Monthly archive

July 2017

July/August 2017 SDR – Voice for the Defense Vol. 46, No. 6

Voice for the Defense Volume 46, No. 6 Edition

Editor: Michael Mowla

From editor Michael Mowla:

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

2. 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.

3. I provide a thorough recitation of the facts in the electronic version of SDR.

4. The summaries reflect the relevant holdings 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. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Davila v. Davis, 16-6219, 2017 U.S. LEXIS 4060 (U.S. June 26, 2017)

        Martinez and Trevino do not supply cause to excuse the procedural default of state habeas counsel’s failure to raise ineffective assistance of appellate counsel during the state habeas proceeding for failure to raise an issue on direct appeal (that should have been raised) because Martinez and Trevino apply exclusively to claims of IATC.

        Except as provided in Martinez and Trevino, in federal review of state convictions under 28 U.S.C. § 2254: (1) a state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court [28 U.S.C. § 2254(b)(1)(A) and Rose v. Lundy, 455 U.S. 509, 518 (1982); and (2) a federal court may not review federal claims that were procedurally defaulted in state court (claims that the state court denied based on an adequate and independent state procedural rule, or for failure to allow the state court of an opportunity to address the merits of the claim).

        Under Martinez v. Ryan, 566 U.S. 1, 16–17 (2012), procedural default will not bar a federal habeas court from hearing a substantial claim of IATC if the default results from the ineffective assistance of habeas counsel. Under Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Martinez exception applies both where state law explicitly prohibits prisoners from bringing claims of IATC on direct appeal and where the State’s procedural framework, because of its design and operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of IATC on direct appeal (such as in Texas).

Editor’s note: summary of the court’s reasoning: “The criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not . . . the Constitution twice guarantees the right to a criminal trial, but does not guarantee the right to an appeal at all . . . the trial “is the main event at which a defendant’s rights are to be determined . . . and not simply a tryout on the road to appellate review . . . a claim of appellate ineffectiveness premised on a preserved trial error thus does not present the same concern that animated the Martinez exception because at least “one court” will have considered the claim on the merits . . . flooding the courts with defaulted claims . . .”

Translated: The 5–4 majority believes that appeals (even in death-penalty cases) are not that important.

Honeycutt v. United States, 16-142, 2017 U.S. LEXIS 3556 (U.S. June 5, 2017)

        Joint-and-several liability applies when there has been a judgment against multiple defendants. In a forfeiture case, when two or more defendants conspire to violate the law, each defendant is held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-conspirator.

        Under 21 U.S.C. § 853, forfeiture applies to “any person” convicted of certain serious drug crimes, but is limited to only tainted property as follows: (1) § 853(a)(1) limits forfeiture to “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime; (2) § 853(a)(2) restricts forfeiture to “property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of,” the crime; and (3) § 853(a)(3) applies to persons “convicted of engaging in a continuing criminal enterprise”—a form of conspiracy—and requires forfeiture of “property described in paragraph (1) or (2)” as well as “any of [the defendant’s] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.”

        Under 21 U.S.C. § 853(d), there is a rebuttable presumption that property is subject to forfeiture only if the Government proves that: (1) the property was acquired by the defendant during the period of the violation; and (2) there was no likely source for such property other than the crime. Joint-and-several liability would mandate forfeiture of untainted property that the defendant did not acquire because of the crime, and this is not allowed.

        Under 21 U.S.C. § 853(p)(1), the government may confiscate property untainted by the crime (permits forfeiture of “substitute property”) and applies “if any property described in subsection (a), as a result of any act or omission of the defendant” either: (A) cannot be located upon the exercise of due diligence; (B) has been transferred or sold to, or deposited with, a third party; (C) has been placed beyond the jurisdiction of the court; (D) has been substantially diminished in value; or (E) has been commingled with other property which cannot be divided without difficulty. Under 21 U.S.C. § 853(p)(2), only if the Government can prove that one of these five conditions was caused by the defendant may it seize “any other property of the defendant, up to the value of” the tainted property-rather than the tainted property itself.

        Under 21 U.S.C. § 853(a)(1), forfeiture is limited to property the defendant personally acquired as the result of the crime.

Jae Lee v. United States, 16-327, 2017 U.S. LEXIS 4045 (U.S. June 23, 2017)

        If a noncitizen proves defective advice regarding the risk of deportation if the noncitizen pleads guilty to an offense for which deportation is presumably mandatory (and satisfies prong 1 of the IATC standard of Strickland v. Washington), to prove the prejudice-prong of Strickland (prong 2), the noncitizen need not prove that he would have likely prevailed at trial.

Editor’s Note 1: I have been asked whether Lee will be held to be retroactive. In Chaidez, 133 S.Ct. 1103 (2013), the SCOTUS held that Padilla was not retroactive. Chaidez was decided based on the flawed reasoning of Teague v. Lane, 489 U.S. 288 (1989), a badly flawed opinion. It is likely that once the courts apply Teague to Lee, the same result will occur.

Editor’s Note 2: There is concern in the defense-bar among trial lawyers that with the SCOTUS relaxing the prejudice-prong of Strickland on the issue in Lee, this will harm criminal trial attorneys. I disagree. The advice that trial counsel must give to clients under Lee is the same as before: If the client is pleading guilty or no-contest to a crime that is an aggravated felony under Title 8 or carries with it presumably mandatory deportation, trial counsel’s written advice to the client is that if he pleads guilty, deportation will be presumably mandatory. And if deportation will be presumably mandatory, trial counsel should advise the client in writing to seek counsel from an immigration lawyer before he pleads guilty or no-contest. This is nearly verbatim from Padilla. There are many CLE presentations that explain what offenses are aggravated felonies or carry presumably mandatory deportation, or both (I wrote and presented on this topic several times.) Further, I was the amicus curiae attorney on Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016), in which the TCCA set the impossibly high standard for the prejudice-prong of having to prove that your client would likely have succeeded at trial. Lee overturns Torres, and rightfully so. There are very few sets of circumstances where a defendant can prove by a preponderance of the evidence that he would have succeeded at trial.

Jenkins v. Hutton, 16-1116, 2017 U.S. LEXIS 3875 (U.S. June 19, 2017) (per curiam)

        Under Sawyer v. Whitley, 505 U.S. 333 (1992), a habeas petitioner may obtain review of a defaulted claim upon “showing by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found him eligible for the death penalty under the applicable state law.” Sawyer does not allow a court to consider whether the alleged error might have affected the jury’s verdict such as where the jury might have been relying on invalid aggravating circumstances when it recommended a death sentence.

McWilliams v. Dunn, 16-5294, 2017 U.S. LEXIS 3876 (U.S. June 19, 2017)

        Under Ake v. Oklahoma, 470 U.S. 68 (1985), a state must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties.

Packingham v. North Carolina, 15-1194, 2017 U.S. LEXIS 3871 (U.S. June 19, 2017)

        A state is permitted to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that may presage a sexual crime, like contacting a minor or using a website to gather information about a minor. However, a law that forecloses access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.

Weaver v. Massachusetts, 16-240, 2017 U.S. LEXIS 4043 (U.S. June 22, 2017)

        Although closing a courtroom is structural error not subject to harmless-error analysis, and trial counsel’s failure to object to the closure is objectively unreasonable under the first prong of Strickland, a defendant must show that trial counsel’s failure to object caused defendant prejudice (second prong of Strickland).

        Under Arizona v. Fulminante, 499 U.S. 279 (1991), the SCOTUS again recognized Chapman, 386 U.S. at 24, and Neder, 527 U.S. 1, 7 (1999), that some errors (structural) cannot be deemed harmless beyond a reasonable doubt, which ensures certain basic, constitutional guarantees that should define the framework of any criminal trial. A structural error “affects the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.”

        Structural error occurs where the: (1) right is not designed to protect the defendant from erroneous conviction but instead protects some other interest (i.e., right to conduct own defense, based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty); (2) effects of the error are simply too hard to measure (i.e., defendant denied right to select his own attorney, the precise “effect of the violation cannot be ascertained”); (3) error always results in fundamental unfairness (i.e., indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one).

        The violation of the right to a public trial is structural error because: (1) it is difficult to assess the effect of the error; and (2) protects the rights of the defendant; and (3) protects the rights of the public at large and the press, but it is subject to exceptions if the trial court deems it necessary to conduct a trial and makes proper FFCL in support of the decision to do so.

        Under Neder, 527 U.S. 1, 7 (1999), if there is structural error (such as the closure of the courtroom) that is objected to and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error’s “effect on the outcome.” But if the closure of a courtroom is not objected to at trial, to show IATC, a defendant must show that trial counsel’s error was “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” (prong 1) and trial counsel’s error prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

United States Court of Appeals for the Fifth Circuit

United States v. Brooker, 16-10698, 2017 U.S. App. LEXIS 10152 (5th Cir. June 7, 2017) (designated for publication)

        The decision to revoke supervised release is reviewed for an abuse of discretion. The sentence imposed is reviewed under a plainly unreasonable standard: (1) the reviewing court ensures that the district court committed no significant procedural er­ror; and (2) if the district court’s sentencing decision lacks pro­cedu­ral error, the reviewing court considers the substantive rea­son­ableness of the sentence imposed. If the reviewing court finds the sentence unreasonable, the court may reverse the district court only if the reviewing court determines the error was obvious under existing law.

        Under 18 U.S.C. § 3583(g), revocation of supervised release is mandatory if a defendant possesses a controlled substance, re­fuses to comply with drug-testing imposed as a condition, or tests positive for illegal controlled substances more than 3 times over the course of 1 year.

        Under 18 U.S.C. § 3583(d), if a defendant fails a drug test, the court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation in such programs, warrants an exception from 18 U.S.C. § 3583(g).

        If a defendant argues to the district court that a substance-abuse treatment program should be imposed and the court still revokes supervised release, it is understood that the court implicitly considered and rejected application of the drug-treatment exception.

United States v. Colorado-Cessa, 16-50328, 2017 U.S. App. LEXIS 11303 (5th Cir. June 9, 2017) (designated for publication)

        To determine a Brady motion, a district court must conduct a Brady analysis by making findings on the record regarding all three Brady prongs. Under Brady, a defendant’s due process rights are violated when the prosecution suppresses evidence that is exculpatory. To establish a Brady violation, a defendant must show the evidence was: (1) favorable because it was exculpatory or impeaching; (2) suppressed by the prosecution; and (3) material, which occurs if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

        Under Giglio v. United States, 405 U.S. 150, 152–154 (1972), Brady applies to evidence that could be used to impeach prosecution witnesses.

United States v. Rodriguez, 15-40357, 2017 U.S. App. LEXIS 9957 (5th Cir. June 5, 2017) (designated for publication)

        Attorney abandonment does not, by itself, excuse a petitioner from his duty of diligence under 28 U.S.C. § 2255(f)(4) when litigating a postconviction motion to obtain an out-of-time appeal, and complete inactivity in the face of no communication from trial counsel does not constitute diligence.

Editor’s Note: The rule in the Fifth Circuit is different than in Texas proceedings, where attorney abandonment alone in the 30-day post-judgment phase is often sufficient to constitute ineffective counsel for failing to secure a defendant’s right to an appeal. The remedy for a defendant whose trial counsel failed to take measures to make certain that the applicant’s appellate rights or rights to discretionary review are protected is the granting of an out-of-time appeal or discretionary review. See Ex parte Edwards, 688 S.W.2d 566, 568 (Tex. Crim. App. 1985); Ex parte Axel, 757 S.W.2d 369, 371 (Tex. Crim. App. 1988) (representation by trial counsel does not terminate at end of trial); and Ex parte Steptoe, 132 S.W.3d 434, 435–436 (Tex. Crim. App. 2004).

Sorto v. Davis, 16-70005, 2016 U.S. App. LEXIS 21470 (5th Cir. June 15, 2017) (designated for publication) (death penalty case)

        A certificate of appealability (“COA”) is not required for an appeal of a district court’s denial of funding under 18 U.S.C. 3599.

        An inmate may appeal a denial of habeas relief with respect to nonfunding claims only if the USCA5 grants COAs for those claims.

        Under 28 U.S.C. § 2253(c)(1), an inmate may appeal a denial of habeas relief with respect to nonfunding claims only if the appellate court grants COAs for those claims.

        A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” For claims denied on the merits, a defendant must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” For claims denied on procedural grounds, the defendant must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”

        If an inmate seeks a COA on a claim that was adjudicated in state court, the claim must be reviewed under 28 U.S.C. § 2254(d), which imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt: A federal court may not grant habeas relief unless the state-court adjudication: (1) resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the SCOTUS; or (2) resulted in a decision that was based on an unreasonable determination of the facts considering the evidence presented in the State court proceeding.

        A state court’s decision is “contrary to” clearly established SCOTUS law if it: (1) applies a rule that contradicts the governing law set forth in SCOTUS opinions; or (2) confronts a set of facts that are materially indistinguishable from a decision of the SCOTUS and nevertheless arrives at a result different from SCOTUS precedent. A state court’s decision is “an unreasonable application” of SCOTUS law if it identifies the correct governing legal principle from the SCOTUS but unreasonably applies that principle to the facts of the petitioner’s case.

United States v. Zuniga, 14-11304, 2017 U.S. App. LEXIS 9958 (5th Cir. June 14, 2017) (designated for publication)

        A stop based on the collective-knowledge doctrine is valid if: (1) there existed enough information to support a finding of reasonable suspicion to stop the vehicle; and (2) that knowledge can be imputed under the “collective knowledge doctrine” to the officer who did not witness possible criminal activity but who seized the defendant and evidence. An officer initiating the stop need not have personal knowledge of the evidence that gave rise to the reasonable suspicion or probable cause so long as there is “some degree of communication” between the stopping officer and the officer with personal knowledge of the facts.

        Although an officer may stop a vehicle for a traffic or parking violation, under Whren v. United States, 517 U.S. 806, 810 (1996), when an officer is in possession of information that creates the basis for probable cause, he is required to act upon this information within a reasonable time, otherwise the existence of probable cause becomes stale.

Editor’s Note: In Texas, the collective-knowledge doctrine is used permissively. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). The collective-knowledge doctrine was intended that each officer know something about the underlying facts leading to reasonable suspicion or probable cause, and collectively, all the officers possess reasonable suspicion or probable cause. However, the USCA5 appears content with this application of the doctrine:

Texas Court of Criminal Appeals

Arteaga v. State, PD-1648-15 & PD-1649-15, 2017 Tex. Crim. App. LEXIS 533 (Tex. Crim. App. June 7, 2017) (designated for publication)

        If the State prosecutes under Tex. Penal Code § 22.011(f), which elevates a sexual assault from an F-2 to an F-1 if the defendant would be committing bigamy if he “marries” the alleged victim, the jury charge must include language from the bigamy statute, Tex. Penal Code § 25.01.

Ex parte Carter, WR-85,060-01 & WR-85,060-02, 2017 Tex. Crim. App. LEXIS 564 (Tex. Crim. App. June 7, 2017) (Alcala, J. dissenting) (Richardson, J. dissenting) (designated for publication)

        Under Tex. Penal Code § 3.03(a), when a defendant is found guilty of more than one offense arising out of the same criminal episode and those offenses are prosecuted in a single criminal action, “the sentences shall run concurrently.” A defendant sentenced under an improper cumulation order in violation of Tex. Penal Code § 3.03(a) must raise the issue on direct appeal or is procedurally defaulted, and an improper cumulation order is no longer void.

Hopper v. State, PD-0703-16, 2017 Tex. Crim. App. LEXIS 531 (Tex. Crim. App. June 7, 2017) (designated for publication)

        Under Barker v. Wingo, 407 U.S. 514, 530 (1972), in addressing a speedy-trial claim, a court must balance the following: (1) the length of delay (12 months between the time of the accusation and the time of trial is presumptively prejudicial); (2) the State’s reason for the delay (deliberate attempts by the State to delay the trial to hamper the defense are weighed heavily against the State. Neutral reason such as negligence or overcrowded courts are weighted less heavily but should be considered since the ultimate responsibility for such circumstances rests with the State rather than with the defendant. When the record is silent regarding the reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay); (3) defendant’s assertion of his right to a speedy trial (although the defendant has no duty to bring himself to trial, he does have the responsibility to assert his right to a speedy trial); and (4) prejudice to the defendant because of the length of delay (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) most importantly, limiting the possibility that the defense will be impaired.

        Under Doggett v. U.S., 505 U.S. 647, 651–652 (1992), before a court engages in an analysis of each Barker factor, the defendant must “first make a threshold showing that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay.’” Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify, but the presumption of prejudice to a defendant’s ability to defend himself is extenuated by the defendant’s acquiescence in some or all the delay.

        The Interstate Agreement on Detainers (IAD) is a compact between states (and some other jurisdictions) that enables a party state to obtain custody of an out-of-state prisoner for prosecution and imposes duties to ensure a prisoner’s quick return to the sending state. Under Tex. Code Crim. Proc. Art. 51.14 I–IX, if a defendant is serving a term of imprisonment in another state and Texas files a detainer in that other state, both Texas and the defendant have a right to demand the transfer of the defendant to Texas for a final disposition of the Texas charge. If the defendant initiates a demand under the IAD, then Texas must bring the defendant to trial within 180 days after the prosecutor and court receive the defendant’s demand. If Texas initiates a demand under the IAD, then Texas must bring the defendant to trial within 120 days of his arrival in Texas. The IAD accords the governor of the state that holds the prisoner the power to disapprove a demand initiated by the State but accords no such power with respect to a demand initiated by the defendant.

        A defendant’s failure to invoke the IAD to call himself to the attention of the authorities is not the kind of affirmative conduct that would make him partially responsible for delay. However, the same is not necessarily true of criminal conduct that results in a defendant’s incarceration in another jurisdiction. By leaving Texas and committing crimes in another state, a defendant creates at least a modest impediment to prosecution in Texas. Although that impediment was likely to be easily surmounted by a request under the IAD, in addition to the cost of bringing the defendant back to Texas, the prosecution of the case would be subject to the IAD’s requirements that might be far more restrictive than required by the Sixth Amendment’s speedy-trial clause.

        Where a defendant creates an impediment to his prosecution that he could have easily lifted that barrier by invoking the IAD that lifting that barrier would also have imposed time requirements that would have ensured a speedy trial, and that the State’s invocation of the IAD was not guaranteed to succeed, and if successful, had costs, the defendant’s failure to invoke the IAD contributes to the delay to be relevant to the reasons-for-delay factor. This does not absolve the State of responsibility for failing to invoke the IAD, as the State shoulders blame for failing to even attempt to procure the defendant.

Moore v. State, PD-1056-16, 2017 Tex. Crim. App. LEXIS 529 (Tex. Crim. App. June 7, 2017) (Walker, J. dissenting) (designated for publication)

        An automobile is not designed, made, or adapted for inflicting death or serious bodily injury, but it may in the manner of its use or intended use may cause death or serious bodily injury. See Penal Code § 1.07(a)(17)(B).

        In any felony offense in which it is shown that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly-weapon finding in the judgment, which impacts the defendant’s eligibility for community supervision, parole, and mandatory supervision. See Gov. Code §§ 508.145(d)(1), 508.149(a)(1), and 508.151(a)(2).

        To justify a deadly-weapon finding, the State need not establish that the use or intended use of an implement caused death or serious bodily injury, but only that the way it was either used or intended to be used can cause death or serious bodily injury. Nor does the actor need to intend death or serious bodily injury.

Queeman v. State, PD-0215-16, 2017 Tex. Crim. App. LEXIS 573 (Tex. Crim. App. June 14, 2017) (designated for publication)

        Under Tex. Penal Code §§ 6.03(d) and 19.05(a), to prove criminally negligent homicide, the State must prove that: (1) the defendant’s conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.

        “Criminal negligence does not require proof of a defendant’s subjective awareness of the risk of harm, but rather the defendant’s awareness of the attendant circumstances leading to such a risk.” The key is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.”

        Criminal negligence is different from ordinary civil negligence: Civil or “simple” negligence means the failure to use ordinary care, or failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Criminal negligence involves a greater risk of harm to others without any compensating social utility than does simple negligence. The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. The risk must be “substantial and unjustifiable,” and the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards by ordinary people.

Rodriguez v. State, PD-1391-15, 2017 Tex. Crim. App. LEXIS 569 (Tex. Crim. App. June 7, 2017) (designated for publication)

        A dorm room is the same as an apartment or a hotel room. Although under the “contract” between a student and the university dorm personnel can enter dorm rooms and examine (without a warrant) the room to maintain a safe and secure campus or to enforce a campus rule or regulation, students still enjoy the right of privacy and freedom from an unreasonable search or seizure. The student is the tenant, the college the landlord.

        The private-party-search doctrine provides that the Fourth Amendment’s warrant requirement applies only to government agents, not private actors. In United States v. Jacobsen, 466 U.S. 109 (1984), invasions of privacy by the government agent in addition to a private-party-search must be tested by the degree to which they exceeded the scope of the private search (where FedEx employees opened a damaged box, found a tube wrapped in newspaper, cut open the tube, discovered clear plastic bags containing a white powdery substance, notified the DEA, who sent an agent to reopen the box, the DEA did not invade upon any reasonable expectation of privacy by physically examining the powdery substance because the expectations of privacy in the package had already been frustrated by the actions of nongovernmental third parties).

        The private-party-search doctrine of Jacobsen does not extend to homes: If a private party searches a home (or a dorm room), an exception to the warrant requirement is necessary for law enforcement to also conduct a search of the premises.

        The “special-needs exception” of New Jersey v. T.L.O., 469 U.S. 325 (1985), in which the Court held that school teachers and administrators could search students without a warrant if: (1) there exists “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school”; and (2) the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction” does not apply to dorm rooms because unlike the situation in L.O., a college dorm room does not involve unemancipated minors required by compulsory attendance laws to attend classes, and T.L.O. was based on the need of grade-school administrators to maintain discipline, order, and student safety.

        For the plain-view doctrine to apply, the officer must have had lawful authority to be in the location from which he viewed the item, and the incriminating nature of the item must be immediately apparent.

        A third party can consent to a search to the detriment of another’s privacy interest if the third party has actual authority over the place or thing to be searched. See Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010), and United States v. Matlock, 415 U.S. 164, 170 (1974). Actual authority exists if the third party may give valid consent when he and the absent, non-consenting person share “common authority” over the premises or property, or if the third party has some “other sufficient relationship” to the premises or property. Common authority is shown by mutual use of the property by persons generally having joint access or control for most purposes. With joint access and control, it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

        Where an officer reasonably, though mistakenly, believes that a third party purporting to provide consent has actual authority over the place or thing to be searched, apparent authority. Apparent authority is judged under an objective standard: “Would the facts available to the officer at that moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?”

Texas Courts of Appeals

$102,450 et al v. State, 09-16-00171-CV, 2017 Tex. App. LEXIS 5761 (Tex. App. Beaumont, June 22, 2017) (designated for publication)

        In State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d 690, 701 (Tex. 2016), the SCOT held that Tex. Code Crim. Proc. Ch. 59 neither provides for exclusion of illegally obtained evidence nor requires the state to prove lawful seizure as a prerequisite to commencing a forfeiture proceeding. Trial courts considering civil-forfeiture proceedings do not need to conduct a Fourth Amendment reasonableness inquiry because Chapter 59 contains neither an exclusionary rule nor a procedural prerequisite requiring the state to show a legal search (i.e., Tex. Code Crim. Proc. Art. 38.23 applies in criminal proceedings).

In re Bell, 01-17-00373-CR, 2017 Tex. App. LEXIS 5347 (Tex. App. Houston [1st Dist.] June 13, 2017)

        Under Tex. Rule App. Proc. 25.2(g), generally all trial court proceedings are suspended once the record is filed in the appellate court except those permitted by law or rules.

        Code Crim. Proc. Art. 44.04(d) permits the trial court to alter bail while an appeal is pending.

        Under Tex. Code Crim. Proc. Art. 44.04(b), when a conviction is reinstated upon issuance of a mandate, a defendant must be “immediately placed in custody” by the trial court.

Fraser v. State, 07-15-00267-CR, 2017 Tex. App. LEXIS 5308 (Tex. App. Amarillo June 9, 2017) (designated for publication)

        When reviewing the legal sufficiency of the evidence, a court views the evidence “in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury. The duty of the reviewing court is to ensure that the evidence presented supports the jury’s verdict and that the State has presented a legally sufficient case of the offense charged. When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt.

        Murder and Manslaughter are “result-oriented” offenses because the proscribed conduct must have caused the death of the victim (as opposed to engaging in conduct that results in death). The only difference between Murder and Manslaughter is the mens rea associated with the result of the conduct.

        Where neither the indictment nor the jury-charge limits the jury’s consideration to conduct what was committed intentionally or knowingly (thereby permitting a conviction based upon reckless or criminally negligent conduct), the court examines the record to determine whether the underlying felony supports felony-murder conviction based on whether: (1) the offense as charged merged with the act clearly dangerous to human life, and (2) that offense is manslaughter or a lesser-included offense.

        Under the “merger doctrine,” the court considers whether an act constituting the underlying felony and the act resulting in the death were the same. If the underlying felony and the act clearly dangerous to human life resulting in death are “one and the same,” thus being subsumed within the definition of manslaughter (or a lesser-included offense), then the merger doctrine renders a felony-murder conviction invalid.

        Under Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), if an appellate court finds the evidence is legally insufficient, the court is not limited to ordering an acquittal, but may instead reform the judgment to reflect a conviction as to the lesser-included offense and remand the case to the trial court for a new punishment hearing.

        If the erroneous charge deals with the merits of the offense and not the range of punishment, thus the verdict rendered by the jury was a general one (the court is unable to determine whether some or all the jurors believed Appellant was guilty of murder based upon a theory authorized by law (intentional or knowing conduct) or a theory not authorized by law (reckless or criminally negligent conduct), the appropriate remedy is not to acquit or to reform the judgment of conviction, but to reverse and remand for a new trial.

Lovett v. State, 02-16-00094-CR & 02-16-00095-CR, 2017 Tex. App. LEXIS 5486 (Tex. App. Fort Worth June 15, 2017) (designated for publication)

        Under Feiner v. New York, 340 U.S. 315, 320 (1951), when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the State’s power to prevent or pun­ish is “obvious.”

        The government has a significant interest in ensuring public safety and order. A traditional exercise of the State’s police powers is to protect its citizens’ health and safety. Police officers have the lawful authority to maintain public safety, particularly when crowds of people are gathered and when a perceived possibility exists of a riot or other threat to public safety. A government “must have some ability to protect” its citizens and both public and private property. In keeping with this authority, the police’s specific ability to lawfully disarm someone is broad.

        Under Tex. Gov. Code § 411.207(a), a peace officer who is lawfully discharging his official duties “may disarm a license holder [to carry a handgun] at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.” If an officer may disarm even a license holder for safety reasons, an officer may disarm anyone of a deadly weapon for the same reasons.

Luckenbach v. State, 14-15-01048-CR, 2017 Tex. App. LEXIS 5148 (Tex. App. Houston [14th Dist.] June 6, 2017) (Brown, J. dissenting) (designated for publication)

        When a trial court determines probable cause to support the issuance of a search warrant, there are no credibility calls and instead the court rules on what falls within the four corners of the affidavit. When reviewing a magistrate’s decision to issue a warrant, courts apply a highly deferential standard of review because of the constitutional preference for searches conducted under a warrant over warrantless searches. So long as the magistrate had a substantial basis for concluding that probable cause existed, the magistrate’s probable-cause determination is upheld. The magistrate may draw reasonable inferences from the facts and circumstances contained in the affidavit’s four corners.

        Under Tex. Code Crim. Proc. Art. 18.02(a)(10), a search warrant may be issued to search for and seize property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense. Under Tex. Code Crim. Proc. Art. 18.01(c), a warrant may not issue unless a sworn affidavit required by Tex. Code Crim. Proc. Art. 18.01(b) sets forth sufficient facts to establish probable cause that: (1) a specific offense was committed, (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

        Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location.

Rodriguez v. State, 14-16-00107-CR, 2017 Tex. App. LEXIS 5589 (Tex. App. Houston [14th Dist.] June 20, 2017) (designated for publication)

        When the trial court erroneously omits a defensive instruction over objection, under Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013), and Almanza v. State, 686 S.W.2d 157 171 (Tex. Crim. App. 1985), the conviction must be reversed if the appellant suffered some harm, which is error calculated to injure the rights of the appellant. The harm must be actual and not merely theoretical. To determine whether “some harm” occurred, the court must consider: (1) the arguments of counsel, (2) the entire jury charge, (3) all the evidence, and (4) any other relevant factors.

        To evaluate harm where the jury received an instruction for one confession-and-avoidance defense but not another, a reviewing court considers whether the: (1) defenses overlapped to such an extent that the instruction given precluded harm from the absence of the instruction denied; and (2) jury’s rejection of the charge given provides assurance that the defendant suffered no harm.

        Under Tex. Penal Code § 9.22 (necessity), conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. A proper jury charge on necessity includes (1) and (2) but not (3), which is a question of law.

        To be entitled to a necessity instruction, there must be some evidence that the defendant reasonably believed that: (1) a specific harm was imminent; and (2) the criminal conduct was immediately necessary to avoid the imminent harm.

2017 Declaration Reading Recollections and Media Mentions

Lubbock criminal defense attorneys hold annual reading of Declaration of Independence

Members of the Lubbock Criminal Defense Lawyers Association took turns Friday morning on the courthouse lawn reading the grievances against British rule American colonists listed in a document that became the foundation of a country of people governed by the rule of law. Chuck Lanehart, a Lubbock attorney, told the dozens of people in the audience that the reading the association members did was similar to how colonists first heard the Declaration of Independence.

“There was no television, there was no radio, there were no telephones, no Twitter, no Facebook,” Lanehart said. “There were newspapers, but 50 percent of the population could not read. And so, broadsides were prepared and brought all across the colonies to places like this, town halls, courthouses, and the Declaration of Independence was read just as we have done today.”

Justin Kiechler, president of the Lubbock Criminal Defense Lawyers Association, said Friday’s event was aimed at starting off the Independence Day holiday weekend in Lubbock by reminding residents about the principles that provide them the rights and freedoms to celebrate the holiday.

“It’s a lot of fun. We do a lot of cookouts, obviously, as Americans, as Texans, we have fireworks, all the fun and just hanging out and being around family and friends,” he said. “But at the beginning, hundreds and hundreds of years ago, this was a lot more important among traditions about what gave us those freedoms and rights to do these things that we do every day.”

The association members also read the first 10 amendments in the Constitution, known collectively as the Bill of Rights.

“Both documents target absolute tyranny,” Lanehart said. “Both documents are designed to protect the people from government excesses. Both documents identify people void of class or privilege, yet demanding righteous human treatment. The Bill of Rights contains the rules, the tools that we as lawyers use every day in this courthouse and in courthouses across the country.”

The Lubbock lawyer’s association’s reading was part of an annual effort coordinated with the Texas Criminal Defense Lawyers Association, which organized similar readings in Texas counties in the days leading up to the Independence Day holiday, said attorney Rusty Gunter.

—Gabe Monte, The Lubbock Avalanche-Journal

Caldwell

The reading took place as scheduled on the steps of the Burleson County Court House, Caldwell, Texas, at 11:30 am, Friday, June 30, 2017. Unfortunately, the crowd was again very small—one in fact. Our local news media (KBTX) did show up after the reading and did a short interview with me regarding the program. They had covered the reading in Brazos County as their primary story.

—Marvin B. Martin, Bryan

Lubbock

We added music to our reading in Lubbock this year. Lorna McMil­lion, local lawyer and member of LCDLA, opened the ceremony with “The Star Spangled Banner.” Her sweet voice, amplified by a sound system, was visibly inspiring to the dozens of onlookers who solemnly paid respect to the flag.

A wonderful, poignant photo of reader Charles Chambers—hand over heart, head raised and misty-eyed—illustrates the emotion brought about by the moment. Lorna’s ren­di­tions of “God Bless America” after our reading of the Declaration and “This Land is Your Land” following our reading of the Bill of Rights brought down the house.

Our reading was covered by the local news­paper and all four local TV stations. Several judges attended, including Texas Supreme Court Justice Phil Johnson.

—Rusty Gunter, Lubbock

SBOT: Don’t Doubt Your Impact

If there were ever a time when the power and importance of the legal profession is in doubt, July is not the month. For in July, we commemorate the creation of the Declaration of Independence, the foundation for this new and independent nation, 241 years after its adoption.

Of the 56 signers of the declaration, 25 were lawyers. In fact, lawyers outnumbered merchants and plantation owners, the two next most-common jobs held by the signers. The most famous of the lawyers who took part in the declaration’s creation are certainly John Adams and Thomas Jefferson. Those are the names most easily plucked from the recesses of our brains. But who were the others? There’s Samuel Chase, William Ellery, Roger Sherman, Oliver Wolcott, and many more.

But among all those scribbled names, there exists probably one of the most influential lawyers of that time, and it’s someone you may not recognize today. In the third row, several signatures below John Hancock, sits the elegant scrawl of George Wythe.

By all accounts, Wythe profoundly inspired Jefferson, the principal author of the declaration. Wythe, who was about 50 at the time of the signing, was Jefferson’s law teacher and mentor. In fact, several biographies list Wythe as the first known law professor in the country. He was a respected legal mind and a teacher in 1761 when he was appointed to the board of visitors of the College of William & Mary. It was there that he taught many of the nation’s first college-educated lawyers, including Jefferson and future U.S. President James Monroe, as well as future senators, judges, and eventual Supreme Court Chief Justice John Marshall.

It was in 1779, three years after the declaration’s adoption, that Jefferson, as governor of Virginia, appointed Wythe to the first chair of law at a college. Today, George Wythe is the Wythe in the Marshall-Wythe School of Law at the College of William & Mary.

Why would any of this be important, other than to tell you about an interesting lawyer whose name you may file away alongside Adams and Jefferson? To have impact and influence, to change the course of history, you don’t need to be the loudest person in the room or even the one most remembered. You can be that teacher or that mentor. You can be that thinker, that mediator, or that volunteer.

Or you can be Robert Fickman, a Houston lawyer and mem­ber of the Texas Criminal Defense Lawyers Association. Robb loves the Fourth of July and in years past, much to the chagrin of his children, required they read portions of the declaration before the barbecue was served so that they would have a better appreciation of the holiday. In 2010 that passion grew to a reading of the entire declaration on the courthouse steps in Harris County. His continued efforts led to readings on the courthouse steps of all 254 counties in Texas by members of the TCDLA or their surrogates in 2016. I was privileged to be one of those readers last year. It is an incredibly moving experience to be a part of or witness. Robb reminds us all, “The declaration was a historic first step in what remains an ongoing fight for liberty, a fight we as defense lawyers continue.”

Never doubt the importance of the work done by all the great lawyers who came before you or your ability to make an impact today.

—Tom Vick, President of the State Bar of Texas, TexasBar.com blog

Bryan: Attorneys read Declaration of Independence at Brazos County Courthouse

As we start the July 4th holiday weekend local attorneys are remembering one of our founding documents. More than a dozen lawyers read the Declaration of Independence Friday morning outside the Brazos County Courthouse in Bryan. Of the 56 signers of the Declaration of Independence, 25 of them were lawyers.

“The Declaration of Independence was a very critical first step in the fight for liberty and that’s a fight that continues today for people of all creeds and people of all colors,” Stephen Gustitis said. He’s a defense attorney in Brazos County.

“’We continue that fight today, so we’re anxious to help folks celebrate and participate,” Gustitis continued.

The Declaration of Independence was read not just here but at courthouses across the State of Texas Friday morning.

—KBTX-TV, Bryan

Bowie: Declaration of Independence reading opens holiday weekend

Celebrating America’s independence started on June 30 with the reading of the Declaration of Independence on the steps of the Montague County courthouse. Brian Alexander read along with local veterans. The Texas Criminal Defense Lawyers Association coordinated readings in all 254 counties [sic].

 —Bowie News, Bowie

Lockhart

Eight of us read the Declaration of Independence yesterday on the courthouse steps in Lockhart (Caldwell County), Texas. Another successful reading—then we moved on to Black’s BBQ for some great food. Also note that, in (perhaps) a TCDLA first, we all read from our smartphones, in order to keep it relevant . . . and . . . uh . . . because I forgot to bring the printed reading sheets.

—David A. Schulman, Austin

Weatherford

We had another great reading in Parker County this year. In addition to members of the Bar, we had five of our local judges participate. Several spoke to me afterwards to express their gratitude to TCDLA for doing this every year all across Texas. The highlight for me, of course, was to have my 15-year-old (beautiful blonde softball catcher) granddaughter, Ashtyn, by my side to read a paragraph every year we have done this.  It is an honor to have the opportunity to create such a wonderful tradition with my future law partner!

—Dan Carney, Weatherford

McAllen

No media. No anecdotes other than Leonard Whittaker informing me that Maryland’s Charles Carroll was the only Catholic signer. He is alleged to have initially only signed his name. Mr. Carroll supposedly responded by adding “of Carrollton” when another signer supposedly snickered that there are too many in the colonies called Charles Carroll for the King to issue a warrant. Charles was a barrister not allowed to practice law in Maryland due to his religion.

—Joseph A. Connors III, McAllen

Laredo: Attorneys read the Declaration of Independence

Attorneys, judges, and members of the court were seen outside the Webb County Justice Center reading aloud the rights of all citizens in the United States. In honor of Independence Day, the Young Lawyers Association along with Texas Criminal Defense Lawyers Association read the Declaration of Independence. One attorney says the event is done to remind the community that the government serves the people, not the other way around. More than a dozen lawyers, judges, and court staff took part in the reading.

—KGNS-TV, Laredo

Sanderson

It was another great Independence Day gathering in Terrell County at the entrance to Sanderson Canyon. We must have made an impression last year as the DJ for the event recognized us and said he was afraid we weren’t coming back. That probably has more to do with remembering my wife and son than me, but I’ll take the credit. It was interesting that the gathered multitudes stopped their partying and listened to the reading. My wife looked over at me during our reading and asked if these transgressions were committed by King George or King Donald, but that’s another story.

Our reading came immediately after the announcement of the ice cream making contest and you’ll be happy to know that blackberry beat out pineapple in the adult category and cinnamon vanilla won the youth category! It’s not exactly Mayberry, but it’s nice to know that places still exist in the country where the county citizens, be they rich or be poor, gather together to celebrate their independence. Happy Independence Day!

—Jim Darnell, El Paso

Groesbeck

Reading held today at 9:00 am inside the foyer of the Limestone County Courthouse in Groesbeck. Local Criminal De­fense Attorney Michelle Latray welcomed the guests, and Judge P. K. Reiter, Senior District Judge, joined in on the opening comments. Also in attendance were members of the public, the Groesbeck Journal newspaper, County Judge Daniel Burkeen, County Clerk Peggy Beck, and a number of other courthouse employees.

—Michelle Latray, Groesbeck

Longview

I believe our turnout was impacted this year by the calendar and the weather. Although our courthouse was open on Monday, there were no settings, which resulted in an absence of the necessity of coming to the courthouse for lawyers. I think many were absent because they were gone for the holiday with their families. Threatening skies did not help, and it sprinkled immediately prior to the reading. Having said that, we read loud and proud. I had invited our newly appointed CCL#1 Judge and longtime TCDLA member Kent Phillips to join us. We also were joined by Ebb Mobley, who was just recognized for reaching his 50th year as a lawyer.

—David E. Moore, Longview

Corpus Christi: Attorneys read declaration to celebrate Independence Day

The members of the Coastal Bend Criminal Defense Lawyers Association celebrated the Fourth of July by paying homage to the document that started it all—the Declaration of Independence. The attorneys took turns reading the declaration outside the Nueces County Courthouse on Friday morning. The organization does it each year to celebrate the rights the Founding Fathers fought for in the declaration, which include the unalienable rights of life, liberty, and the pursuit of happiness.

“Reading the declaration is an important reminder of the historic first step in what remains an ongoing fight for liberty,” defense attorney Lisa Greenberg said. “It’s a fight defense attorneys continue daily.”

Corpus Christi Caller-Times

Palo Pinto

In Palo Pinto, we had nine readers and a decent crowd of onlookers, which is a surprise given the size of the county. The local media were present as well.

—Andrew Herreth, Weatherford

Marshall: Defense lawyers gather for annual Declaration reading

In observance of Independence Day, Harrison County criminal defense lawyers conducted what spectators considered an eloquent recitation of the Declaration of Independence, as a reminder of all citizens’ rights and liberties.

“I think that it’s wonderful that these lawyers have taken the time to read it to the people,” said Marshall resident Jim Shelton, who was one of the few residents who took the time to come and support the annual public reading.

“I’m embarrassed that there are so few here,” Shelton said, agreeing it’s a good way to kick off the Fourth of July holiday.

Local defense lawyer and organizer of the event, Kyle Dansby, said this is the fifth year that the group of lawyers has done the public reading in Harrison County. This year, attorney Kimberley Miller Ryan joined Dansby in the annual recitation of the 241-year-old document.

Dansby noted that the reading of the nation’s founding document was started as a statewide tradition in 2010 by Houston criminal defense lawyer Robert Fickman.

“(He) actually started the idea of having criminal defense attorneys read (it) in front of every courthouse in Texas,” said Dansby.

Last year was the first time all 254 of the state’s counties participated.

“The reason we have the criminal defense attorneys do it is the criminal defense attorneys are the ones truly holding the states to their burden and exercising and making sure that people’s rights are defended,” said Dansby. “The Declaration is the very first time that many of these rights were ever written down and actually stated to the world that people had certain rights no matter who they were, where they were from, or who was in control of them.

“(It stated) that we all had these rights,” Dansby continued. “So it’s good at this time of year to remind people about why these rights exist, to remind them of the historical importance of that, and also just to let the world know that us—as Texas criminal defense attorneys and defense attorneys everywhere—are protecting the rights of all of us regardless of your station in life, what age, what gender, (or) what your race is.

“The rights are yours and yours alone, and we make sure to protect those rights for everybody,” he said.

The Declaration of Independence was adopted by the Continental Congress on July 4, 1776, and announced that the 13 American colonies, which were then at war with Great Britain, regarded themselves as 13 newly independent sovereign states, and no longer a part of the British Empire. Instead they formed a new nation—the United States of America. According to www.ushistory.org, the document was adopted two days after Congress declared independence as the British fleet and army arrived at New York.

—Robin Y. Richardson, The Marshall News­Messenger

Coldspring

As I was reading in Coldspring, the county seat of San Jacinto County, this afternoon, that King guy who’s mentioned over and over in the Declaration seemed a lot more familiar to me this year than last year.

—Bob Mabry, Conroe

Conroe: Defense attorneys read Declaration of Independence to remind of true meaning of the Fourth of July

Beer, barbecue, and baseball are frequently first and foremost on people’s minds over the Fourth of July weekend, but Montgomery County defense attorneys want to remind residents that the day is really about celebrating the birth of our nation.

For those who might have let it slip their mind, the Fourth, also called Independence Day, commemorates the adoption of the Declaration of Independence—the day in 1776 that representatives from what was then 13 colonies declared independence from Great Britain.

To remind people of the real meaning of the holiday, members of the Montgomery County Defense Lawyers Association and judges gathered on the steps of the Montgomery County Courthouse Friday morning, where they read excerpts from the declaration.

The event is “In honor of the men who declared independence of this great country,” said Lydia Clay-Jackson, one of the organizers and a Conroe criminal defense attorney.

“Think about the words being said to you,” Clay-Jackson urged onlookers before the reading began.

The event is now an annual commemoration that includes similar readings in every county in Texas and across the United States.

—John S. Marshall, Houston Chronicle

July/August 2017 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
22 | Corralling the Big Dogs: Rounding Up Ex-Presidents for a Photo Shoot at Rusty
23 | Celebrating 30 Years of Justice – Pictures from Rusty
27 | 2017 Declaration Reading Recollections and Media Mentions – Compiled by Chuck Lanehart
34 | A Thank You to All Declaration Reading Local Leaders – By Robb Fickman & Chuck Lanehart

Columns
6 | President’s Message
9 | Executive Director’s Perspective
10 | Off the Back
12 | Ethics and the Law
14 | Federal Corner
18 | Shout Outs

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

President’s Message: We Are True Patriots – By David E. Moore

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I trust everyone had a wonderful Independence Day. I want to once again publicly thank Robb Fickman, Chuck Lanehart, and the rest of the organizers for pulling together another successful TCDLA reading of the Declaration. I cannot tell you how proud I am to personally participate in the readings each year. I know that so many of our members across the state turn out of for what has become a signature annual event for our organization, and I am very grateful to each of you for your efforts. I also am appreciative of our new State Bar President Tom Vick’s past participation in the readings and for his acknowledgement of the event in his July President’s message.

Of the 56 men who courageously signed the Declaration, almost half of them were practicing lawyers or had legal training. As I thought about the topic of my message, I wondered about which lawyer’s story to focus on. What would resonate most with our group and what we do? Which story best embodies what TCDLA stands for? In researching each of their backgrounds, there were so many intriguing signers to consider.

I could easily focus on Jefferson, the primary architect of the Declaration. With over 900 legal cases attributed to him according to Encyclopedia Virginia, he would be a great centerpiece of my article.

Or, I could expand on Tom Vick’s choice in the Bar Journal, George Wythe of Virginia. Generally recognized as our nation’s first college law professor, as a student, he dropped out of college when he could no longer afford the fees. He persevered by studying the law at the feet of attorney Stephen Dewey and was admitted to the bar in 1746, 30 years before signing the Declaration. In addition to signing the declaration and being involved in the framework of the Constitution, Wythe designed the Virginia state seal, which included the motto Sic Semper Tyrannis (“Thus Always to Tyrants”). How could Wythe envision that those words would be shouted by a presidential assassin as he leapt to the stage of Ford’s Theatre a century later?

How Wythe freed his slaves and made provisions for them in his will would make an interesting topic, especially when you understand how that action would contribute to his death. It turns out that a relative, upon learning of the provisions for the slaves in Wyeth’s will, decided to cut the slaves out by poisoning them with arsenic. In the process, Wyeth was apparently unintentionally poisoned and died as a result. He left his extensive book collection to Jefferson.

What about Edward Rutledge, the youngest signer of the Declaration? Trained in law in London, at the tender age of 24 he received an acquittal for Thomas Powell, tried for printing an unfavorable piece criticizing loyalists to the Crown. Taken prisoner during the war, Rutledge later advocated for prosecutions of those who professed loyalty to England. Later, even though he was a self-professed Federalist, in an act of conscience he bravely crossed party lines and cast his vote as an elector for Jefferson. I wish more of our elected officials today would follow his example and repudiate the party-first mentality that seems to pervade all deliberations.

There are so many other lawyer signers who could be the subject of an entire article.

For instance, we could talk about the character of Roger Sherman, who Jefferson held in high regard, saying he was “a man who never said a foolish thing in all his life.” Sherman was the only member of the Declaration signers who also signed the Articles of Association, the Articles of Confederation, and the Constitution.

What about Robert Treat Paine, who served as part of the prosecution team of the soldiers involved in the Boston Massacre? (More on that later.)

Or Richard Stockton, who was apparently the only signer who later recanted his support of the Declaration, albeit while imprisoned by the British.

And George Read of Delaware, who was admitted to the bar at the age of 19. Appointed as an Attorney General by the Crown, Read later resigned as his repeated warnings to England regarding taxation without representation fell on deaf ears.

How about the story of how three signees squared off in a case involving members of the clergy and the poll tax? Thomas Stone on one side, fellow signers Samuel Chase and William Paca on the other.

Or maybe William Hooper, whose parents wanted him to be a preacher and had sent him to Harvard to study theology. He switched careers to the law, and it wasn’t his last conversion. Originally a loyalist, he was attacked and dragged through the streets by protesters in 1770. Seeing the error of his ways, he morphed into a fervent rebel and signer of the Declaration.

What about Thomas Heyward, who was captured by the British? He was nearly lost at sea after falling from a ship but was able to hold on to the ship’s rudder until he was rescued. Surely a metaphorical message for defense lawyers could be drawn from that experience.

Heyward was more fortunate at sea than his fellow signer, Thomas Lynch Jr. of South Carolina. Later in 1776, the ship that Lynch and his wife were traveling on was reported lost, and they and the ship were never found.

And Roger Sherman of Connecticut would be a great story—how he came from a background with little formal education but was “discovered” by a lawyer who encouraged Sherman to pursue a legal career. Sherman was accepted to the bar in 1754. He went on to not only sign the Declaration but also to participate in the Constitutional Convention, where he became a leading proponent for the rights of the smaller states.

George Walton of Georgia would make a fascinating study. Talk about a life of highs and lows! After signing the Declaration, Walton served as an officer in the Georgia militia. During the battle for Savannah, he was shot from his horse and captured by the redcoats. (Rutledge, Heyward, Stockton, and Arthur Middleton were also prisoners of the British during the war.)

After the war, Walton engaged in a political struggle with fellow Georgian signer, and non-lawyer, Button Gwinnett. Gwinnett was viewed as a liberal while Walton was in the conservative party. To that end, Walton was a close ally of fellow conservative General Lachlan McIntosh. At the height of the hostilities between the two groups, McIntosh and Gwinnett squared off in a duel, which resulted in both of them being wounded. McIntosh survived, Declaration signer Gwinnett did not. Walton and McIntosh later had their own falling out, with Walton allegedly participating in the forging of a letter under McIntosh’s name that resulted in the general’s being relieved of command. In 1783, Walton was censured by the Georgian legislature. There are conflicting accounts in publications I’ve read as to whether the censure resulted from Walton’s role in the Gwinnett duel or from his role in the forgery. In any event, it was no doubt a sad fall from grace. Apparently Walton did manage to barely avoid a criminal indictment on the forgery. But he did later suffer the additional ignominy of a public horse-whipping by the general’s son, Captain William McIntosh.

These are all great stories, but as a criminal defense attorney, the most intriguing story for me is that of John Adams’ representation of the British soldiers involved in the Boston Massacre. We all know of how five civilians were killed by a group of British soldiers under command of Captain Thomas Preston. Less than two weeks later, Preston, eight other soldiers under his command, and four Loyalist civilians were indicted by the colony’s attorney general. Charged with murder, they faced the prospect of a potential death penalty if convicted.

The lead prosecutor would be Samuel Quincy. At the urging of Declaration signer Sam Adams, a second lawyer was named to the prosecution team, the aforementioned fellow signer Robert Treat Paine.

Apparently, Captain Preston had difficulty in securing defense counsel. According to John Adams, several lawyers had been approached but had refused to take on the yoke of defending the soldiers. A Tory merchant named Forrest sought out John Adams on behalf of Preston and the other soldiers. According to Forrest, Josiah Quincy Jr., younger brother of the lead prosecutor, and Robert Auchmaty would agree to defend them but only if Adams would agree to join the team.

Adams was already a well-respected attorney. Among his successful cases was the defense of fellow Declaration signer and accused smuggler John Hancock. Surely Adams recognized that taking on this case could wreck his practice and subject him to public scorn. He later admitted that he worried for the safety of his family.

With all that on the line, Adams later said he had “no hesitation” in accepting the new clients, stating that no person accused should want for counsel in a free country. He wrote “that persons whose lives were at stake ought to have the counsel they preferred.”

With Adams now on the team, the defense sought to delay the proceedings to allow the fervor in the community to cool. However, the Sons of Liberty would have none of that as they published inflammatory accounts by Sam Adams, John Han­cock, and others in an attempt to further fan the flames. When Paul Revere’s famous engraving was published showing the British troops firing on a helpless crowd at the direction and command of Captain Preston, it certainly did not help.

A few months later, Preston went to trial individually. Since it was undisputed that he had not fired a weapon, the issue boiled down to whether or not Preston had ordered the soldiers to shoot. The witnesses were divided, some swearing that Preston had given the order to fire, others adamantly testifying he did not. After six days of trial and contradictory testimony, the jury acquitted Preston.

About a month later, the trial of the other eight soldiers began in a joint proceeding. This trial was even more scrutinized than Preston’s, for these were the men who had actually pulled the trigger. After all, the prosecutor argued that if Adams were correct and Preston had not ordered the Redcoats to fire, why else would they fire on the crowd? The prosecution argued that the soldiers’ motive stemmed from their resentment and hatred for the Bostonians due to months of mistreatment heaped upon them from the civilians.

Adams argued self-defense. He told the jurors a story—not of peacefully protesting civilians, but of an unruly, menacing mob. Over 80 witnesses testified in the 7-day trial.

Adams famously said to the jury, “Facts are a stubborn thing, and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

Adams argued that the soldiers legitimately and reasonably feared for their lives. In his closing, he vividly painted the scene, not one of innocent citizens gunned down on a whim, but of a mob—“a motley rabble” who pelted the soldiers with rocks, clubs, and oyster shells as they closed in with shouts of “kill them, kill them” coming from the threatening crowd.

After setting the stage for the jury, Adams brought his argument back to his clients. He told the jury that they must stand in the shoes of the soldiers; “consider yourselves, in this situation, and then judge whether a reasonable man . . . would not have concluded they [the mob] were going to kill him.”

Reminds me a lot of Matthew McConaughey’s character in the movie “A Time to Kill” two centuries later when he asked his jurors to close their eyes as he set for them the stage of what happened to the young victim in John Grisham’s novel.

Adams did a masterful job of putting the jury there: in the confusion, in the heat of the moment, in a terrifying situation.

The jury acquitted six of the eight, finding two of the soldiers guilty of the lesser of charge of manslaughter. The two convicted were punished, not by hanging, but by being branded with an “M” on their thumb.

Adams would later write: “The part I took in defense of Captain Preston and the soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country. Judgement of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or Witches anciently. As the evidence was, the verdict of the jury was exactly right.”

John Adams was a patriot, and a great defense lawyer. We always talk about “why we do what we do.” Adams understood it 250 years ago. He embodied everything we strive for as criminal defense lawyers. So the next time you find yourself on the wrong side of public opinion, or the next time you are representing a citizen who is reviled by the public, ask yourself, “What would John Adams do?” Take that tough case, stand up for your client, give him or her your best when others might not, and be a true patriot.

Executive Director’s Perspective: Rusty Recap – By Joseph A. Martinez

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David Moore (Longview) is now the 46th president of TCDLA. We look forward to a very successfully year under David’s leadership.

The 85th Texas Legislature Session is sine die until July 18, when the Special Session starts. Our legislative team will be providing summary reports to our members throughout the special session.

Our course directors for the 31st Annual Rusty Duncan Advanced Criminal Law Course will be Nicole DeBorde (Houston), Gerry Goldstein (San Antonio), John Hunter Smith (Sherman), and Mark Thiessen (Houston). Please make plans to join us June 21–23, 2018. The seminar will be held at the Hyatt Regency on the Riverwalk in San Antonio.

Special thanks to this year’s course directors, Cynthia Orr (San Antonio), Audrey Moorehead (Dallas), Robert Lerma (Brownsville), and Frank Sellers (Fort Worth), for the 30th Annual Rusty Duncan Advanced Criminal Law Course held in San Antonio in June. Thanks to them and the 34 speakers we had 768 attendees.

Special thanks to course director Alex Bunin for the CDLP Public Defender Training held in San Antonio in June. Thanks to Alex and our speakers we had 78 attendees.

We have a great lineup of DWI CLE in the coming months. Please join us for these quality TCDLA seminars.

August 18Houston15th Annual Top Gun DWIDanny Easterling & Grant Scheiner
November 2–3San Antonio13th Annual Stuart Kinard
Advanced DWI
Gary Trichter, Bobby Barrera
& Michael Gross

Weren’t able to attend this year’s Rusty Duncan event? You can order the DVD and get CLE credit. Please go to our website for more information and to order. Do you need CLE credit and can’t attend our seminar training? Please call the Home Office (512-478-2514) for a list of the DVDs and accompanying CLE credit or go to the website for online CLE.

Does your local criminal bar need a speaker for your lunch meetings? Please call Melissa Schank (512-478-2514) at the Home Office. CDLP has funds to provide a speaker and pay up to $500 for lunch costs.

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.

Off the Back: Summoning Courage to Try Something New – By Stephen Gustitis

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My inspiration for this piece was our colleague and friend, John Gioffredi.1 John’s approach to DWI defense has changed the way I try cases. His approach is not fancy, nor terribly difficult. In fact, it uses tools of our trade that we all possess. But in one important way, John’s approach is different. Trying cases like John Gioffredi takes some courage. It compels one to shoulder additional risk. It causes us to work harder. It compels us to learn new things . . . things that may be unproven in our personal experience. Moreover, it necessitates our clients burden additional uncertainty, as well. But his system has borne fruit for many. I’ve simply become a better lawyer for it and my clients have reaped rewards, as well. The point being, thanks to John’s encouragement, I summoned the courage to try something new. Is it time for you to do the same?

Lawyers are, in many ways, risk averse. Whether it’s utilizing a new trial tactic, marketing a law practice differently, investing money for retirement, starting an exercise program, running for public office, or simply interacting with one’s spouse in a new way . . . we lawyers are resistant to new things. We are human. But maybe it’s time to summon the courage to try something new. Albert Einstein was widely credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.” In other words, if you want different results than what you’re getting, you have to try something new. But trying something new doesn’t guarantee it will work, does it? And that’s the catch. It’s fear of the unknown that holds us back, that imprisons our efforts to try. Though the fix is easy, so many cannot get past the fear of failure.

Where does the courage come from to try something new? How do we lure our pluck out into the open? Simply put, we decide ahead of time that unexpected results will be okay. It’s deciding that “failure” is part of the process. Consider breaking up your goals into smaller or more manageable pieces. Modest successes will fuel confidence. But even so, if we try and miss the mark, then so be it! Nothing ventured, nothing gained. Certainly, though, the risks we take should be well-calculated beforehand. We should avoid taking foolish or unnecessary gambles. But if we desire different results in our practice (or life, in general), how can we expect to get them by doing the same old stuff? Our real failure is our failure to try.

That being the case, decide what you want. Decide to accept undesired results. Then decide to persist. Maybe you’ve been toying with the idea of making capital investments into your law practice. Maybe you want to expand your areas of practice or become board certified. Maybe you want to try DWI cases like John Gioffredi. Maybe you simply want to lose some extra weight. Whatever you desire, decide to try something new. Especially, if your efforts to date haven’t produced the results you want. Thank you, John, for the encouragement to try new things. Thanks for helping me lure my own courage out into the open.

Note

1. John Gioffredi can be reached at (214)739-4515. His address is 4131 N. Central Expressway #680, Dallas, TX 75204. His email is .

Ethics and the Law: Fast Answers for Serious Business

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When the ethics committee gets a question, it is sent out to all members of the committee. The answers are received promptly so the lawyer can get a fast answer. The following is a real question from a lawyer who called in, and these committee members gave fast answers. Everything we do is serious business.

Question

Attorney represents client at federal motion to suppress. His client testifies that the car which was the subject of the search belonged to him, in order to establish standing to object to the search. The judge denies the motion to suppress. The client pleads guilty, reserving his right to appeal the suppression issue.

Later, the client debriefs with federal prosecutors, with the usual document signed by all parties regarding confidentiality, information not to be used, etc. At the debriefing, the client admits he did not own the car. The case is now scheduled for sentencing.

What should the lawyer do? Withdraw now? Withdraw after sentencing? Divulge information from the debriefing, since it was a fraud on the court and the information was not privileged since there were others present?

Brent Mayr Answer

Comment 12 to DR 3.03, I believe, is as good as it gets. Because the disclosure that the vehicle was not his was not a confidential attorney communication, I think under the Rule that the attorney has to disclose it to the court.

Jimmy Ardoin Answer

I think the lawyer needs to inform the client of his duty of candor to the court and advise client that they need to correct the record on this. If client refuses to do so, then I think the lawyer needs to file a motion to withdraw now. The Government will also be bound by the disciplinary rules and will be obligated to inform the court either through a separate filing to correct the record or by disclosing to Probation for inclusion in the PSR. Client is therefore likely to receive a 2-pt enhancement under § 3C1.1 for Obstructing or Impeding the Administration of Justice. I don’t believe the lawyer can wait until after sentencing to withdraw if client does not consent to disclosing the truth to the court immediately.

I believe Rule 3.03(b) controls on this matter. It states: If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

I think the best course of action if client refuses to participate in correcting the record with the court is for the lawyer to file an ex-parte motion to withdraw informing the court of the false testimony that was given during the motion to suppress hear­ing. Further, Comment 12 of Rule 3.03 of the Disciplinary Rules states: The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client’s perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence.

Michael Mowla Answer

What did he say exactly and what was his relationship to the owner of the car? One thing to consider that this was on the issue of standing. Even if he did not own the vehicle, if he was the driver but was in legitimate possession of the vehicle, he has standing to object to the search of the vehicle. See United States v. Arce, 633 F.2d 689, 694 (5th Cir. 1980). And if he did not own the vehicle, was a passenger in it, as a passenger he may challenge the stop. See Whren v. United States, 517 U.S. 806, 808–810 (1996), and Jackson v. Vannoy, 49 F.3d 175, 176 (5th Cir. 1995). Thus, ultimately, the perjury would have not made any difference, although I agree that it should be disclosed to the court.