though with charges yet pending—i.e., clear and convincing evidence.
  • That evidence required for a mental retardation civil commitment in 46B.103 of a person either found unlikely to be restored, or sent for restoration and not restored (due to mental retardation/intellectual developmental deficit), though with charges yet pending—i.e., beyond a reasonable doubt.
  • Evidence necessary for a court to find a person competent who is subject to an unvacated adjudication of incompetency—i.e., in his/her most recent prior case, the defendant was found either incompetent and unlikely to be restored, or incompetent and though sent for restoration, was not restored, also beyond a reasonable doubt (more about this will be said).

Issue: Competency Evaluation Orders for Persons Not Yet Charged

When persons are charged by information, as in the case with misdemeanants, there is no problem. When a person is held on probable cause pending indictment by a grand jury—requiring an indictment to go forward—then problems tend to arise. This is especially the case in smaller counties where grand juries meet less often.

The scenario that occurs is one where the defendant is ob­viously disturbed in the jail, and though counsel has been appointed, there is not yet a formal charge. Upon notice to the court, a competency evaluation is ordered. The defendant is then examined for competency to proceed upon a criminal case that is not yet existing. If opined “not competent,” the state hos­pital receives the person with a file number representing, not the cause, but a tracking number for the person in the jail. Because the facility does no “look back,” no one is aware that the defendant was committed to be restored to competency in a nonexistent matter. Consequently, the facility has no knowledge as to when the person would conceivably have been confined for a period in excess of the maximum sentence they could have served had they been sentenced on day one.

Upon return to the county, if the person is opined “restored,” then the matter goes forward. However, if opined “not restored,” the original case cannot be “dismissed,” as none had been filed and there is no basis for transfer to a court having civil jurisdiction as would otherwise exist under Tex. Code Crim. Proc. art. 46B.151. Jail staff will often ask the arresting officer/entity to drop any pending charge.6

Issue: Qualifications of Examiner

Either a psychiatrist or psychologist—qualified by forensic board certification, or by training, and with appropriate continuing education—may be appointed to examine a defendant. The examiner must not, however, be involved with treatment of the defendant.7 Note that the same examiner can conduct both a competency and sanity evaluation since, for the sake of economy, they can be conducted at the same time, inasmuch as a sanity evaluation requires a competency appraisal as a predicate. No sanity examination may be conducted if the defendant is opined “incompetent.”8 It would be wise to ask court administration to keep a database of competency orders, date issued, date the report is received, examiner, type of report, and opinion—as tracking these cases is essential for docket management.

Note that a recent Amarillo case, Pham v. State, 463 S.W.3d 660 (Tex. App.—Amarillo 2015, pet. ref’d), held—badly I believe—that inasmuch as the state’s expert was not a court-appointed expert, he need not meet the qualification requirements of 46B.022, though the court in its discretion should so require. This represents a legislative issue that needs to be addressed, else the state would be in the position of requiring one standard for independent examinations and a lower standard for retained examinations. Attorneys should always argue for the higher standard.

Issue: Report Contents

Too many reports offer bare opinion and do not address the statutorily mandated issues of Articles 46B.024 and 46B.025. Those statutorily mandated areas include the following:

1.  The capacity of the defendant during criminal proceedings to:
     a)   rationally understand the charges and the potential consequences of the pending criminal prosecution,
     b)   disclose to counsel pertinent facts, events, and states of mind,
     c)   engage in a reasoned choice of legal strategies and options,
     d)   understand the adversarial nature of criminal proceedings, exhibit appropriate courtroom behavior, and testify.
2.  Whether the defendant has a diagnosable mental illness or is a person with intellectual disability, whether the condition has lasted or is expected to last continuously for a period of at least one year, and the degree of impairment resulting from same on his/her capacity to engage with counsel in a reasonable and rational manner.
3.  If the defendant is taking psychoactive or other medications. Whether same is necessary to maintain competency, and the effect of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

In Turner v. State, supra, the court ultimately ordered four evaluations of a defendant, all of which acknowledged the defendant’s nastiness, character problems, and his delusions (though with equivocal language). All spoke to the issue of a rational and factual knowledge of the proceedings, but none adequately addressed the issue of the defendant’s ability to assist counsel with a reasonable degree of rational understanding. The Court of Criminal Appeals ordered the issue re-assessed. The conclusions to be drawn from this appeal are multifold, but in the very least: (1) the court does not need timid examiners but rather those who are willing to share an opinion unambiguously and clearly; and (2) the court also needs examiners who will address all the statutory elements relating to the competency standard, not only the rational and factual knowledge, but also the ability to assist prong.

Contested competency hearings are infrequent events usually reserved for cases where one party sees significant tactical advantage in a finding of incompetency. In truth, because the defendant gets time credits for restoration treatment,9 an incompetency finding provides some delay to proceedings but has little additional effect—other than the costs to the county mental health authority for the state hospital bed. Should a hearing be requested, however, a jury is to be provided upon request of either party, and the verdict must be unanimous.10

Issue: Opinion on Likelihood of Restoration in the Foreseeable Future

Competency reports commonly address whether there is evidence of incompetency related to the presence of a mental dis­ease or defect that would interfere with defendants’ ability to ei­ther relate to counsel with a reasonable degree of rational un­der­standing or impinge in some fashion upon the defendants’ ability to exhibit a rational and factual knowledge of the proceedings against them. Most examiners are now aware of 46B.024 and 46B.025 and the necessity to identify whether the defendant exhibits a deficit due to mental illness or, using the older term, mental retardation (now intellectual disability). Many, if not most, also acknowledge the necessity to identify treatment options that might be efficacious in restoration of competency. Few, however, appreciate that if a defendant is opined “not com­petent,” then there is also an absolute necessity to include within a competency appraisal an opinion on the likelihood of restoration within the foreseeable future.

The necessity for this opinion statement—and a corresponding finding by the court—cannot be overstated since 46B.071(b) would prohibit committing a defendant for restoration if the defendant is not likely to be restored to competency in the foreseeable future. Rather, the court is statutorily mandated to proceed under subchapters E (civil commitment: charges pending) or F (civil commitment: charges dismissed), or release the defendant on bail as permitted under Chapter 17.

The rationale for this legislation is twofold, one legal the other practical. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Court held that a defendant may be confined for restoration purposes only as long as may be necessary to determine whether he is likely or not to be restored, and all subsequent commitments must be strictly civil in nature. Consequently, the logic of Jackson is that if a person is not likely to be restored, the proceedings must move in a different direction. Texas has codified that principle. Similarly, and practically speaking, because the average costs of a restoration program vary between $27,000 and $35,000, and require, on the average, from 55 to 101 days, few counties are willing to expend such sums when the defendant is unlikely to be restored. Such would not only be constitutionally impermissible, but statutorily impermissible, not to say costly.

The question arises, however, “What is the meaning of ‘foreseeable’ as used in this context?” Upon what time frame should an examiner rely to offer an opinion as to whether the defendant is likely to be restored in the foreseeable future? There is no case­law on point to answer this question, but a plain reading of the statute provides a rational answer.

First, note that but one commitment for restoration and one extension is permitted as may relate to a single charge.11 Article 46B.080 states that such a commitment would include the primary period of time allotted for restoration plus a possible 60-day extension at the request of the facility.

Second, the restoration period allotted to persons charged with misdemeanor offenses is a maximum of 60 days, with a possible 60-day extension.12 In the case of persons charged with a felony offense, the allotted period is 120 days with a possible 60-day extension.

Given the foregoing, it is reasonable to conclude that the maximum period of time available to the courts in connection with the offense charged constitutes the “foreseeable” future. To be sure, a defendant who is unrestored and yet subject to civil commitment with charges pending may be examined at some future date, and if opined “competent” and so found by the court, the matter may yet go forward. This period of time, however, is uncertain and not foreseeable with any degree of certitude.

The net result of the reasoning herein is that examiners must provide an opinion on the likelihood of restoration in the foreseeable future, where “foreseeable” means, as stated above, that period of time available to the court in connection with the matter before it. Failure to include this opinion should be met by a motion and order for amendment of the report.

Issue: Report Return and Handling

Pursuant to Article 46B.026, reports shall be provided to the court and to both parties not later than the 30th day after the date on which the examiner was ordered to examine the defendant.

More problematic is how the report is handled upon return to the court. There has been much misunderstanding about the lack of confidential nature of competency evaluations—such that reports are often squirreled away in a coordinator’s private file and never made part of the record. Should the case go up on appeal, the record is incomplete and the reports are difficult to locate.

In point of fact, these reports, albeit containing much per­sonal information, are public records of a private nature and should be filed with the record in the matter, albeit with restricted access and/or sealed. Note that there is no physician nor mental health privilege in criminal matters such that once a criminal charge is involved, no claims of confidentiality or privilege could be invoked.

Issue: Restoration Commitments Are Mandatory

Important to appreciate is that if a defendant is found incompetent to stand trial, then absent release to an outpatient- or jail-based restoration program, the defendant must be committed to an inpatient mental health facility.13 Counsel are often surprised or dismayed when a defendant, having been released on bond, is found incompetent and the court immediately revokes the bond and takes the defendant into custody. In fact, if the defendant is charged with an offense listed in Article 17.032(a), other than an offense listed in Article 17.032(a)(6), or the indictment alleges an affirmative finding under Section 3g(a)(2), Article 42.12, then commitment to a maximum security facility is mandatory. Note that the Department of State Health Services has established a clearinghouse for commitments at Vernon State Hospital, so the hospital liaison person for the courts must immediately call that entity, provide the requisite information, and get the person on the waiting list for transfer. The clearinghouse will locate the bed and advise the sheriff’s office of transfer.

In addition, no restoration commitment is appealable. See art. 46B.011.

Issue: Facility packet

Art. 46B.076 provides that upon a commitment for restoration, the court shall provide to the facility the following enumerated items:

  • Reports of experts
  • Any mental health treatment reports
  • Copies of the indictment or information
  • Defendant’s criminal history (note that ADAs may have been instructed not to provide criminal history information; however, the statute requires such)
  • Names and addresses of counsel
  • Transcript of any medical testimony, if given.

Issue: Time frame of Restoration Order and Date Commitment Begins

A perennial problem has to do with confusion as to when the term of a restoration commitment begins—i.e., with the date of the signing of the order or the date of transfer. Again, while there is no specific case law on point, the statute is relatively clear. A defendant is committed for “examination and treatment” for a period of either not more than 60 days or 120 days with a possible 60-day extension. A commitment for “evaluation and treatment” reasonably begins upon the inception of treatment—ergo, upon the date of transfer to the mental health facility.

Note that the court may find it helpful to maintain a database that includes the date of booking, the date of the order of commitment, and the date of transfer to the facility. Facilities often are puzzled on these matters and have staff who are not attuned to legalities. The staff may not realize that a defendant charged with a Class B misdemeanor, who can be subject to confinement for a maximum period of 180 days, was transferred to the facility on the 125th day and will time out before the ex­pi­ra­tion of the commitment itself. (Recall that defendants get time credits for confinement in hospitals as well as jail.14)

Issue: Dealing with Restored Defendants Who Decompensate

An all-too-common problem is that of defendants who have been committed for restoration and who, in fact, are restored—only to return to the county jail, refuse to take medications, and again decompensate.

Inasmuch as Article 46B.085 permits only a single commitment for restoration in connection with a cause and one extension, subsequent re-commitments are prohibited in connection with the same offense. Courts and counsel are frequently flummoxed as to how to respond in this circumstance, and facilities, unfortunately, all too often do not object when the person is re­turned.

Two options, however, exist:

a)  Institution of forced medication under the Health & Safety Code § 574.106, or, if that fails, under Tex. Code Crim. Proc. art. 46B.086
b)  If re-commitment is the only option, then Art. 46B.102/103 become the means to accomplish such.

Issue: Unrestored Defendants

As noted, Art. 46B.085 permits only one commitment for restoration in connection with a specific charge. A relatively small number of cases result in a defendant who is found incompetent, sent for restoration, but not restored (about 15%). Again, the statutes contemplate but two alternatives:15

(a)  Dismissal of the case and transfer of the defendant to a court having mental health jurisdiction, under 46B.151, or
(b)  Civil commitment—by the criminal court—under Tex. Code Crim. Proc. art. 46B.102 (mental illness) or 46B.103 (intellectual disability).

As noted earlier, when the defendant is committed for restoration and opined to be unrestored, the court must proceed under Subchapters E or F. However, if after restoration treatment, then by the terms of 46B.084, the court may make a finding on the basis of the report without a hearing, there being no objection within 15 days. But if the facility opinion is that the person remains unrestored, and the matter not dismissed, the court shall also proceed under Subchapter E—which means civil commitment with charges pending. Dismissal includes holding the defendant briefly until the court having mental health jurisdiction can issue a transport order, and Emergency Detention Order for purposes of evaluation. Note that it is improper under the Local Gov’t Code, the Health & Safety Code, as well as in case law and an AG opinion, to house mentally ill persons in jail during the pendency of civil proceedings. In some urban counties, this prohibition is not well known. The liability to the county for housing persons in jail with no charges against them is substantial, and attempts to explain to DOJ why an injury-in-custody or even a death-in-custody occurred to a person for whom there was no legally based order confining the person, are ineffective.

A comment about 46B.102/103 proceedings: A 46B.102 proceeding is a civil commitment on the basis of mental illness, whereas a 46B.103 commitment is on the basis of intellectual dis­ability. There are two different standards of evidence associated with these commitments—clear and convincing for mental illness and beyond a reasonable doubt for intellectual disability.16

Because these commitments are procedurally intensive, and rely upon the Health & Safety Code criteria for court-ordered mental health (or intellectual disability) services,17 it is incumbent upon all counsel, both the state and defense, to be familiar with these requirements and be prepared to instruct the court. Both a protocol and checklists for these proceedings are available from the author. Note that both inpatient and outpatient commitments can result in 46B.102 proceedings, though 46B.103 (intellectual disability) proceedings are more likely to be residential in nature.

Issue: Unvacated Adjudication of Incompetency

Two serious problems occur when a defendant is unrestored, ultimately released to the community, and then returned facing yet another charge—the first, strictly procedural, and the second, having to do with examinations related thereto.

A defendant who was found incompetent, sent for restoration (or not sent because he was found unlikely to be restored in the foreseeable future), and who is subsequently charged with another criminal act, presents as an unvacated adjudication of incompetency. By the terms of Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987), the defendant is now in a very different position:

  • This defendant is now presumed to be incompetent. The usual presumption of competency has given way because of the precedential character of a court’s earlier determination that the defendant is no longer competent. Art. 46B.003 describes the common presumption that defendants are presumed to be competent (even if incapacitated under the Texas Estates Code18).
  • There is also a burden shift. Ordinarily, the movant in a competency matter has the burden to prove the defendant incompetent by a preponderance of the evidence. In the circumstance of an unvacated adjudication of incompetency, the State bears the burden to prove that the defendant is com­petent, and the standard of evidence in that regard is beyond a reasonable doubt.

There are several implications of this holding. Such a defendant may not again be sent for restoration treatment (see 46B.07(b))—even on a subsequent charge—unless there is a finding that the defendant is likely to be restored in the foreseeable future. Consequently, it is incumbent upon all parties to ascertain if a defendant was found incompetent in his/her most recent charge and whether or not the person was restored.

Even more interesting is the change that is wrought as may appertain to the conduct of a competency evaluation:

Ordinarily, an examiner is examining to determine if there is evidence to opine that a defendant is incompetent. The degree of certitude in such an opinion will be held in the courtroom setting to be a preponderance of the evidence. Commonly, the examiner’s opinion need not reach a clear and convincing standard or certainly not a beyond a reasonable doubt level. Note, therefore, that in this new circumstance, an examiner must be cognizant of the new fact situation. The examiner may face a not particularly cooperative defendant and conclude that “there is insufficient evidence to defeat the presumption of competency”—which is a somewhat inappropriate, not to say unhelpful, opinion inasmuch as there was no presumption of competency. Thus, if the examiner does nothing whatsoever, the defendant is yet presumed to be incompetent. The net result is that examiners must look for evidence of competency, not incompetency, and must marshal a substantial quantity of evidence to meet a beyond a reasonable doubt standard.

The bottom line is that in these cases, while a re-examination may be appropriate, a special order that incorporates the different presumption and standard of evidence may need to be constructed.


In the foregoing we have addressed the following issues:

  • Issuing orders for competency evaluations of persons not yet charged: Don’t do it.
  • Qualifications of experts: Either psychiatrists or psychologists qualified by board certification, or training, and with continuing education hours may be qualified.
  • Issues with report contents: Ensure that the statutory issues are addressed and if opined incompetent, especially the necessity for an opinion on the likelihood of foreseeability of restoration.
  • Report return and handling: Reports should be returned within 30 days of the order and entered into the court file, albeit with restricted access or sealed.
  • Issues related to mandatory commitment. Commitments are mandatory and not subject to appeal.
  • Contents of facility packet. Art. 46B.06 contains items that must be in the facility packet—including the defendant’s crim­inal history.
  • Time frame of restoration order and date commitment begins: The frames are 60 days with a possible 60-day extension for misdemeanants and 120 days with a possible 60-day extension for felony matters. Important is that the commitment should begin upon the date of transfer to the facility.
  • Dealing with restored defendants who decompensate: This area requires reliance upon jail-based mental health services and possibly seeking forced medication orders under the Health & Safety Code. If that fails, then orders may be sought under Art. 46B.086. Only if these efforts fail would we move forward with a 46B.102/103 commitment.
  • Dealing with unrestored defendants. Dealing with unrestored defendants requires reliance either upon a 46B.151 transfer or a 46B.102/103 commitment.
  • Recognizing implications of an unvacated adjudication of in­com­petency. A defendant who is unrestored will, upon his/her next charge, be in a circumstance of an unvacated ad­judication of incompetency—now presumed to be incompetent and with a burden shift such that the state must prove competency beyond a reasonable doubt—and examinations must be to the new standard.


1. Tex. Disciplinary R. Prof’l Conduct 1.01, comment 6.

2. Id., 1.02(g)

3. Note that “competence” is used with reference to the Texas Code of Criminal Procedure, while “capacity” is used in the Texas Estates Code. See, e.g., Tex. Code Crim. Proc. art. 46B.003; Tex. Estates Code Section 22.016.

4. Tex. Code Crim. Proc. art. 46B.004(a).

5. Chadwick v. State, 277 S.W.3d 99 (Tex. App.—Austin 2009), aff’d 309 S.W.3d 558 (Tex. Crim. App. 2010)

6. Ruden, M. G.; Jennings, F. L.; Maselli, J. Prophylactic Competency Restoration: Rare But Occurring in Texas. Voice for the Defense Online, 2013.

7. Tex. Code Crim. Proc. art. 46B.021(c)

8. Id., 46B.025(c)

9. Id., 46B.009

10. Id., 46B.051; 46B.052

11. Id., 46B.085

12. Id., 46B.073

13. Id., 46B.071

14. Id., 46B.009, 46B.0095

15. Id., 46B.084

16. See Tex. Health & Safety Code §§ 574.034(a), 574.035(a), and 593.050.

17. Id.

18. Koehler v. State, 830 S.W.2d 665 (Tex. App.—San Antonio 1992, no pet.), see also Leyva v. State, 552 S.W.2d 158, 160 (Tex. Crim. App. 1977); Ainsworth v. State, 493 S.W.2d 517, 522 (Tex. Crim. App. 1973).

“If All You Got Is Reasonable Doubt to Rely On, You’re Screwed”

Michael Morton is probably the most well-known example, at least in Texas, of an innocent person spending decades in prison for a crime he did not commit. As we all know, in that case, there was a significant amount of prosecutorial misconduct—i.e., hiding favorable evidence—that led to the wrongful conviction. There have been many others, mostly due to prosecutors acting unlawfully, but also due to “junk science,” faulty eyewitness identification, or improperly admitted evidence. Those things are huge when they happen, but I believe there is an equal danger out there to the innocent accused—juror ignorance and apathy.

We all know this; we see it in every trial. I remember my evidence professor in law school saying that even though the burden of proof is on the prosecution, “If all you got is reasonable doubt to rely on, you’re screwed.” Jurors don’t understand the concept of beyond a reasonable doubt. And when they don’t understand it, they damn sure can’t apply it, and innocent people get convicted.

I used to spend very little time on burden of proof, presumption of innocence, beyond reasonable doubt, or right to not testify. Those topics were always kind of an afterthought to wrap up my voir dire. I pulled out that staircase poster and tried awkwardly to explain the clear and convincing level of proof needed to take away the kids vs. the higher standard to take away liberty. It was more important to talk about drinking habits, field sobriety tests, whether a child will lie about sexual assault, etc. Or so I thought. A few years ago some things happened that changed my thinking.

First, I tried a DWI case that I felt sure we would win. My client looked and sounded completely sober, and the breath test was only .10. I scored big with the technical supervisor, who admitted that his BAC could have been under .08 at the time of the stop. Everything was going as well as it could, and I was confident. The jurors went out to deliberate, and I walked across the street to a coffee shop with my client. We had just ordered when I got the call that there was a verdict. Well, of course, my confidence soared—they had only been out nine minutes! There was no way they could find him guilty in nine minutes, right? Right? You know where this is going—guilty—in nine minutes. I was floored, and by the way, so were the judge, court reporter, and bailiff. The only thing the jurors told us, as they rushed out the door: “The breath test was above .08. Once we heard that, it was kind of over.” I couldn’t figure it out, and chalked it up to having a stupid panel.

My very next trial, another DWI, was a little different. The jury found my client guilty, although they did spend a whopping hour in deliberations. Although I had felt pretty good about tearing up the lab guy, and bringing out some pretty significant errors that should have raised doubt about the blood test’s reliability, I knew it could go either way, and wasn’t too surprised at the verdict. After I spoke to the jurors, though, I wanted to throw up. The foreperson of the jury, a woman who had seemed to be with me all the way through voir dire, said, “We just thought that if you’re going to plead ‘not guilty,’ you should bring something to back that up.”

All I could say was: “Really? Like what?”

She didn’t know, but something. I thanked her for her feedback and quickly left. I was haunted for days, and the only thing I knew for sure was that 1) voir dire is indeed the most important part of the trial; and 2) I had to get better at it.

I began my next voir dire by telling the panel that story. I asked them why they thought it bothered me so much. I spent a little more time on presumption of innocence, burden of proof, what beyond reasonable doubt means, and the client’s right to not testify. This was a case I didn’t expect to win, and didn’t. It was a third-degree POCS, with the dope in my client’s wallet. We only tried it to “beat the deal,” which we did. However, several of the jurors told me they kept looking for a way to find him not guilty, but just couldn’t see it. I was satisfied that they were looking hard for it.

The next trial I did was a misdemeanor theft, plain-vanilla shoplifting. I spent even more time on these concepts. My client was in a store with two friends, and literally left holding the bag (with the stolen items). Not Guilty. Next, Assault/Family Violence & Unlawful Restraint—Not Guilty. Something seemed to be changing for the better. Of course, I had not used my new technique on a sexual assault case, yet. Here is where I believe we have to deal not only with ignorance, but apathy. Jurors sometimes have difficulty caring about the guy arrested for molesting kids. In fact, recently, the first question I have been asking when I stand up is, “If you were forced to choose, would you rather be him (the prosecutor) or me right now?” You know the answer.

Another lawyer asked me to help her with a Continuous Sexual Abuse of a Child (32) case, mainly to prepare briefs for the court on some good evidentiary issues she had identified. I sat with her also during trial, and while she did an excellent job on voir dire, she didn’t spend as much time on these issues. The jury hung, and the count was 11–1—for guilt. I was able to spend some time with the one juror who held out, and she confirmed what I suspected. When pressed about it, she said that most of the jurors admitted harboring doubts about his guilt, but felt there was enough “smoke” that they were okay with finding him guilty. This woman, who truly understood her duty, saved this man’s life. The case was retried, and the only significant change we made to our presentation was voir dire. We spent a lot of time explaining these concepts, but also then focused on whether it is more difficult to apply and follow these laws in a case involving sexual assault of children. Many people admitted they couldn’t do it. After about eight hours of deliberation, the jury returned verdicts of Not Guilty on all counts.

My voir dire has evolved to the point that I spend almost all of my allotted time on presumption of innocence, burden of proof, beyond reasonable doubt, and client testifying (or not). I will not go into the specific questions I ask, or how I explain things because it is different every time, but I begin by framing it just as I did in the beginning of this article—in terms of preventing wrongful convictions. Interestingly, I have had prosecutors ask in a motion in limine that defense not be allowed to discuss exonerations during voir dire. I inform the court that it is a regular part of my voir dire, and explain how I use it. I also ask that the prosecutor state the basis for the objection on the rec­ord, and so far they haven’t been able to articulate a basis ex­cept relevance, which is, of course, stupid. “Your Honor, how can the state say with a straight face that wrongful convictions are irrelevant to a criminal trial?”

We talk about whether it should be hard to find a person guilty, how the jurors imagine it might feel to return a guilty verdict—what might “beyond a reasonable doubt” feel like. How do they want to feel when they walk out of the courtroom at the end of the trial? Will they be able to walk out without any doubts or regrets? Who are they really here to judge—the state or my client?

I use just five slides:

I leave this last slide up for the remainder of voir dire, and I put it up during the entire closing.

This method is certainly not perfect, and does not always lead to the right result, but I believe it is at least helping. The last trial I did, this past August, was again, a continuous sexual abuse of a child. The jury hung 7–5—not guilty. Several of the “NG” jurors told me that they kept seeing the chart in their heads, and could not get past the “perhaps,” or “possibly guilty” level. That’s a win. Oh, and the state has decided not to retry the case.

I remain convinced that voir dire is the most important part of the jury trial, and I try to improve with each trial. I just wanted to share my experience in case it helps someone else, even a little.

A Lesson in Double Jeopardy

The first felony jury trial I participated in was what was then called a robbery by assault with a firearm. I had been licensed to practice for almost exactly one year, and had gone to Judge Archie Brown, one of two felony judges in the county at that time, and asked to be appointed to some cases that were going to trial to gain experience. Judge Brown was kind enough to accommodate me, but concerned enough about the defendant getting a fair trial to appoint me to assist more experienced counsel the first several times.

In this first trial, I was assisting a lawyer about my own age, but with two years more experience. (I went to law school at night, and didn’t start until two years after I got out of college.) Tom Coghlan was not then and is not now a criminal lawyer, but he is now a civil trial lawyer of considerable ability who was headed in that direction at the time of our trial.

We appeared in Judge Brown’s 144th District Court on the appointed day, picked a jury, and began the trial. The State’s first witness was the victim of the robbery, who described there having been two robbers, one considerably shorter than the other. Our client, he averred, was the shorter man.

Since our client was well over six feet tall, it seemed there might be some question about this identification (which was caused, I believe, by the client’s habit of slumping when seated at counsel table).

Tom cross-examined, having the witness again emphasize our client’s relatively short stature, and the witness was excused.

The next witness was the officer who first arrived at the scene of the robbery. He testified on direct examination, and when he was passed for cross-examination, Judge Brown declared a recess.

Tom and I went downstairs to the first floor  “standup” coffee shop to have a cup of coffee and discuss our stroke of luck in the victim’s misidentifying our client.

As we rounded the corner from the elevator, to our amazement we saw the police officer who had just given his direct evidence and had not yet been cross-examined standing at a table, nodding his head in response to something that was being said to him by one of the jurors in the case. As we stood there for the next minute or so not knowing quite what to do, the conversation continued. The police officer looked up, saw us, and from the look in his eyes for the first time realized what he was doing and how inappropriate it was.

Tom and I went back to the courtroom to report what we had seen.

As we reached the courtroom, Judge Brown, who had been hearing a probation matter since declaring the recess in our trial, was just getting off the bench and retiring to chambers. The bailiff urged us to let him have a break, as he had been working since we left.

With my limited experience, I wasn’t about to challenge that, so I went over to counsel table to be seated. Tom, with the self-assurance born of his three long years at the bar, had proceeded on to the judge’s chambers, as I realized immediately upon having a seat at counsel table.

I got up and walked into the judge’s chambers; as I entered, the judge, a man of great wisdom and learning but with a rather short fuse, was all but shouting: “That’s the first damn thing we tell them—it’s right there on the first page of the jury manual. They’re not to mingle with or talk to the lawyers and witnesses in the case.”

With that, he got up, went to the door, and called to the bailiff to go down to the coffee shop and find the named juror and bring him to his chambers. In short order, the bailiff returned, juror in tow.

“Were you talking to one of the witnesses?” the judge asked.

“Yes, Your Honor. I guess I was. I just didn’t think . . .” the juror began to reply.

“Well, this means everything we’ve done so far has been for nothing. We’re going to have to get another panel up here, seat a new jury and begin the trial all over.”

“I’m sorry, Your Honor. I just didn’t think,” the juror said again.

Again the judge went to the door. This time he told the bailiff to go get the other jurors and put them in the box.

We excused ourselves from chambers and sat at counsel table. When the other jurors were in the box, Judge Brown ascended the bench.

“One of your members,” he told them, “was seen talking with a witness during the break. Because of that, I am declaring a mistrial, and we’re going to have to start all over. We gave you those jury manuals so you would read them and this kind of thing would not occur. You are excused. Please return to the Central Jury Room.”

After the jury had left, we asked the judge what he wanted us to do. He told us to stand by, that he was going to have another panel sent up.

After a while, a new panel did arrive. It was late in the day, though, so the only thing that happened was that the judge introduced the defendant and the contending lawyers and recessed for the day, telling the panel to return again the following morning.

The reason I remember so clearly that I had been licensed almost exactly a year at that time is that several of my friends, who took the Bar Examination a year after I did, received word that very day that they had passed the exam. That night I met them and went out with them to celebrate for a couple of hours.

When I got home, there was a call from Tom Coghlan. I returned it.

“Pat,” he asked, “do you remember studying something called ‘double jeopardy’ in law school?”

I said that I did, but so what, since this was our client’s first trial?

“Well, I got to talking to some of the guys here at the office, and one of the partners told me that if a jury is sworn and the defendant enters his plea, the trial must continue until the jury convicts, acquits, or is hung. If the judge turns them loose before then, it’s double jeopardy to select another jury. In other words, they can’t put our client to trial again, unless he waives his double jeopardy rights.”

I could not believe my ears, of course, and I was also embarrassed that I had been out partying while Tom had been working on our case.

He told me that he had already begun work on an affidavit for him and me to sign, setting out that the judge had declared the mistrial on his own motion, not on ours, and he would appreciate it if I would prepare an affidavit for the defendant to sign, setting forth that he wasn’t even consulted on the subject of whether there should be a mistrial, and certainly, therefore, had not given his consent to one.

I went to the office and prepared the affidavit. I also read some cases on the subject of double jeopardy. I learned that the reason for the rule prohibiting a new trial after a mistrial not consented to by the defendant was to protect a defendant against a judge and/or prosecutor who might want a mistrial declared because the case was not going well for the prosecution—to give the prosecutor a chance to put on a better case in a subsequent trial.

March 2016 Complete Issue – PDF Download



25 | Procedural Choke Points in 46B Competency Issues – By Floyd L. Jennings
33 | “If All You Got Is Reasonable Doubt to Rely On, You’re Screwed” – By Susan Schoon
37 | A Lesson in Double Jeopardy – By Judge Wayne Patrick Priest

7 | President’s Message
9 | Executive Director’s Perspective
10 | Editor’s Comment
13 | Ethics and the Law
16 | Off the Back
18 | Federal Corner
22 | Said & Done

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

President’s Message: David and Goliath – By Samuel E. Bassett


 I recently read Malcolm Gladwell’s latest book—David and Goliath. Most of us are familiar with the Old Testament story of the shepherd who slays the Philistine giant who was physically imposing, coated with armor and equipped with the best weapons of the time. How did David win? Simple—David was prepared for a different fight than Goliath. Goliath expected hand-to-hand combat while David came with a stone and a sling.

I think all of us have had those moments heading into a trial in a serious case with almost no evidence in our favor. Gladwell calls it “the unexpected freedom that comes from having nothing to lose.” Other times, we have clients who turn down a plea bargain offer and we enter into battle even though we have serious concerns that the outcome might be much worse than the pretrial offer. I think this happens disproportionately in cases with court-appointed attorneys who often do not enjoy the same level of trust as between most privately retained attorneys and their clients. I say “most” privately retained clients because all of us have had experiences where our privately retained clients turn on us, to the point of threatening a grievance and/or demanding a fee refund once the reality of the case hits them and we give them our final opinion.

As much as I bemoan these situations, I have learned it is when I am pushed against the wall with seemingly no hope that I do my best work. Malcolm Gladwell talks about this very thing in his book, David and Goliath. Gladwell states:

[M]uch of what we consider valuable in our world arises out of lopsided conflicts, because the act of facing overwhelming odds produces greatness and beauty . . .

I have found this to be true not only with advocacy as a lawyer but also in other aspects of our criminal justice system. I have seen jurors struggle over sending a young person to prison for a terrible and heinous crime, wrestling with the decision for days. I have seen judges show mercy when every indication prior to trial was that retribution would be the leading force. I have seen prosecutors give a defendant a much more lenient sentence in a case where a trial result would certainly be harsh. It is the essence of our job to fight to the bitter end for our clients, who are often detested and difficult to like.

Another analogy is that the arrogance of power can work against the Government in trying a case. In his book, Gladwell states: “Goliath’s size was also the source of his greatest weakness . . . The powerful and strong are not always what they seem.” How many times have you seen a prosecutor who was arrogant and dismissive before trial? Gladwell states further, “[T]here comes a point where the best intentioned application of power and authority begins to backfire.” These thoughts capture the essence of what we do. We must constantly challenge the assumption that the fact that someone has been arrested means they are guilty. I know the Constitution says otherwise, but the reality is that there is still a presumption of guilt in the minds of most of our jurors, especially in serious cases.

One of the most rewarding moments in a trial is seeing a prosecutor who was so confident prior to trial suddenly become more humble and approachable when he or she realizes that the case isn’t as simple as originally thought. Putting up a battle, even if you don’t win, is at the core of what we are supposed to be doing. I hate losing. Yet, I have suffered many guilty verdicts. However, as Vince Lombardi said, “Show me a good loser and I’ll show you a loser.” Of course, one of the highest rewards as a criminal defense lawyer is when the judge utters the words from the verdict form and says, “Not Guilty.” Be humble in those moments but don’t forget to enjoy them as well.

Executive Director’s Perspective: Spring Tidings – By Joseph A. Martinez


Special thanks to Dan Hurley (Lubbock), Stan Schneider (Houston), and John Convery (San Antonio), course directors for our TCDLA Federal Law CLE held in New Orleans in February. During the event, Past President Scrappy Holmes (Longview) was crowned TCDLA Dean Emeritus, accompanied by a New Orleans Jazz Band. Thanks to everyone’s help we had 68 attendees and a fun time in New Orleans.

Special thanks to Anthony Haughton (Houston) and Sarah Guidry (Houston), course directors for the 5th Annual Hon. Craig Washington and Senator Rodney Ellis Seminar held at the Thurgood Marshall School of Law in Houston in February. Thanks to their efforts and our speakers we had 61 attendees. TCDLA wants to give special recognition to Dean Dannye Holley of the Thurgood Marshall School of Law for allowing TCDLA/CDLP to co-sponsor this event.

Special thanks to Gary Manuele (Killeen), Mike McCollum (Dallas), and Terri Zimmermann (Houston), course directors for our CDLP Veterans CLE, held in Dallas in February. Thanks to their efforts we had 109 attendees. Special thanks to Lynn Richardson (Dallas), Dallas County Public Defender, our course director for the Indigent Defense CLE held in Dallas in February. Thanks to Lynn’s help and our speakers we had 106 attendees.

The 29th Annual Rusty Duncan Advanced Criminal Law Course is being held June 16–18, 2016, in San Antonio. The pre-registration rate is available until May 24, 2016. Please start making plans to attend. There are scholarships available. The CCA has approved funds for judicial scholarships and travel stipends for this one event. Please call our Home Office for more information. This year’s Rusty theme is “Lawyers, Guns & Money.” Join us for the annual pachanga (“party”) at the home of Kristi and Gerry Goldstein. The Goldstein Pachanga is a cultural icon: 600+ people gather in the Goldsteins’ backyard around their pool and feast on food, beverages, and great company.

The TCDLA Membership Party will be an ’80s theme Casino Night, with music by the Spazmatics. It’s a fundraiser for TCDLEI scholarships, so you can enjoy the evening and know you are making a contribution to a worthy cause. We will have a bike ride with our guide Gerry Goldstein (San Antonio). We will also have a fun run one day down the unique and picturesque San Antonio River. See you in San Antonio.

Weren’t able to attend last 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.

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

Good verdicts to all.

Editor’s Comment: The New Sheriff – By Sarah Roland


It is quite a humbling honor and responsibility to serve as your new editor. I am thankful to the leadership for allowing me this opportunity to continue to serve TCDLA in a new way. Many thanks to Michael Gross for his tireless service to TCDLA as editor for the past 2½ years and guidance to me as I step into this new role. His are indeed large shoes to fill. It also cannot be said often enough how fortunate we are to have the staff that we do working for us. It is already apparent that Craig Hattersley is a significant driving force behind every issue of The Voice and deserves a tremendous amount of credit for his behind the scenes work.

With the new responsibilities and time constraints this position brings I have decided to step down as chair of the Prosecutorial Integrity Committee though I will continue to serve on the committee. I do not want the quality of either TCDLA position to suffer by my being spread too thin. As many of you know, the Prosecutorial and Judicial Integrity Committees are two very active committees in TCDLA. Be proud of this; it is a good thing. TCDLA should help uphold accountability and integrity in every aspect of our justice system. It is not a coincidence, then, that there are two recent decisions from the Commission on Judicial Conduct addressed in this issue, and that the Executive Committee will be making recommendations on prosecutorial grievances in the coming weeks.

The Voice is something we all value tremendously. There is always a timely nugget of wisdom, an idea, or much needed words of encouragement every month. To that end, my goal as your editor is to provide the best, most relevant, and timely publication possible to our membership. This means adhering to submission deadlines and only publishing quality articles.

You may have noticed that we have a “Said and Done” column every month. Please don’t be embarrassed to brag on yourselves and/or colleagues for significant victories. Let us know! We want to uplift each other and recognize the noteworthy accomplishments of our members on a regular basis.

We all have something unique to contribute and pass on to help our comrades—an idea, some knowledge, or a particular experience. Please take the time to put your ideas down. Please continue to submit your contributions and please be sure to let me know if you have ideas, constructive criticism, and/or comments that can help make The Voice even better.

Declaration Readings

It’s time to start planning for Declaration of Independence Readings again this year. Last year, thanks to Robb Fickman and many of our members, there were 139 Declaration of Independence readings in Texas.

There are 254 counties in Texas. This year it’s TCDLA’s goal to have a reading in all 254 counties in Texas! As July 4th is on a Monday this year, the readings will be planned for Friday, July 1, 2016. Please plan to either organize the reading in your county or be a part of the reading this year. Contact Robb Fickman if you are interested in organizing a reading— .

Decisions from the State Commission on Judicial Conduct

TCDLA’s Judicial Integrity Committee, co-chaired by Edward Mallett and Philip Wischkaemper, is ever vigilant. There have been two notable recent decisions by the Commission on Judicial Conduct. Please continue to make the committee aware of your concerns so that TCDLA can help maintain the high ethical standards of the Texas judiciary.

TCDLA leadership is disappointed that the State Commission on Judicial Conduct has chosen not to sanction the justice for his improper comments and his failure to set appropriate individualized bail amounts for over 170 accused persons in the Waco Biker cases. However, there is recognition in the decision that the actions taken by the justice were not appropriate (see below).

In response to a complaint filed by HCCLA, the Commission issued a private reprimand against a Harris County judge for displaying in public view behind his bench a MADD plaque despite being encouraged to remove the plaque by other judges and lawyers (on page following). In issuing the private reprimand, the Commission cited the judge’s display of the plaque as against his obligation to avoid the appearance of impropriety. JoAnne Musick, Carmen Roe, Tyler Flood, Mark Bennett, and Robb Fickman are among the many Harris County defense lawyers who contributed to this process.

Ethics and the Law: How to Tiptoe Through the Tulips


Acknowledgments to lawyers and law students who shall remain nameless . . .

Tiptoe through the window
By the window, that is where I’ll be
Come tiptoe through the tulips with me…

If you think the song is weird, just read some of the decisions made by people who are supposed to be minding the store! Judges arrive late to court. Citizens are kept waiting for hours. To some of the Judges it does not matter. They get paid while citizens and lawyers wait around to take care of business. The “Your Honor, can we please get a bond reduction,” “Your Honor, can we please have more time,” “Your Honor, I just had surgery,” “Your Honor, I have a family emergency,” and most pertinent here, “Your Honor, the prosecution has not given me all the evidence” all too often fall on deaf ears.

Many recent events have led to complaints being filed against members of the Judiciary. Some have resulted in Judges resigning, receiving reprimands, or being ordered into counseling. Several criminal law organizations, including HCCLA, have filed complaints. Robb Fickman has filed and drafted many such complaints. JoAnne Musick has authored several articles about the subject. It is a sad state of affairs when 170 citizens were held under million-dollar bonds to SEND A MESSAGE. Many Judges are honorable and take their oath seriously, but many fall short. Something happens when a lawyer puts on a black robe and gets the “Black Robe” disease. For those unfamiliar, it is a unique disease for which a highly specialized group of scientists have been rigorously testing a potential cure but have yet to curb certain side effects: inability to grant PR bonds or an inability to be cognizant of the dynamics occurring outside the courtroom that necessitate a legitimate reason for a continuance. Many lawyers forget the rules of disciplinary procedure apply to Judges as well as other members of the Bar. Complaints may be many, but the actions taken isare small.

It appears that in some parts of the state, prosecutors are not understanding the rules of discovery and Judges are letting this slide. The Michael Morton Act was passed for a crucial life-saving reason. Do not let the prosecutor or Judge tiptoe through the tulips when you are doing everything possible to see what evidence the state is using to prosecute your client. File Motions for Discovery if you believe you have not been given all the evidence. Do your own investigation. Many times there are witnesses who are excluded from the discovery and/or “open file” shared with you.

When “out of the tulips” additional evidence is given to you a few days before trial, have a Motion for Continuance ready, and be prepared to make a record. If you need the forms for a Motion for Continuance, refer back to the online Voice for the Defense article “’Twas the Week Before Christmas,” December 2014.

The following advice from Bobby Mims is for lawyers facing such unfortunate circumstances:

Be prepared to follow up that motion with a “Not Ready,” and if the Judge does not grant your Motion for Continuance, you may be forced to file a Motion to Withdraw. After that you have done everything you can to get your client the least prejudicial trial, and it becomes the Judge’s problem.

        We used to do this in capital murder cases before the ABA and Texas Guidelines for Capital Defenders were adopted. Now if the Judge does not give us the resources to defend the case, then we do all of the above and force the Judge’s hand.

        One time on a capital case, before guidelines were enacted, we asked for money to follow up on a lead that a third party had committed the crime, but the Judge denied our request for more funds. We announced “not ready” because we could not be effective. The Judge then asked if we’d filed grievances on ourselves for being ineffective. We filed our motion to withdraw and immediately filed grievances with the State Bar on ourselves. The Judge relented and gave us the money. Afterward, my investigators found the guilty party in Kentucky and turned over inculpatory evidence to the state, which promptly had the guy arrested and transported back to Texas for prosecution. He is now serving a life sentence. I later chastised the Judge that defense lawyers are in fact law enforcement officers also. 

        About a year later I got a call from the State Bar asking about the grievance. I told them why I filed it. The State Bar lawyer laughed and promptly dismissed the grievance. I objected to the dismissal and asked for a hearing. She told me that I had no standing since I was both the grievant and the grievee. That was the last that I heard of it.

The Texas Disciplinary Rules of Professional Conduct re­quire prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act.  Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to dis­close, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.

As illustrated by the Voice for the Defense article “The Michael Morton Act’s Undiscovered Country,” January 2016, it is evident this Act was created to ensure justice by allowing defense lawyers to “build robust cases” with the timely production of the full array of evidence if only prosecutors and Judges would comply with the spirit of the law. Our justice system should be about getting our clients the best representation and the fairest trial possible. Instead, prosecutors have been allowed to play games, leaving our clients’ futures in jeopardy and defense attorneys with few options. That is why you must know what to do when state prosecutors fail to follow through with timely production under the Rules of Discovery. According to the Michael Morton Act, the prosecutor has a duty to not “discovery dump” on defense lawyers shortly before or on the eve of the trial. This certainly violates the spirit of the Michael Morton Act.

As a starting point for valuable information for this article, Michael Mowla shared the following opinion regarding these issues (

Opinion 646


As a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, may a prosecutor require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyers’ cases?


A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file” arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor’s file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases.


Professional Ethics Committee Opinion 619 (June 2012) addressed the question of whether a prosecutor may require and defense counsel may agree “that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant[.]” The opinion observed: “Although the prosecutor has an obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] to disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the disclosure of other evidence and as to restrictions that may be placed on evidence and information disclosed.” This committee concluded in Opinion 619 that the Texas Disciplinary Rules of Professional Conduct permit such agreements, provided that, before signing such an agreement, defense lawyers must comply with their duties under Rule 1.03(b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Since this committee issued Opinion 619, the legislature passed and the governor signed the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014, the Act amended article 39.14 of the Texas Code of Criminal Pro­cedure to require that prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product and other information (such as information about victims and children) that is made confidential by law. Among other things, article 39.14 permits discovery and copying of all witness statements, not just the defendant’s statement. Cf. Tex. R. Evid. 615(a) (requiring production of a statement of a witness other than the defendant only after the witness has been passed for cross-examination during trial). Furthermore, article 39.14 does not require (or permit a prosecutor to require) any concession by criminal defense lawyers or their clients in order to receive such discovery nor must defendants seek a court order to secure the discovery mandated by that article. Article 39.14(a) requires the disclosure of the prosecutor’s file “as soon as practicable after receiving a timely request from the defendant. . . .”

Comment 1 to Rule 3.09 states that “a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor.” Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not “violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Because article 39.14 requires an “open file” policy by prosecutors without preconditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.


As lawyer Mims, Mowla, and I can advise you, there may be many thorns you encounter while you are tiptoeing through the tulips. To ethically represent a client, be aware and be prepared when you encounter resistance by the prosecutor or Judge. Remember your oath is to your client, not the Judge or prosecutor.

Off the Back: Transportation Code Section 724.017 Compliance in ALR Blood Test Failure Cases – By Stephen Gustitis


In Brazos County the Department of Public Safety has been using sleight-of-hand to prove up blood test results in ALR failure cases. Their conjuring attempts to correct an evidentiary deficiency in their blood test proof. Specifically, the Department tries to argue these blood test failures resulted from the suspect’s “express consent” to provide a blood sample, rather than “implied consent” under Chapter 724 of the Texas Transportation Code. Under implied consent laws, the Department must prove the qualifications of the person who drew the suspect’s blood. See Section 724.017, Tex. Transp. Code. However, if implied consent laws do not apply and the suspect provides express consent, Section 724.017 compliance is unnecessary. In Brazos County the Department uses Texas Department of Public Safety Crime Laboratory Form “LAB-12b Rev 03 (06/2013)” as evidence of the suspect’s express consent. The form contains a Subject’s Consent Form and is found in blood test kits provided to police agencies by the Department. The arresting officer typically compels the suspect’s signature after the person orally agreed to provide a blood sample following the reading of the DIC-24 Statutory Warning.

The express consent argument is bogus, but some ALJs are falling for it. When form LAB-12b is examined closely, the Subject’s Consent Form is a reiteration of their implied consent to submit to the taking of a blood sample. The first paragraph of form LAB-12b references Section 724.017, Tex. Transp. Code (implied consent blood drawer qualifications). Additionally, the Subject’s Consent Form parrots language from Section 724.011(a) of the Code as follows: “Be it remembered that on this [date], I [suspect] having been placed under arrest on a charge of driv­ing a motor vehicle on a public highway while intoxicated, do voluntarily give a specimen of my blood to [arresting officer].” See Texas Department of Public Safety Crime Laboratory Form LAB-12b Rev 03 (06/2013). In addition, the arresting officer utilized the following implied consent procedures in Chapter 724 during the entire process culminating in the blood draw. “If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis . . .” Section 724.011(a), Tex. Transp. Code (emphasis added). “Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” Section 724.013, Tex. Transp. Code. “Before requesting a person submit to the taking of a specimen, the officer shall inform the person orally and in writing [of the consequences of a refusal].” Sections 724.015(1)–(7), Tex. Transp. Code (the Statutory Warning). And finally, “Only the following may take a blood specimen at the request or order of a peace officer under this chapter: (1) a physician; (2) a qualified technician; (3) a registered professional nurse; (4) a licensed vocational nurse; or (5) a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen under Subsection (c).” Section 724.017(a), Tex. Transp. Code (emphasis added). Recall the conjured express consent argument is used to cure an evidentiary deficiency under the implied consent statutes. Specifically, the Department’s failure to prove compliance with Section 724.017.

Before the Department is required to prove a qualified person took the specimen, there must be a timely trial objection to the admissibility of the blood test results. See Stowers v. Texas Department of Public Safety, 465 S.W.3d 257 (Tex. App.—Houston [1st Dist] 2015, no pet.)(defendant waived their right to complain on appeal that DPS failed to prove Section 724.017 compliance absent a timely trial objection). Additional authority is Texas Department of Public Safety v. Hutcheson, 235 S.W.3d 312 (Tex. App.—Corpus Christi 2007, pet. denied). There the defendant raised Section 724.017 compliance during the evidence phase of the ALR hearing. Although a refusal case, Mr. Hutcheson refused to submit to a blood test because the arresting officer wanted to draw the sample himself. Mr. Hutcheson refused the request because the arresting officer did not “seem qualified” to draw blood. Hutcheson at 313. The Department did not admit any evidence showing a Section 724.017 qualified person was to draw blood in a sanitary place. Id. The Hutcheson court stated that Section 724.017 compliance was properly raised during the ALR hearing and held that “because the [arresting officer] was not an authorized individual . . . we hold that the Department failed to present substantial evidence that there was an appropriate request.” Id. at 316. By way of contrast, the Department may use language in Stowers for authority they are not required to prove Section 724.017 compliance. “Likewise, although Section 724.017 sets out the qualification for a blood draw, no statutory provision mandates the Department to adduce Section 724.017 compliance evidence at the administrative hearing as a component of its required proof to uphold a driver’s license suspension.” Stowers at 264. But a close inspection of Stowers shows this language is dicta! Stowers was decided on the defendant’s failure to object. It was not decided on whether the Department proved Section 724.017 compliance. Resist the Department’s sleight-of-hand here, as well.

As previously stated, to overcome a Section 724.017 compliance problem the Department has argued express consent. They rely on King v. State, No. 05-10-00610-CR, 2012 Tex. App. LEXIS 11133, at **9–10 (Tex. App.—Dallas, Feb. 10, 2012, pet. ref’d)(mem. op., not designated for publication), for authority to show that where a defendant voluntarily and expressly consented to a blood draw, the procedure employed to execute such blood draw was not required to comply with Section 724.017, Tex. Transp. Code. In other words, because the defendant provided express consent for the blood specimen, the implied consent requirements of Chapter 724 did not apply. However, King is distinguishable. At the time Mr. King gave his consent to submit to a blood draw,, he had not been arrested and he had not been provided the DIC-24 Statutory Warning. Consequently, his consent did not fall under the provisions of Texas Transportation Code Chapter 724 and was held to be express consent. The Department also relies upon Subririas v. State, 278 S.W.3d 406 (Tex. App.—San Antonio 2008, pet. ref’d). But Subririas suffers the same defect as King. Ms. Subririas objected to the admission of two blood samples obtained before she was placed under arrest. She had not been read the Statutory Warning. Consequently, the implied consent provisions of Chapter 724 had not engaged. The only remaining issue, which was resolved against her, was whether her consent was voluntary.

Some ALJs are getting this wrong. Nonetheless, the best practice is to protect your ALR trial record while anticipating an appeal to county court (or even higher). Following are the necessary trial objections where the Department’s evidence lacks sufficient evidence regarding the qualifications of the person drawing blood (an affidavit by the blood drawer may prove Section 724.017 compliance). First, object to blood test results in the police officer report as lacking the proper predicate for admission and as hearsay. Object to any references in the police report related to the blood drawer’s qualifications as hearsay and for lack of personal knowledge, as well. Finally, object to the admission of the blood test results (usually an Alcohol Content Laboratory Report and Alcohol Analysis Affidavit) based on Section 724.017 non-compliance. Make sure you obtain adverse rulings. Accordingly, if the ALJ fails to reward you with a win, you’ll be in a satisfactory position to argue these issues on appeal.