Monthly archive

May 2016

May 2016 SDR – Voice for the Defense Vol. 45, No. 4

Voice for the Defense Volume 45, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Supreme Court capital-sentencing case law did not require a court to instruct the jury that mitigating circumstances need not be proved beyond a reasonable doubt; nor was such an instruction constitutionally necessary in these cases to avoid confusion. Kansas v. Carr, 136 S. Ct. 633 (2016).

        A Kansas jury sentenced respondent Gleason to death for killing a co-conspirator and her boyfriend to cover up a robbery. A Kansas jury sentenced the two other respondents, the Carr brothers, to death after a joint sentencing proceeding; the Carrs were convicted of charges stemming from a crime spree of kidnapping, murder, rape, and robbery. The Kansas Supreme Court vacated the death sentences in each case, holding that the sentencing instructions violated U.S. Const. amend. VIII by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital sentencing determination” was violated by the trial court’s failure to sever their sentencing proceedings. The U.S. Supreme Court reversed and remanded.

        The sentencing courts were not required to affirmatively instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The Eighth Amendment was satisfied by instructions that, in context, made clear that each juror must individually assess and weigh any mitigating circumstances. The instructions said that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt but that mitigating circumstances must merely be “found to exist.” No juror would have reasonably speculated that “beyond a reasonable doubt” was the correct burden for mitigating circumstances. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence, a bar not cleared here. Even assuming that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, the record belies Ds’ contention that the instructions caused jurors to apply such a standard here.

        Furthermore, the Constitution did not require severance of the Carrs’ joint sentencing proceedings. The Court presumed that the jury followed its instructions to give separate consideration to each defendant. In light of all the evidence at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother could have “so infected” the jury’s consideration of the other’s sentence to amount to a denial of due process is beyond the pale. “Only the most extravagant speculation would lead to the conclusion that any supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair when their acts of almost inconceivable cruelty and depravity were described in excruciating detail by the sole survivor, who, for two days, relived the Wichita Massacre with the jury.”

Fifth Circuit

In sentencing Ds convicted of various offenses related to fraudulent real estate loans, the district court reversibly erred in setting the restitution amount; the court erroneously used the difference between the original loan amount and the foreclosure proceeds. United States v. Beacham, 774 F.3d 267 (5th Cir. 2014).

        The proper amount of restitution owed to a victim who purchased a fraudulently procured loan on the secondary market is what the victim paid for the mortgage, less any proceeds obtained through foreclosure. The government did not carry its burden of establishing the proper restitution amount as it pertained to the secondary-market purchasers. The Fifth Circuit vacated Ds’ sentences and remanded because the Fifth Cir­cuit could not tell how the restitution orders fit into the sen­tencing court’s “balance of sanctions.”

The Fifth Circuit upheld the denial of qualified immunity for prison officials in this lawsuit Louisiana prisoners filed challenging solitary confinement conditions. Wilkerson v. Goodwin, 774 F.3d 845 (5th Cir. 2014).

        Coupled with the extraordinary length of time the prisoners were held in solitary, the conditions in the Louisiana prisons in question were sufficiently restrictive to constitute an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” giving rise to a cognizable liberty interest. Furthermore, this liberty interest was clearly established at the relevant time.

District court was not collaterally stopped from applying a 16-level crime of violence enhancement to D on the basis of a prior Florida aggravated-battery conviction simply because another district judge of that same court had, in a prior illegal-reentry prosecution of D, sustained an objection to a 16-level enhancement on the basis of that Florida conviction. United States v. Ramos Ceron, 775 F.3d 222 (5th Cir. 2014).

        At least on plain-error review (applicable in the absence of an objection on this ground below), there was an inadequate district court record to evaluate the collateral-estoppel claim, and D cited no authority applying collateral estoppel to a prior Sentencing Guidelines ruling. Furthermore, in sentencing illegal-reentry D, the district court did not err in applying the “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of D’s prior Florida aggravated battery conviction; the offense had the requisite “force” element.

Where D (convicted on his guilty plea of fraud and unlawful procurement of naturalization) alleged, in a 28 U.S.C. § 2255 motion, that his attorney provided ineffective assistance by failing to warn him of the immigration consequences of his plea, the district court did not reversibly err in granting the government’s motion for summary judgment. United States v. Kayode, 777 F.3d 719 (5th Cir. 2014).

        Although D sufficiently alleged deficient performance in this regard under Padilla v. Kentucky, 559 U.S. 356 (2010), D did not meet his burden to show prejudice from this deficient performance.

18 U.S.C. § 924(c)(1) does not authorize multiple convictions for a single possession of a firearm; in this case, it would have been error for the jury to base two § 924(c)(1) convictions on a single firearm possessed, even if it was possessed in connection with more than one predicate crime. United States v. Campbell, 775 F.3d 664 (5th Cir. 2014).

        The jury should have been required to decide whether D possessed a second, separate firearm. However, on plain-error review, D was not entitled to relief from his second § 924(c)(1) conviction (for which he received a consecutive mandatory min­i­mum sentence of 25 years in prison) because the error here was not clear or obvious.

District court harmlessly erred in applying a 16-level crime of violence enhancement to illegal-reentry D on the basis of D’s prior conviction for stalking (Tex. Penal Code § 42.072); that offense was not an enumerated crime of violence and likewise did not have as an element the use, attempted use, or threatened use of physical force. United States v. Rodriguez-Rodriguez, 775 F.3d 706 (5th Cir. 2015).

        The district court’s error was harmless because the district court imposed the same sentence, in the alternative, as a non-Guideline sentence. The district court’s “alternative sentence” rendered the Guideline application error harmless because, in imposing it, the district court contemplated the correct Guideline range and justified the sentence with permissible factors.

D’s charges for production of child pornography (18 U.S.C. § 2251(a)) were not subject to the five-year stat­ute of limitations in 18 U.S.C. § 3282(a); a § 2251(a) vio­la­tion is “an offense involving the sexual or physical abuse of a child under the age of 18 years” that, under § 3283, could be prosecuted until the child attained age 25. United States v. Diehl, 775 F.3d 714 (5th Cir. 2015).

        (2) There was sufficient evidence on the interstate-commerce element of 18 U.S.C. § 2251(a). The evidence showed that the images were produced in Texas, but were later found on computers in other states and Australia. Moreover, there was specific evidence from which it could be inferred that D himself transmitted the images across state lines via the internet and physically transported the images across state lines.

        (3) Even though D’s 600-month sentence was a substantial upward variance from the advisory Guideline imprisonment range of 210 to 262 months, that sentence was neither procedurally nor substantively unreasonable.

Where D received a sentence reduction under Fed. R. Crim. P. 35(b), resulting in the entry of an amended judgment, that fact did not restart the one-year period for filing a 28 U.S.C. § 2255 motion under § 2255(f)(1). United States v. Olvera, 775 F.3d 726 (5th Cir. 2015).

        The modification of a sentence does not affect the finality of a criminal judgment. Nor was D’s motion timely under 28 U.S.C. § 2255(f)(3); the rule of Alleyne v. United States, 135 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.

D was not entitled to authorization to file a successive 28 U.S.C. § 2255 motion; he failed to show that any of the Supreme Court decisions on which he relied announced “a new rule of constitutional law, made retro­active to cases on collateral review by the Supreme Court[.]” In re Jackson, 776 F.3d 292 (5th Cir. 2015).

        Federal prisoner failed to show that Begay v. United States, 553 U.S. 137 (2008), Johnson v. United States, 559 U.S. 133 (2010), and Descamps v. United States, 133 S. Ct. 2276 (2013), announced “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” as required by 28 U.S.C. § 2255(h)(2).

Where D was convicted of failing to register as a sex offender (18 U.S.C. § 2250(a)), district court abused its discretion in imposing a lifetime special condition of supervised release requiring D to install computer filtering software to block/monitor access to sexually oriented websites for any computer he possessed or used. United States v. Fernandez, 776 F.3d 344 (5th Cir. 2015).

        Neither the failure-to-register offense nor D’s criminal history had any connection to computer use or the internet; the district court’s general concerns about recidivism or that D would use a computer to perpetrate future sex crimes were insufficient to justify the imposition of the software-installation special condition. The Fifth Circuit vacated that condition and remanded for entry of a corrected judgment.

Even if the frisk of D violated the Fourth Amendment, the evidence in question—child pornography on D’s cell phone—was obtained by D’s consent, which was the product of an intervening independent act of free will on D’s part that purged the taint of any alleged con­stitutional violation. United States v. Montgomery, 777 F.3d 269 (5th Cir. 2015).

        Although the temporal proximity of the discovery of the evidence to the alleged constitutional violation was a factor that favored D, the other two factors ((1) intervening circumstances, particularly D’s unsolicited consent to search the cell phone, and (2) the flagrancy of any police misconduct) did not. Collectively, the factors favored the government. Because the discovery of the evidence was sufficiently attenuated from the alleged constitutional violation, the evidence did not have to be suppressed as fruit of the poisonous tree.

Court of Criminal Appeals

State’s notice of appeal from a suppression order was untimely under Tex. Code Crim. Proc. art. 44.01(d) and Tex. R. App. P. 26.2(b) because the time for filing a no­tice of appeal from an order adverse to the State begins to run with the trial court’s signing of that order, regardless of whether the State receives notice that the order is signed. State v. Wachtendorf, 475 S.W.3d 895 (Tex.Crim.App. 2015).

        “The issue in this case is whether the time for filing a notice of appeal from an order adverse to the State should begin to run with the trial court’s signing of that order if the State re­ceived no timely notice that the order had been signed. The State asserts that it was not notified that the trial court had signed an order granting Appellee’s motion to suppress until the period for filing its notice of appeal had expired. Having re­ceived no notice of this triggering event, the State filed an untimely notice of appeal, and the Third Court of Appeals dismissed its appeal for want of jurisdiction. . . . We granted the State’s petition . . . to address its argument that the timetable for its notice of appeal should not be triggered by an event for which it obtained no notice and had no actual knowledge. We shall affirm the judgment of the court of appeals.”

Tex. Penal Code § 38.15(a)(1) was not unconstitutionally applied to Ds where the police skirmish line was a lawful exercise of police authority and, therefore, did not violate Ds’ First Amendment rights. Faust v. State, Nos. PD-0893-14, PD-0894-14 (Tex.Crim.App. Dec 9, 2015).

        Ds, while protesting a gay pride parade, each disobeyed a police officer’s order not to cross a skirmish line, resulting in their arrest for Interference with Public Duties under Tex. Pe­nal Code § 38.15(a)(1). After a consolidated bench trial, each D was convicted and sentenced to two days in jail and assessed a $286 fine. Ds appealed, asserting that § 38.15(a)(1) was unconstitutionally applied to them in violation of U.S. Const. am. 1. COA agreed and reversed their convictions. CCA reversed COA and reinstated the trial court orders.

        Section 38.15(a)(1) was not unconstitutionally applied. The police order not to cross the skirmish line during the pro­tests was content neutral because the officers intended to pre­vent direct and close confrontation between Ds and the parade-goers, the officers’ decision to prevent all members of the church from crossing the skirmish line was reasonable given previous instances of violent confrontations erupting be­tween members and parade supporters, and Ds had ample alternative channels of communication open to them as they were free to continue their protesting in all directions except one.

Under a de novo standard of review, D made a substantial showing that he was incompetent to be executed; the case was remanded for the appointment of at least two mental health experts and a determination on the merits of his competency. Mays v. State, 476 S.W.3d 454 (Tex.Crim.App. 2015).

        D was convicted of capital murder and sentenced to death. He subsequently challenged his competency to be executed. The trial court denied D’s motion because he failed to make a substantial showing of execution incompetence; D here argued that the trial court erred. CCA agreed, finding that D made a substantial showing that he was incompetent to be executed pursuant to Tex. Code Crim. Proc. art. 46.05. D presented evidence that in 1983 he was involuntarily committed to a state hospital, in 2007 he was diagnosed with dementia, during his 2008 trial numerous witnesses described him as mentally ill and exhibiting a pattern of irrational behaviors, in 2009 a neuropsychologist determined he suffered from impaired memory and dementia, an attorney who met with D in 2015 noted that he exhibited various odd behaviors and appeared delusional, and two experts expressed substantial doubts about his competency to be executed. CCA set aside the order denying relief and remanded to the trial court for further competency proceedings. The stay of execution remained in effect pending the outcome of the competency proceedings in trial court.

Where defense counsel filed an untimely Tex. R. App. P. Order 11-003 motion to withdraw or modify the execution date of D convicted of three capital murders, CCA ordered D’s two counsel to appear in person because their Rule 11-003 statements did not explain why it was impossible to file a timely motion for stay of exe­cu­tion. In re State ex rel. Risinger, 479 S.W.3d 250 (Tex.Crim.App. 2015).

If a defendant pleads true to an enhancement paragraph, a court of appeals cannot imply a trial court’s finding of true regarding that prior conviction used for enhancement when the trial judge, in his own words, refused to make such a finding. Donaldson v. State, 476 S.W.3d 433 (Tex.Crim.App. 2015).

        “The trial court did not make any affirmative findings of ‘true’ regarding the federal mail-fraud conviction in these cases. After being admonished on the enhancements, appellant pleaded true, and the trial court sentenced her within a proper punishment range for appellant’s second- and third-degree convictions. However, the trial court also sentenced appellant within the enhanced punishment range in the two state-jail-felony cases. Under [CCA precedent], appellant’s pleas of true would be sufficient to satisfy the State’s burden of proof for the enhancement allegations. Moreover, those pleas would support an implied finding in the absence of any other evidence that the trial court rejected the State’s proof on the enhancement. . . . But implying a finding that the trial court found the enhancement allegation true is not appropriate in this case. The trial court expressly stated it was not making a finding of true, and it sentenced appellant within a proper range of punishment in her other three convictions. Moreover, the trial court expressed its concern throughout the plea hearing that it could not use the federal mail-fraud conviction as a basis for enhancement. Under Texas law, the mail-fraud conviction would not be considered final for purposes of enhancement because appellant committed the subsequent offense prior to the revocation of the appellant’s probation on the mail-fraud case. But under federal law, appellant’s mail-fraud conviction was final for purposes of enhancement upon issuance of the mandate from appellant’s federal appeal. . . . The trial court’s confusion regarding his ability to use the federal conviction for purposes of enhancement supports the conclusion that the trial court did not intend to find the prior enhancement true, par­ticularly in light of the express refusal to find the mail-fraud enhancement true in any of appellant’s cases, even if the refusal was based on a mistake of law.

        “The trial court was within its discretion to reject a finding of true on the prior mail-fraud conviction. However, it lacked the authority to assess punishment outside the statutory range for a state jail felony once it refused to find the prior mail-fraud enhancement allegation true. Because the trial court imposed punishment for the state-jail felonies outside the maximum range of punishment, those sentences are illegal. . . . We reverse the judgment of the court of appeals, and remand this case to the trial court for a new punishment hearing on those two counts.”

The State’s warrantless acquisition by court order of four days of cell-site-location data recorded by D’s cell-phone service provider did not violate U.S. Const. amend. IV because a third party, the provider, gathered and maintained the data as business records of the service provided to his phone, and he did not have a legitimate expectation of privacy in the data. Ford v. State, 477 S.W.3d 321 (Tex.Crim.App. 2015).

        “We agree with the San Antonio Court of Appeals that, because a third-party, AT&T, gathered and maintained the information as business records of the service provided to Ford’s phone, Ford did not have a reasonable expectation of privacy in the data. The State did not violate Ford’s Fourth Amendment rights when it obtained that information by way of a court or­der under Article 18.21 § 5(a) of the Texas Code of Criminal Pro­cedure—an order available on a showing short of probable cause. We will affirm.”

Officers’ use of a drug-detection dog sniff at the door of D’s apartment resulted in a physical intrusion into the curtilage that exceeded the scope of any express or implied license, constituting a warrantless search in violation of U.S. Const. amend. IV; the court properly granted D’s motion to suppress. State v. Rendon, 477 S.W.3d 805 (Tex.Crim.App. 2015).

        “[W]e are asked to decide whether it constitutes a search within the meaning of the Fourth Amendment for law-enforcement officers to bring a trained drug-detection dog directly up to the front door of an apartment-home for the pur­pose of conducting a canine-narcotics sniff. We hold that it does. Consistent with [Florida v. Jardines, 133 S. Ct. 1409 (2013)], we conclude that the officers’ use of a dog sniff at the front door of the apartment-home of [D] resulted in a physical intrusion into the curtilage that exceeded the scope of any express or implied license, thereby constituting a warrantless search in violation of the Fourth Amendment. We, therefore, affirm the judgment of the court of appeals, which had affirmed the trial court’s rulings granting appellee’s motions to suppress.

        “[A]pplication of the property-rights baseline renders the present case a straightforward one. Here, the officers took a drug-detection dog directly up to the threshold of appellee’s front door, at which point the dog alerted to the presence of illegal narcotics on the bottom left portion of the door. This threshold at the door of an apartment-home located at an upstairs landing that served only two apartments is objectively ‘“intimately linked to the home, both physically and psychologically,”’ and thus was part of the curtilage. . . . The officers’ presence at that location was for the express purpose of conducting a search for illegal narcotics, which exceeded the scope of any express or implied license that is generally limited to knocking on someone’s door. . . . Under a strict application of the ‘traditional property-based understanding of the Fourth Amendment,’ we conclude that the dog sniff at the threshold of appellee’s apartment’s door was an unlawful search within the meaning of the Fourth Amendment. . . . We, therefore, narrowly hold that the curtilage extended to appellee’s front-door threshold located in a semi-private upstairs landing and that the officers’ conduct in bringing a trained narcotics-detection dog into that constitutionally protected area constituted an unlicensed physical intrusion in violation of the Fourth Amendment.”

Though the trial court erred by defining “penetration” and “female sexual organ” in its jury instructions during D’s trial for aggravated sexual assault of a child under Tex. Penal Code § 22.021(a)(1)(B)(i) as those terms were not statutorily defined, the error was harmless. Green v. State, 476 S.W.3d 440 (Tex.Crim.App. 2015).

        COA erred by reversing D’s conviction; the definitions accurately described the common meanings of the terms, the trial court instructed the jury to disregard any instruction that might have seemed to indicate its opinion about the evidence, the defense was not affected as it was focused on undermining complainant’s credibility by showing that no sexual touching of any kind had occurred, and the definitions conflicted with complainant’s testimony. “Although we agree with the court of appeals’ error analysis in that the trial court should not have defined those terms that are undefined in the applicable stat­ute, we disagree that appellant was harmed by the erroneous instructions. We, therefore, sustain in part the State’s sole ground that asserts that the court of appeals erred by finding reversible error in the jury instructions. We reverse the judgment of the court of appeals and remand this case to that court to address appellant’s remaining points of error.”

D, a public servant, committed theft by deception when he purchased an airline ticket for county-approved travel with a county credit card but used the voucher from the cancellation of the ticket for personal travel without correcting the impression that the ticket would be used for county-approved business. Fernandez v. State, 479 S.W.3d 835 (Tex.Crim.App. 2016).

        D was a Justice of the Peace in Val Verde County. He directed his chief deputy clerk to make arrangements for him to attend a conference in Orlando; the clerk booked a Southwest Airlines ticket. The nonrefundable ticket was paid for with a county-owned credit card issued in D’s name. County Auditor Frank Lowe testified that he received documentation supporting the county-business nature of the trip. Near the trip, D became ill and instructed the clerk to cancel the travel arrangements. When the clerk canceled the ticket, its price was converted into a ticket voucher in D’s name.

        Two months later, D asked the clerk for the reservation number of the flight and told her to call his son and give him the number. The clerk complied. Later that month, Lowe was reviewing the county’s expenses and noticed the county was nearing its annual limit for travel. Upon seeing this, Lowe con­tacted Southwest Airlines and attempted to get a refund for the ticket; Lowe learned the voucher had been used for a flight to Phoenix. Val Verde County has a personnel policy that prohibits the use of county property for personal use. Believing the voucher had been used for non-county-related travel, Lowe reached out to the County Attorney, who in turn reached out to the Attorney General. After the initiation of the Attorney General’s investigation, D attempted to tender payment for the voucher to the county auditor’s office, but his tender was refused.

        Lowe testified that he had not been made aware that there was any county business in Phoenix and had not received any documentation pertaining to the Phoenix trip, as was customary for county-related travel. D’s son testified in D’s defense that he was the one who initially suggested that his father use the voucher to fly to Phoenix and that at all times D intended to repay the county for the amount.

        D was convicted of theft by a public servant by way of deception, and COA and CCA affirmed. D obtained the county’s consent to use the airline voucher when he instructed his chief deputy clerk to pass along the voucher number to his son, because without the voucher number, D would have been unable to access and use the Southwest Airlines credit that re­sulted from the original Orlando ticket. By conveying the voucher number to D, the county, by way of its agent, assented to its use by D. However, when D directed the clerk to give the voucher number to his son, D failed to correct the impression he had created previously that the county funds expended on the ticket would be used for county-approved travel.

Sufficient evidence supported D’s conviction for felony assault against a family member, and the court’s error in omitting “bodily injury” in the jury charge did not cause egregious harm because the application paragraph required the jury to find a specific type of bodily injury. Marshall v. State, 479 S.W.3d 840 (Tex.Crim.App. 2016).

        A jury convicted D of felony assault against a family member under Tex. Penal Code § 22.01. On appeal, COA held that the evidence was legally sufficient but the omission of the words “bodily injury” from the jury charge’s application para­graph egregiously harmed D. CCA reversed COA and reinstated the jury verdict.

        CCA agreed that the evidence was sufficient, but disagreed that the jury charge egregiously harmed D. Sufficient evidence supported D’s conviction because complainant testified that she was unable to take deep breaths while D pressed a pillow tight against her face. Even though complainant testified that she never lost consciousness and never was completely unable to breath, that is not required to prove bodily injury under Tex. Penal Code § 1.07(a)(8); any impediment to normal breathing is a bodily injury. The trial court’s error in omitting “bodily injury” in the jury charge did not cause egregious harm because the application paragraph required the jury to find a specific type of bodily injury—impeding normal breathing, which is a bodily injury per se.

CCA rejected capital-sentenced D’s 27 points of error, including insufficiency of the evidence and media influence. Buntion v. State, No. AP-76,769 (Tex.Crim.App. Jan 27, 2016).

        In 1991, a jury convicted D of capital murder. Tex. Penal Code § 19.03(a)(1). Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, §§ 2(b) and 2(e), the trial judge sentenced D to death. Art. 37.071, § 2(g). His conviction and sentence were affirmed on direct appeal. D’s initial state habeas application was denied. His subsequent application was granted, and the case was remanded for a new pun­ishment hearing. The trial court held a new punishment hearing in 2012. Based on the jury’s answers to the special issues, the trial judge sentenced D to death. Art. 37.0711, § 3(g). Direct appeal to CCA was automatic. Art. 37.0711, § 3(j).

        CCA found D’s 27 points of error to be without merit and affirmed the trial court’s sentence of death. Primarily, the evidence was sufficient to sustain the jury’s affirmative answer to the future dangerousness special issue where it showed that D shot an officer several times during a traffic stop, he fled the scene and committed several violent offenses to evade capture, his conduct after his arrest indicated he lacked remorse, he had a prior criminal record, and his character for violence had not changed during his time in prison. Furthermore, the trial court did not abuse its discretion by denying D’s motion for change of venue due to pretrial publicity under Tex. Code Crim. Proc. art. 31.03(a), where the court declined to find that a recording of an interview D gave to a television news reporter that was played for the jury was prejudicial, and the court rejected that discussion in the media of parole or early release denied D a fair trial.

The record did not support the offense of capital murder; it did not show D murdered a victim when kidnapping another victim. Griffin v. State, No. AP-76,834 (Tex.Crim.App. Jan 27, 2016).

        In 2012, a jury convicted D of capital murder. Tex. Penal Code § 19.03(a)(2). Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, §§ 2(b) and 2(e), the judge sentenced D to death. Direct appeal to CCA was automatic. Art. 37.071, § 2(h). After reviewing D’s points of error, CCA found the record did not support capital murder. CCA reversed the trial court’s judgment and sentence of death and remanded to the trial court for reformation of the judgment and a new punishment hearing.

        Evidence did not show Tex. Penal Code § 19.03(a)(2) cap­i­tal murder because it did not show D murdered a victim when kidnapping another victim, since only after death did he restrict the second victim’s movements without consent, Tex. Penal Code § 20.01(1)(B)(i); he assaulted the second victim only after the murder was complete; and nothing showed his intent to kidnap the second victim on entering the first victim’s apartment, as he killed the first victim before knowing the second victim was there and did not try to abduct the second victim after the murder. The evidence was not insufficient for capital murder for not showing facilitation of a kidnapping because Tex. Penal Code § 19.03(a)(2) did not require facilitation. The judgment was reformed to a murder conviction because the evidence was only insufficient as to an aggravating element.

Court of Appeals

Even though counsel was deficient for failing to investigate D’s mental health history, D could not show he was prejudiced where he received a relatively short sentence of 20 years’ imprisonment for burglary of a habitation. Morrow v. State, No. 06-15-00013-CR (Tex.App.—Texarkana Feb 19, 2016).

        The evidence was sufficient to support D’s burglary conviction under Tex. Penal Code § 30.02(a)(3) where the victim testified that during their divorce proceeding she and D agreed she would have possession of the home, D moved out, and she thereafter occupied the home without him. COA affirmed the trial court.

Trial court erred by allowing the audio recording of D’s confession into evidence where the recording was conclusive evidence that the “right to terminate” warning was not given due to officer’s unintelligible reading of it; the error was not harmless. Baiza v. State, No. 11-14-00067-CR (Tex.App.—Eastland Mar 31, 2016).

        The trial court erred by allowing the audio recording of D’s confession into evidence under Tex. Code Crim. Proc. art. 38.22 where the recording of the statement was conclusive evidence that the “right to terminate” warning was not given due to the officer’s very quick reading of the warnings, to the point that they were unintelligible. The error was not harmless under Tex. R. App. P. 44.2 where the only direct evidence of sexual assault was the complainant’s account in her testimony, D’s theory throughout the trial was that the sex was consensual but his admission on the audio recording refuted that theory, and the State emphasized D’s admission during closing arguments. COA reversed and remanded for a new trial.

Buck Files Makes It 200!

In October 1986 the U.S. president was Reagan, Thatcher was UK Prime Minister, and Gorbachev was in power in Russia. The Berlin Wall yet divided East and West Germany. “Magnum PI” was the most popular TV show, the Mets won the 1986 World Series. In 1986 gas was 89 cents a gallon, a personal computer was $2,000, cell phones were just novelties, email had yet to take over the way Americans communicated, and, mercifully, disco had died. In October 1986 Buck Files wrote his first article for the Federal Corner of the Voice for the Defense.

This issue of the Voice for the Defense contains the 200th article that Buck Files has written. Buck Files’ articles have been written and published for 30 years. Every issue since the October 1986 issue has contained at least one article written by Buck. During this period there have been dynamic changes in criminal justice. Since October 1986, in the Federal system, lawyers have witnessed the implementation of the Federal Sentencing Guidelines, several significant landmark Supreme Court decisions, and the very important Batson decision affecting the way that juries are seated. The start of the War on Drugs, several decisions limiting rights under the 4th Amendment, mass incarceration, and a general belief that the 5th Amendment was just for the protection of the guilty were issues that left much to be concerned about for criminal defense attorneys in 1986.

This month TCDLA and, with its cover, the Voice for the Defense honor Buck Files. No one has provided more material to the Voice and CDLP than Buck during the last 40 years. Buck has written a staggering 200 articles. Most members have never written one. Each has been submitted before the deadline, properly cited and ready for publication. Not once has he missed a deadline. Twice he researched, wrote, and delivered his article from a hospital bed. He has been to the editors of the Voice as Cal Ripken Jr. has been to baseball.

If you have known Buck for the last 40 years, you will notice one thing has never changed. He has always worn a blue three-piece vested suit, a white shirt, a burgundy tie, with his glasses perched on the top of his head. So far as anyone knows he has worn this signature ensemble since the ‘70s—until it became fashionable again in 2016. This speaks to Buck’s consistency and sense of tradition in both his personal and professional life. One of the most interesting characters that seem to always be in trouble with the Feds and who catches Buck’s attention is the venerable “Waldo Snerd.” Mr. Snerd has been indicted, convicted in multiple Federal cases, and frequently is the unfortunate fellow that has his name printed in the Voice. Buck has followed Snerd for years. Anytime Waldo Snerd gets into trouble there is Buck following his case. We are fortunate for Snerd and for Buck’s Voice articles about Snerd’s legal problems, as we always are given a new arrow to put in our legal quiver.

Buck is a legend in the courts of East Texas and has tried some of the most important cases in Texas during his 53 years of practice. In the high-profile State of Texas vs. Deana Laney case he became one of the few criminal defense lawyers who successfully obtained a verdict of Not Guilty by Reason of Insanity. Recently Buck, Stan Schneider, and Casie Gotro in Paroline v. United States, No. 12-8561, won a decision in the U.S. Supreme Court that limited damage claims in child pornography cases. Presently, he is working on a research project on Federal Forfeiture which portends to be a tour de force on the subject.

The credentials and accomplishments of Buck Files in the law are almost unprecedented. Buck is a Past President of the State Bar of Texas, a Charter Member of TCDLA, a member of the TCDLA Hall of Fame, and a former director of TCDLA. In June he becomes the first criminal defense attorney and TCDLA member to be Chair of the Texas Bar Foundation. Buck is Board Certified in Criminal Law and was in the charter class in 1975. He was a Marine Corps officer during the Vietnam War. He graduated from Austin College with a BA. He holds an MLA and a JD from SMU Law School. Buck is most proud of his wife of 54 years, Robyn, his two children, and three grandchildren. Buck is a founding partner in the excellent law firm of Bain, Files, Jarrett, Bain and Harrison, P.C., in Tyler.

The Texas Criminal Defense Lawyers Association and its 3,200 members this month honor Buck Files for the publication of his 200th article for the Voice for the Defense and look forward to another 200.

“Never Quit. Never.” A Tribute to Buck Files

There is a blithe irony in our honoring Buck for his 200th article for this publication—a man of few words for having expressed literally thousands of them. In fact, if you know Buck, you’ve likely had entire conversations when he used only three: “Never Quit. Never.”

Buck calls that phrase his “mantra,” and it is profoundly self-expository. In fact, it is its speaker in sum.

Authoring 200 articles says something about steadfastness. Then again, everything Buck does says something about steadfastness. He has practiced law for over 50 years. With the same law partner for 40 years. While married to the same remarkable woman for 53 years. And serving as a faithful member of the same church for 50 years.

I am baffled—actually awed—by how lawyers who practice criminal law—the people who read and write for this publication—steadfastly remain the people they want and need to be in light of what they must encounter. Buck embodies this. After seeing so much wickedness, remaining so decent; observing so much duplicity, keeping so honorable; dealing with so much inconstancy, abiding in such faithfulness.

Buck extracts from his experiences—even the challenging ones—something redemptive. Because of his service as a Marine first lieutenant in Vietnam, Buck visits his jailed clients every Christmas morning. “I spent Christmas 1965 outside of Da Nang; I know what it’s like to be away from family.” Additionally there are his weekly visits “so they know there’s someone who cares about them.” Not surprising that one of the most formative of his experiences was provided by an institution whose motto is

Semper Fi.

Is there a person more generous with his friendship? A fellow State Bar Board member asked me several years ago: “You and Buck are such great friends, how long have you known each other?” Glancing at my watch: “About 45 minutes,” I replied.

Campaigning for State Bar President-elect is punishing—doubly so when you live two hours from the nearest airport. During March 2011, Buck spent 25 nights away from his home in Tyler as he campaigned across the state. Four years later, when it was my turn in the barrel, he left the same phone message every evening: “Never quit. Never.”

It is so easy to become nothing but the servant of our experiences, instead of their master. Or to blend in by donning the expedient camouflage of an increasingly relativist culture in which our highest principles have the durability of gnats. Against all that, a useful corrective is Buck’s singular steadfastness:

He has served one country
Supported one firm
Advanced one profession
Nurtured one family
Loved one woman
Worshipped one Lord

If we think people like Buck come around for no reason, we do so at our profound peril. People like Buck remind us that despite all that life exposes to, inflicts upon, and exacts from us, we must steadfastly remain the people we want and need to be. Except that Buck would say it more directly.

He’d say, “Never Quit. Never.”

2016 TCDLA Long Range Plan

TCDLA Long Range Planning Committee Members, 2015–2016: Edward Mallett (Chair),
William Harris (Co-Chair), Marjorie Bachman, Craig Jett, and Stephanie Patten.
TCDLA Long Range Planning Committee Staff: Joseph Martinez, Melissa Schank

Participants: Sam Bassett (President, TCDLA), John Convery (President-Elect)

Preamble

This Long Range Plan seeks to provide a proactive institutional guide for TCDLA during the next five years. While TCDLA has and will continue to respond to issues in the criminal justice system as they arise, the Long Range Planning Committee has identified several areas in which the organization may best fulfill its mission by setting specific and identifiable goals to better serve our members, the citizen accused, and society at large. These issues include: membership growth; organizational funding; increasing diversity both in membership and leadership; developing relationships with bar associations and law schools; and strengthening TCDLA’s participation in the development of public policy.

Goals at Committee Findings and Recommendations

The Committee has identified the following areas of particularized Long Range concern for TCDLA. The Committee believes these ideas should be adopted by the Board. Where appropriate, the Committee has recommended specific actions to implement the stated goals.

I. Public Policy and Guiding Principles—Long Range Plan

GOAL: Taking a position and speaking out on the most important issues facing criminal justice in Texas and the United States.

The goals of TCDLA should include publishing and presenting public statements on those issues on which nearly all criminal defense lawyers can agree. We value diversity of opinion, and minority views should not be suppressed. We recognize that a minority opinion can become the majority. However, we believe that as of the adoption of this Report, TCDLA can proudly say it stands for something: for a more just society, for protection of our members, and legislation and administration of the criminal law to benefit society. The goals include supporting these policies:

1.   The purpose of TCDLA is to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are now being made to curtail such rights; to encourage cooperation between lawyers engaged in the furtherance of such objectives through education programs and other assistance; and through such cooperation, education, and assistance to promote justice and the common good.

2.   The duty of TCDLA members representing the poor is based on the Constitutional promise of effective assistance of counsel, enshrined in the United States and Texas Constitutions. We, criminal defense lawyers, should be paid in amounts commensurate with prosecutors and consistent with court-approved attorney compensation in civil cases. The same courts that pay lawyers appointed to represent the poor, in criminal cases, frequently approve civil attorney fees, including statutory and ad litem fees. Every courthouse observer knows that fees in civil cases are frequently in the hundreds of dollars per hour—namely, the billing rates for private attorneys in civil cases. At the same time, many public defender offices are structured to pay staff counsel in parity with prosecutors, in addition being provided offices and related medical insurance, federal or state employee retirement benefits, etc. TCDLA’s goals include establishing income parity with civil rates and fees for lawyers appointed to represent indigent defendants.

3.   Opposition to Capital Punishment: Every person in the United States knows that there are frequent reports of death row defendants who have been exonerated. Death, because of its finality, is different: TCDLA opposes the death penalty.

4.   Offender Registration Laws: We note that politicians, victim advocates, and the news media have not yet proposed lifetime registration for drunk drivers, thieves, and drug abuses—though all those offenses have higher rates of re­cid­i­vism than statutory sex offender offenses. For their “pru­ri­ent interest,” sex crimes have become a distinct class. TCDLA opposes offender registration and community notification laws. The Supreme Court has, so far, held that sex-offender registration laws were written as “health and safety regulations,” and not as punishment. Every practicing defense attorney knows that this is total fiction. Of course, it’s punishment. The states and the Congress have established schemes holding that “reportable convictions,” include remote-in-time deferred adjudications that began before the registration laws were passed, despite plea agreements reciting “no registration required.” Registrants often can often obtain neither jobs nor housing. The historical principle that a convict pays a debt to society, and is allowed re-entry after rehabilitation, has been replaced with lifetime servitude under a web of state and federal laws. TCDLA opposes all offender registration laws.

5.   Civil Commitment After Completion of Sentence: Since 1999, there have been over 400 men civilly committed to a so-called “outpatient treatment” after completing their “sex offense” punishment, in Texas prisons. The American Psychiatric Association vigorously opposed the creation of civil commitment laws, stating that this unacceptable misuse of psychiatry results in violations of individual civil rights and double jeopardy and creates a slippery slope, leading to the future incarceration, without proper legal grounds, of other groups deemed to have undesirable “mental disorders.” The world has seen this before, notably in Nazi Germany.
 The commitment process has been marketed to the courts as “treatment,” not punishment, and necessary for the protection of the public. The State of Texas invented the term “behavioral abnormality” to encompass the class of people they believed were in need of “treatment,” through civil commitment. The State of Texas found experts willing to testify for $300 an hour that such a diagnosis exists though it is not recognized by psychiatry. There is no such classification in the DSM-V. To date, not one civilly committed man has been discharged from “treatment,” except by death. Although recent publicity may result in a token discharge to indefinite supervision by parole officials, the State systematically confines the selected group in for-profit facilities around the state. There is no data to support that there has been any increase in public safety as a result of these civil commitments. The commitment statutes also criminalize otherwise innocent conduct by providing that any violation, even one of the hundreds of conditions of a civil commitment order, is a third-degree felony.
 TCDLA opposes the indefinite civil commitment of of­fenders who have already served their sentences as an unconstitutional form of indefinite preventive detention. This system is, in fact, punishment, and violates the Constitutional prohibitions against double jeopardy, is an ex post facto criminal law, and punishes without due process of law.

6.   The Long Range Plan is intended to help strengthen ­TCDLA’s participation in public policy. This goal of TCDLA encourages member discussion, study, and debate. From time to time TCDLA should state our formal opinion on the most important issues associated with justice and crime in America.

II. Finances—Long Range Plan

GOAL: Sustained growth, with stability.

Recommendations:

1.   Member Dues: The last dues increase, in 2014, which was the first increase in 20 years, was not followed by a decline in membership. However, TCDLA recognizes that the combined cost of TCDLA and State Bar dues, plus the cost of memberships in local affiliates and other bar groups such as the NACDL and ABA, is a significant amount that some lawyers can hardly afford. We recommend that dues not be increased before 2024.

2.   Membership Size: TCDLA has grown from the original 17 Charter Members, meeting in the Chaparral Room of the Adolphus Hotel in 1971, to more than 3,400 members. The duties of Board Members should include helping to increase and diversify our membership. We recommend that the Board set, at the time of each annual meeting, the next year’s goal for new members that takes into consideration growth in population and the number of new lawyers in Texas. Every Board member should sign up at least one new member. Records of who recruits our new members, and how many, should be reported to the Nominating Committee. Whether we have achieved our membership goals should be reported to the Board.

3.   Financial Grants: TCDLA, and the closely related TCDLEI, have benefited from the Texas Legislature’s commitment to lawyer training. We are grateful to receive Court of Criminal Appeals–administered grants from the court fees and costs that are collected by municipal, county, and district clerks. In 2014, about 4.84% of all of those funds were administered by the Court of Criminal Appeals and shared by TCDLA, the District and County Attorneys Association, and other groups for lawyer training. This grant from the CCA now amounts to almost half of TCDLA’s total expenditures and staff time. We recommend that (1) our officers should be fully informed about the statutory and appropriation procedures by which court fees and costs are collected and shared with TCDLA for defense lawyer training; (2) it should be the policy of TCDLA to hold court costs collected from defendants, and especially indigent defendants, to a minimum, and TCDLA should oppose new or increased fees; and (3) the President or Executive Director, annually, should report on TCDLA’s efforts to obtain additional grants from new sources.

4.   Additional Grants and Other Income: TCDLA must explore additional funding sources. Where appropriate, TCDLA can also be promoted as a gift and grant recipient. We are aware that NACDL has “partnered” with other organizations on common interests, such as the Koch Foundation (“over-criminalization” and a need for a proof of criminal intent) and the ACLU (Death Penalty). Many nonprofits employ a “grant writer.” TCDLA should assign, or hire, staff to “prospect” for similar grants. When practical, overhead expenses should be built into grant administration as general support so that all expenses are recovered. TCDLA should also encourage individual commitments for bequests, gifts, and other donations, much like the fundraising conducted by charities and private universities.

5.   Money Management: TCDLA’s discretionary cash is in a savings account earning ordinary interest on about $350,000. TCDLA also has about $100,000 in a so-called investment account (which is not invested), also in savings. We recommend that the Executive Committee select, and recommend for Board approval, an outside financial advisor who will invest these savings in a diversified holding of stocks and bonds, with benchmarks recommended by the advisor. We further recommend that additional savings, for reserves, remain a line-item in the budget, and that TCDLA set aside an amount that is approximately 4% of TCDLA’s net revenue from NACDL-sponsored CLE and gross revenue from dues each year. The purpose is to have a sufficient “rainy day fund” so that TCDLA can survive if we ever faced economic catastrophe, and which also might allow the TCDLA to take advantage of a fortuitous opportunity to make a substantial investment, such as when purchasing our next home office. A suggested goal is to have about 12 months cost of administering our affairs in reserve.

6.   Home Office: TCDLA first used the offices of its founders, then rented office space, and then bought a small residential-type building on 12th Street in Austin. We grew. TCDLA is now paying off an $800,000 mortgage to TCDLEI on our 6,000-square-foot building at 6808 Meadow Hill Drive in Southwest Austin. The Home Office, though adequate in size, is located 30–60 minutes from the Texas Capitol building, the Court of Criminal Appeals, and Travis County’s state and federal courts. It is not a convenient place for use for committee meetings in Austin, TCDLA lobbying activity, or use by individual members. However, recent highway construction has possibly made our building an attractive location for business offices needing space in the rapidly developing suburban area along both Highway 290, west to Dripping Springs, and Highway 71, north to Lake Travis. We are “selling” part of the highway frontage because of eminent domain. Soon it might be profitable to sell, especially if there is a buying opportunity closer to downtown. The strategy is to sell high and buy low. The purpose is to move the home office to a central location so that members, committees, and the Board can use it.

III. Diversity—Long Range Plan

GOAL: TCDLA must have a policy of affirmative action to increase and maintain diversity in TCDLA’s membership, leadership and CLE programs.

TCDLA values the differences in people. Diversity recognizes that people with different backgrounds, skills, attitudes, and experiences bring fresh ideas and perceptions. TCDLA should encourage and harness these differences to make TCDLA programs relevant and useful. TCDLA should draw upon the widest possible range of views and experiences so it can listen to and meet the changing needs of its members and the public. The encouragement of diversity benefits TCDLA.

The Long Range Plan recognizes that the composition of our membership changes over time. We started with 16 men and one woman. TCDLA has worked hard to include rural, suburban, and urban lawyers, solo practitioners and members of a firm. At times there has been attention to what the law calls “cognizable groups,” including women and people of color. The appointment, in 2016, of a TCDLA Woman’s Caucus demonstrates TCDLA’s commitment to diversity in membership and leadership. We need to encourage the inclusion of Asians, the LGBTQ community, and groups whose distinct identify is not yet clearly established.

The Long Range Plan proposes adoption of a bylaw amend­ment to encourage more diversity, as follows: The nom­i­nat­ing committee should be instructed to consider the com­position of the Board and encourage, or recruit, lawyers for nomination who, if elected, will increase diversity. Now “recruits” should also be encouraged to write for the Voice and considered as seminar speakers.

To increase diversity, the formal nominations meeting should be moved from the second quarterly meeting to the third. This will allow more time for directors to work to be of ser­vice, and for directors seeking re-nomination (as well as potential new directors) to be evaluated. In 2015–2016, for example, nominations were solicited in October, decided in November, and the new leaders selected on that calendar will start their terms in June. Anyone passed over was “out,” or a “lame duck,” after November 2015.

The Long Range Plan is to reduce the period between nom­i­na­tion and inauguration—and to allow for affirmative action and recruitment to increase diversity, as well as to encourage more attendance and more active participation. TCDLA has the most up-to-date information technology, including the ability to inform members through the internet. If necessary, TCDLA can hold elections online, using our listserv, as well as the Voice. A shorter nomination inauguration schedule can be easily achieved, will help develop “doers” as new leaders, and enhance overall diversity.

IV. State Bar and Specialty Bars

The goals of TCDLA include encouraging our members to ac­tively participate and seek leadership roles in other lawyer organizations.

TCDLA is the pre-eminent organization for criminal defense lawyers in Texas. The Long Range Planning Committee recognizes that there are many professional organizations that provide service to lawyers and the public. We believe that the long-term interests of lawyers, other bar groups, and the public are entirely consistent with the mission of TCDLA.

The 2014 election of TDCLA Charter Member Buck Files as President of the State Bar was historic: Never before had a full-time criminal defense attorney been elected to lead all the lawyers in the state of Texas. His example should encourage our members to consider offices in the State Bar for its Board of Directors, as well as local bar associations and specialty bars throughout the state of Texas and the United States.

TCDLA should be a source of information for our members considering leadership in other groups. The Voice can publish helpful information. Either a staff member or a TCDLA committee should provide, or publish, the answers to obvious questions, such as: How do I get on the State Bar Board? What about the Young Lawyer’s Association? The ABA Criminal Justice Section? NACDL? A grievance committee? And so on.

At the same time, TCDLA must enforce its conflict of interest policy. This is a practical, legal, and ethical rule: Essentially, our Officers and Directors should not use TCDLA’s proprietary information for the financial advantage of some other organization in direct competition with TCDLA, except when disclosed and approved by the Board or the members.

V. Technology—Long Range Planning

GOAL: TCDLA must provide member support in the use of advanced information technology.

TCDLA has made considerable progress over the past decade by providing technological assets that benefit our membership. Our listserv provides a means to communicate on a regular basis, sharing news and information relevant to the practice of criminal law. We have developed an online Voice for the Defense with numerous features including the functionality of allowing for computer searches of the site for relevant past articles. We provide free apps for tablets and smart phones with the text of most of the rules and statutes relevant to criminal practice. We provide seminar material in digital format and have discussed, for some time, providing CLE via the internet. We maintain a sophisticated website for the benefit of our members and the public.

Moving forward, there are at least three areas in which we could advance our use of technology. First, we can develop the capacity to make first-rate CLE available on the internet. In conjunction with this advance, we should develop an app that allows members to access current and past CLE video content via their computers, laptops, tablets, and smart phones. The success of webinars by NACDL and other CLE providers should be studied and considered. We suggest that this app be separate from and in addition to our current app in order to avoid compromising the function of either.

Most filings and research are now conducted over the internet. This trend is being mandated by the courts and will only continue to grow. Most trials now involve some level of technology to be competitive with the prosecution in communicating with the jury. As time passes, jurors will come to expect competency in this realm of communication. Nothing is gained by professing and demonstrating ineptitude in the use of technology the prosecution uses to communicate with the jury.

The practice of law increasingly requires computer literacy. We should consider providing regular training to allow our members to improve their computer skills and increase their understanding of the function of the vast array of media available, now and in the future, in the practice of criminal law. Computers, software, and the internet are still “new” to many lawyers who did not have these tools available until relatively recently. This type of training is different from the typical CLE lecture format. It can only be meaningful if we provide an opportunity to learn by doing, rather than simply lecturing our members on the magic available to them if only they learn how to use it. Finally, we cannot provide the services we currently provide nor advance our goals without developing a robust Information Technology capacity for TCDLA. In the short term this may involve a larger budget for contract services. We need to study the Austin market and decide whether to employ full-time staff or regularly reviewed contractors to maintain the technological products and support that we provide, and to implement new technological benefits, for the organization and the members, whenever possible. The Long Range Plan is always to stay up-to-date, in the short run and in the future as well.

VI. Long-Term Relationship With Law Schools

GOAL: The Long Range Plan goal is to establish an ongoing, cooperative and mutually beneficial relationship with each law school in Texas.

Our efforts to achieve TCDLA’s mission not only can, but should, start when future lawyers receive their initial legal, academic, and ethical training. If we can start there, we can help the law schools produce better-trained lawyers and introduce them to the practice of criminal law.

There are ten law schools in the state of Texas. There are three in Houston: the University of Houston, South Texas College of Law, and Thurgood Marshall School of Law; two in Dallas: Southern Methodist University and the University of North Texas School of Law; one in Austin, University of Texas; one in Lubbock, at Texas Tech; one in Waco, at Baylor; one in Fort Worth, Texas A & M School of Law; and one in San Antonio, at St. Mary’s University.

TCDLA should do the following:

1.   Establish a relationship with each law school by regular contact with the administration, and particularly with the faculty and student organizations that are involved in criminal law.

2.   Promote and publicize our training programs to the students at the law schools.

3.   Allow law students to attend our training programs without charge.

4.   When we have continuing legal education events in or near a city that has a law school, we should particularly publicize the event to the law students and invite them to attend. Try to have, whenever possible, CLE events at or near one or more of our law schools each year.

5.   Offer TCDLA members as speakers and teachers to the law schools and as judges at law school competitions.

6.   Donate publications to law schools libraries, particularly to clinical programs.

7.   Each year, at least one Board Member should be appointed as liaison to each law school in Texas, and asked to submit an annual Report on TCDLA’s relations with the school.

Approved this the 1st day of March, 2016.

________________________

Sam Bassett
President, TCDLA

The Kibitzer Case

Perhaps the most unusual appearance as attorney of record in a case I ever experienced occurred in a case in which the government had already rested its case before I became involved.

Gerry Goldstein, a San Antonio criminal defense lawyer who has now established a national reputation and who had al­ready established a regional reputation at the time, was representing a South Texas banker who was something of an operator, having arranged to obtain controlling interest of several different banks in a very short period of time. Gerry was also representing his wife, who was not involved in the banking business, but who had signed (because of Texas’ Community Property laws) certain documents that were important to the prosecution of her husband, thereby causing the Grand Jury to name her as a codefendant in three counts of the many-count indictment against her husband and two of the bank officers.

Since she clearly had no actual involvement in the banking operations of her husband, it had been anticipated that when the government concluded its case in chief, the judge would grant an instructed verdict of Not Guilty as to the wife. To everyone’s chagrin but to the particular chagrin of the banker’s wife, that did not occur.

At that point, though the relationship between husband and wife continued to be just fine, the specter of a conflict of in­terest raised its head.

While the wife did not wish to injure her husband, who was already in enough difficulty, she certainly didn’t want to go down with him if he did go down, since she had nothing to do with the banking machinations that resulted in the indictment.

The husband, too, though profoundly interested in his own defense, wanted to see to it that his wife was exonerated, whatever happened to him.

Thus, after several days of trial, none of which I had seen and none of the issues of which I really understood, I was asked at this juncture to undertake the separate representation of the wife.

I was acquainted with the issues in the case and the evidence relevant to the defense of the wife over a weekend, by Gerry and a young lawyer who was working with him.

There was a substantial potential prejudice to both my client and her husband if it was suddenly announced to the jury in mid-trial that I was now representing the wife. We certainly couldn’t tell them why I was now entering the case, and we couldn’t afford to invite their speculation. After some discussion, therefore, it was agreed that I would sit in on the trial and would suggest any necessary questions to be asked of the witnesses for the benefit of my client, and Gerry would ask them. Only if a situation arose in which the wife’s lawyer was duty bound to ask a question that would be contrary to the interests of the husband would I step forward, announce my status as wife’s lawyer, and ask the appropriate questions.

Further, I would not argue the case unless an argument adverse to husband’s interest needed to be made on behalf of the wife.

I don’t think either lawyer or either client was entirely satisfied with this arrangement, but it was the best we could make of a difficult situation.

For the next several days, while the defendants put on their case, I sat at the defense table between Gerry and my client, listening very carefully to the testimony and conferring periodically with one or the other of them. To his very great credit, Gerry was able not only to bear in mind the separate interests of the woman who was now my client, but was able to ask every question and raise every issue necessary to her defense without ever jeopardizing his own client. Nevertheless, our mutual discomfort continued.

It was particularly hard for us to jointly decide that Gerry would argue for both defendants; but it was finally agreed that she would be served no better by separate argument by me in her behalf than by Gerry periodically noting that, whatever husband’s involvement was, it was perfectly clear that wife was not involved, and that when she signed documents she did so as an accommodation to her husband, not really understanding the transactions involved.

Gerry argued the case very well on behalf of husband and wife—well enough, in fact, that the jury acquitted the husband on a large number of counts, though convicting on some. I breathed easier than I had since becoming involved, moreover, when I heard the magic words “Not Guilty” pronounced as to each of the counts against the wife.

In retrospect, it is strange to realize that some of the most anxious moments I ever spent in a courtroom were spent sitting beside a lovely lady and trying to look intelligent while Gerry Goldstein got her acquitted.

Note: In the March issue of Voice for the Defense, Judge Priest’s article, “A Lesson in Double Jeopardy,” was inadvertently truncated by a problem in file translation. We regret the error: The responsible employee has been properly flogged and the story reconstituted in its entirety and uploaded as the new online version. It may now be viewed beginning on page 37 at this link: http://www.voiceforthedefenseonline.com/newsletters/2016/Mar2016.pdf.

Privilege vs. Confidentiality

We’ve all been there. You’re set for trial, you get the State’s witness list, and a name seems vaguely familiar… and uh-oh, you’ve represented one of the witnesses before. And now the state intends to call him as a witness at trial, to testify against your current client.

So what do you do? Can you continue forward with trial, and to your current client’s benefit, impeach that former client with a theft/felony/crime of moral turpitude conviction you helped him get years ago?

The law is very straightforward, although the practical application can be messy. Under Rule 1.05 of the Texas Rules of Professional Responsibility, a lawyer cannot use confidential information against a former client, for the lawyers benefit, for a new client’s benefit. So what exactly is confidential information? Well Rule 1.05 (a) says it this way:

Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client [emphasis added].

So that means that privileged information obtained in the secret come-to-Jesus meeting in your office, and unprivileged information obtained from the normal course of your representation, are both confidential information for the purposes of Rule 1.05. So unless information is publicly known (widely known to the general public, usually as a result of media coverage, but not just available to the public as a public record), you can’t divulge information you know about a former client. (See Texas Ethics Opinion 595.)

So as the trial lawyer in our example, you are put in a huge ethical dilemma. If you reveal confidential information, you subject yourself to possible sanctions. If you hold back and don’t use that information to your current client’s benefit, you commit another rules violation in that you have a conflict of interest with either your former client under Rule 1.09(a) (conflict of interest with former client) and Rule 1.06(b)(2) (conflict of interest with current client).

So what should you do? Tell the judge of this problem so it’s out in the open. And what happens then? Most likely, he or she will probably do one of three things: 1) take you off the case, 2) ask for your former client’s consent so you can spill the beans (just make sure it’s informed consent, not just a “yeah, whatever” from your old client), or 3) irritated, order you to quit stalling and go forward with trial.

If the court takes you off the case, then you’re out of ethical hot water (except you may have to give money back to your current client). If the client consents, you’re good to go. If the court orders you to go forward, that in and of itself is an exception to the prohibition against disclosing confidential information un­der rule 1.05(c)(4).

There are a few “get out of jail free” exceptions to this problem as well. Defending yourself against allegations of wrongdoing, fee disputes, etc., can all make confidential information fair game. If you ever get jammed up or confused, you can always call the TCDLA ethics hotline at 512-646-2734. They are very knowledgeable lawyers and are there to help. Good luck and have fun!

May 2016 Complete Issue – PDF Download

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Features
25 | Buck Files Makes It 200! – By Bobby Mims
27 | “Never Quit. Never.” A Tribute to Buck Files – By Frank E. Stevenson
29 | 2016 TCDLA Long Range Plan – By TCDLA Long Range Planning Committee
35 | The Kibitzer Case – By Judge Wayne Patrick Priest
37 | Privilege vs. Confidentiality – By Dean Watts

Columns
7 | President’s Message
9 | Executive Director’s Perspective
11 | Editor’s Comment
12 | Ethics and the Law
14 | Off the Back
16 | Federal Corner
20 | Said & Done

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

President’s Message: Have You Ever . . . – By Samuel E. Bassett

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Have you ever…..

comforted a mother watching her son being handcuffed for prison?
counseled a young person shaking from drug withdrawals?
tried to find a way to say you’re sorry to a crime victim in your case?
worked countless hours for a client who can’t pay you a dime?
gotten sick to your stomach during trial?
awakened at night, writing notes to yourself thinking of ideas for trial?
been threatened with arrest while representing a client while in a jury trial?
had your children ask why you represent someone who did something bad?
thought about how you could have done a better job for a client?
had to apologize to a client for making a mistake?
wondered how you’d pay bills for your office?
had to fire someone who worked for you for years?
done all you could for a client who then yelled at you in anger?
had a client take their own life?
wept silently as you saw crime scene photos?

Have you ever…

experienced the joy of a not guilty verdict after months of hard work?
gotten a hug from a client, or a client’s parents, after a job well done?
had an addict client visit you after years of sobriety to thank you?
helped a client gain custody of children after being falsely accused of abusing them?
helped to expose a corrupt law enforcement officer or prosecutor?
played a positive role in getting a fellow attorney help with an addiction?
breathed a huge sigh of relief after fighting for a just result and seeing it happen?
received a thank you note from a crime victim in a case you handled for the defense?
seen one of your career dreams come true—leading a remarkable organization of lawyers committed to the endless fight for individual rights and justice?

I have experienced all of these and more . . . and I’m grateful to have been your President for these past few months. Thanks for continuing to make TCDLA the best organization of its kind in the United States. Good verdicts to you all.

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

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The TCDLA Board of Directors met on Saturday, February 13, 2016, in New Orleans. The following motions were made and passed:

MOTION: To adopt the minutes from the TCDLA Board Meeting on December 5, 2015, in Austin made by Mark Snodgrass, seconded by Kerri Anderson—motion carries.
MOTION: To approve Andrea Keilen for the General Counsel position made by Adam Kobs, seconded by Lance Evans—motion carries unanimously.
MOTION: To allow Associate Directors to continue to serve if their term is up and there are no more positions available as a Director, with Board approval, made by Roberto Balli.
MOTION: To table previous motion, made by Grant Scheiner, seconded by Susan Anderson—motion to table carries.
MOTION to adjourn meeting at 12:42 p.m. made by David Ryan, seconded by Susan Anderson—motion carries.

Special thanks to Lenard Stramm (Greenbelt, MD), Dean of the National College for DUI Defense (NCDD), for allowing TCDLA to co-sponsor their 23rd annual Mastering Scientific Evidence seminar in New Orleans in March. Thanks to our course directors, Troy McKinney (Houston), Gary Trichter (Bandera), Mimi Coffee (Fort Worth), and Doug Murphy (Houston), and speakers’ help and support, we had 158 attendees. This is the 10th year TCDLA has co-sponsored MSE with NCDD.

We also thank Dean Stramm and the Board of Regents of NCDD for approving a three-year extension on our memorandum of understanding for co-sponsoring MSE through 2020. TCDLA has benefited from our working relationship with NCDD. We look forward to working with incoming Dean James Nesci (Tucson) for many more years of cooperation.

Special thanks to our Deans of the 40th Annual Texas Criminal Trial College held in Huntsville in March. Lydia Clay-Jackson (Conroe) is the Dean of Students, and Tim Evans (Fort Worth) is the Dean of Faculty. This year we had 40 faculty from all around Texas and 73 lawyers being trained in trial skills. All in all it was a very successful college in March.

We thank Philip Lyons, Interim Dean of Sam Houston State University, for his support of the college and Ms. Ann Broussard, administrative assistant, who provides extraordinary support throughout the college. We thank A. K. Khan, general manager of the University Hotel, who ensures the best accommodations for everyone. We also thank Katie Stefaniak, theater manager of the Sam Houston University drama department, who provides the actors to enhance the real-life courtroom experience for the lawyers.

Finally, we thank the board of Texas Criminal Defense Lawyers Educational Institute for providing the Hostility (Hospitality) Room snacks and refreshments over the five evenings of the college. The Texas Criminal Trial College was funded by our CDLP grant from the Texas Court of Criminal Appeals.

Thanks to our course directors, Jaime Escuder (Alpine) and Jani Maselli Wood (Houston), for our CDLP Upholding Justice One Client at a Time held in Alpine in March. Thanks to their help and our speakers, we had 32 attendees.

Special thanks to Dean Dannye R. Holley, Thurgood Marshall School of Law, for allowing TCDLA/CDLP to co-sponsor the Earl Carl Institute 3rd Annual Child Welfare Forensics Con­ference held at the Thurgood Marshall School of Law in Houston. Thanks to our course directors and speakers, we had 42 attendees.

Special thanks to our course directors, Jeff Harrelson (Texarkana), Jason Horton (Texarkana), and John Hunter Smith (Sherman), for our Upholding Justice One Client at a Time seminar held in Texarkana in April. Thanks to their help and our speakers, we had 27 attendees.

Special thanks to Marty Truss, President of the San Antonio Bar Association (SABA), for allowing TCDLA/CDLP to co-sponsor the 53rd Annual Criminal Law Institute, in honor of District Judge A. A. Semaan. This is the oldest-running CLE event in the State of Texas. Thanks to the course directors, Mark Stevens, John Convery, and Robert Price IV (all from San Antonio), and the speakers, we had 163 attendees. TCDLA Board of Directors approved a resolution recognizing Jimmy Allison for his 40 years of service as Executive Director of SABA. The resolution was presented to Jimmy at the seminar.

Thanks to our course directors, Jani Maselli Woods (Houston) and Stan Schwieger (Waco), for our Upholding Justice One Client at a Time seminar held in Waco in April. Thanks to their efforts and the speakers, we had 72 attendees.

Thanks to the Harris County Criminal Lawyers Association for allowing TCDLA/CDLP to co-sponsor the Judge Wendell Appellate and Trial Preservation seminar held in Houston. Thanks to the course directors, Jani Maselli Wood (Houston), David Ryan (Houston), and David Shulman (Austin), and our speakers, we had 47 attendees.

This year’s Rusty theme is “Lawyers, Guns & Money.” The TCDLA Membership Party will be an ’80s theme with music by the Spazmatics. It will be a fundraiser for TCDLEI to provide scholarships to lawyers. 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 morning down the unique and picturesque San Antonio River. See you in San Antonio.

Join us for the 24th Annual Pachanga (Party) at the Goldsteins’ (Kristi and Gerry). The Goldstein Pachanga is a cultural icon, with 600+ people gathering in the Goldsteins’ backyard around their pool and feasting on food, beverages, and great company.

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.

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

Don’t have a local criminal defense bar in your area? Would you like to re-energize or 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 Gold Standard – By Sarah Roland

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The gold standard—the absolute best, the benchmark, the epitome of perfection. It’s what many of us aspire to be professionally and what few actually achieve. Buck Files is no doubt the gold standard among us. He has been a consistent and quality contributor to The Voice for 30 years. In this regard, his contribution to TCDLA is unparalleled. TCDLA is fortunate to have had Buck on its team for all these years. There is no sign of him slowing down, either! 

As a small token of thanks for all that Buck has done for The Voice, we honor him and his contributions in this issue, which features his 200th article. Please enjoy the articles written by some of the lawyers who have known Buck the best throughout the years. When you see him around, stop and tell him thanks for all that he has done for all of us. Let’s continue to learn from him. And let’s use Buck as an inspiration to put pen to paper or fingers to keys and write that article for The Voice that’s been lingering in your mind.