Monthly archive

March 2017

April 2017 SDR – Voice for the Defense Vol. 46, No. 3

Voice for the Defense Volume 46, No. 3 Edition

Editor: Michael Mowla

From author Michael Mowla:

1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

2. The case-opinions range from 5 to over 100 pages, so I focus on the most relevant parts to write summaries of one to four pages.

3. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

4. The summaries reflect only the facts and relevant holdings of the cases and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

5. I use the following abbreviations: Supreme Court of the United States (“SCOTUS”); Fifth Circuit (“USCA5”); other federal appellate courts (“USCA[court number]”); Texas Court of Criminal Appeals (“TCCA”); Texas Courts of Appeals (“TCA[court number], i.e., the Texas Fifth Court of Appeals is “TCA5”); Certificate of Appealability (“COA”); IATC (“IATC”); findings of fact and conclusions of law (“FFCL”); motion to suppress (“MTS”); motion for continuance (“MFC”); grand jury (“GJ”); Drug-Free Zone (“DFZ”); and United States Sentencing Guidelines (“U.S.S.G.”)

6. A more complete and in depth recitation of the facts and analysis is provided in the online SDR which is published electronically.

Supreme Court of the United States

Buck v. Davis, ___ U.S. ___, No. 15-8049, 2017 U.S. LEXIS 1429 (U.S. Feb. 22, 2017):

        (1) In a case where a black defendant’s trial counsel (and not the State) introduced evidence that there was an “increased probability” that the defendant would commit future acts of violence, the defendant received ineffective assistance of trial counsel because: (1) trial counsel’s performance fell outside the bounds of competent representation, since it would be patently unconstitutional for the state to argue that a defendant is liable to be a future danger because of his race, and no competent defense attorney would introduce such evidence about his own client; and (2) the defendant was prejudiced because during trial, the focus was on future-dangerousness, and the fact that defendant is black (and more prone to violence per the evidence erroneously presented by trial counsel) “would never change,” so defendant could never prove lack of future-dangerousness.

        (2) Before proceeding on appeal, a state prisoner whose federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 is denied must first obtain a COA from a circuit justice or judge, and it may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). At the COA stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” This requires the court to limit its examination [at the COA stage] to a threshold inquiry into the underlying merit of the claims and ask only “if the District Court’s decision was debatable.” Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003). This threshold question should be decided without “full consideration of the factual or legal bases adduced in support of the claims.”

        (3) Under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), a petitioner filing a federal writ under 28 U.S.C. 2254 may establish cause for procedural default if: (1) the state courts did not appoint counsel in the initial-review collateral proceeding or appointed counsel was ineffective under Strickland; and (2) the underlying claim is a substantial one (has some merit).

Beckles v. United States, 580 U.S. ___, No. 15-8544, 2017 U.S. LEXIS 1572 (U.S. March 6, 2017).

        (1) Unlike the ACCA, the U.S.S.G. do not fix the permissible range of sentences, but merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.

        (2) Although the U.S.S.G. were initially binding, in Booker, they were rendered advisory. The U.S.S.G. are “the starting point and the initial benchmark” for sentencing, but a court cannot rely exclusively on the U.S.S.G. range and must “make an individualized assessment based on the facts presented” and the other statutory factors.

        (3) Because the U.S.S.G. only guide sentencing discretion, the U.S.S.G. are not subject to a vagueness challenge under the Due Process Clause, and the residual clause in U.S.S.G. § 4B1.2(a)(2) is not void for vagueness.

Pena-Rodriguez v. Colorado, 580 U.S. ___, No. 15-606, 2017 U.S. LEXIS 1574 (U.S. March 6, 2017).

        (1) The SCOTUS held that where a juror makes a clear statement that indicates he relied on racial stereotypes or animus to convict a defendant, the Sixth Amendment requires that the no-impeachment rule under Rule 606(b) give way to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

        (2) “[N]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar [of Rule 606(b)] to allow further judicial inquiry . . . [F]or the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. And to qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether this threshold showing is satisfied is at the substantial discretion of the trial court under the circumstances, including the content and timing of the alleged statements, and the reliability of the proffered evidence.

Rippo v. Baker, 580 U.S. ___, No. 16-6316, 2017 U.S. LEXIS 1571 (U.S. March 6, 2017) (per curiam).

        (1) The Due Process Clause may demand recusal even when a judge has no actual bias, so petitioner is entitled to discovery on the issue.

        (2) Recusal is required when objectively speaking, “the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.”

United States Court of Appeals for the Fifth Circuit

United States v. Buck, ___ F.3d ___, No. 15-20697, 2017 U.S. App. LEXIS 1814 (5th Cir. Feb. 1, 2017):

        (1) When a trial is terminated over defense objection, retrial is prohibited absent “manifest necessity.” Retrial of a case following a mistrial on defense-motion by the defense is allowed unless the defense motion was prompted by government-conduct that was “intended to goad.” Goading is narrowly defined as “intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause,” so “gross negligence by the prosecutor, or even intentional conduct that seriously prejudices the defense, is insufficient”;

        (2) A Brady violation requires: (1) evidence withheld by the government be either exculpatory or impeaching, and (2) prejudice;

        (3) When imposing sanctions for discovery violations, courts must consider: (1) the reasons why disclosure was not made; (2) prejudice to the opposing party; (3) feasibility of curing the prejudice with a continuance; and (4) any other relevant circumstances;

        (4) The Hobbs Act’s reference to actual or threatened force or violence satisfies the standard needed for a crime of vio­lence under § 924(c)(3)(A);

        (5) The Hobbs Act does not require specific intent or knowledge to affect interstate commerce;

        (6) U.S.S.G. § 2B3.1(b)(4)(A) allows enhancement “if any person was abducted to facilitate commission of the offense or to facilitate escape.” “Abducted” means “a victim was forced to accompany an offender to a different location,” which includes being forced from one part of a building to another. “Different location” is interpreted with flexibility;

        (7) Restitution may be ordered only against those convicted of crimes that gave rise to the restitution;

        (8) A sentence imposed within statutory limits may violate the Eighth Amendment if it “is so disproportionate to the crime committed that it shocks human sensibilities,” but even a very long sentence does not shock human sensibilities if it is consistent with other decisions of the USCA5; and

        (9) Introduction of a statement to a jailhouse snitch does not violate the Sixth Amendment right to counsel and their testimony is not inherently unreliable.

United States v. Cruz-Romero, ___ F.3d ___, No. 15-51181, 2017 U.S. App. LEXIS 2272 (5th Cir. Feb. 8, 2017):

        (1) When considering de novo review of whether the government breached a plea agreement, the court asks “whether the government’s conduct was consistent with the parties’ reasonable understanding of the agreement.”

        (2) The defendant has the burden of proving the facts constituting a breach of the agreement by a preponderance of the evidence;

        (3) Merely stipulating to some basic facts in the plea agreement obtained from another source or providing information to someone other than the government does not satisfy the safety-valve provision of 18 U.S.C. § 3553(f)(5); and

        (4) Where a defendant waives his right to appeal his conviction or sentence on any ground other than ineffective assistance of counsel or prosecutorial misconduct and one of these grounds does not exist, the appeal must be dismissed.

United States v. Monsivais, ___ F.3d ___, No. 15-10357, 2017 U.S. App. LEXIS 1910 (5th Cir. Feb. 2, 2017).

        (1) Under Terry v. Ohio, 392 U.S. 1 (1968), officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

        (2) “Reasonable suspicion” is more than a “mere hunch,” and it need not rise to the level of probable cause. The officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant an intrusion into the privacy of the detained individual.

        (3) A court must examine the “totality of the circumstances” considering the officer’s training and experience, and should uphold the stop only if it finds that the officer had a “particularized and objective basis” for suspecting legal wrong­doing.

        (4) Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. However, nervousness alone is not sufficient to create reasonable suspicion of criminal activity.

        (5) The fact that a person places his hands in his pockets alone is not reasonable suspicion.

        (6) The Constitution does not command individuals to enthusiastically greet law enforcement when they make a “welfare-check.” Unless a police officer has reasonable suspicion to conduct an investigatory stop, an individual has a right to ignore the police and go about his business.

United States v. Huor, ___ F.3d ___, No. 15-50174, 2017 U.S. App. LEXIS 4287 (5th Cir. March 10, 2017).

        (1) Under 18 U.S.C. § 3553(a)(1)–(2), conditions of supervised release must be reasonably related to: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to afford adequate deterrence to criminal conduct; (3) the need to protect the public from further crimes of the defendant; or (4) the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner. Supervised-release conditions “cannot involve a ‘greater deprivation of liberty than is reasonably necessary’ to achieve the statutory goals.”

        (2) A district court cannot delegate the duty of determining whether a condition of supervised release will be imposed at all, but must “retain and exercise ultimate responsibility” for that sentencing decision. This prohibits a special condition that requires a defendant to “follow all lifestyle restrictions or treatment requirements” imposed by the therapist, with the court not maintaining supervisory power. A district court also may not act as an “automaton” upon receiving findings of a professional, and must instead retain supervisory power over a probationer in a meaningful way. A district court’s role must not be reduced to the clerical, and a professional’s role must not be elevated to the judicial.

        (3) Special conditions of supervised release must be tailored to the individual defendant and may not be based on boilerplate conditions imposed as a matter of course in a particular district.

        (4) Defendants have a constitutional right to be present at their sentencing. When there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls.

        (5) Standard conditions of supervised release need not be orally pronounced, but special conditions must be so that a defendant has an opportunity to object.

Texas Court of Criminal Appeals

Lake v. State, ___ S.W.3d ___, No. PD-0196-16, 2017 Tex. Crim. App. LEXIS 164 (Tex. Crim. App. Feb. 8, 2017) (plurality opinion), Yeary, J. concurring, Alcala, J. dissenting).

        (1) In Arizona v. Fulminante, 499 U.S. 279, 309–310 (1991), the SCOTUS listed the following error as structural and not subject to harm analysis: total deprivation of the right to counsel at trial, impartial judge, unlawful exclusion of members of the defendant’s race from a grand jury, the right to self-representation at trial, and the right to public trial.

        (2) For federal constitutional error that is not structural, the applicable harm analysis requires the appellate court to reverse unless it determines beyond a reasonable doubt that the error did not contribute to the defendant’s conviction or punishment.

        (3) In Herring v. New York, 422 U.S. 853 (1975), the SCOTUS held that the right to the assistance of counsel guaranteed by the Sixth Amendment was violated when a trial court re­fused to allow counsel to make a closing argument at the guilt phase of trial.

        (4) The refusal to allow defense counsel to make a closing argument at a community-supervision revocation proceeding is Herring error, which is not structural.

Editor’s Note:

        (1) When confronted with a plurality opinion in federal court, under Marks v. United States, 430 U.S. 188, 193 (1977), “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Jus­tices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . .’” So, in Pennsylvania v. Muniz, 496 U.S. 582 (1990) (Miranda issue), four justices agreed on the “majority” opinion, but five justices agreed on a single rationale explaining the result, so that single rational is precedent.

        (2) However, plurality opinions are not binding in Texas. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (a plurality opinion has limited or no precedential value); Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992) (a plurality opinion does not have “significant precedential value”); State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997) (“we may look to ‘plurality’ opinions for their persuasive value”); and Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999) (plurality opinions are not binding precedent)

Moore v. State, ___ S.W.3d ___, No. PD-1634-14, 2017 Tex. Crim. App. LEXIS 167 (Tex. Crim. App. Feb. 8, 2017, op. on reh.):

        Tex. Family Code § 54.02(j)(4)(A) requires the State to show “that for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday . . .” Here, “the state” means law enforcement and the prosecution. Further, the court of appeals did not err by failing to consider the factors for oppressive delay because the state failed to show by a preponderance of the evidence that for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before Appellant’s 18th birthday. Thus, 54.02(j)(4)(A)’s failure to require consideration of the factors for oppressive delay does not violate the Separation of Powers Clause.

Ex parte Medrano, ___ S.W.3d ___, No. WR-78,123-01, 2017 Tex. Crim. App. LEXIS 184 (Tex. Crim. App. Feb. 8, 2017) (Alcala dissenting) (Richardson dissenting)

        Editor’s note: the dissenting opinions in this case are noteworthy (and correct) because in a death-penalty case, if there is a material conflict between a trial court’s findings of fact and conclusions of law and the record, the case should be remanded to the trial court for resolution of those conflicts and possibly a live evidentiary hearing.

Obella v. State, ___ S.W.3d ___, No. PD-1032-16, 2017 Tex. Crim. App. LEXIS 170 (Tex. Crim. App. Feb. 8, 2017).

        (1) Under Tex. Rule App. Proc. 21.6, a motion for new trial must be “presented” to the trial court within 10 days of its filing. “Presentment” requires the defendant to give the trial court actual notice that he timely filed a motion for new trial and requested a hearing.

        (2) It is the duty of the appellate courts to ensure that a claim is preserved in the trial court before addressing its merits.

        (3) Under Tex. Rule App. Proc. 47.1, a court of appeals must issue a written opinion “that addresses every issue raised and necessary to final disposition of the appeal.”

Ex parte Thuesen, ___ S.W.3d ___, No. WR-81,584-01, 2017 Tex. Crim. App. LEXIS 185 (Tex. Crim. App. Feb. 8, 2017) (per curiam):

        (1) Under Tex. Gov. Code § 24.002, if a district judge determines on the judge’s own motion that he should not sit in a case because he is disqualified or otherwise should recuse himself, the judge shall enter a recusal order, request that the presiding judge assign another judge to sit, and take no further action in the case except for good cause stated in the order in which the action is taken.

        (2) Interim or ancillary orders made by a regional presiding judge regarding the recusal of a trial judge or the reinstatement or modification of judicial authority following a recusal must be made in writing, signed by the presiding judge, and entered of record in the case. Oral “directives” communicated off the record to another judge will not suffice to establish judicial authority to preside over a case.

        (3) Although it is common that communications from a court such as notice of setting, pretrial motions, and trial are communicated orally or by letter, decisions affecting a judge’s authority to preside over a case are fundamentally different than communications concerning pretrial settings and other routine matters, and must be in writing in the form of orders.

White v. State, ___ S.W.3d ___, No. PD-1596-15, 2017 Tex. Crim. App. LEXIS 211 (Tex. Crim. App. Feb. 15, 2017):

        (1) The DFZ provisions under Tex. Health & Safety Code § 481.134(d) do not contain any culpable mental state requiring that a defendant know he is within a DFZ.

        (2) If a person is already engaged in the unlawful sale of con­tra­band, he should have to bear the risk that if he does so within a DFZ, the gravity of his offense will be elevated regardless of whether he was aware he was in a DFZ.

Wolfe v. State, ___ S.W.3d ___, No. PD-0292-15, 2017 Tex. Crim. App. LEXIS 215, (Tex. Crim. App. Feb. 15, 2017).

        (1) Under Tex. Rule Evid. 702, “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

        (2) The focus “is to determine whether the evidence has its basis in sound scientific methodology such that testimony about ‘junk science’ is weeded out.” Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

        (3) If the Kelly factors weigh in favor of the admission of expert testimony, a lack of universal agreement does not render the testimony “junk science.”

Roy v. State, ___ S.W.3d ___, No. PD-1455-15, 2017 Tex. Crim. App. LEXIS 212 (Tex. Crim. App. Feb. 15, 2017).

        (1) To determine whether a defendant is entitled to an instruction on a lesser-included offense, the two-part analysis is: (1) is the requested instruction a lesser-included offense of the charged offense; and (2) if it is, based on the admitted evidence, could a jury rationally find that if the defendant is guilty, he is guilty of only the lesser-included offense?

        (2) An instruction on a lesser-included offense is required if more than a scintilla of evidence establishes “that the lesser-included offense is a valid, rational alternative to the charged offense.”

        (3) The reviewing court considers all admitted evidence without regard to the evidence’s credibility or potential contradictions or conflicts.

Crawford v. State, ___ S.W.3d ___, No. PD-1283-15, 2017 Tex. Crim. App. LEXIS 210 (Tex. Crim. App. Feb. 15, 2017) (Richardson concurring) (Walker dissenting)

        (1) Defendant was convicted of failure-to-register as a sex offender, and had two prior felony convictions for the same. Article 62.102(c) (specific provision) addresses only how to enhance a subsequent sex-offender-registration offense with a single prior sex-offender-registration felony offense, while Tex. Penal Code § 12.42(d) (general provision) allows a sentence of 25–99 years or life.

        (2) The TCCA has never held that the existence of Article 62.102(c) means that punishment for a sex-offender-registration offense can never be enhanced under any other provision.

Deen v. State, ___ S.W.3d ___, No. PD-1484-15, 2017 Tex. Crim. App. LEXIS 214 (Tex. Crim. App. Feb. 15, 2017):

        If a defendant is “illegally” sentenced to a term that is less than the statutory minimum for the offense, estoppel by judgment prevents the defendant who voluntarily accepts the benefits of the judgment from denying the validity or propriety of any part of the judgment.

Johnson aka Kimp v. State, ___ S.W.3d ___, No. PD-0699-16, 2017 Tex. Crim. App. LEXIS 213 (Tex. Crim. App. Feb. 15, 2017):

        (1) Because not all knives are manifestly designed, made, or adapted for inflicting serious bodily injury or death, the evidence is sufficient to support a deadly-weapon finding only if the jury could have rationally found that the defendant used the knife in such a way, or intended to use the knife in such a way, that it can cause serious bodily injury or death.

        (2) For a deadly-weapon finding, a defendant need not have inflicted harm. Words and other threatening actions, including proximity to the victim; the weapon’s ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and the way the defendant used the weapon are factors.

        (3) A butter knife could be a deadly weapon because the blade is at least a couple of inches long, so it can cause serious bodily injury or death.

State v. Jarreau, ___ S.W.3d ___, No. PD-0840-16, 2017 Tex. Crim. App. LEXIS 219 (Tex. Crim. App. March 1, 2017)

        (1) Under Tex. Code Crim. Proc. Art. 21.11, an indictment is sufficient if it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.

        (2) An indictment is sufficient if it tracks the statute.

        (3) To determine the adequacy of an indictment’s allegations, (1) a court must identify the elements of an offense; and (2) if an element of the offense describing an act or omission by the defendant has been defined by the Legislature, a court must ask whether the statute provides “alternative manners or means in which the act or omission can be committed.” If so, the pleading “will supply adequate notice only if, in addition to setting out the elements of an offense, it also alleges the specific manner and means of commission that the State intends to rely on at trial.”

Petetan v. State, ___ S.W.3d ___, No. AP-77,038, 2017 Tex. Crim. App. LEXIS 286 (Tex. Crim. App. March 8, 2017) (Alcala, J. dissenting)

        (1) Under Briseno, a demonstration of mental retardation that would exempt an offender from execution requires showing the following by a preponderance of the evidence: (1) significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less; (2) accompanied by related and significant limitations in adaptive functioning; and (3) the onset of the above two characteristics having occurred before the age of 18. In evaluating the first prong, the TCCA takes into consideration the standard margin of error for IQ tests, which is generally five points.

        (2) In determining whether related and significant limitations in adaptive functioning exist, courts look to standardized test scores but should also look to the following (seven Briseno) factors:

           i.  Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?

          ii.  Has the person formulated plans and carried them through or is his conduct impulsive?

         iii.  Does his conduct show leadership or does it show that he is led around by others?

         iv.  Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

          v.  Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

         vi.  Can the person hide facts or lie effectively in his own or others’ interests?

        vii.  Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

        Editor’s Note: this is a 100-page opinion of an appeal of a death-penalty case with many issues that are commonly raised in such appeals. I focus on the facts and the intellectual-disability issue under Briseno and Judge Alcala’s dissent, which I believe is correct. On June 6, 2016, the SCOTUS granted the certiorari petition of Texas death row inmate Bobby Moore regarding this question: “Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S.Ct. 1986 (2014), and Atkins, 536 U.S. 304 (2002), to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.” See Ex parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015), cert. granted, Moore v. Texas, No. 15-797, 2016 U.S. LEXIS 3754 (June 6, 2016). More was argued on November 29, 2016, and an opinion is forthcoming.

Salinas v. State, ___ S.W.3d ___, No. PD-0170-16, 2017 Tex. Crim. App. LEXIS 284 (Tex. Crim. App. March 8, 2017)

        (1) Texas Local Gov. Code § 133.102 is unconstitutional on its face as to the collection of fees into accounts that have no relation to legitimate criminal justice purposes.

State v. Zuniga, ___ S.W.3d ___, No. PD-1317-15, 2017 Tex. Crim. App. LEXIS 285 (Tex. Crim. App. March 8, 2017).

        (1) The specific identity of the tampered-with evidence is not an element of Tex. Penal Code § 37.09, the elements of which are: (1) a person alters, destroys, or conceals; (2) any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; (4) knowing that an investigation or official proceeding is pending or in progress.

        (2) Tex. Penal Code § 37.09 contains two culpable mental states: An actor must know his action would impair the item as evidence, and he must act with the intent to impair its availability as evidence. The “evidence” must be a record, document, or thing, though it does not require that “thing” be, in and of itself, of a criminal nature.

Texas Courts of Appeals

State v. Cortez, ___ S.W.3d ___, No. 07-15-00196-CR, 2017 Tex. App. LEXIS 999 (Tex. App. Amarillo, Feb. 3, 2017).

        (1) Under Tex. Transp. Code § 545.058(a), person may drive on an improved (paved) shoulder if necessary and may be done safely, but only under seven circumstances: (1) to stop, stand, or park, (2) to accelerate before entering the main traveled lane of traffic, (3) to decelerate before making a right turn, (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn, (5) to allow another vehicle traveling faster to pass, (6) as per­mitted or required by an official traffic-control device, or (7) to avoid a collision.

        (2) Under Tex. Transp. Code § 541.302(15), “shoulder” means the portion of a highway: (1) adjacent to the roadway, (2) de­signed or ordinarily used for parking, (3) distinguished from the roadway by different design, construction, or marking, and (4) not intended for normal vehicular travel.

        (3) A person drives on an improved shoulder by crossing the “fog line” separating the road and shoulder and not merely touching it.

        (4) Heien v. North Carolina, 135 S.Ct. 530, 534–536 (2014), held that: (1) searches and seizures based on mistakes of fact can be reasonable; and (2) an objectively reasonable mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure.

        (5) Heien does not apply where an officer engages in “a sloppy study of the laws he is duty-bound to enforce.”

Deleon v. State, ___ S.W.3d ___, No. 11-15-00143-CR, 2017 Tex. App. LEXIS 1176 (Tex. App. Eastland, Feb. 10, 2017).

        (1) An exception to the warrant-requirement is exigent circumstances, under which a warrantless search of a person is rea­son­able when: (1) an officer has probable cause and (2) an ex­i­gency exists that requires an immediate search.

        (2) Three types of exigent circumstances justify a warrantless search: (1) providing aid or assistance to persons whom the officer reasonably believes needs assistance; (2) protecting officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) preventing the destruction of evidence or contraband. A warrantless search is justified under the exigent circumstances exception only when the officer reasonably believed that removal or destruction of evidence was im­minent.

        (3) Marihuana odor alone can provide sufficient probable cause for a warrantless search of one’s person or vehicle.

Knott v. State, ___ S.W.3d ____, No. 08-14-00235-CR, 2017 Tex. App. LEXIS 1193 (Tex. App. El Paso Feb. 10, 2017).

        (1) To determine whether a defendant’s due process rights were violated by the admission of a witness’ identification testimony that was allegedly tainted by a suggestive pretrial identification procedure, a court: (1) examines whether the identification procedure itself was impermissibly suggestive; and (2) if it was, whether the suggestive nature of the procedure gave rise to the substantial likelihood of irreparable misidentification.

        (2) When considering whether the suggestive nature of the procedure gave rise to the substantial likelihood of irreparable misidentification, even if an unnecessarily suggestive identification procedure was used, the witness’ identification testimony may be admissible if there is evidence that the identification was the product of an independent source (observations made at the time of the offense).

        (3) To determine whether an independent source exists, a court considers the totality of the circumstances, relying on: (1) the witness’ opportunity to view the suspect at the time of the offense; (2) the degree of attention the witness focused on the suspect at the time of the offense; (3) the accuracy of any descriptions provide by the witness prior to the allegedly suggestive identification procedure; (4) the witness’ level of certainty of his identification; and (5) the time between the crime and the identification procedure. The defendant bears the burden to show by clear and convincing evidence that the in-court identification was unreliable.

Mayfield v. State, ___ S.W.3d ___, No. 07-14-00055-CR, 2016 Tex. App. LEXIS 13912 (Tex. App. Amarillo, Feb. 9, 2017).

        (1) Under Tex. Crim. Proc. Code Art. 33.03, when a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion.

        (2) Under Tex. Crim. Proc. Code Arts. 46B.003 & 46B.024, a pretrial competency exam requires a determination of whether a defendant lacks capacity to understand the proceedings, charges, and potential consequences can disclose pertinent facts to his attorney, engage in reasoned choices, exhibit appropriate courtroom behavior, or testify.

Ex parte Rodriguez, ___ S.W.3d ___, No. 04-16-00337-CR, 2017 Tex. App. LEXIS 1251 (Tex. App. San Antonio Feb. 15, 2017)

        (1) Under Waller v. Florida, 397 U.S. 387, 393–395 (1970), the Double Jeopardy Clause does not bar successive prosecutions brought by different sovereigns (i.e., one brought by the state and another brought by the federal government). A municipality, however, is not a separate “sovereign” from the state for purposes of double jeopardy, so a defendant cannot be criminally prosecuted twice “for the same alleged crime” in a municipal court and then in a state court.

Ex Parte S.E.W., ___ S.W.3d ___, No. 04-16-00255-CV, 2017 Tex. App. LEXIS 1248 (Tex. App. San Antonio Feb. 15, 2017).

        (1) When DPS appeals the granting of a petition for expunction, it is considered a restricted appeal. To prevail on a re­stricted appeal, the appellant must prove: (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) the appellant was a party to the underlying lawsuit; (3) the appellant did not participate in the hearing that resulted in the judgment complained of, and did not timely file any postjudgment motions or requests for FFCL; and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014).

        (2) Under Tex. Code Crim. Proc. Art. 55.01(a)(2), a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor (expunction statute is arrest-based).

Straight v. State, ___ S.W.3d ___, No. 14-15-00801-CR, 2017 Tex. App. LEXIS 1341 (Tex. App. Houston [14th Dist.] Feb. 16, 2017)

        (1) Under Sullivan v. Louisiana, 508 U.S. 275 (1993), an unconstitutional “reasonable doubt” instruction is a “structural defect” that does not require harm analysis.

        (2) Even if the trial court paraphrases while reading parts of the charge, if the trial court thoroughly discusses the State’s burden of proof, emphasized that appellant did not have to prove anything, and highlighted the fact that the jury could not consider appellant’s decision not to testify for any reason, there is not an unconstitutional “reasonable doubt” instruction.

Willis v. State, ___ S.W.3d ___ No. 06-16-00040-CR, 2017 Tex. App. LEXIS 1110 (Tex. App. Texarkana, Feb. 9, 2017):

        Although Tex. Code Crim. Proc. Art. 27.13 provides “A plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person,” substantial compliance with Article 27.13 occurs when a defendant in open court acknowledges the plea as his, regardless of whether an oral plea is entered. Even if the trial court does not secure the defendant’s spoken plea of guilty and does not interact with the defendant at the time of the plea, if the facts point to defendant’s voluntary desire to plead guilty to the charges, the trial court has complied with the statute.

Hayes v. State, ___ S.W.3d ___, No. 01-15-00982-CR, 2017 Tex. App. LEXIS 1889 (Tex. App. Houston [1st Dist.] March 7, 2017)

        (1) Under Tex. Code Crim. Proc. Art 36.09, a trial court may jointly try defendants for the same offense, and it may order a severance if a joint trial would cause prejudice to a defendant. A trial court cannot provide for a hybrid trial where parts of the trial are joint and parts of the trial are severed.

        (2) Where a trial commences as a joint trial and concludes as a joint trial, if all interim dates are portions of the joint trial, and all defendants have the right to be present during the interim dates.

Martinez v. State, ___ S.W.3d ___, No. 13-15-00295-CR, 2017 Tex. App. LEXIS 1946 (Tex. App. Corpus Christi March 9, 2017)

        (1) A claim of theft made under a contract requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. The State must prove that the appropriation was a result of a false pretext, or fraud, and the evidence must show that the defendant intended to deprive the owner of the property at the time the property was taken. In reviewing the sufficiency of the evidence, a court must look at events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act.

        (2) A contractor may be found guilty of theft if, at some point after the formation of the contract, he formulates the req­ui­site intent to deprive and appropriates additional property by deception—that is, he induces his customer to make further payment on the contract while no longer intending to perform, or at least knowing that he will not. The fact that partial or even substantial work has been done on a contract will not invariably negate either the intent to deprive or the deception necessary to establish the unlawfulness of the initial appropriation.

        (3) Under Tex. Code Crim. Proc. Art. 12.01(4)(A), the statute of limitations for felony theft is five years from the date of the commission of the offense.

        (4) Aggregate theft is an offense involving continuing conduct that ends with the last theft.

        Editor’s Note: The defendant was an attorney who admitted during trial that he deposited everything into his IOLTA account: loan proceeds, settlements, client payments, and his personal monies, then paid for everything out of the same IOLTA account. The ethical, accounting, and tax problems presented by an attorney in private practice using only one account for all monetary transactions are pronounced. Attorneys are required to keep client funds (including unearned fees) in an IOLTA account separate from all other funds. And, it is critical that you also keep your law-firm funds (i.e., earned fees transferred from IOLTA to be used to pay law-firm expenses) in a business checking account separate from your private funds (i.e., earned fees and non-law-firm-related monies for personal expenses), and pay law-firm expenses using a business checking account and personal expenses using a private checking account. Comingling these funds in a single account is an invitation to tax and accounting headaches.

Mendez v. State, ___ S.W.3d ___, No. 01-15-00187-CR (Tex. App. Houston [1st Dist.] Feb. 23, 2017).

        (1) A knife is not a deadly weapon per se, so the state must prove that a knife was used in a manner that can cause death or serious bodily injury.

        (2) When asserting a self-defense claim, the defendant has the initial burden to produce some evidence to support a claim of self-defense. Once the defendant produces some evidence, the burden shifts to the State, which bears the ultimate burden of persuasion to disprove the raised defense. To convict a defendant of murder after he raised self-defense, the State must prove the elements of the offense beyond a reasonable doubt and persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense.

State v. T.S.N., ___ S.W.3d ___, No. 05-15-01488-CV, 2017 Tex. App. LEXIS 1464 (Tex. App. Dallas Feb. 22, 2017).

        (1) Tex. Code Crim. Proc. Art. 55.01 is not merely “arrest-based” but is based on arrests made during single criminal episodes. Article 55.01(a)(1)(A) provides that a person who is tried and acquitted of the offense for which he was arrested is entitled to have all records and files relating to the “arrest” expunged. Thus, the right to expunction is linked to the “offense” in question. While a person may be “arrested” for multiple “offenses,” and may be “charged” and tried for multiple “offenses” in a single trial, where the arrest includes offenses for which the defendant could not be charged and tried in the aggregate, the arrest—and any subsequent expunction—stands or falls on each unrelated charge.

Ex parte Uribe, ___ S.W.3d ___, No. 02-16-00372-CR, 2017 Tex. App. LEXIS 2040 (Tex. App. Fort Worth March 9, 2017).

        (1) To determine the voluntariness of a guilty plea when there are immigration consequences, a court must consider: (1) evidence of the applicant’s guilt; (2) whether the applicant presented evidence of any factual or legal defenses to the charge; (3) whether the applicant presented evidence indicating that the immigration consequences of her plea had been her “paramount concern”; and (4) the circumstances of the plea deal compared to the penalties the applicant risked by going to trial.

Whitfield v. State, ___ S.W.3d ___, No. 14-15-00820-CR, 2017 Tex. App. LEXIS 2013 (Tex. App. Houston [14th Dist.] March 9, 2017)

        (1) Under Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), where an expert testifies in court to conclusions that are her own (testimonial evidence) based on raw data produced by others that by itself means nothing (nontestimonial evidence), the Confrontation Clause is not violated because the raw data merely provides the basis for the opinion the expert developed. The expert’s testimony is not used as a substitute for out-of-court testimony, and the expert is more than a surrogate for a non-testifying analyst’s report because without the testifying expert’s independent analysis, the data stands for nothing.

Viscaino v. State, ___ S.W.3d ___, No. 08-14-00239-CR, 2017 Tex. App. LEXIS 1636 (Tex. App. El Paso Feb. 24, 2017)

        (1) Prosecutorial misconduct must be serious and continuing such that it undermines the reliability of the fact-finding process and results in a deprivation of fundamental fairness and due process of law.

        (2) Under Tex. Rule Evid. 701, a lay witness may offer opinion testimony if the opinion is: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact issue in the case.

        (3) The proponent of lay-opinion testimony is required to establish that the witness has personal knowledge of the events upon which his opinion is based.

The Time Has Come to Tear Down the Iron Curtain Between the Constitution and Texas Prisons

Let’s say a prosecutor has a hunch your client might have something in his cell that could be used against him in his upcoming trial. Maybe a weapon, or drugs, or perhaps a journal in which he has written something that might incriminate him, or at least make him look bad. She could try to get this the old-fashioned way—by presenting an affidavit sufficient to convince a neutral and detached magistrate there is probable cause that evidence of a crime will be found in the cell to be searched. Or, if she favored expediency over the constitution, she might just ask someone at the jail to toss the cell, seize everything in it, and immediately deliver the goods to her so she could see if her hunch was right.

Not surprisingly, some prosecutors handling serious felony cases favor the less formal approach to evidence-gathering, and routinely issue broadly written directives to jail personnel that read like this:

In preparation for an upcoming trial, I request that you conduct a cell search of inmate Joe Smith’s cell/housing area and seize and provide the following: original, non-privileged correspondence, to include any/all writings, notes, correspondence (inmate and outside mail), drawings, poetry, and any contraband found during the search.

Is that legal? If your presumptively innocent client had the wherewithal to post bond, there is no way a Texas prosecutor could order his home searched without a warrant on the mere suspicion that she might find something to help her prepare for trial.1 Prosecutors, though, point out that jails are unlike homes, and that warrants and probable cause are unnecessary when dealing with prisoners because they have no Fourth Amendment rights whatsoever. There are a number of cases from a variety of jurisdictions, including Texas, that support this position.

It turns out that there is also a line of cases holding that prisoners—at least those who have not yet been convicted—do retain some Fourth Amendment rights.2 Although these rights are substantially less than those enjoyed by persons in the free world, they do prevent prosecutors from ordering warrantless cell searches, the sole purpose of which is to gather evidence to prosecute the person whose cell was searched. This article discusses that line of cases and offers suggestions you can start with if the state uses a directive-like approach to obtain evidence against one of your clients.

A. “There is no iron curtain drawn between the constitution and the prisons of this country”

In State v. Granville, the Texas Court of Criminal Appeals held that the warrantless search of a pretrial detainee’s cellular telephone was unconstitutional. The court disagreed for several reasons with the state’s argument that the defendant had no legitimate privacy interest at all in the phone’s contents, just because he was in jail.

For one thing, the “assumption that prisoners or pretrial detainees are without any Fourth Amendment rights is not supported by the Supreme Court.”3 Granville cited Wolff v. McDonnell, where the high court held that though his “rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.”4

Additionally, Granville distinguished earlier cases that had permitted warrantless searches of a prisoner’s clothing, finding obvious differences between clothing and cell phone content, which can contain “highly personal emails, texts, photographs, videos, or access to a wide variety of other data about the individual citizen, his friends, and family.”5 Concluding that “a cell phone is not like a pair of pants or a shoe,” the court found that the warrantless search of Granville’s cell phone violated the Fourth Amendment.6

The “central concern underlying the Fourth Amendment” has remained the same throughout the centuries; it is “the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.7

But the “unbridled discretion to rummage at will among a person’s private effects” is exactly what the prosecution has when it directs the jail to search a cell without warrant. With neither probable cause nor warrant, with absolutely no institutional concern for the safety of the jail, its employees, or other inmates, but solely for the purpose of preparing for its upcoming trial, the prosecutors send deputies to take every non-privileged paper from the living quarters of indigent, presumptively innocent, citizens and often walk away with hundreds of pages of writings, drawings, photographs, and other materials every bit as personal and private as what can be found on a cell phone. Although there are certainly cases to the contrary, a compelling argument can and should be made—starting with Granville—that the Constitution does not give prosecutors as much discretion as they think they have to rummage at will through a prisoner’s private effects.

B. What does the Supreme Court say?

There are two cases from the Supreme Court that some believe are in conflict. Others say they are factually distinguishable and can be harmonized in a way that both permits the safe and ef­fi­cient operation of penal institutions and grants reasonable pro­tec­tions to those incarcerated in those institutions.

1. Bell v. Wolfish balances the institutional interests against those of the prisoner

Bell v. Wolfish was decided five years after Wolff v. McDonnell, one of the cases cited in Granville, and Bell contains the same lofty assurance found in both Wolff and Granville—that there is no “iron curtain” between prisons and the constitution.8 One of the questions in Bell was whether subjecting pretrial detainees to warrantless body-cavity searches without probable cause violates the Fourth Amendment. Answering this required the Court to balance institutional security dangers against the privacy rights of the detainees. Jail “is a unique place fraught with serious security dangers,” the Court recognized.9 “Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates,” the Court concluded that the searches there did not violate the constitution.10

2. Hudson v. Palmer holds that convicted prisoners have no Fourth Amendment rights

Although the pretrial detainees did not prevail in Bell, the Court made it clear that they retained limited Fourth Amendment rights, as long as these rights do not conflict with the over­riding duties of prison officials to maintain security. Later, in Hudson v. Palmer, the Court expressly declined to conduct any sort of balancing test. The Hudson Court concluded that a warrantless “shakedown” in a penitentiary that uncovered con­traband was not unconstitutional because “the Fourth Amend­ment proscription against unreasonable searches does not apply within the confines of the prison cell.”11 The persons searched in Hudson were prisoners who had been convicted, and not the presumptively innocent pretrial detainees in Bell. In a different case, though—Block v. Rutherford, decided the same day as Hudson—the Court rejected a similar claim from pretrial detainees that was based on Due Process.12

C. Does Hudson conflict with Bell, Wolff, and Granville?

1. Broadnax v. State, an unpublished opinion from the court of criminal appeals, reads Hudson categorically

Some courts have interpreted Hudson as holding that no incarcerated person—neither presumptively innocent pretrial detainee nor convicted prisoner—has any Fourth Amendment rights whatsoever. An unpublished case from the Texas Court of Criminal Appeals in 2011, Broadnax v. State,13 seems to agree. Relying on Hudson and Soria v. State,14 the Court concluded that “a shakedown search of a pretrial detainee’s cell does not violate the Fourth Amendment or due process.”15

2. The cases can be harmonized

In United States v. Cohen, the Second Circuit acknowledged Hudson, but distinguished it factually. There, unlike in Hudson, prosecutors, not jail administrators, instituted the search. The prosecutors in Cohen were seeking evidence to use in a criminal prosecution; the search was not “even colorably motivated by institutional security concerns.” And the appellant in Cohen was a presumptively innocent, pretrial detainee, living in jail because he was unable to make bond. The Second Circuit reversed the conviction and did it in a way that resolved the apparent conflict between Hudson, on the one hand, and Bell and the earlier cases, on the other. “The door on prisoner’s rights against unreasonable searches has not been slammed shut and locked.” Hudson, the court held, had not contemplated “a cell search intended solely to bolster the prosecution’s case against a pretrial detainee awaiting his day in court.” No prison official had instituted the search, and it was clear to the court that no “institutional need” was served by the search in that case. The prisoner retained an expectation of privacy that was sufficient to challenge the investigatory search undertaken there.16

Because his effects were searched at the instigation of non-prison officials for non-institutional security related rea­sons, the validity of the search may be challenged. An in­di­vidual’s mere presence in a prison cell does not totally strip away every garment cloaking his Fourth Amendment rights, even though the covering that remains is but a small remnant.17

D. Granville, Cohen, Bell, and other cases establish that directive searches are unconstitutional

In addition to the Second Circuit, where Cohen was decided, courts from Florida, Georgia, New Jersey, and Nebraska agree that warrantless searches ordered by prosecutors to collect evidence against pretrial detainees are not categorically immune from Fourth Amendment protection.18

Judge Cochran, who wrote for the court in Granville, mentioned Cohen in a footnote as supporting the proposition that “jail detainees enjoy a diminished expectation of privacy, not that a detainee has absolutely no reasonable expectation of privacy.”19 Furthermore, it is clear that Judge Cochran knew about Hudson—she also mentioned it in a footnote.20 Yet writing for the court, she did not adopt Hudson’s absolutist position. Instead, she cited both Bell and Wolff, and then performed a balancing test very similar to the one applied in those cases, and in Cohen, and its progeny.

One unpublished civil case from the San Antonio Court of Appeals, Lutz v. Collins, is also instructive. There the court recognized Cohen, but found two significant distinguishing facts. First, Lutz, unlike the appellant in Cohen, was not a pretrial detainee. Second, unlike in Cohen, the search of Lutz’s cell was in relation to an entirely different crime.21

Although there are certainly cases to the contrary, in and out of Texas, a fair reading of Granville, Bell, and Cohen supports the conclusion that the warrantless search and seizure of a pretrial detainee’s cell, instigated by prosecutors for the sole purpose of gathering incriminating evidence, violates the Fourth and Fourteenth Amendments of the United States Constitution.

E. Making your case

Despite those cases that take the categorical approach that pretrial detainees have no Fourth Amendment rights at all, the contrary argument is compelling. Lawyers who fail to timely and specifically object to evidence obtained from warrantless cell searches disserve their clients and risk being found ineffective and sued for malpractice. It’s easy to avoid those pitfalls, though.

If you timely and properly object at and before trial, the state should properly bear the burden of proving the legality of a warrantless cell search. An effective objection will require some up-front work from you.

1. Try to prevent the problem from happening before it happens

Caution all incarcerated clients at your first meeting that at best, their expectations of privacy in jail are much different than in the free world. In addition to the standard warnings not to talk or write about their cases to other prisoners, or to friends and family during visitation, on the telephone, or in letters, tell your clients that their cells may be searched at any time, and that the writings they have made or collected can be seized, read by prosecutors, and used in evidence in court.

San Antonio lawyer John Economidy—legendary for his meticulous pretrial preparation—suggests that we go to the jail six weeks before trial and have the defendant give you his files.

Another excellent San Antonio lawyer—Joel Perez22—is even more proactive. Knowing that San Antonio prosecutors routinely order cell tosses in high-profile cases, Joel has filed pretrial motions requesting that before they occur, the trial court “preclude any searches by any law enforcement agency that would be conducted at the direction of the District Attorneys Office.” Alternatively, the motion requests that if a search is conducted, nothing taken be examined, reviewed, or made known to the prosecutor’s office “prior to the Court conducting an in camera review of the said fruits of the search for a determination whether same violated the Texas Constitution and U.S. Constitution.”

2. Find out if anything was seized

As trial approaches, ask your client if his cell was tossed by jail officials, and if so, was he given a property receipt for the items seized. Regardless of what he tells you, make a specific, written demand for copies of anything the prosecutors, police, or jail authorities have seized from your client’s cell, with or without a warrant. Demand copies of all documents purportedly authorizing that search and seizure, including warrants, affidavits, directives, and all other communications, written or oral.

3. Move to suppress the evidence

Move to suppress everything that was seized, as well as anything that might have been derived indirectly from anything seized. Although it is theoretically possible to preserve error by only objecting to evidence when it comes in at trial, it almost always makes sense to also file a written, pretrial motion to suppress, and to request and get a pretrial hearing. Cite the Fourth and Fourteenth Amendments to the United States Constitution, Article I, § 9 of the Texas Constitution, articles 18.02(10) and 38.23(a) of the Texas Code of Criminal Procedure, as well as the leading cases, including Granville and Cohen.

Be as specific as you can about the facts surrounding the search and seizure, when it occurred, and what was seized. If you have obtained the directive, attach it as an exhibit to your motion to suppress. Subpoena all persons involved, including the prosecutor who issued the directive and the jail officials who searched the cell. Tangible evidence, like writings by and to the defendant are ideal, but also complain if you believe the state has used something found in the cell to obtain other evidence, such as identities of witnesses it would not otherwise have had.23

4. Don’t let your prosecutor rely on generalities

This article assumes that your client’s cell was searched without either particularized suspicion or a search warrant. If the prosecutor went to the trouble of getting a warrant then you will have to challenge it and the affidavit in the traditional ways such challenges are made. Good luck with that.

Absent a warrant, the prosecutor’s most likely defense against suppression will be that the event was a “toss” and not a search at all, but just an administrative action designed to insure institutional security.24 The most obvious weakness in this argument is that institutional security should rarely be a concern of the prosecutor, and that any such claim should be backed up by evidence comparable to probable cause that there is something in the cell that raises a legitimate security issue.

Don’t let your prosecutors vaguely pontificate about jailhouse danger, and your client’s history of violence, and the safety of witnesses. They should have to be specific about how the search in question was necessary to meet some identifiable and specific security concern in the case, such as a threat to the safety of the jail, or another prisoner, or a witness, or to some other specific person. In most cases, it should be pretty easy to show that the search was in fact a search for evidence and not security related at all. Of course, any sort of security claim is obviously pretextual and easily defeated where the prosecutor issues a blanket directive like the example given earlier in this article.

And even if the prosecutor comes up with a plausible threat to security seeming to require the cell search, this would not justify a warrantless search, absent exigent circumstances making getting a warrant unworkable. If the security interest can be credibly established, it should generally not be a problem to get a judge to quickly sign a warrant based on probable cause, especially in this post-McNeely age, when magistrates are seemingly everywhere, all the time.25

5. Follow through

Expect that your adversary will cite the usual suspects in response to your motion to suppress: Hudson, Soria, and Broadnax. Don’t let this discourage you. These are either poorly reasoned cases or they are factually distinguishable (or both), and they were decided before Granville. And don’t be discouraged if the trial court overrules your motion. You usually only see cell-toss evidence in bigger, high-profile cases, and judges are always more reluctant to suppress evidence in such cases. If you have properly objected in the trial court, and if your client is convicted, you are ready to take this to the court of appeals and, if necessary, to the court of criminal appeals and the United States Supreme Court. Although none of those courts are likely to be friendly to criminal defendants, especially in something like a capital murder case, logic is on your side. It is time for a good lawyer to make good law and take this outrageously unconstitutional tool out of the hands of over-zealous prosecutors.

Notes

1. The Fourth Amendment generally mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A “man’s house is his castle.” Payton v. New York, 445 U.S. 573, 596 (1980).
“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313 (1972). Texas goes even further than the federal constitution, requiring that search warrants for mere evidence be issued only by certain judges, and preventing altogether warrants for “personal writings by an accused.” Tex. Code Crim. Proc. Ann. art. 18.02(10).

2. This issue arose in a case of mine, and while I had a general idea that a prosecutor ought not be able to get away with this, my general idea was going nowhere until Valerie Cortinas Fisher, then a student-lawyer with the criminal defense clinic at St. Mary’s University School of Law, analogized our cell search with the cell phone search in State v. Granville, and then found the seminal case of United States v. Cohen. Both these cases are discussed throughout this paper and form the backbone of this argument.

3. State v. Granville, 423 S.W. 3d 399, 414 (Tex. Crim. App. 2014).

4. 418 U.S. 539, 555–556 (1974); Granville v. State, 423 S.W. 3d at 414.

5. State v. Granville, 423 S.W. 3d at 415.

6. Id. at 417.

7. Id. at 405 (emphasis supplied), quoting Arizona v. Gant, 556 U.S. 332, 345 (2009).

8. Bell v. Wolfish, 441 U.S. 520, 545 (1979).

9. Id. at 559.

10. Id. at 560.

11. 468 U.S. 517, 526 (1984).

12. Id. at 591(“We reaffirm that ‘proper deference to the informed discretion of prison authorities demands that they, and not the courts, make the difficult judgments which reconcile conflicting claims affecting the security of the institution, the welfare of the prison staff, and the property rights of the detainees’”), quoting Bell v. Wolfish, 441 U.S. 520, 557 n. 38 (1979).

13. 2011 WL 6225399 (Tex. Crim. App. 2011)(not designated for publication).

14. Soria v. State, 933 S.W. 2d 46 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1253 (1997).

15. Broadnax v. State, at *10; see, e.g., People v. Phillips, 555 N.W.2d 742, 743 (Mi. 1996)(Hudson’s rationale “applies equally to pretrial detainees and inmates confined in jails”); State v. Martin, 367 S.E.2d 618, 621 (N.C. 1988)(“same considerations . . . apply to pretrial detainees who are confined in jails”).

16. 796 F.2d 20, 23–24 (2d Cir.1986), cert. denied, 479 U.S. 854 (1986).

17. Id.

18. See Rogers v. State, 783 So. 2d 980, 991–92 (Fla. 2001); State v. Henderson, 517 S.E.2d 61, 63–66 (Ga. 1999), cert. denied, 528 U.S. 1083 (2000); State v. Jackson, 729 A.2d 55, 56 (N.J. Ch. Div. 1999); McCoy v. State, 639 So. 2d 163, 166–67 (Fla. Dist. Ct. App. 1994); State v. Neely, 462 N.W.2d 105, 112 (Neb. 1990).

19. State v. Granville, 423 S.W. 3d at 414; see also Riley v. California, 134 S. Ct. 2473, 2488 (2014)(not every search is valid just because the person is in custody).

20. State v. Granville, 423 S.W. 3d. at 414 n.56.

21. 2009 WL 330958, at *4 (Tex. App.—San Antonio, 2009, pet. denied)(not designated for publication); see also Willis v. Artuz, 301 F.3d 65, 68 (2d Cir. 2002)(denying 1983 relief where the plaintiff was a convicted prisoner, not a pretrial detainee, like Cohen).

22. In the last 20 years, Joel Perez and his frequent trial partner, Raymond Fuchs, have tried a number of challenging capital cases, and they have yet to have a client sentenced to death.

23. Tex. Code Crim. Proc. art. 38.23(a)(permitting suppression of “evidence obtained . . . in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America. . . .”); see generally Wong Sun v. California, 371 U.S. 471 (1963)(regarding the seizure of evidence gained during an illegal arrest that led to discovery of other evidence).

24. See Soria v. State, 933 S.W. 2d 46 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1253 (1997). Although few facts are provided in Soria, the court ultimately determined it was “not unreasonable for jail officials to conclude that the drawing at issue disserved legitimate institutional interests.Id. 60.

25. Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013)(the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases).

Flowchart on DPS Surcharges

The flowchart consists of two pages.

Page One (Boxes 1–34) can be used to determine if a defendant’s conviction will result in the assessment of a surcharge. DWI is not the only criminal offense that results in the assessment of a surcharge. Page One also shows the amount of any assessed surcharge. The amount of the surcharge varies depending on the offense in question.

Page Two (Boxes 34–59) describes various avenues that can be pursued to eliminate, reduce, or defer the assessed surcharges.

The bold language at the beginning of the detailed description of each box is taken verbatim from the words in each box of the flowchart. The symbol “∆” is used on the flowchart to mean “defendant.”

BOX 1

BEGIN HERE—∆ is convicted of an offense.

For purposes of the assessment of DPS surcharges, a conviction includes all cases in which defendants are “convicted.” This includes cases in which defendants are convicted but their sentences of confinement are suspended and they are placed on community supervision. Tex. Transp. Code Ann. § 708.003 (West 2011). This does not include cases in which the defendant is placed on deferred adjudication because such placement does not constitute a conviction. Tex. Code Crim. Proc. Ann. art. 42.12, Section 5(c) (West Supp. 2016).

Also, the conviction must be final. Id. Thus, if a conviction is on appeal, DPS should treat the case as if there is no con­vic­tion. HOWEVER, this rarely (if ever) happens automatically. The surcharge process kicks into gear upon a conviction in a trial court. Trial courts report convictions to DPS. Typically, this reporting hap­pens shortly after conviction. DPS then assesses a surcharge and refers the matter to its contracted vendor—Municipal Services Bureau (MSB). A defendant must contact DPS at (512)424-2600 to explain that the case is on appeal and that the surcharge should not have been assessed. (This is not a particularly easy administrative task to accomplish—one must deal with the huge bureaucracy that is DPS.)

BOX 2

Does offense relate to the operation of a motor vehicle while intoxicated?

If the answer is yes, go to Box 3. If the answer is no, drop down to Box 7.

A surcharge is to be assessed upon conviction of an “offense relating to the operating of a motor vehicle while intoxicated.” Tex. Transp. Code Ann. § 708.102(a) (West 2011). The following offenses (all of which are codified in the Texas Penal Code) are included in this category:

(1) Driving while Intoxicated–§ 49.04;
(2) Driving while Intoxicated with Child Passenger–§ 49.045;
(3) Intoxication Assault–§ 49.07 (if vehicle was a motor vehicle); and
(4) Intoxication Manslaughter–§ 49.08 (if vehicle was a motor vehicle). Tex. Penal Code Ann. §49.09(c) (West Supp. 2016).

Also, included is “an offense of the laws of another state that prohibit the operation of a motor vehicle while intoxicated.” Id.

BOX 3

DPS will assess a surcharge on ∆’s driver’s license to be paid each year for three years.

“Each year the department [DPS] shall assess a surcharge on the license of a person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.” Tex. Transp. Code Ann. § 708.102(b) (West 2011).

BOX 4

Was ∆’s alcohol concentration level shown to be 0.16 or more?

If the answer is yes, go to Box 5. If the answer is no, drop down to Box 9.

The amount of the surcharge assessed upon conviction of an “offense relating to the operation of a motor vehicle while intoxicated” varies. The surcharge is higher if the defendant’s alcohol concentration level was 0.16 or higher at the time the analysis was performed. Tex. Transp. Code Ann. § 708.102(c)(2) (West 2011).

BOX 5

$2,000 per year surcharge is imposed. GO TO BOX 34.

The amount of the annual surcharge is $2,000 if the defendant’s alcohol concentration level was 0.16 or higher. Tex. Transp. Code Ann. § 708.102(c)(2) (West 2011).

BOX 6

Was offense committed on or after 09-01-2003?

If the answer is yes, go to Box 2. If the answer is no, drop down to Box 11.

The entire surcharge-assessment scheme is not applicable to convictions that occurred prior to September 1, 2003. Tex. Transp. Code Ann. §§ 708.051, 708.105 (West 2011). Accordingly, this question must be considered up front.

BOX 7

Is the offense: (a) driving while license invalid; (b) operating a motor vehicle without insurance; or (c) permitting a motor vehicle owned by ∆ to be operated on a highway during period when the vehicle’s registration had been suspended?

If the answer is yes, move to Box 8. If the answer is no, go to Box 15.

A surcharge is to be assessed upon conviction of one of the following offenses:

(1) Driving while License Invalid–Transportation Code § 521.457;
(2) Operation of Motor Vehicle in Violation of Motor Vehicle Liability Insurance Requirement (i.e., no insurance)–Transportation Code § 601.191; and
(3) Operation of Motor Vehicle in Violation of Suspension–Transportation Code § 601.371

Tex. Transp. Code Ann. § 708.103(a) (West Supp. 2016).

BOX 8

DPS will assess a surcharge on ∆’s driver’s license to be paid each year for three years.

“Each year the department [DPS] shall assess a surcharge on the license of each person who during the preceding 36-month period has been convicted of an offense under Section 521.457, 601.191, or 601.371.” Tex. Transp. Code Ann. § 708.102(a) (West Supp. 2016).

BOX 9

Was offense a second or subsequent conviction for an offense related to operating a motor vehicle while intoxicated within a 36-month period?

If the answer is yes, go to Box 10. If the answer is no, move to Box 14.

The amount of the surcharge for assessed upon conviction of an “offense relating to the operation of a motor vehicle while intoxicated” varies. The surcharge is higher if the conviction is the defendant’s second or subsequent conviction within a 36-month period for an offense relating to the operation of a motor vehicle while intoxicated. Tex. Transp. Code Ann. § 708.102(c)(1) (West 2011).

BOX 10

$1,500 per year surcharge is imposed. GO TO BOX 34.

The amount of the annual surcharge is $1,500 if the defendant’s conviction is a second or subsequent conviction for an offense relating to the operation of a motor vehicle while intoxicated. Tex. Transp. Code Ann. § 708.102(c)(1) (West 2011).

BOX 11

No surcharge is imposed. STOP.

DPS should not assess any surcharge on the defendant.

BOX 12

Was ∆ convicted only of (b) in Box 7—and not of (a) or (c) in Box 7—and did ∆ obtain insurance within 60 days after the date of the offense?

If the answer is yes, advance to Box 13. If the answer is no, drop down to Box 19.

A surcharge imposed for the offense of “Operation of Motor Vehicle in Violation of Motor Vehicle Liability Insurance Requirement” (i.e., no insurance—Transportation Code § 601.191) can be reduced. The reduction is mandated if the defendant obtains in­surance within 60 days after the date of the offense. Transportation Code § 708.103(c) (West Supp. 2016). The insurance policy must be prepaid and valid for at least a six-month period. Id.

BOX 13

$125 per year surcharge is imposed.

The amount of the annual surcharge is $125. Tex. Transp. Code Ann. § 708.103(c) (West Supp. 2016).

BOX 14

$1,000 per year surcharge is imposed.

The amount of the surcharge is $1,000 annually for three years. Tex. Transp. Code Ann. § 708.102(c) (West 2011).

BOX 15

Is offense “driving without a license?”

If the answer is yes, advance to Box 16. If the answer is no, drop down to Box 21.

A surcharge is to be assessed upon conviction of the offense of “Driving Without a Valid License.” Tex. Transp. Code Ann. § 708.104(a) (West Supp. 2016).

BOX 16

DPS will assess a surcharge on ∆’s driver’s license to be paid each year for three years.

“Each year the department [DPS] shall assess a surcharge on the license of a person who during the preceding 36-month period has been convicted of an offense under Section 521.021 (Driving without a License).” Tex. Transp. Code Ann. § 708.104(a) (West Supp. 2016).

BOX 17

Does ∆ obtain driver’s license within 60 days after the date of the offense?

If the answer is yes, go to Box 18. If the answer is no, advance to Box 20.

The answer to this question will dictate the amount of the surcharge. The amount will be $50 if the defendant obtains a license or $100 if he or she does not obtain a license. Tex. Transp. Code Ann. § 708.104 (West Supp. 2016).

BOX 18

$50 per year surcharge is imposed. GO TO BOX 34.

The surcharge is $50 if the defendant “obtains a driver’s license not later than the 60th day after the date of the offense.” Tex. Transp. Code Ann. § 708.104(b-1) (West Supp. 2016).

BOX 19

$250 per year surcharge is imposed. GO TO BOX 34.

The surcharge is $250 per year. Tex. Transp. Code Ann. § 708.103(b) (West Supp. 2016).

BOX 20

$100 per year surcharge is imposed. GO TO BOX 34.

The surcharge is $100 per year if the defendant does not obtain a driver’s license within sixty days. Tex. Transp. Code Ann. § 708.104(b), (B-1) (West Supp. 2016).

BOX 21

Is offense a moving violation for which “points” are assigned to ∆’s driver’s license?

If the answer is yes, go to Box 22. If the answer is no, drop down to Box 27.

A person’s driver’s license will be assessed a certain number of “points” for each conviction of a person for certain “moving violations.” Tex. Transp. Code Ann. § 708.052 (West 2011). Not every traffic law violation is a moving violation. And not all moving violations result in the accumulation of points. DPS decides which violations are considered to be moving violations—this authority is given to DPS by the Legislature. Tex. Transp. Code Ann. § 708.052(c) (West 2011). DPS’s list of moving violations can be found at 37 Tex. Admin. Code, § 15.89 (Tex. Dep’t of Public Safety, Driver License Rules—Driver Improvement). A copy of the list is included as Appendix A.

The DPS list of moving violations is arranged alphabetically. As mentioned above, not every violation on the list results in the assessment of points. The list contains a column showing whether the moving violation in question results in the assessment of points.

BOX 22

Is ∆ adjudicated under CCP, Art. 45.051 or Art. 45.0511?

If the answer is yes, go to Box 23. If the answer is no, drop down to Box 29.

This box is reached only if the defendant has been “convicted” of a moving violation. Cases involving moving violations are often handled in the courts under Articles 45.051 and 45.0511 of the Code of Criminal Procedure. Article 45.051 deals with deferred disposition. As is the case with deferred adjudication, a deferred disposition is not considered to be a conviction. See Tex. Code Crim. Proc. Ann. art. 45.051(c) (West Supp. 2016). The Transportation Code expressly states that DPS “may not assign points to a person’s license if the offense committed by the person was adjudicated under Article 45.051.” Tex. Transp. Code Ann. § 708.052(e) (West 2011).

Similarly, DPS may not assign points to a person’s license if the offense is adjudicated under Article 45.0511. This article involves the handling of the case through the defendant’s completion of a driving safety course. Tex. Code Crim. Proc. Ann. art. 45.0511 (West Supp. 20161). Successful completion of the course results in the charges against the defendant being dismissed. Tex. Code Crim. Proc. Ann. art. 45.0511(l) (West Supp. 2016).

Even if the defendant is charged with a moving violation, no points will be assessed if the case is handled under Article 45.051 or 45.0511.

BOX 23

No points are assigned to ∆’s driver’s license.

As noted in Box 22, no points are assessed against a defendant’s driver’s license. Tex. Transp. Code Ann. § 708.052(e) (West 2011).

BOX 24

Did the moving violation result in an accident?

If the answer is yes, go to Box 25. If the answer is no, drop down to Box 31.

We ask this question because the number of points assessed for a moving violation depends on whether the moving violation resulted in an accident. See Tex. Transp. Code Ann. § 708.052(b) (West 2011).

BOX 25

Three points are assigned to ∆’s driver’s license.

Three points are assigned to a defendant’s driver’s license if the conviction was for a relevant moving violation that resulted in an accident. Tex. Transp. Code Ann. § 708.052(b)(2) (West 2011).

BOX 26

$100 surcharge is imposed for first six points plus $25 surcharge for each additional point. GO TO BOX 34.

The amount of a surcharge assessed against a person who has accumulated six points on his or her driver’s license is $100. For each additional accumulated point, there is an additional $25 surcharge. Tex. Transp. Code Ann. § 708.054 (West 2011).

BOX 27

No points are assessed to ∆’s driver’s license.

By reaching this box, a determination has been made that no points will be assessed against a defendant’s driver’s license.

BOX 28

No surcharge is imposed. STOP.

By reaching this box, a determination has been made that the defendant has not been convicted of any offense that would result in the assessment of a surcharge. No surcharge should be imposed. The analysis ends at this point.

BOX 29

DPS will assign points to ∆’s driver’s license.

By reaching this box, the defendant must necessarily have been convicted of a moving violation for which points are assigned. See Tex. Transp. Code Ann. § 708.052 (West 2011).

BOX 30

No surcharge is imposed. STOP.

By reaching this box, a determination has been made that no points will be assigned to the defendant’s driver’s license. A determination has also been made that the defendant has not been convicted of any offense that would result in the assessment of a surcharge. No surcharge should be imposed. The anal­y­sis stops at this point.

BOX 31

Two points are assigned to ∆’s driver’s license.

Two points are assigned to a defendant’s driver’s license if the conviction was for a relevant moving violation that did not result in an accident. Tex. Transp. Code Ann. § 708.052(b)(1) (West 2011).

BOX 32

Has ∆’s driver’s license accumulated six or more points in last 36-month period?

If the answer is yes, go to Box 26. If the answer is no, go to Box 33.

Not every assessment of points against a person’s driver’s license results in the assessment of a surcharge. Rather, the rule concerning the assessment of surcharges for accumulated points is as follows:

Each year, the department [DPS] shall assess a surcharge on the license of a person who has accumulated six or more points . . . during the preceding 36-month period.

Tex. Transp. Code Ann. § 708.053 (West 2011).

Each year a person has not been assessed any points, one point will be deducted from the person’s point total. Consider a person who has accumulated six points in Year One. A surcharge will be assessed against the person in Year One. Assume the person has no new points assessed in Year Two. This means one point will be deducted from the person’s total of six points. The person will not have to pay any surcharge in Year Two because the person will only have five accumulated points.

BOX 33

No surcharge is imposed. STOP.

If a person has accumulated fewer than six points on his or her driver’s license, no surcharge is imposed. See Tex. Transp. Code Ann. § 708.054 (West 2011).

BOX 34

Surcharge has been imposed.

This is the first box on Page 2 of the flowchart. This box should only be reached if DPS has imposed a surcharge against the defendant. This is the beginning point for determining whether the surcharge can be eliminated, reduced, or deferred.

BOX 35

Was the offense one described in Box 7 or Box 15?

If the answer is yes, go to Box 36. If the answer is no, go to Box 41.

Only if an offense described in Box 7 or Box 15 resulted in a surcharge assessment can a deferment of surcharge payments for military deployment possibly be obtained. See Tex. Transp. Code Ann. § 708.106 (West 2011). There is no possible deferment for surcharges assessed in connection with an offense relating to the operating of a motor vehicle while intoxicated. See id. Nor is there any possible deferment for surcharges resulting from the accumulation of points on one’s driver’s license. See id.

BOX 36

Is ∆ in U.S. military deployed (or about to be deployed) outside continental U.S.?

If the answer is yes, go to Box 37. If the answer is no, go to Box 41.

DPS is statutorily required to “establish a deferral program for surcharges assessed . . . against a person who is a member of the United States armed forces on active duty deployed outside of the continental United States.” Tex. Transp. Code Ann. § 708.106 (West 2011). Please note that the statute makes a service member serving in Alaska or Hawaii eligible for a deferral. The deferral application form (prepared by MSB—the vendor operating the Driver Responsibility Surcharge Program) says nothing about service members in Alaska or Hawaii. By reading the application, one would never know that service members in Alaska and Hawaii are eligible for the deferral. The application form refers only to “de­ploy­ment to a foreign station for military duty.” Of course, the statute controls over the form. (The application form is discussed in more detail in Box 38.)

BOX 37

Assessment of surcharges can be deferred until date that ∆ is no longer deployed.

Under the relevant statute, surcharges are to be deferred for military personnel serving on active duty outside the continental United States. Tex. Transp. Code Ann. § 708.106 (West 2011). The statute says this deferral is to last “until the date the person is no longer deployed.” Id. According to the deferral application form, the person has 30 days from the date he or she returns to begin making payments toward the assessed surcharged. (The application form is discussed in more detail in Box 38.)

BOX 38

∆ must apply for deferral. Application is available online.

Deferrals do not occur automatically. Any defendant seeking a deferral of a requirement to pay surcharges must make an application for a deferral. A copy of the “Military Deployment Deferral Application” is available online. One must go to DPS’s website con­cerning the Driver Responsibility Surcharge Program at www.txsurchargeonline.com. Then go to the “Frequently Asked Questions” section. Go to the question entitled “I am currently in the military and want to know how to defer my payments while deployed outside the continental United States.” The answer to that question contains a link to the form.

A copy of the form is included as Appendix B.

The FAQ section referenced above is very good source of information about the Driver Responsibility Surcharge Program.

BOX 39

Does DPS grant the requested deferral?

If the answer is yes, go to Box 40. If the answer is no, go to Box 41.

BOX 40

Requirement to pay surcharge is deferred until 30 days after ∆’s deployment. GO TO BOX 41.

The application for a deferment due to deployment in the U.S. military outside the continental United States contains a statement that the applicant must acknowledge:

I understand that upon my return to the United States from overseas deployment for military duty, I will have thirty (30) days to begin making minimum payments of payment-in-full to each of the deferred accounts.

Thus, after a defendant returns from his or her deployment, the defendant is again responsible to pay the assessed surcharges. However, the defendant may still possibly be eligible for DPS’s Indigency Program (which can eliminate surcharges) or Incentive Program (which can reduce surcharges).

Accordingly, go to Box 41 to determine if the defendant is eligible for either of these programs.

BOX 41

Was the surcharge assessed before 09-01-2011?

If the answer is yes, go to Box 42. If the answer is no, move to Box 43.

DPS is statutorily required to waive all assessed surcharges for a person who is indigent. Tex. Transp. Code Ann. § 708.158(a) (West 2011). However, this requirement applies only to surcharges assessed on or after the effective date of the legislative act imposing this waiver requirement. See Act of June 1, 2009, 81st Leg. R.S., ch. 1146, §§ 15.04, 15.07, 15.08, 2009 Tex. Gen. Laws 3583, 3655–56. The effective date of the act was September 1, 2011. Accordingly, if the surcharge in question was assessed prior to September 1, 2011, the surcharge cannot be waived due to the defendant’s indigency.

The same principle applies to the requirement that DPS reduce the amount of a surcharge for certain persons. See Act of June 1, 2009, 81st Leg. R.S., ch. 1146, §§ 15.05, 15.07, 15.08, 2009 Tex. Gen. Laws 3583, 3656. Accordingly, if the surcharge in question was assessed prior to September 1, 2011, the surcharge cannot be reduced under DPS’s incentive program.

BOX 42

∆ must pay the surcharges. GO TO BOX 56.

This box should be reached only if the surcharge in question was assessed before September 1, 2011. As explained in Box 41, surcharges assessed before September 1, 2011, are ineligible for waiver under DPS’s Indigency Program. Such surcharges are also ineligible for reduction under DPS’s Incentive Program. Therefore, the surcharges must be paid.

BOX 43

∆ may possibly qualify for DPS’s Indigency Program (which would eliminate surcharges) of DPS’s Incentive Program (which would reduce surcharges).

The indigency program is described in Tex. Transp. Code Ann. § 708.158 (West 2011). DPS is required to waive all surcharges for a person who is indigent. A defendant is considered to be indigent if his or her income or household income “does not exceed 125% of the applicable income level established by federal poverty guide­lines.” Tex. Transp. Code Ann. § 708.158(b) (West 2011).

The incentive program is not described in detail in statute. The relevant statute simply says that DPS:

shall offer a holder of a driver’s license on which a surcharge has been assessed an incentive for compliance with the law and efforts at rehabilitation, including a reduction of a sur­charge or a decrease in the length of an installment plan.

Tex. Transp. Code Ann. §708.157(b) (West 2011).

DPS has this to say about the incentive program in its FAQ publication (see Box 38 for website information):

The incentive program applies to individuals who are living above 125% but are below 300% federal poverty level, defined annually by the United States Department of Health and Human Services. For approved applicants, the surcharge fees will be reduced by 50% of the total amount as­sessed (service fees apply).

In summary, a defendant whose income is at or below 125% of the income level established by federal poverty guidelines is eligible for the indigent program. This program results in the waiver of the assessed surcharges. A defendant whose income is above 125%, but below 300%, of the income level established by federal poverty guidelines is eligible for the incentive program. This program results in the assessed surcharges being cut in half.

BOX 44

Is ∆’s income ≤ 125% of income level established by federal poverty guidelines?

If the answer is yes, go to Box 45. If the answer is no, drop down to Box 49.

Currently, 125% of the poverty level as established by the federal poverty guidelines is $14,850. See Federal Register, January 25, 2016. This is the amount for one person in Texas and any other of the 48 continental United States. For a family of two persons, the amount is $20,025. For a family of three, the amount is $25,200, while the amount for a family of four is $30,375. The amount for a family of five is $35,550, and the amount for a family of six is $40,725. Finally, the amount for a family of seven is $45,912.50, while the amount for a family of eight is $51,112.50. For each additional person over the eighth person, $5,200 should be added to the $51,112.50 amount.

BOX 45

∆ may apply for Indigency Program, which would eliminate surcharges.

Surcharges are not automatically waived if a defendant is indigent. The defendant must make an application in order to qualify for the indigency program and have his or her surcharges waived. The application form can be accessed through DPS’s Driver Responsibility Surcharge Program website:

www.txsurchargeonline.com

The defendant will need to provide the following information in order to access his or her account information (to make an application): (1) the defendant’s driver’s license number, I.D. card number, or DPS assigned number; (2) the reference number from the surcharge notice letter sent to the defendant; (3) a valid credit card, debit card, checking account, savings account, or money market account.

The application form does not have to be notarized.

If a person has no internet access, he or she may call the Municipal Services Bureau (MSB) 1-866-223-3583 to request an ap­pli­cation form.

BOX 46

Does ∆ apply for Indigency Program?

If the answer is yes, go to Box 47. If the answer is no, go to Box 53.

The application can be submitted by mail or online. The mailing address is:

DRP
Indigency/Incentive Application Processing
PO Box 16733
Austin, TX 78761

Online submission will yield faster results. A person who applies online can go to www.surchargeonline.com to check on the status of his or her application. This status should be available 14 business days after the application is made. A person who applies by mail will be mailed a notification of eligibility, but this generally takes about 60 days from the date of application.

BOX 47

Does ∆ provide required documentation of income?

If the answer is yes, go to Box 48. If the answer is no, go to Box 53.

Evidence of the ∆’s income level will be required along with the application. Section 708.158(b) of the Government Code declares that copies of any of the following documents will constitute sufficient documentation:

(1) defendant’s federal income tax return;
(2) defendant’s most recent statement of wages;
(3) documentation from a federal agency, state agency, or school district showing that the defendant (or, if the defendant is dependent for tax purposes, the taxpayer claiming the defendant as a dependent) receives assistance from:

a. the food stamp program or the financial assistance program established under Chapter 31, Human Re­sources Code;
b. the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Sec­tion 1786;
c. the medical assistance program under Chapter 32, Human Resources Code;
d. the child health plan program under Chapter 62, Health and Safety Code; or
e. the national free or reduced-price lunch programs established under 42 U.S.C. Section 1751 et seq.

BOX 48

DPS will notify ∆ by first class mail that indigency application has been approved.

As noted in Box 46, this notification generally occurs about 60 days after the application is submitted.

BOX 49

Is ∆’s income > 125% but < 300% of income level established by federal poverty guidelines?

If the answer is yes, go to Box 50. If the answer is no, move to Box 58.

Currently, 300% of the poverty level as established by the federal poverty guidelines is $35,640. See Federal Register, January 25, 2016. This is the amount for one person in Texas and any other of the 48 continental United States. For a family of two persons, the amount is $48,060. For a family of three, the amount is $60,480 while the amount for a family of four is $72,900. The amount for a family of five is $85,320, and the amount for a family of six is $97,740. Finally, the amount for a family of seven is $110,190, while the amount for a family of eight is $122,670. For each additional person over the eighth person, $12,480 should be added to the $122,670 amount.

The guidelines for 125% of the poverty level are detailed in Box 44.

BOX 50

∆ may apply for Incentive Program, which would reduce surcharges.

Surcharges are not automatically reduced if a defendant’s income level meets the incentive program standards. The defendant must make an application in order to qualify for the incentive program and have his or her surcharges reduced. The ap­pli­cation form can be accessed through DPS’s Driver Responsibility Surcharge Program website at www.txsurchargeonline.com.

The defendant will need to provide the following information in order to access his or her account information (to make an application): (1) the defendant’s driver’s license number, I.D. card num­ber, or DPS assigned number; (2) the reference number from the surcharge notice letter sent to the defendant; (3) a valid credit card, debit card, checking account, savings account, or money market account.

The application form does not have to be notarized.

If a person has no internet access, he or she may call the Municipal Services Bureau (MSB) 1-866-223-3583 to request an appli­cation form.

BOX 51

Does ∆ provide required documentation of income?

If the answer is yes, go to Box 52. If the answer is no, go to Box 58.

Evidence of the ∆’s income level will be required along with the application. The same evidence that can be used to support an application for the indigency program can be used to support this application for the incentive program. This evidence is detailed in Box 47.

BOX 52

DPS will notify ∆ by first class mail that incentive application has been approved.

This notification generally occurs about 60 days after the application is submitted. Any driver’s license suspension will be lifted at that time.

BOX 53

∆ must pay the assessed surcharges.

This box is reached if the defendant is eligible to apply for the indigency program, but does not do so. This box is also reached if the defendant does not provide adequate documentation of his or her income. In such circumstances, the defendant will be re­quired to pay the assessed surcharges.

There is no deadline for applying for the indigency program—a person can apply even after making partial surcharge payments. Any payments made before surcharges are waived under the indigency program are not refunded to the defendant.

BOX 54

Does ∆ apply for Incentive Program?

If the answer is yes, go to Box 51. If the answer is no, go to Box 58.

The application can be submitted by mail or online. Please see details concerning the submission of an application in Box 46.

BOX 55

∆ must pay one-half of the unpaid surcharges within six months.

DPS describes its incentive program as follows:

The incentive program applies to individuals who are living above 125% but are below 300% federal poverty level . . . . For approved applicants, the surcharge fees will be reduced by 50% of the total amount assessed (service fees apply).

DPS FAQ’s on the Driver Responsibility Program, available online at www.txsurchargeonline.com.

The service fees referenced above are as follows:

(1) service fee of 4% of the original surcharge amount;
(2) installment plan fee of $2.50 per partial payment;
(3) credit/debit card fee of 2.25% of payment plus $0.25; and
(4) electronic check fee of $2.00 per payment.

Id.

There are several different ways to pay. The surcharges and accompanying service fees can be paid over the course of time on a monthly payment plan. This is the most common way for surcharges to be paid. There is also an option for paying all of the surcharge amounts owed at once. These payment options are detailed on DPS’s FAQ sheet.

If the reduced surcharges under the incentive program are not paid within six months, then the defendant’s driving privileges will be suspended until the reduced surcharges are paid in full.

BOX 56

Does ∆ pay surcharges and accompanying service fees as required?

If the answer is yes, go to Box 57. If the answer is no, drop down to Box 59.

BOX 57

∆ no longer owes surcharges. STOP.

If this box has been reached, the defendant’s indigency application has been approved. The defendant no longer owes the assessed surcharge.

BOX 58

∆ must pay the assessed surcharges.

This box is reached if the defendant is required to pay surcharges.

There is no deadline for applying for the incentive program–a person can apply even after making partial surcharge payments. Any payments made before surcharges are waived under the indigency program are not refunded to the defendant. Any payments made before surcharges are reduced (under the incentive program) are counted toward the reduced balance owed.

BOX 59

DPS will consider ∆’s account to have gone into default. ∆’s driving privileges will be suspended. DPS will restore ∆’s driving privileges if and when ∆ fully pays. When ∆ pays in full, ∆ no longer owes any surcharges. STOP.

Article 708.152 of the Transportation Code reads as follows:

(a) If on the 60th day after the date the department [DPS] sends a second notice under Section 708.151 the person fails to pay the amount of a surcharge on the person’s license or fails to enter into an installment payment agreement with the department, the license of the person is automatically suspended. A person’s license may not be suspended under this section before the 105th day after the date the surcharge was assessed by the department.
(b) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.

April 2017 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
21 | The Time Has Come to Tear Down the Iron Curtain Between the Constitution and Texas Prisons: How to Challenge a Warrantless Jail Cell Search – By Mark Stevens
26 | Flowchart on DPS Surcharges – By Ted Wood
37 | Status Update: The Fourth Amendment Is Unlikely to Protect Social Media Footprints – By Katherine Devlin

Columns
6 | President’s Message
8 | Executive Director’s Perspective
9 | Editor’s Comment
11 | Off the Back
13 | Ethics and the Law
15 | Federal Corner
18 | Shout Outs

Departments
5 | CLE Seminars and Events
39 | Significant Decisions Report

Look Here: 4th Amendment Musings

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“Every man’s house is his castle” has been a concept celebrated throughout U.S. history, stemming from the colonials and their British roots. See generally Semayne’s Case, 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). The Fourth Amendment has its roots in this concept, affording people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” with no warrants to be issued without a finding of probable cause. U.S. const. amend. IV. As we all know, however, and as the Amendment clearly states, a blanket prohibition on all governmental searches is not present in the Bill of Rights, nor anywhere in the U.S. Constitution, for that matter. Our citizens are only protected against those warrantless searches found to be “unreasonable.”

Katz v. United States continues to be a leading case governing the Fourth Amendment, holding that violations must be decided under a reasonable expectation of privacy standard. 389 U.S. 347, 369 (1967). However, this standard has become more difficult to apply in modern practice as social media and online networks have permeated society at an accelerated rate. Gone are the days of the Fourth Amendment’s original purpose to protect only a person’s “castle” and effects. Instead, notions about what constitutes a reasonable warrantless search have changed dramatically, especially within the last decade, as the usage of social media has become the norm.

Although Katz was decided 50 years ago, it foreshadowed the Fourth Amendment issues presented today with the rise of online social networks, and, in fact, blindly suggested an answer to these issues. Justice Stewart, writing for the majority, argued that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id. at 351. Each day, millions of Americans access social networking sites in their own home, or office, voluntarily exposing to the public endless, and often unfiltered, personal information. According to Katz, the Fourth Amendment does not protect the information these millions of Americans display on social media.

While Katz suggests that activity on sites such as Facebook, Twitter, and Instagram are not protected by the Fourth Amendment, there is no way the Court, nearly five decades ago, could have grasped the impact social media has had on our society today. In reality, Fourth Amendment doctrine has struggled to keep up with this online phenomenon, failing to set out a black-and-white answer to the question: Is a citizen’s activity on social networking sites protected by the Fourth Amendment? As it stands today, the answer to this question is likely in the negative, and the Supreme Court has failed to release a clear answer to guide lower courts.

During a visit to the University of Florida Levin College of Law in 2010, Justice Clarence Thomas was asked whether he believed the Court has kept up with the ever-changing technological advances. His response supports the probabilistic answer noted above, expressing that with rapidly shifting technological changes, there are no longer clear zones of privacy. “[The government doesn’t] actually have to come onto property now to look into your private affairs. . . .” Clarence Thomas, Associate Justice, U.S. Supreme Court, Address at the University of Florida Levin College of Law Marshall Criser Distinguished Lecture Series (Feb. 4, 2010).

With this statement, Justice Thomas recognized through implication that the zones of privacy are murky and unresolved. The government, without guidance one way or the other from a higher power, effectively has free reign to access a person’s private affairs through social media avenues in a way that does not violate existing Fourth Amendment principles.

Soon after Justice Thomas expressed an opinion on whether the Supreme Court has successfully kept up with technological advances, Justice Stephen Breyer chimed in, as well, in a speech at Vanderbilt Law School. Although Justice Breyer spoke about applying the First Amendment in a world with internet, Facebook, and movies like “The Social Network,” he made clear the fact that the Court has a limited grasp of current, and rapidly changing, technological developments. Stephen Breyer, Justice, U.S. Supreme Court, Address at Vanderbilt Law School (Nov. 16, 2010).

The Supreme Court still has yet to determine the bounds and outer limits of a reasonable search of a user’s social network page and posts. This silence has allowed Fourth Amendment doctrine to continuously lag behind modern-day technology, and it has given courts across the country free discretionary rein to decide the issues, when presented, on a case-by-case basis. Guidelines from the high court would be helpful in these determinations. For example, do privacy settings, a user’s age, content of a post, a user’s followers, etc., have an impact on whether or not an individual’s social networking site can be considered protected under the Constitution and require a warrant to search?

Eventually, the Court will have to examine these issues, and this fact has again been recently highlighted in a case involving GPS (Global Positioning System) tracking. In United States v. Jones, the Supreme Court held that the use of a GPS tracker to monitor a car’s movement constitutes a search under the Fourth Amendment. 132 S.Ct. 945, 951-52 (2012). Justice Alito, as part of his concurring opinion, addressed the fact that as “social tools” continue to advance, the Fourth Amendment’s interplay between social media and the average person’s expectations of privacy in his or her daily life will need to be addressed. See Id. at 963.

Additionally, Justice Sotomayor’s concurring opinion emphasized that a GPS tracker onto one’s effects is a Fourth Amendment violation because of the physical intrusion into one’s property. Id. at 954–55. The decision in Jones definitely sets out a clear ban on attaching a GPS tracker to one’s effects, but it most likely does not preclude tracking movement, or other actions, through social media websites where there is no physical intrusion into an individual’s privacy when the information is knowingly and willingly made available to the public. Again, the Court did not speak definitively either way.

While Jones once again brought to the forefront the fact that social media and technology advances need to be addressed under a Fourth Amendment analysis, a black-and-white decision has yet to be made. As of today, law enforcement agencies use social networks on a regular basis to investigate crimes and prosecute suspects because there is no real concern that such actions could result in Fourth Amendment violations.

Many, if not most, social media users are unaware that their online networking is likely not protected by the Fourth Amendment. While this might change as case law and statutory law develops, all social media users, especially our clients facing criminal charges, should be wary of the information posted online. Further, it is imperative for us, as defense attorneys, to remind our clients that their “tweets,” location check-ins, shared photos and videos, status updates, and the like are probably free game for government officials. As such, we should counsel them to take the necessary precautions to ensure that their social media accounts will not have a negative effect on the outcome of their case.

President’s Message: Número Nueve: The Good and the Ugly – By John A. Convery

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You all might remember my President’s Message from last November, in which I shared information with you about our legislative efforts related to pretrial release. Since then, both Senator John Whitmire and Representative Andrew Murr filed identical bills, and it is expected that they will be heard very soon in both chambers. In the past four months, as negotiations have taken place, the bill has morphed, sometimes favorably and sometimes not. TCDLA has had a seat at the table during these negotiations, and as a result, we have been able to insert favorable language and compromise positions on sections about which we do not agree.

Given the widespread implications of these bills, I thought it fitting to write about it again now to make sure our members know about the good and the ugly. These bills contain two major and distinct concepts, the first of which represents good, positive reform that will directly affect our clients and the section of which is just ugly, as it allows for defendants to be held without bond for the duration of their case in charges other than capital murder, to include any felony or jailable misdemeanor.

Let’s start with the good in these bills. It is encouraging that the Texas Legislature is taking a hard look at the reasons our county jails are overcrowded and how the process could better ensure that low-level, nonviolent offenders would be released early in the process. We know that more than forty thousand defendants are currently held in county jails, resulting in an annual $1 billion price tag to the counties. The cost to our clients who find themselves in these situations is dire—defendants held in jail are more likely to plead guilty to get out of jail, and they risk losing their jobs, homes, and families.

First, while asking for increased state funding and recognizing that all existing forms of bond and bail should remain in effect, the legislation calls for an amendment to the Texas Constitution that would create a presumption that all persons charged with a crime in Texas are entitled to pretrial release through personal bond. The bills seeks to require that all Texas counties adopt and implement a validated risk-assessment tool that would be given to all defendants arrested for jailable misdemeanors and felonies, prior to magistration. The results of such an assessment would be used to place defendants along a risk scale and as a factor in determining appropriate bond conditions and supervision.

This risk assessment is important. The ideal risk assessment—which would objectively provide courts with information necessary to determine bond and to serve the interests of the criminal justice system—is one in which there is no need for an interview and the score is based on prior convictions or failures to appear. The Office of Court Administration, should the bill pass, would establish a model risk assessment for counties to use—such as the assessment made by the John and Laura Arnold Foundation in Houston. The assessment will focus on the only two criteria that courts should evaluate: what is the risk of the defendant failing to appear and what is the likelihood that the defendant will be a danger to the community. Because of these specific topics, the Arnold Foundation assessment considers a defendant’s background related to prior failures to appear, if any, and prior convictions (not just arrests) for violent crimes.

Both of the bills also include a provision that no indigent defendant can be held on the basis that they cannot pay the personal bond fee, an issue that has caused thousands around the state to stay in jail after they have been granted a personal bond.

The position of the bill authors is that the system faces two problems—one, that low-level nonviolent people are being held too long in the county jails and two, that some individuals who have the financial ability to post nearly any amount of money are being released when they really should stay in jail. Because this is an inherent philosophy, both instances are being addressed in this legislation. Therefore, Senator Whitmire and Representative Murr are also proposing to amend the Texas Constitution to provide that defendants posing a high risk of flight and/or a danger to community safety may be held in jail without bail pending trial after certain findings are made and a detention hearing held. While the expressed goal regarding this provision is to prevent flight or a community safety threat by those with affluent means, expanding the class of individuals who can be held without bond pretrial beyond those charged with capital murder is, understandably, concerning to us and other legislators.

This process—known as preventative detention—is enumerated as follows. A magistrate or a judge can find by clear and convincing evidence that bail or the conditions of pretrial release are insufficient to reasonably ensure the person’s appearance in court or the safety of the community or the victim on the alleged offense. Upon that finding, the decision to continue to hold a defendant without bond and therefore trigger a preventive detention hearing rests in the hands of the state. Should the state proceed, a detention hearing must be held no later than 10 days after the initial magistrate or judge’s denial of release. The state may not continue the case past those 10 days, but the defense can if we need more time to prepare.

At the detention hearing, defendants will have the ability to present witnesses and evidence related to the case. During the hearing, the Judge must consider a number of factors, including the weight of the evidence and the likelihood that the evidence would be admissible, as well as the history, mental condition, employment, past conduct, and character of the defendant. If the court makes a finding by clear and convincing evidence that setting bond would not reasonably ensure the defendant’s appearance in court or the safety of the community or the victim of the alleged offense, it can order that the defendant be held without bond. If such a finding is made, the Court must make written findings as to its justification for such a detainer.

The bills also enumerate a specific right to appeal such a finding to the Court of Criminal Appeals and would give this Court the responsibility of rule-making to accelerate this process. Given the breadth of topics the Courts can consider, including the weight of the evidence and its admissibility, it is imperative for the defense to be provided with discovery in advance of the hearing with enough time to prepare for the hearing.

After much review and analysis, the TCDLA Legislative team and leadership believe that some of the recommendations for reform to the pretrial release procedures are sensible, strategic, and good—and therefore, will have our endorsement and support. However, the expansion of preventive detention gives overly broad discretion to magistrates and judges to trigger the process in any case they choose.

TCDLA supports the provisions in the bill that will result in the pretrial release for a class of defendants—those who have nonviolent charges. However, TCDLA does not support the expansion of preventive detention, despite the scope of the detention hearing to which defendants would be entitled. TCDLA will continue to advocate for specific change and protections should this legislation pass over our objection.

Executive Director’s Perspective: The Common Good – By Joseph A. Martinez

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Special thanks to Rick Wardroup, course director for our Capital Defense CLE held in Dallas in February. Thanks to his help and our speakers we had 39 attendees.

Special thanks to the Thurgood Marshall School of Law (Houston) and the Earl Carl Institute (Houston) for allowing us to co-sponsor the 6th Annual Hon. Craig Washington and Senator Rodney Ellis Excellence in Indigent Defense Series CLE held at the Thurgood Marshall School of Law in Houston in February. Thanks to everyone’s help and assistance we had 113 attendees.

Special thanks to Harris County Criminal Lawyers Association (HCCLA) for allowing TCDLA/CDLP to co-sponsor their 2nd Annual Winning Women CLE held in Houston in March. Thanks to everyone’s efforts we had 107 attendees.

TCDLA was started in July 1971. Our goal then and now remains constant:

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 educational programs and other assistance;

And through such cooperation, education and assistance to promote justice and the common good.

To these ends our 3,200+ members support their TCDLA. We encourage our members to promote TCDLA and its goals to those lawyers who are not members. Get them to join TCDLA.

Please join us for the 30th Annual Rusty Duncan Advanced Criminal Law Course to be held in San Antonio at the Hyatt Regency Hotel June 22–24, 2017. There will be loads of activities as we celebrate 30 years of the finest CLE in the country. Please go to our website for more information.

Does your local criminal bar need a speaker for your lunch meetings? Please call Melissa Schank (512-478-5214) at the Home Office. CDLP has funds to provide a speaker and pay up to $500 for lunch costs.

Do you need CLE credit and can’t attend our seminar training? Please call the Home Office 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: A Year in Review – By Sarah Roland

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I have now been the editor of The Voice for one year. What a privilege it has been, what an opportunity. I have been fortunate to work with regular prominent contributors like Buck Files, Stephen Gustitis, and Robert Pelton, and TCDLA’s behind-the-scenes man, Craig Hattersley. We have added a standing Fourth Amendment column, published more from experts, and have heralded in a new SDR author, Michael Mowla.

It has also provided a platform (I am certain that the fact that our journal is called The Voice is no mere coincidence). Any time we are given a voice we must use it, and we must use it effectively and responsibly. We must speak for those who can’t, even when to do so is unpopular or downright hard. We must advocate for those whom everyone else has abandoned. We must beg for mercy on behalf of those who can’t ask themselves. We must advocate for real science in the courtroom every time. We must strive for and bring about positive change rather than complain about the status quo. We, unlike many, are in a position to do something about the problems we see, and to make changes. This opportunity should not be squandered.

A year ago, I wrote about legacies. I was reflecting on the upcoming birth of my son, Samuel George, and my dad, George Roland, who has been memorialized in The Voice since his death in 1999. Sam will be one on April 8. He is happiness. I was literally in the middle of a felony punishment trial when I was rushed away from the courtroom—leaving my bewildered client sitting all alone at the counsel table—to the hospital to deliver Sam (a huge thank you to the trial judge and prosecutor for their sincere concern). I had severe complications; Sam was perfectly fine; and my client, who was on bond and enjoyed a reprieve until I was back, ended up with probation in the end. Then, on April 18, our youngest brother, Randy, died suddenly from his addiction; and on April 22 my middle brother, George, got married. To say April was a hard, rollercoaster ride of emotions for us is the understatement of the year.

At some point we will all experience some sort of emotional interruption in our practice—whether good, bad, or both. The question is how do we deal with such interruptions. There is no stock answer, and I certainly don’t pretend to have it. Perhaps dealing with interruptions to our own life is more difficult for us because our job, in essence, is to manage the problems of others. We must take care of ourselves and each other. To be a criminal defense lawyer is, at a rudimentary level, to have deep empathy for others. Why else do we care that the rights of a relative stranger have been violated? Why else do we care that a relative stranger is being treated unfairly in our view?

We have chosen a hard profession. The hours are long. The cases are hard. We lose more than we win. “Thank you’s” are the exception rather than the rule. Often, we are the lawyer, officer manager, accountant, and cleaning staff all at the same time. It is taxing on its own.

No matter what happens in life, though, we can’t forget to live, easy as it seems to be sometimes. Someone is always depending on us. We must find and revel in the happy moments. We must do what we can to effectuate positive change and influence on a personal and professional level. Our family has chosen to focus on remembrance and prevention of unnecessary deaths due to addiction.

Our dad had a million different sayings—Rolandisms. Two come to mind:

  • Life is like spaghetti; it’s messy but it sure is good
  • Keep on keepin’ on

It seems to me that this is as much advice on life as it is advice on how to be an effective criminal defense lawyer. Criminal defense law is more a prizefight than a ballet; it is gritty, messy, long work. But it sure is good. And often enough, that work goes unappreciated. Sometimes we win, but more often, it seems, we lose. But we keep on going, because there are more people who need us. That, in some sense, is what makes our work so taxing: It never ends; there is no finish line. Instead, we keep on keepin’ on.

Off the Back: More Women Criminal Defense Lawyers Wanted – By Stephen Gustitis

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From my perspective the criminal law defense profession continues to be a man’s world. Based on 25 years of observation, the number of women defense lawyers at the county courthouse continues to be a minority. It should not be so, however. There should be more of them in our courtrooms fighting for the rights of the citizen accused.

Granted, I’m no expert in women. But those I’ve seen, those having the fortitude to manage the strain of a courtroom law practice, have added much to the profession. These women were tough and insightful. They’ve added invaluable insight into client management, case evaluation, and above all, jury selection. These women were great multi-taskers, too. So much better than I. And oftentimes they just seemed to do a better job. I’d like to see more women fighting for the rights of citizens all across our Texas criminal courtrooms.

A 2013 article in the ABA Journal chronicled the careers of several leading women in the profession.1 Although the article focused on women in civil practice, one could easily discern the crossover application to criminal defense. The take-away from the article were traits common among the most successful women attorneys. First, these leading ladies worked long hours. Regardless of gender, unfortunately, there was always a price to pay for success. That price was time, and lots of it. Further, these high-fliers fought hard to develop opportunities within their firms. They worked the big cases and made the big deals. And this sacrifice gave them opportunity to spotlight their unique talents. Moreover, these women were better at networking, and building friendships and business relationships, compared to their male counterparts. Indeed, these women leaders learned to pull their own weight. Pulling their weight meant becoming consistent producers. They learned to generate revenue, develop business relationships, and attract paying clients to their firms. Most importantly, they all earned first-rate reputations for making their firms profitable. Regardless of gender, being a good lawyer was just not enough. Being business savvy was the difference between remaining an associate or becoming a profit-sharing partner.

Granted, I’m no expert in women. But I have learned about the unique challenges facing the female criminal defense attorney. Like most male practitioners, the women were challenged by the same unpredictable work hours and the same unpredictable income. But unlike their male counterparts, women sometimes failed to get the family support they needed to make a go of it when working those long, unpredictable hours. This was especially true when it came time to raise a family and tend to the needs of children. And, of course, there remained the lingering problem of sexism in the profession.

Unfortunately, I don’t know the answers to the problems facing women criminal defense attorneys. But whatever their unique challenges, I’d love to see more of them at the county court­house trying cases. I appreciate their intuition and I appreciate their world views. And maybe I’m being a little selfish saying that, oftentimes, women are just more fun to have around.

Note

1. Zahorsky, R. M. (2013, June 1). Meet 6 law firm leaders, each with a different story, each at the top of her game. Retrieved March 16, 2017, from http://www.abajournal.com/magazine/article/women_in_charge_at_the_top_of_their_game/.

Ethics and the Law: Jim Skelton on Trial Experience

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This is an article written by Jim Skelton in 1985 with some very good information for us all. Jim left this world March 8, 2017. Jim had been the Significant Decisions Editor for the Voice and a longtime participant in the TCDLA Huntsville Trial College. Jim helped many lawyers and helped me come up with the idea for the Ethics Committee and hotline to help lawyers. In Jim’s honor, this will be the Ethics article for this issue. (Note: Judge McKay, from East Texas, was a Harris County judge for many years.)

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I always marvel at the expectations of trial judges. Everyone from the Chief Justice of the United States Supreme Court on down complains bitterly about the ignorance of the trial bar. A lot of what they say is true—but what solutions do they offer?

It doesn’t take a great deal of sense to complain. Most folks have that down pat. The hard part is to offer an alternative or come up with a workable solution. It does little good to complain that your blind date is a stringy woman wearing off-brand jeans and a halter top that reveals a midriff with two moles and a fresh abrasion. The key is getting through the evening without killing yourself. Bitching won’t solve the the problem.

A lawyer fresh from law school is much like an ugly blind date, moles and all. But given time and experience, all that can change. Let’s talk a bit about converting moles to “beauty spots.”

The first problem that faces young lawyers is getting experience. They all want trial experience. It’s a Catch-22 problem. You have to have clients to get experience, and you have to have experience to get clients. That’s how the story goes, but I don’t think that is being far-sighted.

A successful trial lawyer is basically a person who has the ability to talk and listen to people, and you don’t have to wait for a trial to get this experience. It should be a daily practice. After all, the people who you meet daily are the ones who make up juries. The only difference is that they are packaged differently. They come in singles in your daily life, whereas they come in panels of thirty-six in your lawyer life. And if you don’t practice relating to them individually, how in the hell can you expect to relate to them when they come in gaggles of thirty-six?

This then is “experience rule” number one. Practice daily the fine art of talking to people. When you go out to eat, always make eye contact with the waitress and have something to say to her other than how you want to torture your stomach. When you buy gas, spend a minute of your time visiting with the gas attendant. See if you can get him to smile or laugh, or if time permits, get him to talk about himself. When you’re shopping, talk to the clerks and get them to talk to you. Remember, a good trial lawyer never meets strangers, just prospective jurors.

Experience rule number two should start with a mirror. Take a good look at yourself. If you’re perceptive you will notice that nature has given you only one mouth and on the other hand has given you two ears. The way most lawyers function, this should be different. We should have three mouths and probably no ears. Why did nature design your head in such a fashion? The answer is simple. You should do twice as much listening as talking. So when you talk to people, listen very carefully to what they say in return because they are telling you about themselves. And if you have sense enough to listen, you will learn a whole bunch about people. Jurors are the same way. If you can get them to talk to you and if you bother to listen to what they have to say, they will tell you a lot about how they think and feel. This comes in very handy if you want to win cases.

My third suggestion is to join an organization that permits you to get some experience in public speaking. You could try your hand at Toastmasters or something similar. Read the Sunday paper. It is full of information about upcoming seminars and places that afford the opportunity for you to practice running your chops. Don’t be proud. I would even speak at a clown convention, if given the opportunity, because every shot at public speaking makes jury trials a bit easier.

My next suggestion is to exploit Class C misdemeanors. Try every one of them, especially those in municipal court. How can you lose? The most that can happen is a $200 fine, so why can’t you use this as a vehicle to get trial experience? The same can be said for JP court. Take these cases to trial. If you want more such trials, go to some of the older lawyers and ask them to send you their traffic cases and those involving municipal and JP courts.

My final suggestion is to take some time off, hang around the courthouse, and watch jury trials. Don’t wait for the so-called “stars” to perform because you may never see a trial. You can also ask some of the more active trial lawyers if they would mind if you sat in with them when they are in trial. Most such lawyers would welcome you if you express an interest. Along the same line—spend some time with some of our more experienced trial judges. Get them to tell you about some of their trial experiences. Whenever I have a moment, I love to visit with Judge McKay. He has a wealth of stories about East Texas lawyers and some of the characters he has met in his trial days. I have never wasted a minute in the time that I have listened to him. I think that it should be required that every young trial lawyer spend some time with Judge McKay. He has a lot of experience, and he’s about half smart too.

Remember, plain old likability makes up for a world of experience. This trait does not come from 10,000 jury trials; it comes from daily living and daily habits. Keep in mind that a musician who practiced only at concerts would soon be out of the music business, and if you are sitting around waiting for jury trials to get “experience,” then you will not be long in the trial business. And I really hope to see you around for a while.

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