Monthly archive

September 2017

October 2017 SDR – Voice for the Defense Vol. 46, No. 8

Voice for the Defense Volume 46, No. 8 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. The summaries reflect the facts and 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.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

The SCOTUS remains on summer recess.

United States Court of Appeals for the Fifth Circuit

United States v. Barber, 16-41354, 2017 U.S. App. LEXIS 14308 (5th Cir. Aug. 3, 2017) (designated for publication)

        (1) To reverse on plain-error because the issue was not preserved before the district court, the reviewing court must find: (1) a legal error that has not been intentionally relinquished or abandoned; (2) the error must be clear or obvious; (3) the error must have affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        (2) Probation officers have power to manage aspects of sentences and to supervise probationers and persons on supervised release with respect to all conditions imposed by the court. However, a district court cannot delegate to a probation officer the “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”

        (3) Special conditions of release that use the language “as deemed necessary and approved by the probation officer” creates ambiguity as to whether the district court permissibly delegated authority to decide the details of a sentence’s implementation or impermissibly delegated the authority to impose a sentence.

United States v. Fillingham, 16-40317, 2017 U.S. App. LEXIS 14925 (5th Cir. Aug. 11, 2017) (designated for publication)

        (1) A prisoner filing a 28 U.S.C. § 2241 petition must first pursue all available administrative remedies. The burden of proof for demonstrating the futility of administrative review rests with the petitioner.

Editor’s Note: A petition filed under 28 U.S.C. § 2241 is used to challenge the fact or duration of a federal prisoner’s confinement, not the constitutionality of the conviction or the conditions of confinement. Nearly all valid petitions under 28 U.S.C. § 2241 allege one of the following: (1) BOP has wrongly computed the inmate’s release date; (2) BOP has wrongly taken away “good­time credits”; (3) the inmate seeks an expedited transfer to a “residential reentry center” or “halfway house”; or (4) the inmate is being detained by federal immigration authorities while awaiting deportation.

United States v. Hawkins, 16-10879, 2017 U.S. App. LEXIS 14312 (5th Cir. Aug. 3, 2017) (designated for publication)

        (1) A district court’s factual findings (such as adopting a PSR) are not clearly erroneous so long as they are plausible considering the record read as a whole. When making factual findings at the sentencing stage, a district court may consider any information that “bears sufficient indicia of reliability to support its probable accuracy.”

        (2) A PSR bears sufficient indicia of reliability to be considered as evidence by the judge in making factual determinations required by the sentencing guidelines. A district court may adopt facts contained in a PSR without further inquiry assuming those facts have an adequate evidentiary basis that is sufficiently reliable and the defendant does not present evidence to the contrary.

        (3) If a defendant wants to challenge sufficiently reliable facts contained in a PSR, the defendant carries the burden of presenting rebuttal evidence showing that those facts are materially untrue, inaccurate, or unreliable. Objections, unsupported by fact, generally do not carry this burden.

        (4) Under U.S.S.G. § 3B1.1, if a defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, the offense level is increased by 4 levels. The district court should consider: (1) exercise of decision-making authority, (2) the recruitment of accomplices, (3) the claimed right to a larger share of “the fruits of the crime,” and the degree of control and authority exercised over others.

        (5) Under U.S.S.G. § 2D1.1(b)(15)(E), a 2-level enhancement is added if the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, which means: (A) the defendant derived income from the pattern of criminal conduct that in any 12-month period exceeded 2,000 times the then existing hourly minimum wage under federal law ($7.25/hour 3 2,000 = $14,500); and (B) the totality of circumstances shows that such criminal conduct was the defendant’s primary occupation in that 12-month period (the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant’s legitimate employment was merely a front for the defendant’s criminal conduct).

        (6) In calculating the amount attributable to the defendant because of “criminal livelihood,” a district court can count credit-card purchases and other ill-gotten gains such as the market value of stolen property.

        (7) After calculating the Guideline’s recommended sentencing range, a district court must consider the factors under 18 U.S.C. § 3553(a) to determine the sentence. Under Gall v. United States, 552 U.S. 38, 50–51 (2007), review of a sentence’s reasonableness is based on the abuse-of-discretion standard under which the appellate court is highly deferential to the district court since it is the in a superior position to find facts and judge their import under § 3553(a) with respect to a defendant.

        (8) Sentences within or below the guideline range are presumed to be reasonable. To rebut the presumptive reasonableness, a defendant must demonstrate that the sentence: (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

United States v. Hott, 16-11435, 2017 U.S. App. LEXIS 14499 (5th Cir. Aug. 7, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2K2.1(b)(6)(B), a 4-level enhance applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense.” If the firearm used to support the enhancement is not a firearm cited in the offense of conviction, the enhancement applies if the offense of conviction and “another felony offense” were “part of the same course of conduct or common scheme or plan.”

        (2) Under United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc), a silencer is a “firearm” under the National Firearms Act.

        (3) Under U.S.S.G. § 3E1.1(a), a defendant may receive a 2-level reduction in offense level if he “clearly demonstrates acceptance of responsibility for his offense.” The USCA5 will affirm a district court’s decision not to award a reduction unless it is “without foundation,” a standard of review more deferential than the clearly erroneous standard.

United States v. Juarez, 16-30773, 2017 U.S. App. LEXIS 14500 (5th Cir. Aug. 7, 2017) (designated for publication)

        (1) Under Fed. Rule Evid. 404(b) and United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc), evidence of a crime, wrong, or other act is not admissible to prove a person’s character, but is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. To be admissible, a court must determine that the 404(b) extrinsic-evidence: (1) is relevant to an issue other than the defendant’s character; and (2) possesses probative value that is not substantially outweighed by its undue prejudice under Fed. Rule Evid. 403.

        (2) Under Beechum, when weighing extrinsic evidence under Fed. Rule Evid. 403, the court considers: (1) the government’s need for the extrinsic evidence, (2) the similarity between the extrinsic and charged offenses, (3) the amount of time separating the offenses, and (4) the court’s limiting instructions. Even if all four factors weigh in the Government’s favor, a reviewing court must evaluate the district court’s decision under a commonsense assessment of all the circumstances surrounding the extrinsic offense, which include the nature of the prior offense and the likelihood that the evidence would confuse or incite the jury.

        (3) Beechum factor 1—the government’s need for the extrinsic evidence: Extrinsic evidence has high probative value when intent is the key issue at trial and is necessary to counter a defendant’s claim that he was merely an ignorant participant in the operation and never knowingly agreed to participate in an illegal business. Further, a court must consider whether there was other evidence of intent that might have made extrinsic evidence unnecessary. When a person pleads “not guilty,” he places his criminal intent directly at issue.

        (4) Beechum factor 2—the similarity between the extrinsic and charged offenses: Similarity increases both the probative value and prejudicial effect of extrinsic evidence. If the offenses are dissimilar or only share one element, the extrinsic offense may have little probative value to counterbalance the inherent prejudice of this evidence. Thus, the probative value of the extrinsic offense correlates positively with its likeness to the offense charged.

        (5) Beechum factor 3—the amount of time separating the offenses: Probative value is lessened by temporal remoteness between the offenses. Evidence of misconduct committed concurrently is probably admissible, less than 3 years ago may be admissible, but 10 years ago may be too remote.

        (6) Beechum factor 4—the court’s limiting instructions: limiting instructions cannot eliminate prejudicial effect, but can to a certain extent “allay the undue prejudice engendered by extrinsic evidence.” When the court gives extensive and immediate limiting instructions following the admission of prior offense testimony, it helps to counteract the prejudicial effect of 404(b) evidence.

        (7) Jury instructions are reviewed for abuse of discretion. The court determines whether the entire charge was a correct statement of the law and whether it clearly instructed the jurors as to the principles of the law applicable to the factual issues confronting them.

        (8) A deliberate ignorance instruction is appropriate where the evidence shows: (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. The key aspect is the conscious action of the defendant to escape confirmation of conditions or events he strongly suspected to exist. The same evidence that will raise an inference that the defendant had actual knowledge of the illegal conduct ordinarily will also raise the inference that the defendant was subjectively aware of a high probability of the existence of illegal conduct.

        (9) Deliberate ignorance instruction prong 1—subjective awareness of a high probability of the existence of illegal conduct: Evidence must support an inference that the defendant subjectively knew his act to be illegal. The evidence should allow a “glimpse” into the defendant’s mind when there is no evidence pointing to actual knowledge. Suspicious and erratic behavior may be sufficient to infer subjective awareness of illegal conduct.

        (10) Deliberate ignorance instruction prong 2—purposeful contrivance to avoid learning of the illegal conduct: satisfied “if the circumstances were so overwhelmingly suspicious that the defendant’s failure to conduct further inspection or inquiry suggests a conscious effort to avoid incriminating knowledge. Not asking questions or the intensity and repetition in the pattern of suspicious activity coupled with the consistent failure to conduct further inquiry created an inference that the defendants purposefully contrived to avoid further knowledge.

        (11) Under U.S.S.G. § 3B1.5, a 4-level enhancement applies when a defendant convicted of a drug-trafficking crime or crime of violence uses body armor during the commission of the offense. “Use” means: (A) active employment in a manner to protect the person from gunfire; or (B) use as a means of bartering (the exchange of one commodity for another without the use of money). “Use” does not mean mere possession.

Editor’s Note: Fitting under the category of “you can’t make this shit up,” not only does Los Zetas have now have “arms” or “subsidiaries” like the Grimaldo Cartel, they now have their own artwork:

Editor’s Note: the deliberate ignorance instruction is also explained in United States v. Barson, 845 F.3d 159 (5th Cir. 2016). The Fifth Circuit Pattern Jury Instruction 1.37A for Deliberate Ignorance provides: “You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”

Editor’s Note: The facts of this case and (former officer) Juarez’s actions are summarized well in this cartoon:

United States v. Morgan, 16-30591, 2017 U.S. App. LEXIS 14615 (5th Cir. Aug. 8, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 3582(c)(2), the district court may reduce a defendant’s sentence if the Guidelines range applicable at sentencing is later lowered by the Sentencing Commission. The district court: (1) examines U.S.S.G. § 1B1.10 concerning reductions in sentences due to amended Guidelines to determine if the inmate is eligible; and (2) decides whether a reduction is consistent with the 18 U.S.C. § 3553(a) sentencing factors. A district court has the authority to reduce the sentence of a defendant when the range applicable to the defendant has subsequently been lowered because of an amendment under U.S.S.G. § 1B1.10(a)(1) & (d).

        (2) Under Sentencing Guidelines Amendment 782, the drug-quantity table in U.S.S.G. § 2D1.1 was modified by lowering most drug-related base-offenses levels by two.

United States v. Nanda, 16-11135, 2017 U.S. App. LEXIS 14814 (5th Cir. Aug. 10, 2017) (designated for publication)

        (1) Under Bruton v. United States, 391 U.S. 123 (1968), and Richardson v. Marsh, 481 U.S. 200 (1987), admission of a codefendant’s confession at a joint trial where that codefendant does not take the stand violates the other defendant’s Sixth Amendment right of confrontation if the confession is incriminating on its face. If the confession is not incriminating on its face, it does not violate the other defendant’s right of confrontation if it becomes incriminating only when linked with evidence introduced later at trial (an indirect reference to a codefendant is not enough to make it a Bruton statement). If the codefendant’s confession does not directly reference the defendant, a limiting instruction to the jury will help mitigate against confrontation issues. Bruton error may be harmless when by disregarding the codefendant’s confession, there is other ample evidence against a defendant.

        (2) Under Stirone v. United States, 361 U.S. 212 (1960), after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury.

        (3) A constructive amendment occurs when the court permits the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or upon a materially different theory or set of facts than that which the defendant was charged.

        (4) Under U.S.S.G. § 2B1.1(b)(10)(B), a 2-point enhancement may be added for committing a substantial portion of the alleged scheme from outside the United States.

        (5) Under U.S.S.G. § 2B1.1(b)(10)(C), a 2-point enhancement may be added for an offense involving sophisticated means of concealment.

United States v. Nesmith, 16-40196, 2017 U.S. App. LEXIS 14616 (5th Cir. Aug. 8, 2017) (designated for publication)

        (1) Review of a district court’s application of the U.S.S.G. is de novo, but if a defendant objects on grounds different from those raised on appeal, review is for plain error. The objection and argument on appeal need not be identical, but must only give the district court the opportunity to address the gravamen of the argument presented on appeal. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.

        (2) Under U.S.S.G. § 2G2.1(b)(4), the sadism enhancement applies if the offense involved material that portrays sadistic conduct or other depictions of violence. The inquiry must focus on an observer’s view of the image (what is portrayed and depicted and appears to be happening) rather than the viewpoint of the defendant or victim (what occurred).

        (3) Sadism is the infliction of pain upon a love object as a means of obtaining sexual release. The victim’s experience of contemporaneous physical or emotional pain is what prompts the sadist’s sexual release. A sadist experiences sexual gratification only while inflicting pain or humiliation on another, and does not obtain sexual release from the foreseeable, but uncertain, possibility that the victim will at some point in the future feel emotional pain.

        (4) Under U.S.S.G. § 2G2.1(b)(4), the sadism enhancement is appropriate where the infliction of emotional or physical pain was contemporaneous with the creation of the image. Without a contemporaneousness requirement, § 2G2.1(b)(4) would apply in every child pornography case regardless of the content of the images in question because it is foreseeable that any child who discovers that she was depicted in pornography would feel humiliated and debased. All child-victims would likely find it nerve-wracking not knowing who had seen the images or if they would become public later and not knowing what effect that would have on their lives. Without requiring the pain inflicted on the victim to be contemporaneous with creation of the image in question, the sadism enhancement could apply even where a victim never becomes aware that he or she is the subject of child pornography. Any connection between the victim and the defendant would make it foreseeable that the victim would later learn of the conduct depicted in the images and experience emotional pain.

        (5) An image portrays sadistic conduct and the sadistic enhancement is appropriate under U.S.S.G. § 2G2.1(b)(4) if the image depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation.

United States v. Quintanilla, et al, 16-50677 Cons w/ 16-50682, 16-50683, 16-50687, 16-50688, 16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705, 16-50706, 16-50707, 16-50709, 16-50715, & 16-50716, 2017 U.S. App. LEXIS 15435 (5th Cir. Aug. 16, 2017) (designated for publication)

        (1) Under Amendment 782, effective November 1, 2014, and retroactive, U.S.S.G. § 2D1.1 was amended to allow a 2-level reduction to a defendant’s offense level based on the drug quantity. The amendment did not change § 4B1.1, the career offender guideline range. Existing statutory enhancements such as those available under 18 U.S.C. § 924(c) (using firearms in furtherance of another crime), and guideline enhancements for offenders who possess firearms, use violence, have an aggravating role in the offense, or are repeat or career offenders, are not affected by Amendment 782.

        (2) Under 18 U.S.C. § 3582(c)(2), a district court has authority to modify a sentence in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Under U.S.S.G. § 1B1.10(a)(1), if a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered by Amendment 782, the court may reduce the defendant’s term of imprisonment.

        (3) To qualify for Amendment 782, the defendant’s sentence must have been “based on” the drug-quantity guideline range under § 2D1.1 and not “based on” the career offender guideline range under § 4B1.1. A defendant’s sentence is “based on” § 4B1.1 if his sentence was calculated from the higher career offender range under § 4B1.1, which occurs if the guideline ranges under § 4B1.1 are higher than the drug quantity guideline range under § 2D1.1.

United States v. Sealed Search Warrants, 16-20562, 2017 U.S. App. LEXIS 15905 (5th Cir. Aug. 21, 2017) (designated for publication)

        (1) 28 U.S.C. § 1291 gives circuit courts jurisdiction over appeals from all final decisions of the district courts. Under Di Bella v. United States, 369 U.S. 121 (1962), orders on preindictment motions to suppress are interlocutory and not immediately appealable because it is subsumed by the possibility of a forthcoming criminal trial. However, motions to unseal documents are final and appealable.

        (2) The common law right of access to judicial records must be considered on a case-by-case basis. A district court may deny access if the files may become a vehicle for improper purposes, and must balance the public’s common law right of access against the interests favoring nondisclosure. The court must consider the presumption in favor of the public’s common law right of access to court records, which applies so long as a document is a judicial record. If the unsealing of preindictment warrant materials would: (1) threaten an ongoing investigation; (2) endanger or discourage witnesses from providing evidence or testimony, or (3) damage an unindicted target’s reputation while leaving no judicial forum to rehabilitate that reputation, the district court has discretion to make redactions prior to unsealing or, where necessary, to leave the materials under seal.

Texas Court of Criminal Appeals

There have been no significant decisions handed down by the TCCA since August 1, 2017.

Texas Courts of Appeals

Almanza v. State, 10-16-00224-CR, 2017 Tex. App. LEXIS 6455 (Tex. App. Waco July 12, 2017) (designated for publication)

        (1) Under Ballew v. Georgia, 435 U.S. 223, 245 (1978), and Ex parte Garza, 337 S.W.3d 903, 915 (Tex. Crim. App. 2011), to satisfy the Sixth Amendment, unless waived by the defendant, a jury must consist of at least six jurors in the absence of the agreement of the defendant. Where a person that was not summoned but who by mistake appeared and served as a juror, and there was otherwise no legal disqualification or misconduct, Ballew is not violated. This person’s appearance and presentation for jury duty effectively places the person under the jurisdiction of the court, and there is no error in the person’s participation as a juror.

Editor’s Note: As Thomas Jefferson once quipped to Thomas Paine, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Long live the jury trial and jurors, especially one that shows up (mistakenly or not) who was not even summoned:

Ballard v. State, 01-15-00275-CR, 2017 Tex. App. LEXIS 6899 (Tex. App. Houston [1st Dist.] July 25, 2017) (designated for publication)

        (1) Under Tex. Penal Code § 43.26(a), a person commits possession of child pornography if he knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct and he knows that the material depicts the child in this manner.

        (2) Under Tex. Penal Code § 1.07(a)(39), “possession” of contraband means “actual care, custody, control, or management.” Under Tate v. State, 500 S.W.3d 410, 413-414 (Tex. Crim. App. 2016), when contraband is not found on a person or is not in a location that is under the exclusive control of a person, mere presence at the location where the contraband is found is by itself insufficient to establish actual care, custody, or control. However, presence or proximity combined with other evidence (either direct or circumstantial) may be sufficient to establish possession. A factfinder may infer that the defendant intentionally or knowingly possessed contraband not in his exclusive possession if there are sufficient independent facts and circumstances justifying such an inference.

        (3) In Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012), the TCCA held that to determine legal sufficiency in computer child-pornography cases, each case must be analyzed on its own facts, and like all criminal cases, a court must assess whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence considered in the light most favorable to the verdict. Sufficient evidence to support a finding that the defendant had knowledge of the images of child pornography on a computer may include evidence that: (1) the images of child pornography were found in different computer files, showing the images were copied or moved; (2) the images of child pornography were found on an external hard drive or CD, which indicates the images were deliberately saved on the external devices; (3) the images stored on the computer and the external hard drive were stored in similarly named folders; (4) the names of the folders containing the images of child pornography necessarily were assigned by the person saving the file; or (5) the recovery of numerous images of child pornography from the defendant’s computer.

        (4) Under Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard unless it was: (1) so clearly calculated to inflame the minds of the jury, or (2) of such damning character as to suggest it would be impossible to remove the harmful impression from the jury’s mind.

        (5) Under Groh v. Ramirez, 540 U.S. 551 (2004), a warrant that incorporates other documents by reference must be served with the incorporated documents at the time the search is executed to satisfy the particularity requirement for a warrant. The SCOTUS did not address whether documents incorporated by reference must be delivered prior to the beginning of the search to the person whose premises are being searched. Texas law does not require that an incorporated affidavit to be attached to the warrant at the time of the execution of the search. Tex. Code Crim. Proc. Art. 18.06(b), which incorporates Tex. Const. Art. 1, § 9, requires only that the warrant and a written inventory of the items seized be served upon the owner of the premises to be searched.

Editor’s Note: When a person uses a peer-to-peer network, all persons connected to the network may view and download files in “shared folders.” The basic diagram of a peer-to-peer network is:

Any file stored on a “shared folder” in a peer-to-peer network may be viewed by any person on the network. A file’s metadata contains properties that may be traced to an individual computer, which means that a file stored on a person’s “shared folder” may be downloaded and viewed by any number of persons on the peer-to-peer network. Thus, committing acts of misfeasance of storing and sharing child pornography on a peer-to-peer network is as advisable as posting this on Facebook:

Cameron v. State, 04-12-00294-CR, 2017 Tex. App. LEXIS 6387 (Tex. App. San Antonio July 12, 2017) (designated for publication)

        (1) Under the Sixth Amendment, Johnson v. United States, 520 U.S. 461, 468–469 (1997), Presley v. Georgia, 558 U.S. 209, 212–213 (2010) (per curiam), and Steadman v. State, 360 S.W.3d 499, 510–511 (Tex. Crim. App. 2012), a defendant has the right to a public trial, which extends to voir dire. Violation of this right is structural error that does not require a showing of harm.

        (2) Under Lilly v. State, 365 S.W.3d 321, 331 (Tex. Crim. App. 2012), and Waller v. Georgia, 467 U.S. 39, 48 (1984), to determine whether a defendant’s right to a public trial was violated, a reviewing court considers: (1) defendant met the initial burden to show that the trial is closed to the public, which is considered under the totality of the evidence, rather than whether a spectator was excluded from trial, and if this burden is met, (2) whether the closure was justified, which requires considering whether: (i) the trial court took every reasonable measure to accommodate public attendance before closing the proceeding, (ii) the closure was necessary to protect an overriding interest, (iii) the closure was no broader than necessary, (iv) the trial court considered all reasonable alternatives to closing the proceeding, and (v) made findings adequate to support the closure.

Foster v. State, 05-15-01539-CR, 2017 Tex. App. LEXIS 7659 (Tex. App. Dallas August 11, 2017) (designated for publication) (Brown, J. dissenting)

        (1) Under Tex. Rule App. Proc. 34.6(f) and Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003), to be entitled to a new trial due to a missing record, an appellant must show: (1) he timely requested the reporter’s record, (2) a significant portion of the record has been lost or destroyed through no fault of his own, (3) the missing portion of the record is necessary to his ap­peal, and (4) the parties cannot agree on the record. When an appellant has not been harmed by the missing portion of the record, he should not be granted relief. The rule that the missing portion of the record is necessary to his appeal is meant to mitigate against the harshness of a rule that might require a new trial even when no error occurred in the proceedings. See Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013).

French v. State, 11-14-00284-CR, 2017 Tex. App. LEXIS 7589 (Tex. App. Eastland Aug. 10, 2017) (designated for publication)

        (1) Under Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014), and Tex. Penal Code § 22.021(a)(1)(B)(i), (iii), (iv), (a)(2)(B), a defendant may face prosecution for aggravated sexual assault of a child for the penetration of separate orifices regardless of whether the penetration occurred during the same transaction. Each subsection under Tex. Penal Code § 22.021 entails different and separate acts to commit the various, prohibited conduct.

        (2) Under Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), when disjunctive language contains different criminal acts, a jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Unanimity means that every juror agrees that the defendant committed the same, single, specific criminal act.

        (3) Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), and Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), if the defendant preserved error, the appellate court will reverse if the defendant suffered “some harm.” Neither the State nor the defendant bears the burden of proving harm; the court of appeals must review the entire record to determine if the defendant suffered harm. To determine whether a defendant suffered “some harm,” a reviewing court considers: (1) the entire jury charge; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant factors present in the record, including voir dire and opening statements. “Some harm” requires a finding that the defendant “suffered some actual, rather than merely theoretical, harm from the error.”

Golliday v. State, 02-15-00416-CR, 2017 Tex. App. LEXIS 7048 (Tex. App. Fort Worth July 27, 2017) (en banc) (designated for publication)

        (1) Under Davis v. Alaska, 415 U.S. 308, 316 (1974), Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009), and Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016), an attack on credibility that reveals “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand” is not the same as a general attack on the credibility of a witness. The exposure of a witness’ motivation in testifying is a proper function of the constitutionally protected right of cross-examination. A constitutional violation occurs if a state evidentiary rule prohibits a defendant from cross-examining a witness concerning possible motives, bias, and prejudice to such an extent that he could not present a vital defensive theory. A defendant has a constitutional right to present his defense to the jury so that the jury may weigh his evidence along with the rest of the evidence presented.

Editor’s Note: The State’s sponsoring of this type of complaining witness is part of a larger problem that continues in Texas, which is the continued lack of accountability on the part of prosecutors.

Nies v. State, 08-16-00011-CR, 2017 Tex. App. LEXIS 7134 (Tex. App. El Paso July 31, 2017) (designated for publication)

        (1) The denial of a motion to suppress evidence is analyzed under a bifurcated standard of review: determination of historical facts by the trial court is for an abuse of discretion, with total deference given if the determinations are supported by the evidence; and application of law to the facts is de novo.

        (2) Officers may conduct a search incident to a lawful arrest based on: (1) the need for officers to seize weapons or other things which might be used to assault on officer or effect an escape, and (2) the need to prevent the loss or destruction of evidence. Under Arizona v. Gant, 556 U.S. 332 (2009), this exception to the warrant requirement does not justify a search of a vehicle after the occupants of the vehicle have been handcuffed or otherwise secured.

        (3) Under the automobile exception, officers may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband or evidence of a crime. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officers on the scene would lead persons of reasonable prudence to believe that an instrumentality of a crime or evidence pertaining to a crime will be found.

        (4) Under Colorado v. Bertine, 479 U.S. 367, 371 (1987), an inventory search protects: (1) the owner’s property while the vehicle is in police custody, (2) the police against claims or disputes over lost, stolen, or vandalized property, and (3) the police from possible danger. The inventory search must be conducted in good faith and per reasonable standardized police procedure. The State has the burden to establish that the police conducted a lawful inventory search, which is met if the State demonstrates (usually through an officer’s testimony) that an inventory policy exists and the officers followed the policy.

Surviving Hurricane Harvey: Houston Lawyers and Others on the Ordeal

When the full scope of the Hurricane Harvey tragedy became evident, I was struck by the enormity of the disaster. I wondered how people like me—people in the law business—could survive such a challenge. I wondered how people like me could deal with loss of homes and property, perhaps the loss of loved ones, and the possibility of not being able to practice law for many months.

What are they doing to make a living without a courthouse? What about the tall-building lawyers with lots of employees depending on a paycheck? How are they handling the financial stress? What does the future hold?

How are they juggling the lawyer stress with the personal stress? Does insurance cover the losses? I sent many dispatches asking these questions, but I learned little about how lawyers were coping with post-Harvey Houston. There were no whiners.

Some shared the initial shock of dealing with the crisis, some were grateful for relief efforts, but most who responded were more concerned with the plight of others affected by the storm.

Hurricane Harvey heroes emerged.

—Chuck Lanehart, Lubbock

One House Saved

My neighbor was a young guy, his wife from Venezuela. They had no idea about these storms. By Sunday, his back yard was trapping water and it was less than an inch from his back door. I organized a party with shovels, and we dug a ditch to relieve the pressure. No flooding. Nothing heroic, but there it is. One house saved.

—Joseph Varela, Houston

An Anderson Cooper Encounter

Special thanks to Anderson Cooper for taking the time to talk to and encourage Houstonians to volunteer. He was very kind, and it is very appreciated.

As I am a longtime resident of Houston, this past week has been a roller coaster of emotion. The devastation caused by Hurricane Harvey and the overwhelming flooding has caused human suffering on a level that even in my wildest dreams I never thought I would ever witness, much less experience. To see so many people, friends, and neighbors suffer such devastating grief has left me at a loss for words.

But with such pain, I have also seen the humanity of this great city and country. I remember how proud I was in 2005 to see how this city rallied to provide housing and assistance to our neighbors in New Orleans. It is something in the American spirit, where we step up to help others in need. Twelve years later we are the ones in need, and to see people come to help us is an emotional thing.

That act of kindness brought upon me a surge of emotion. At a time when this country has such deep divisions in so many areas, our true humanity shines in times like these. It’s just too bad that it takes such tragedy for us to all realize that on the base level all of us want the same thing—to live a happy life.

—Yong J. An, Houston

A Message to NACDL

Norman Reimer
Executive Director NACDL

Dear Mr. Reimer:

I appreciate our phone conversation yesterday and NACDL’s willingness to help our fellow criminal defense lawyers here in Texas. Many of our brothers and sisters have suffered devastating losses in the wake of Hurricane Harvey. With their offices and homes damaged or destroyed, they are struggling to regain their ability to defend the citizen accused.

In the face of such adversity, the Texas Criminal Defense Lawyers Association is committed to assist our members and other fellow criminal defense lawyers. At TCDLA, we have set up a page on our website to receive donations to help us in this worthy endeavor. Your members who wish to assist may do so at the following link:

TCDLA has a long, cherished history with NACDL with several of TCDLA’s past presidents having served in the same capacity with NACDL. We have many lawyers who, like me, are members of both organizations. Please join us in our commitment to those who have suffered such loss by donating to the TCDLA Hurricane Harvey Lawyers Assistance Fund. We appreciate so much all assistance from NACDL and its members.

—David Moore, TCDLA President

Making a Difference in a War Zone

This is a heartfelt shout-out to the greatest warriors imaginable. These folks showed up at our wrecked house, which had been in water for ten days, and got busy with sledgehammers, wheelbarrows, shovels, dollies, hammers, chisels, etc. You all worked so hard and made such a difference in the middle of the war zone that was once our community:

Thuy Le (the organizer)Nick Hughes
Andrea IonescuShirley Cornelius
Damon Parrish IICynthia Henley
Hilary UngerTyler Flood
Gordon & Kay DeesWindi Pastorini

And thanks also go to Jordan Lewis, who made us dinners to eat later (delicious).

Thank you so much for all that you did.

—Judy and Ken Mingledorff, Houston

How to Be an Effective Volunteer

Hurricane Harvey dumped nearly a trillion gallons of water and caused tens of billions of dollars in damage to Houston, Beaumont, and other cities. Usually, when a natural disaster strikes, people jump into action donating supplies, money, and time. This was evident in the thousands of stories and images of people getting into their personal boats to rescue neighbors, the millions of dollars donated to relief organizations, and the hundreds of volunteers who showed up to emergency shelters to help.

However, for the people affected by the hurricane, the rebuilding of their homes, businesses, and lives is a fight that will take months—if not years—to complete. It’s important for us to remember not to forget those affected by Harvey, especially weeks from now when the news trucks have gone, the fundraising campaigns have stopped, and people have stopped coming by to volunteer. The following are ways all of us can continue to help our colleagues.

  5.   Donate to a Local Nonprofit Organization. So often, local charities get overlooked for the more glamorous and well-known national charities when disaster strikes. However, local nonprofits are usually the first ones on the ground help­ing residents. Consider donating to local organizations like TCDLA’s Hurricane Harvey Lawyers Assistance Fund. Money raised from that fund goes directly to assist lawyers displaced by the hurricane. Local nonprofits are often more aware of the immediate needs of their community. This helps them figure out the best way to allocate the funds to help those in need.

  4.   Donate Your Time. I often hear lawyers tell me they don’t have time to volunteer because they’re busy running a business, they have kids, or they’re traveling to teach a CLE. But donating your time doesn’t mean you must spend a whole weekend as a volunteer. Many organizations will take people who can come in for an hour or two every week. There is an organization out there that needs your help whether you want to help with animals, children, or answering the phones.

  3.   Make Your Own List. If the local nonprofit organizations do not excite you, or if you have a special talent, offer your services. After the hurricane, I recruited groups of volunteers to help their fellow attorneys by making home-cooked meals for those living in hotels, calling the courts to reset cases for the affected attorneys, and going to people’s homes and helping them remove damaged property. Some lawyers couldn’t physically help with the renovations, but they were able to buy supplies, which helped us help others. We sometimes forget that other than being awesome lawyers, many of us have talents in other fields. Use that talent to help others.
 Proposing your own way to help always takes the burden off the people affected, because it’s one less decision they must think about. They’ve been evacuated from their home. They’ve had to figure out how they’re going to eat, where they will sleep, and what forms they must fill out. Asking them what they want you to do might be overwhelming for many. Instead, go into every situation with a plan, explain your plan to those affected, and then get to work!

A week after the hurricane, I was following up with one of the people whose home we helped to clear. I was talking to this person and I was told he felt like everyone had moved on and he was just stuck “wallowing.” He described how he was at a restaurant and the people next to him were talking about their weekend plans and what the work week was like. The people affected by the hurricane were still drying out their home and weren’t even sure if they could go back to work soon. What happened with Hurricane Harvey is very much like the grief felt by someone who has experienced the death of a close friend or relative. They are in mourning. And sometimes when you’re in mourning, it feels like the whole world has moved on and you’re just stuck.
 Don’t let people feel like they’re stuck! You can help your fellow lawyer with a simple text or email. Or phone call. Or even PM on Facebook. Don’t ask permission. Just do it. It takes seconds to remind the people who have lost so much that you haven’t forgotten about them and that you still care. Don’t be afraid to bother them. In our lowest moments, I don’t think any one of us have ever thought, “Wow, I wish people would stop thinking of me and loving on me.”

  2.   Take Care of Yourself. It’s wonderful to help your fellow attorneys. But it’s too steep a price to pay if it’s at the expense of your physical or mental health. If you’re going to be clearing out houses that have been sitting in raw sewage for days, you need to make sure you’re wearing proper clothing and have the right gloves and facemasks. You also need to make sure you have your tetanus shot. HEB is giving out free tetanus shots to anyone in the areas affected by Harvey. I often had to yell—yes, yell—at attorneys who were clearing waterlogged homes without the proper respirator masks or gloves. The equipment is there so you don’t hurt yourself. Use it.

  1.   Know your limitations. An attorney volunteer I know ended up developing respiratory problems because he didn’t take the proper precautions. There’s nothing wrong with saying that you can’t help or that you’re taking time for yourself. If you just want to sit in your underwear and watch Netflix all weekend because you’re mentally or physically exhausted, do it. There is no shame in taking care of yourself to recharge. What good are you to anyone else if you’re too sick to help? No one is going to give you gold stickers for unnecessarily endangering your life because you wanted to help.

—Thuy Le, Houston

“Our House Is About to Take on Water!”

In 2005, I watched television images of Hurricane Katrina flood victims in New Orleans. All I could say to my husband Brian was that we would leave in a heartbeat if one headed our way.

So, as Hurricane Rita came a few weeks later, we packed our toddlers with our bags and our dogs and sat for hours in our car, mapping routes. We endured ten hours from Houston to Dallas. Rita never hit Houston, causing more damage and suffering to those who tried to evacuate. Thus, Houstonians have learned to “hunker down” and ride out the storms here at home, as so many times these things change course or can be managed better from our homes.

On August 26, 2017, my toddlers, now teenagers, had friends over that Saturday night, despite the onslaught of pouring rain outside. It was forecast as a huge “rain event” that we would suffer through for five days. We had enough food and water, and we were prepared for possible power outages.

Our home was built high enough that it had not previously flooded. With the preparations we made, we felt secure. We enjoyed the company of friends, allowing two of our children’s friends to sleep over, since some of the streets had become impassable that evening.

Early Sunday morning, Brian shook me awake. “Our house is about to take on water!”

I ran downstairs, screaming for the five teenagers to wake up. We began scrambling around looking for irreplaceable items like photo albums and family treasures that could be taken to higher locations.

Our garage was flooded, trapping all the extra food and ice stored in the outside refrigerator. We watched as water began to enter our home from every doorway. My daughter cried as the boys tried to mop the flood water with towels.

I grabbed food from the pantry and refrigerator and told the kids to bring it all upstairs as fast as possible. We salvaged anything that did not need refrigeration: peanut butter, jelly, bagels, crackers, chips, apples. We assumed the power was about to go out and we would be up there for a while.

We settled upstairs—five teenagers, two dogs, Brian, and me. We took a long look at each other, and I shook my head with disbelief. We watched TV news accounts of incredible rescues of neighbors trapped in one-story homes. The kids played video games, and the dogs enjoyed feeling the warmth of a close-knit 1,000 square feet of space.

We called our family and checked on our neighbors. It was 8:00 o’clock Sunday morning, and we began to evaluate where to focus our energy.

Our greatest fears had come true. We were stuck upstairs with water inching up the staircase. The kids called out as each step became covered with water. We questioned our decision to stay.

As the day wore on, the news reports of heavy rain continuing were daunting and frightening. Reading our friends’ accounts of near drownings in their homes and the rescues taking place on nearby streets, hearing helicopters and car alarms, then eerie silence—these things added to our discomfort.

Our family in Dallas begged us to call for rescue boats. But we had power, food, and shelter, with probably at least another 12 feet of dry space before our lives would be in danger. I felt it was selfish to take the rescue resources from others who were in far worse shape. Nevertheless, at one point I called for help, but no one answered. Now I am happy they didn’t answer, because I would be embarrassed if we had been evacuated from our dry upstairs.

I was fearful of the unknown forecast. The seven of us were tired, grouchy, and sick of eating PB&J sandwiches and getting a little frustrated at the thought of waking to another day of the same routine. We tried to reassure our children that the water would recede the next day, but they could sense our insecurity.

I created a group text with neighbors on our block who were all in the same unfortunate situation—all upstairs with kids, little food, scared and wanting to leave, but unsure what to do next. We promised to keep in touch and stick together, which made us feel more communal and less alone on an island.

When we retired for the night, three feet of disgusting black sewage-tainted water had flooded our beautiful home. When we awoke, miraculously, the water had receded. We have no idea how or why, because the rain was still falling and continued all day. We never lost power, but the street flooding began to go down and the water inside our house began to drain.

Friends appeared, and we began the process of clearing out our damaged property. The biggest mess was a burst 40-pound bag of dog food mixed with a tub of hundreds of my business cards, floating all over the house. What a smelly, funny sight!

We began bagging all the trash and taking photos to document the damage. We needed to find a rental home to live in during the next few months, so we began delegating tasks such as these to friends who had the experience in these fields.

We feel so blessed to be surrounded by such an incredible community of friends who rushed to our side, eager to help us those first days, which gave us so much hope that we would survive this disaster.

All our vehicles were dead, so we were not able to drive anywhere. However, we were all safe and together—and that was the most important outcome.

I had that “flutter” in my tummy where I truly was worried that I may find myself standing on the roof of my house waiting to be rescued at some point, life in danger. After feeling that flutter, none of the physical property damage we sustained really mattered. I faced that fear head on, and I cannot explain how awful it was to have that in my gut, especially knowing my children and two other children depended on my decisions.

The Harris County Criminal Courthouse has flooded, and we have been told it will be a year before it is back up and running. We are waiting for an update on where we will have court, but we have all been suffering in our everyday practice since the storm.

My husband is the rabbi of a large Houston synagogue that flooded, so we are in limbo there as well. Many people are suffering in both their jobs and their homes. Everyone has learned their own lessons from this experience and will come away from it changed in their own way. I personally will value my possessions less and my people more.

—Lisa Shapiro Strauss, Houston

Law Office Transformed

Looney & Conrad, PC, a Waller County criminal defense law firm, turned their office into a drop-off/collection site for donations (baby/kid clothes, diapers, baby formula, water, blankets, pillows, toiletries).

As soon as the roads were passable, they loaded up trucks with trailers and delivered supplies to Harvey victims in coastal cities that got hit the hardest (Rockport and Port Lavaca, Texas).

After handing out supplies, they helped flood victims clean out their damaged homes as well.

—Christina Appelt, HCCLA Executive Director

Hurricane Harvey Diary

Friday, August 25—Harvey is almost here. I live on the ninth floor of a high-rise apartment building. My 87-year-old mother is safe but nervous, so I bring her to stay with me during the storm. My friend Christina lives in an area that may flood. She comes over as well. Mom gets my bed, Christina gets the couch, and I get the floor. This is not as much fun as I thought it would be.

The three of us sit together in my den tonight watching it rain. The rain does not stop.

It seems it will never stop.

Tornadoes are dropping from the sky. If a tornado comes, we plan to move to the common hall and then to the stairwell. Our three phones go off simultaneously, issuing flood and tornado alerts. As the relentless warnings continue, the sky outside grows very dark, and I see the winds picking up.

I think I hear a tornado! I shout for Mom and Christina to get up. They get up as I study the sky, but no tornado materializes. A false alarm. We are all on edge.

For two days, we watch our city take a pounding. We watch in relative comfort as others suffer.

The rain continues.

I feel I must do something.

Sunday August 27—I put on my raincoat and walk down to 59th and Wesleyan. Remarkably, the streets are not flooded but I do see stranded cars. The freeway is all but empty. On the northbound side, I see almost no traffic. On the southbound side, I see lonely vehicles traveling in opposite directions.

Monday Aug 28—I decide to go to the George R. Brown Convention Center to volunteer. I am lucky to get there. Inside, there are people everywhere. I volunteer with the Red Cross, and I end up in one of many kitchens in the basement. People are preparing meals for the evacuees in giant vats. They need someone to mop the floor. For the next three hours, I mop the kitchen from one end to the other.

I am done mopping, and I walk out of the Convention Center. I see police vehicles and a truck with a boat. A big fellow is lifting evacuees from his truck. One evacuee is a paraplegic. I am struck by how gentle the big fellow is to this stranger he has just rescued. Suddenly my mopping doesn’t seem enough.

I approach and talk to the big fellow. He is from Louisiana. He is working with other volunteers and a couple of deputy constables. They are going back out. I ask if I can go back out with them. I tell him I won’t get in the way and I will help. He agrees I can go along.

We are a group of first responders and volunteers in vehicles with some boats. Headed north, I am riding in the lead vehicle with a deputy constable. He leads the way and a half dozen vehicles and boats follow. The constable, a Vietnam veteran, has been working 16-hour days. He is focused. There is no small talk.

We follow back roads to the worst area in Kashmere Gardens. Some of the boats deploy, and we park on the highest point. We are now alone: the deputy, a firefighter cadet, a guy from the neighborhood, and me. The others have gone in other directions.

The deputy gives me a yellow vest to signify I am part of his rescue group. We are to walk down the streets and look for anyone in need of help. We begin to wade through the water, waist deep and deeper.

Rain continues to fall. I am soaked.

On our left is a house high off the ground. Through the rain, we see several young men waving at us from the porch.

Inside the house we find a very sick older woman. She is lying down and is wrapped in blankets. She has a feeding tube. She needs to be evacuated. The deputy calls for an ambulance and for a nearby boat. We discuss how to get the women to the ambulance. We are a block away from 610 North.

The street is flooded and the rain won’t let up.

We will have to carry the woman in a gurney down the stairs and put her in a boat. The boat will take the woman down the street to the ambulance.

Carefully, we carry the woman down the steps and lay her in a boat, which slowly motors down the street. At the end of the street across a marsh is 610. We can see the ambulance on 610. We follow the boat down the street to the marsh. There the woman is carried across the muddy marsh to the ambulance.

Six or seven of us lift the gurney with the woman strapped in. I gently put the blanket partially over her face to protect her feeding tube from the rain while allowing her to breath.

The woman is put in the ambulance, and there is a sense of joy among the ten or twelve of us who are involved in her rescue. We are very grateful that the ambulance made it. Very soon after the woman is loaded, they are gone.

The rain pounds us.

We see a young man struggling to help his mother wade down the street to 610. The young man looks worn out. We relieve him and help his mother wade down the street. She is distraught in the rain and in a panic over the high water. We reassure her that all will be okay. Her son walks near us. I try to cheer her up. I tell her she should be very proud of her son for taking such good care of her. He says he would never leave his mother, and she says he is the best son.

At the end of the street we find a military-style truck that is picking up evacuees. A ladder is being used to get people into the back of the truck. We help the woman up the ladder. Her son follows. I am very happy when they are safely in the back of the truck.

It is still raining.

Many of the younger volunteers drift away. I ask the deputy constable “What’s next?” He says we are to keep looking for people who need help. “You don’t quit in the middle of the mission.”

A man from the next block appears. He tells us there are elderly people on the next block who need help. A small group of us cross the marsh and head to the next block.

On the next block in a weeded area, I see a lean-to made from a large piece of blue plastic. Under the plastic, the deputy finds a homeless woman who has ridden out the storm. The deputy gently cajoles her, and she reluctantly comes out. She is very thin and in desperate need of medical care. Her hands shake. She is almost incoherent. We try to calm her. She does not want to leave her dog and two puppies. A small group of us walk her up to 610. One of the HPD officers takes the puppies.

Now more police vehicles arrive on 610. A police officer agrees to take her to the Convention Center, where her diabetes can be treated. We promise her that her dogs will be brought there as well. The officer cannot take the dogs. A young man from the neighborhood has a truck. He volunteers to deliver the dog and puppies to her at the Convention Center. She and her dogs depart.

It continues to rain, and the image of this poor woman remains stuck in my head.

We return to the street and go door-to-door to tell folks we are here to get them out. There is great relief on their faces. One woman is afraid we are leaving them. I promise we will be right back. The street is flooded and is not safe. But the water may be too shallow for a boat. We backtrack and find the large military-style truck. The truck pulls into the middle of the block. Our group helps elderly citizens make it to the truck from almost every house. They each climb the ladder and seem greatly relieved once on the truck.

It is starting to get dark. I think we helped evacuate 15 people and three dogs today. It has rained the entire time, and now it is raining heavier. The other officers convince the deputy that with the new rain and without night lights we can do no more. We make our way back to 610.

I shake hands and part company with the deputy. We make our way to the staging area and catch a ride back to the Convention Center. I climb a ladder to get on the truck, but the ladder slides off and falls. I take a dive.

The officers rush to check on me. I quickly stand up and say, “I’m a defense lawyer, I’m used to getting knocked down.” Most of the officers laugh.

—Robert Fickman, Houston

The Most Damaged Harris County Government Building

The 20-story criminal justice center, which serves Texas’ largest county by population, has suffered several million dollars of damage for the second time in its history, Harris County’s engineer said.

The Harris County Criminal Justice Center, at 1201 Franklin St., is the most damaged government structure in the county after Tropical Storm Harvey dropped more than four feet of rain over the Houston area, County Engineer John Blount said. The building also received about $19 million in damage after Tropical Storm Allison struck Houston in 2001.

The structure will be shuttered for about eight months, Blount said.

“There’s damage on every floor, some of it significant,” he said.

Flood wall inserts, a measure created after Allison, prevented water from entering the building directly through doors, Blount said. But Harvey’s water built pressure along the sides of the building, soaked its way through the bricks and flooded the basement.

Then, the flood water disrupted the electrical controls and fooled the building into injecting super-chilled water through the building’s water lines, Blount said. That broke the lines, causing water damage throughout the building.

Mold hasn’t been detected in the building, Blount said.

Regular dockets are tentatively expected to resume on Sept. 11 as various courts are moved to other buildings. Harris County District Attorney Kim Ogg said in a Sept. 5 press conference that her agency is relocating from the center to another building. She didn’t say where the new location will be.

In addition, contingency plans have been enacted throughout the Harris County government system to make sure government services are being deployed, Blount said.

“The vast majority (of Harris County) buildings are operational,” Blount said. “The (affected buildings) were all above the 100-year floodplains. This was a historic flood.”

The $95 million center first opened in 2000. Damage after Allison in June 2001 forced the building to close until about April 2002.

—Jack Witthaus, Houston Business Journal

The People vs. Hurricane Harvey

The case of The People vs. Hurricane Harvey was called to order in Houston, Texas on August 25, 2017. The initial predictions described Harvey as a tropical storm, but he beefed up as he traveled through the Gulf. A few days later, Harvey came out swinging and landed a hard Cat-4 hurricane blow on Rockport, Texas. The People of Houston were told to prepare for worst part of any Hurricane—being stuck on the dirty side. No one expected how truly dirty Hurricane Harvey would be. After days of rain, flooding, and devastation, the people of Houston and surrounding areas were ready to fight back. Hence, the facts of The People vs. Hurricane Harvey are as follows:

Hurricane Harvey made a strong opening statement by producing an estimated 9 trillion gallons of water in a 36-hour period in the Houston area. After his opening statement, Harvey put on multiple witnesses to bolster his case. The biggest points made by Harvey were in the areas of property losses, monetary damage, displacement, disruption to the justice system, and death. During closing, Harvey reminded the jury that he was responsible for $30 billion in property damage, including almost 1 billion dollars in automobile losses alone. He flooded 50 counties total, killing 82 people, destroying almost 40,000 homes, and forcing 30,000 people into shelters.

Although Harvey’s case seemed to be a slam dunk, the People of Houston immediately fought back towards the overpowering oppressive hurricane. The People argued in opening that despite Harvey’s attempt to destroy the City and displace the People, Houstonians pulled together to overcome Harvey’s devastation. The People pulled out their boats and rescued their neighbors from flooding homes. The People provided each other with food and shelter. The People opened their arms to everyone in need to provide love, comfort and support. The city leaders made sure that all resources were made available to the People. The George R. Brown Convention center, NRG stadium, and several other shelters were opened to house the People as the recovery process began. The entire city came together for the greater good. When Harvey hit hard we were Houston Strong.

The courthouse, our usual battleground, was closed, but it was now time for defense attorneys, the People, to take on Harvey. Harvey’s attempts to displace the defense bar from office space fell flat when lawyers like Chris Tritico, Paul Tu, Norm Silverman, and so many others opened their office spaces to anyone that needed space. In cross-examination, The People pointed out that Thuy Le had a crew of 40 lawyers that assisted in repair crews all over the city, doing clean up, tear down, build up, and even meal prep. The People even called in a few experts. Robert Fickman, a defense favorite and leader of the F troop, was the People’s first expert, and he testified about his work out on the ground saving lives and doing rescues. The People also called expert David Ryan, a volunteer firefighter who refused to sleep and worked several days non-stop doing rescues for the People. In closing, the People showed that the spirit of Houston was stronger than Hurricane Harvey, or any hurricane, could ever hope to be.

Hurricane Harvey has changed Houston, the people, the defense bar and currently the criminal justice system as we know it. Despite Harvey taking away our home we have not allowed Harvey to take away our heart or our fight. We will adjust and we will help each other get through. TCDLA and TCDLEI, have a committee for Harvey Relief, chaired by Danny Easterling to assist anyone in need. In the case of The People vs. Hurricane Harvey, the victory goes to the People.

—Monique Sparks, Houston

Notes Amid the Chaos

The Harris County Criminal Justice Center is like a pile of decaying dead animals. Opossums had been living in the walls, and now their little bodies litter the sidewalks. The sewage backed up to the sixth floor, and the stench is terrible. People wear masks and protective clothing to get inside.

The courts have been relocated to other buildings. People are carrying boxes away. Watching from a drone view, it looks like a huge West Texas red ant pile.

The courthouse is like my home and has been since 1974. It is sad to see my home in chaos. I see many people that I have seen every day since 1974 in turmoil and confusion.

There are morning dockets, afternoon dockets, and talk of evening and Saturday dockets. The courts are not bringing prisoners to court. I will try to resolve my cases in person with prosecutors—or by phone, email, or text. Many are working from their homes.

The investigators who work for the district attorney are not investigating. They are carrying boxes from one building to the other. The police are still busy with rescue and finding looters. There have been many looters. Looters go from street to street in groups on both sides of the street breaking into houses and cars while the driver slowly drives down the street. Almost every citizen has a gun, and the rest want a gun to protect themselves.

We have friends in shelters and clients and lawyers homeless. Our offices have been shut down. The town is still mild chaos. Bodies are being found in flooded areas. All of us are trying to salvage our businesses since the courthouse is flooded. We are doing the best we can, but we need a little more time.

Yes, it was a great storm, but we have faith in our Creator. I was trapped in Abilene for a week in a snow/sleet storm, but this hurricane was way beyond that event.

—Robert Pelton, Houston

Galveston Effort

The newly formed Galveston County Criminal Defense Lawyers Association gathered a team of volunteers to help their colleagues in Dickinson, where many neighborhoods flooded.

Susan Criss led the efforts. She is a former Galveston judge turned defense lawyer.

—Christina Appelt, HCCLA Executive Director

“I’m a Lawyer: I Rescue People in Trouble”

[BBC Reporter] Laura Trevelyan: And what made you decide to get in your boat and help?

Robert Fickman: I’m a lawyer, so I guess I rescue people when they’re in trouble, I guess one could argue. I’m just a citizen here in Houston.

. . .

This is our city and we’re very proud of our city and there’s been a lot of ugliness. It’s our city and it’s our duty to help people in our city.

. . .

It’s a flotilla of volunteers. Now, no one’s shooting at us so you don’t have the heroics of Dunkirk, but it is a flotilla of volunteers. We’re inspired by our friends from Great Britain.

—excerpt from BBC interview

TCDLA Harvey Relief Fund

Dear Members,

Many of our brothers and sisters up and down the coast have suffered devastating losses in the wake of Hurricane Harvey. With their offices and homes damaged or destroyed, they are struggling to regain some semblance of normalcy and their capacity to continue to defend the citizen accused.

At TCDLA, we formed a committee to explore how we can best assist our members and other fellow criminal defense lawyers in their time of need. The Hurricane Harvey Lawyers Relief Fund Committee, chaired by Danny Easterling, is comprised primarily of members from the Harvey-affected area. Our local affiliates from the region are represented on the committee by their presidents. In short order, we have come up with a variety of excellent suggestions as to how TCDLA can help alleviate some of the burdens that this historic storm has placed on our fellow criminal law practitioners.

In an effort to immediately implement a portion of those plans, last Friday we established a page on the TCDLA website to receive donations to help us in this worthy endeavor. These are two ways that you can give.

First, you may make cash donations. Those donations will be used for legal education through scholarships and to replace lost legal publications and educational materials.

Secondly, we are collecting donated gift cards, which will be distributed through our TCDLA affiliates in the affected areas to our brothers and sisters identified as having been impacted by Harvey. Those gift cards are intended to assist those affected to meet their immediate needs in getting their practices back up and going.

You may access the donation page by clicking on this link: Please visit the page for more details about the donation options. Also, if you need assistance, or if you know a colleague who does, please contact Danny Easterling at , another committee member, or contact the TCDLA home office.

TCDLA stands firmly committed to help our fellow members in their time of need. Please join us in that commitment by donating today.

—David Moore, TCDLA President

Heroes of Harvey

Hurricane Harvey wreaked havoc on our city. Some 30,000 citizens suddenly became homeless, thousands more suffered severe flood damage to their vehicles, homes, and offices.

The technical snag, being raised by defense attorneys across Houston, means 56 people who are in jail suspected of felonies, including armed robberies and causing drunk driving wrecks, could be released on personal recognizance bonds because they were not indicted, or formally charged, by a grand jury within the 90-day window required by law.

“This is not a procedural nicety,” said Troy McKinney, a past-president of the Harris County Criminal Lawyers Association. “This is substantive. People who do not have other holds are being held unlawfully, and they need to be given PR bonds or a bond they can make.”

Prosecutors at the district attorney’s office are trying to keep these accused criminals behind bars. They will be filing motions arguing to trial judges to extend the deadlines because Texas was under a state of emergency during the flood. The record storm closed the county’s courthouses, canceling court proceedings since Aug. 28. Grand juries, which typically meet twice a week, have not been able to convene. “The bottom line is that I don’t believe that anyone is getting out of jail because of the delay caused by the hurricane,” said David Mitcham, the chief over the DA’s trial bureau. “We believe this is an issue that we are going to be able to resolve without any exposure of the public to any danger.”

He is basing his argument on an order issued Aug. 28 by the Court of Criminal Appeals saying, “All courts in Texas should consider disaster-related delays as good cause for modifying or suspending all deadlines and procedures—whether prescribed by statute, rule, or order—in any case, civil or criminal.”

If an attorney pursues the issue, they will have to go before a judge and request their client be released because their client has not been indicted.

If that happens, the district attorney’s office will argue that the high court’s order inoculates them against missing the deadline.

“The reason the deadline wasn’t met was because it couldn’t be met,” Mitcham said. “We were in an impossible situation, there were no grand juries, there was no court.”

HCCLA lawyers said they want the law followed as it is written.

McKinney, one of Houston’s most respected criminal law scholars, said Mitcham was making “a creative argument but one that has no legal basis in reality.”

“Neither the Texas Supreme Court nor the Court of Criminal Appeals have blanket authority to override the Constitution or state statute, no matter how much they want to,” he said.

He said the Texas Constitution limits the government’s ability to hold people in custody without cause, and state laws have been written with that in mind.

“The statute is there for a reason,” he said. “It is there to ensure that people are not held excess periods of time without cause, and if the state hasn’t indicted somebody in 90 days—the law has been clear for decades—that they are entitled to a PR bond.”

A personal recognizance bond, which is sometimes called a free bond because no money changes hands, allows people to get out of jail with just the promise to return for court. They may sign documents making them responsible for a money bond if they don’t make their court appearance, but no money is required to get out. It is generally reserved for low-level non-violent offenders with no criminal history.

The issue is expected to linger until next week when Harris County courts re-open on Monday. Since the criminal courthouse will be closed for the next 6 to 9 months, the county’s 22 felony courts will be re-open in courtrooms in the civil courthouse at 201 Caroline. Grand juries began convening Thursday in Houston’s historic 1910 Courthouse.

After judges are back in courtrooms, defense lawyers will be able to get to court to argue that their clients should be released on personal recognizance bonds. Some are expected to argue that even if their clients were indicted after the 90-day window, it does not matter.

They are also expected to argue that the district attorney’s motion to suspend deadlines is unconstitutional.

“There are procedural rights, and there are fundamental rights,” said Tucker Graves, president of the Harris County Criminal Lawyers Association. “The fundamental rights include the 4th, 5th, and 6th Amendments and that’s what this falls under.”

Graves said individual lawyers in HCCLA are trying to determine the best course of action for their clients. He said lawyers will be in contact with specific prosecutors to work on the issue in light of the havoc wrecked by the storm.

“We want to digest this and talk among our members because we understand we are in a unique set of circumstances,” he said. “And we are trying to work hand-in-hand with the district attorney’s office to help everyone in this time of crisis.”

Members of the defense bar were also circulating a list of almost 100 possible suspects who appeared to have missed the deadline.

The district attorney’s office drafted a motion late Wednesday with a preliminary list of 96 defendants, but that number fell Thursday as officials reviewed the files and determined that 56 people may be affected. The others are either being held because they were lawfully indicted on other charges or were not in custody for 90 days before the storm began, according to a breakdown provided to the Houston Chronicle.

Two of the suspects on the longer list are Philip Battles, 18, Ferrell Dardar, 18. The two teens with 17-year-old Marco Alton Miller are accused of a crime spree last year that included several armed robberies and two capital murders allegedly committed while two of them were out on bail for other crimes. Since they have other cases that have been lawfully indicted, they will not be eligible for release.

—Brian Rogers, Houston Chronicle

Nondisclosures of DWI Convictions: The New Second “Chance”

DWI nondisclosure law will go into effect on September 1, 2017. It will allow your clients to seek an Order of Nondisclosure for DWI convictions, regardless of whether the client received, and successfully completed, community supervision or if he or she received a “back-time/work detail” type of outcome.

H.B. 3016 modified Ch. 411 of the Government Code extensively. The new law will apply to offenses committed before, on, or after September 1, 2017, so it is totally retroactive.

It only applies to clients who were truly first offenders, for anything other than Class “C” traffic violations. Even a prior “deferred” for anything other than a traffic offense will prevent a non­disclosure.

Govt. Code § 411.0731 governs the procedure to obtain a nondisclosure for a former client who successfully completed community supervision for DWI, under § 49.04 Penal Code, other than an offense under §49.04(d). The client must have paid all fines and court costs.

A nondisclosure cannot be granted when the client was convicted under Penal Code § 49.04(d)(i.e., where the offense was charged as a class “A” misdemeanor because an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed). As to determining the offense of conviction, the Judgment will control as to the specific offense upon which the conviction was based.

Comment: Will a plea agreement to drop a “0.15” paragraph allow a subsequent nondisclosure? It should, but that depends upon the Judgment. Since this bill was signed, obtaining a plea bargain for a Class “B” DWI offense will be one of your top priorities in your otherwise untriable DWI cases; however, you must also check the language in the Judgment carefully in order to ensure that the Judgment accurately reflects that your client was convicted of only the Class “B” misdemeanor offense of DWI!

The petition for non-disclosure “must include evidence that the person is entitled to file the petition.” Govt. Code § 411.0731(c).

The Court may not issue the order of nondisclosure if the State’s Attorney presents evidence that the underlying offense resulted in a motor vehicle accident involving any person other than the client. Govt. Code § 411.0731(b).

Comment: You can certainly read this bill and jump to the conclusion that it will only permit a nondisclosure in an accident case where it was a single-vehicle accident involving only your client where there were no passengers in your client’s vehicle, but we might not want to read it that restrictively. According to TCDLA’s Chief lobbyist, Allen Place, the intent of this bill was to allow a nondisclosure unless someone other than the client experienced a personal injury, but that is not the language that ended up in the statute.

May the State’s attorney enter into a plea bargain that an accident didn’t involve any person other than the client when no person other than the client was injured? I think so, but remember to get that finding into the Judgment!

Relating to past cases that occurred before this bill was passed, may a prosecutor agree that an accident in such case involved no personal injury to anyone other than the client and therefore meets the spirit of the new law, allowing a nondisclosure? Under § 411.0731(b), it’s actually the prosecutor’s right to oppose a nondisclosure by presenting evidence of an accident involving another person, so it seems obvious to me that they may waive that right.

Must the petitioner aver in the petition that he was not involved in an accident involving any other person? The bill created an interesting interplay between § 411.0731, subparts (b) and (c). Although you are required to show in your petition that your client “is entitled to file the petition,” it places the burden on the prosecutor to present evidence that the underlying offense resulted in a “motor vehicle accident involving any person other than the client.” § 411.0731, (b),(c). In that regard, the prosecutor’s right to present evidence of an accident seems to be in the nature of a defense to the nondisclosure. In a case involving no accident at all, you might state that fact in the petition. In a case that did involve an accident, you might consider avoiding any reference to that matter in your petition and waiting to see if the prosecutor decides to oppose the nondisclosure by presenting evidence of the accident. 

Will some judges refuse to grant nondisclosures based upon an interpretation of this provision that a collision with an occupied vehicle necessarily involves another person? As clients seek to obtain nondisclosures on the effective date of 9/1/17, we need to network about the approaches to that issue that different judges might take around the state. In the longer term, changing this provision to add some clarity needs to be a top priority for TCDLA in the 2019 legislature.}

A petition for nondisclosure for a DWI offense where the individual received community supervision may not be filed in less than two (2) years following the successful completion of probation if the person had an interlock for at least six (6) months, or following a waiting period of five (5) years, if the individual did not have an interlock. Govt. Code § 411.0731(f).

In cases where the person did not receive community supervision, or failed to successfully complete same, § 411.0736 governs the procedure for a nondisclosure when the person is not eligible for nondisclosure under §411.0731 (e.g., when he received a “back-time” or “labor detail” type of outcome). This provision also seems to allow a nondisclosure in the event that your client received community supervision which was later revoked!).

The procedure in this section is very similar to that which is outlined above for a community supervision outcome except that different waiting periods are involved. The waiting period will be three (3) years following completion of the sentence if the person had an interlock for not less than six (6) months as a condition of his sentence.

Commentary: In the recent TCDLA Legislative Update webcast, Allen Place remarked that he had never seen a jail sentence where an interlock was a condition of that jail sentence. He opined that this would only apply where the client’s community supervision, which was later revoked, included a condition requiring an interlock, which was completed. Would this apply to an individual who only had the interlock as a condition of an “ODL” or where the interlock was only a condition of his bond? Allen Place opined that this should be possible. Again, now that this law exists, this is something that lawyers will want to address in their plea bargaining. But further, you will need to have the trial court make such a finding in the Judgment (e.g., that the Client was required to have an interlock for six (6) months, which requirement was satisfied by having it as a condition of bond or an “ODL”).

The waiting period for an individual who did not have an interlock as a condition of his or her jail sentence would be five (5) years, as in the procedure where the person received community supervision.

Govt. Code § 411.0765 provides that governmental agencies may disclose criminal history information if the federal government says that they must do so in order to receive highway funds.

October 2017 Complete Issue – PDF Download



22 | Surviving Hurricane Harvey: Houston Lawyers and Others on the Ordeal – Compiled by Chuck Lanehart
      With Yong J. An
      David Moore
      Judy Mingledorff
      Thuy Le
      Lisa Shapiro Strauss
      Christina Appelt
      Robb Fickman
      Monique Sparks
      Robert Pelton
      Juan Aguirre
37 | Nondisclosures of DWI Convictions: The New Second “Chance” – By Lawrence Boyd & Sam Adamo

6 | President’s Message
8 | Executive Director’s Perspective
10 | Editor’s Comment
12 | Off the Back
14 | Federal Corner
18 | Shout Outs

5 | CLE Seminars and Events
39 | Significant Decisions Report

President’s Message: Adios, Kemo Sabe – By David E. Moore


When I first started this article, our son Jacob was leaving home in three days, headed off to Rhodes College in Memphis. I know we all think that our own children are terrific, but Jacob is a great kid by anyone’s standards.

He has never given me or his mom even a second of trouble. He is smarter than I ever hoped to be. He is grounded, humble, and has a solid moral compass. Jacob’s more compassionate and empathetic than anyone I have ever seen at his age, and maybe more so than anyone I have ever seen at any age. A leader of others, he was voted Class President each of his four years of high school. When he graduated, he was voted Most Likely to Succeed by his classmates. A wonderful son.

I had been endeavoring to do three things in the weeks, and finally the days, leading up to his leaving the nest. I don’t know why as parents we go into panic mode on the cusp of our children leaving, why we think we need to teach them something at the eleventh hour. Pam and I had always tried to get him ready for his departure from home, but there I was in the final days—exhorting him to be careful out there, to listen to that little voice in the back of his head when it tells him something is not right. When I found myself repeatedly singing lines from Cat Stephens’ “Wild World” to him, I knew I had gone way overboard on my first goal, by trying to squeeze in all the last-second wisdom and advice that I could.

Pretty much from the get-go, I gave up on goal number two, which was trying to keep Pamela from crying incessantly. I knew she was trying to keep a stiff upper lip, but every time she washed his clothes, fixed his favorite foods, glanced at a family picture, or . . . well, I moved on to simply trying to console her and let her cry as much as she wanted.

My third goal was to keep my own emotions in order. I thought I was doing a pretty good job of it until Jake came home one night from visiting my mom and dad just a couple of nights prior to leaving for college.

A bit of background is necessary. When Jacob was little, he loved nothing in this world more than going to Grandmother and Granddaddy’s house. There they would play with him incessantly, and play-acting was the dominant pastime. A couple of years later, when little brother Micah was old enough to join in, their favorite make-believe time was with Jacob in the role of Sherlock Holmes and Micah cast as Mr. Watson. They would spend hours, invariably solving some great mystery to save the damsel in distress (Grandmother) from some evildoer (the standard role for Granddaddy).

But, before Micah, Jacob was the Lone Ranger. Grandmother was usually . . . you guessed it, the damsel in distress, but with a name: Happy Cowgirl. Granddaddy, in pre-villain mode, was Tonto. They played for hours, and hours, and hours. Jacob in his cowboy hat, riding his stick horse Silver from room to room. Grandmother in a shawl and bonnet. Granddaddy with a dual feather headdress from some Halloween outfit from my brothers’ and my younger days. They would ride the range, from room to room, waging battle against hordes of imagined bad guys.

One Fall Friday evening, Dad and I took three-year-old Jacob along with us to watch a high school playoff football game. During the pregame warmups, I spied our local Texas Ranger a couple of rows over. I took Jacob and my dad over to him and I said: “Jacob, I want you to meet Ranger Ronnie. He is a real Texas Ranger.” Jacob stuck his hand out, enthusiastically shook Ronnie’s hand and said in a serious tone: “Nice to meet you, Ranger Ronnie. I’m Jacob, the Lone Ranger, and this is my granddaddy, Tonto.”

Fast forward about 14 years. It’s two days until he heads off for college, and Jacob comes in the door from consuming his favorite meal at my parents’—which consists of just about anything and Granddaddy’s special cornbread to go with it. He comes through the door, Silver the stick-horse in hand, and a couple of notes.

My mom’s note was simple:

My dad’s note was longer and on special stationary. At the top of the page is a picture of the Lone Ranger and Tonto, back-to-back, guns drawn, undoubtedly in a life or death struggle against an unseen enemy who has them surrounded.

Already teary-eyed as he walked through the door with his old pal Silver, but trying to maintain composure as I read the note, I fell apart. Jacob and I, both crying, just stood there and hugged each other.

Well, as I get around to finishing this, it’s been three weeks, and we all miss him terribly. As expected, he is doing great (taking a practice court class, which may be his favorite).

I have realized what my friends with children who were older than Jacob always told me—it flies by. So very true! The family dynamics and moments that we take for granted don’t remain the same.

As hard-working lawyers who love what we do, sometimes we lose sight of that. We spend too much time at the office working on Joe’s and Jane’s cases and not enough time with the ones who mean the most, our families. Trust me on this one! Take time now, while you can, and shower the people you love with love . . .

Executive Director’s Perspective: Quarterly Report – By Joseph A. Martinez


TCDLA under David Moore’s leadership has initiated the Hurricane Harvey Lawyers Relief Fund Committee, chaired by Danny Easterling (Houston) with other members on from the affected area. Donations are being accepted and will be used to alleviate some of the burdens that this historic storm has placed on our fellow criminal law practitioners. Please consider making a contribution. Please go to our website for more information or go directly to the donation page (

Please help us promote TCDLA membership, which means getting lapsed members to rejoin as well as recruiting lawyers to join. Please go to our website for the new membership form. Please also help us promote our future TCDLA CLE. The annual schedule of all future TCDLA CLE can be found on the website.

TCDLA received notice from the Texas Court of Criminal Appeals of the following grant awards for fiscal year 2015 (September 1, 2017 through August 31, 2018).

Criminal Defense Lawyers Project$1,330,721
Public Defenders$33,333

TCDLA through our Criminal Defense Lawyers Project (CDLP) will maximize these grants and conduct 109-plus seminars in the coming year: 34 will be held in cities across Texas, 75 will be online on our TCDLA website. Working together with our public defender offices and our local criminal defense bars, we project we will train 2,300 lawyers, students, and staff in fiscal year FY 2018.

We thank the Texas Court of Criminal Appeals for having the trust and confidence in TCDLA to provide quality continuing legal education to criminal defense lawyers, students, and staff across Texas. We thank, in particular, Judge Barbara Hervey, who is judicial oversight for the entire $12,624,865 Court Personnel Grant.

We thank Don Flannery, president of the San Antonio Criminal Defense Lawyers Association (SACDLA), for allowing TCDLA/CDLP to co-sponsor their Against All Odds CLE held in San Antonio in August. Thanks to their efforts we had 41 attendees.

We thank our course directors, Grant Scheiner (Houston) and Danny Easterling (Houston), for the Top Gun CLE held in Houston in August. These two dedicated TCDLA members have been putting on Top Gun for last 15 years. They and the speakers they have chosen have trained over 2,600 lawyers over those 15 years. This year we had 157 attendees.

We thank Sarah Roland (Denton) and John Hunter Smith (Sherman), course directors for the Successfully Defending Child Physical Abuse & Child Death Cases seminar held in Fort Worth in September. Thanks to them and the speakers they selected we had 94 attendees.

TCDLA will have Shea Place in addition to Allen Place representing TCDLA in the off Legislative year. She will attend any committee hearings, commission hearings, and other appropriate state agency hearings held 2017–2018.

The TCDLA Annual report was presented to the TCDLA Board on Saturday, September 16, in Fort Worth.

Do you need CLE credit and can’t attend our seminar training? Please call the Home Office (512-507-4244) for a list of the DVDs and accompanying CLE credit.

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.

Editor’s Comment: Game. Set. Match??? – By Sarah Roland


How many times has it happened? The State needs to prove up a prior judgment for jurisdictional, enhancement, or punishment purposes and just lists any (or every) investigator in the DA’s office or sheriff’s office as an expert to prove up the fingerprints. We assume the judgment is coming in, well, because it always has, so we just stipulate thinking it will somehow earn our client points with the jury for accepting responsibility. We even point out to the jury how this time is different because in the past our client has accepted responsibility. The judgment(s) come in and our client often gets slammed anyway.

What if we all rethink our approach? What if, instead of being on the defensive, we go on the offensive? Judges are the gatekeepers, it is true. But there is nothing for judges to keep out unless we are the ones who make the challenge. By not making the challenge, we are ultimately responsible for allowing junk science to continue being peddled as actual science to juries across the state. Fingerprint comparison testimony, a.k.a. friction ridge analysis, crumbles under the challenge; it is junk science.

First, it’s worth mentioning that merely asking for a 705 hearing before the State’s fingerprint person testifies will produce some interesting results. Prosecutors will likely be shocked, merely by virtue of the fact that they haven’t had this come up before. You, on the other hand, might be shocked to learn that the prosecutors have little or no idea how to question a witness for a 705 hearing. And everyone might be shocked at how little the purported “expert” actually knows.

The technique used to examine prints made by friction ridge skin is described by the acronym ACE-V, which stands for Analysis, Comparison, Evaluation, and Verification. The technique is highly subjective at best (and, indeed, is subjective by definition), but it has been around for over 50 years. Consider, for a moment, what fingerprint identification is: The “expert” will compare a known print, your client’s, to an unknown print. The “expert” then selects what features of the known print he will use to compare the known print to the unknown print. Whether the features the “expert” selected match or not, is entirely up the “expert.”

Additionally, every purported fingerprint expert, it seems, has their own set of criteria by which they evaluate fingerprints. Some require just five points of identification, some require eight, and some even twelve to call something a match. It is for these very reasons, among others, that friction ridge analysis has also been heavily scrutinized for a number of years. I have had occasion where the fingerprint “expert” first examines the print and finds, say, six matching characteristics, and then after a second look finds ten matches. I have never seen it go the opposite way . . .

In 2009, the National Research Council published Strengthening Forensic Science in the United States: A Path Forward (available for download at Among other forensic sciences, the publication contains an enlightening, in-depth scathing analysis about friction ridge analysis. In sum, the ACE-V method is not scientific for a number of reasons that are ripe for an expert qualification hearing. This publication is also easily accessible and capable of being judicially noticed.

Then, in 2016, the President’s Council of Advisors on Science and Technology published a report on the forensic sciences (also available for download at The forecast for fingerprints did not, suffice it to say, improve:

PCAST finds that latent fingerprint analysis is a foundationally valid subjective methodology—albeit with a false positive rate that is substantial and is likely to be higher than expected by many jurors based on longstanding claims about the infallibility of fingerprint analysis. The false-positive rate could be as high as 1 error in 306 cases based on the FBI study and 1 error in 18 cases based on a study by another crime laboratory.

And PCAST went on to thoroughly thrash fingerprint analysis. Yikes. Be sure to ask the Court to take judicial notice of the PCAST report, too.

Consider also that fingerprint identification and comparison can be performed via fully automated systems like AFIS (Automated Fingerprint Identification System). Why, ask yourself, would the State not use a fully automated system where one exists (that might well escape the usual trappings of a 705 hearing) and use an entirely subjective process instead? Interesting . . .

Most recently, the American Association for the Advancement of Science (AAAS) released a new report concluding that more research into the validity of fingerprint comparisons is needed to support any scientific basis for legal certainty. While this report focused mainly on latent print comparison, the same criticisms can also apply to comparing an old fingerprint in a judgment to a 10-print card.

Importantly, all these reports make clear that fingerprint experts should not, and indeed cannot, testify in terms of absolute certainties or absolute matches. This only makes sense after all. DNA reports don’t even speak in terms of absolute matches and certainties.

It is true that the State can prove up a prior judgment and connect an accused to a prior judgment in other ways than fingerprint comparison. Experience teaches that there is a way to stop that from happening, or at least from happening effectively, too. When the State’s fingerprint expert takes the accused’s prints during the course of trial for comparison, be sure you are there, too. Be sure to instruct the accused not to provide any information, including name, date of birth, social security number, etc. Those questions are always asked and answers are included on the 10-print card used for comparison. Admissions as to those identifying characteristics can provide the State with alternate ways of connecting the prior judgment. Don’t successfully fight the “science” and its application only to have the admission(s) torpedo your success in the end.

Let’s all make it a point to challenge fingerprint comparison evidence. It won’t happen overnight, but if enough of us do it correctly and consistently, then the law might just begin to catch up with the science.

Off the Back: Staring Down the Wrath of Hurricane Harvey – By Stephen Gustitis


I was fortunate to have survived much of Harvey’s rage. But an attorney colleague of mine was not so lucky. Listening to her story, I was struck not only by the terror of nature’s fury, but by her steely coolness under pressure—in the midst of a crisis beyond her control. This is how she stared down the wrath of Hurricane Harvey.

Ruth lived alone in the country on 5 acres of beautifully wooded land. It was also the simple rural home you might have expected. One-story, white brick, three bedrooms. A screened-in front porch allowed her to enjoy mild summer evenings. A wooden deck out back was great for entertaining a friend or neighbor. The small barn on the property quartered supplies needed to manage her livestock. Ruth enjoyed living the country life. It reminded her of a childhood lived on the edge of nowhere. Her family, 5 children, were mostly grown now. And when not practicing law, her time was devoted to loving a 125-lb. Great Pyrenees named Ranger and two house cats—Ash and Benjamin.

The rain started in earnest on Saturday morning. It rained all day and all night and again into Sunday. Remarkably, well into Sunday evening she had no flooding problems at all. Even though the house rested in the local flood plain, a nearby reservoir seemed capable of absorbing the continuous downpour. Around 5 pm, though, the power went out. Her telephone service was affected and, consequently, her ability to communicate with others was now limited. But still, no flooding.

The water began its invasion just after dark. First, it was only a couple inches deep in the living room. Using a flashlight to see, Ruth began to stack furniture and other belongings off the floor to protect them from damage. What else could she do? As hours passed the water continued to rise. Eventually, her furniture began to float. Around 11:00 pm she was startled by the crashing sounds of pots and pans in the kitchen. The deepening water had lifted them from the shelves and they battered against one another in the darkness. Ash and Benjamin wanted nothing to do with the confusion. After midnight the water was mid-calf and Ranger was getting increasingly upset. But now, out of the darkness, came the alarming sound of rushing water. The front door had been forced ajar from the surge outside. A torrent now poured in over the threshold. Thankfully, Ruth was able to get the front door shut—but the water kept coming, relentlessly.

It was still dark, with no power, and no phone. Now she began to think of an escape plan. What would she do if the water got too deep? How would she get herself and her animals to safety? Ruth decided she’d opened a window, kick out the screen, and survey the outside with her flashlight to consider her escape. But what she saw was dreadful. The narrow beam illuminated a violent, deep, and powerful rush of whitewater. Then, unexpectedly and with no warning, Ranger leaped through the window opening and out into the deluge. He was young and he was strong . . . but not that strong. Ruth watched helplessly as Ranger struggled to swim back to her through the torrent, but the power of the water was too much. He was swept away into the blackness. Now, there was nothing she could do except pray for the dawn and the light.

By the time the sun came up on Monday morning, more than 20 inches had fallen. The water in her home was now over her knees. Ranger was gone—it was time to leave. Opening the window again, Ash jumped out first without any encouragement. Somehow he made it to the back deck railing where he found refuge from the current. Ruth threw Benjamin outside and she followed close behind. Now in chest-deep water, she struggled toward higher ground on the property where her truck was parked and sheltered from the flooding. Animals from neighboring property also found sanctuary there. Ruth gathered the cats into the truck and was able to drive to the neighbor’s house for help and comfort. Since 5:00 pm the previous day she had been alone and without power. At the neighbor’s house she was able to call and let her family know she was safe.

Remarkably, Ruth had not experienced fear during her ordeal, but rather determination. The determination to survive. Now, with her house and belongings in ruin, it took only a short while before the blessing of that Monday morning finally revealed itself. Sitting in the kitchen with her neighbor, far out in the distance, something familiar was moving about. Both women ran outside and called to him. It was Ranger . . . safe and sound and none the worse for wear. I was never so happy to see him, Ruth told me. You can lose your house, she remarked, but you just can’t lose your dog!

Like so many victims of the flood, Ruth will slowly rebuild. I thank her for giving me permission to tell her story, a story of loss and determination, but ultimately of blessing. We all pray the victims of the flood will experience their own blessings somewhere along their road to recovery.

Federal Corner: Surprise! Pretrial Interventions Become Convictions for Immigration Purposes! – By F. R. Buck Files Jr.


On September 6, 2017, I received an email from my immigration guru, Richard Fischer of Nacogdoches. Attached to that email was a copy of Matter of Ali Mohamed Mohamed, 27 I&N Dec. 92 (BIA 2017), Interim Decision #3900. This was a September 5th decision of a panel of the U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals. The panel determined that a respondent’s entry into a pretrial intervention agreement under Texas law qualifies as a conviction for immigration purposes [Board Panel: Grant, Pauley, and Mann; opinion by Grant].

For those of us who are representing non-citizens accused of criminal offenses in our Texas courts, we have—at least temporarily—been stripped of what we believed to be an alternative to a conviction and deportation. If you are representing any non-citizens, you need to be familiar with this opinion which reads, in part, as follows:

[An Overview of the Case]

In a decision dated November 14, 2016, an Immigration Judge terminated the proceedings, holding that the respondent is not removable because his pretrial intervention agreement pursuant to section 76.011 of the Texas Government Code and article 102.012 of the Texas Code of Criminal Procedure is not a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012). The Department of Homeland Security (“DHS”) has appealed from that decision. The appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded to the Immigration Judge.

[The Facts in the Case]

The respondent is a native and citizen of Somalia who was admitted to the United States as a lawful permanent resident on December 1, 2004. He was indicted on October 31, 2012, for possession of a controlled substance with intent to deliver in violation of section 481.113(c) of the Texas Health and Safety Code. On February 19, 2016, the respondent entered into a pretrial intervention agreement, which included the following terms: (1) 24 months of community supervision; (2) $60 per month community supervision fee; (3) 100 hours of community service; (4) restitution in the amount of $140; (5) $500 pretrial intervention program fee; and (6) no contact with the co-defendant.

        In addition to these terms, the respondent agreed to waive his right to a speedy trial. He also agreed that if he violated the terms of the agreement during the 24-month period of community supervision, he would appear in court; enter a plea of guilty to the charged offense; allow the “stipulation of evidence” to be admitted into evidence without objection; and either accept the punishment offered by the prosecution or allow the judge to determine punishment following a contested punishment hearing. Under the State’s portion of the agreement, the prosecution agreed to “dismiss this case” if the respondent “follow[ed] the terms of this agreement and the rules of community supervision.”

        During the 24-month community supervision period, the respondent was required to follow numerous rules mandated by the county Community Supervision and Corrections Department (“CSCD”). Among other things, these rules required the respondent to cooperate and maintain contact with his Community Supervision Officer. He was subject to random searches of his “person, home, and . . . possessions” and had to submit to random urine analysis and obtain prior permission to change his address or leave the county “for an overnight stay.” The presiding judge expressly authorized the respondent’s participation in the pretrial intervention program and ordered him to pay “all fees specified” in the rules of community supervision.

        In summary, the respondent’s criminal record consists of the October 31, 2012, indictment and the February 19, 2016, pretrial intervention agreement, which is comprised of the agreement itself, the rules of community supervision (the pretrial intervention program), and the stipulation of evidence.

[The Stipulation in the Case]

ALI MOHAMED MOHAMED, hereby swear, under oath, that I am completely familiar with the indictment/charge in the above referenced cause number, if any, which is currently pending against me. I understand that I am charged with POSS CS PG 2 $ 400G W/INTENT TO DELIVER. . . . I have read the charging instrument and my attorney has explained it to me and I committed each and every ele­ment alleged and have no defense in law. I swear, under oath, that I am guilty of the offense set out therein and all lesser included offenses charged against me.

[Before the Immigration Judge]

After the initiation of the removal proceedings, the respondent conceded alienage but denied that he is removable based on the charge that he has been convicted of a crime. The respondent moved for termination, arguing that his en­try into the pretrial intervention agreement is distinguishable from a deferred adjudication and is not a “conviction” under section 101(a)(48)(A) of the Act.3

        The Immigration Judge granted the respondent’s motion, concluding that a pretrial intervention agreement is not a “conviction” for immigration purposes because no “adjudication of guilt has been withheld,” as required for a conviction under section 101(a)(48)(A) when a formal judgment of guilt has not been entered. In reaching this conclusion, the Immigration Judge distinguished the respondent’s pretrial intervention agreement from a deferred adjudication under article 42.12, section 5 of the Texas Code of Criminal Procedure, which both we and the United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case arises, have held qualifies as a “conviction” for immigration purposes.

* * *

First, the Immigration Judge noted that a pretrial intervention agreement, which provides for dismissal of the criminal charges before the defendant enters a formal plea or the judge makes a formal finding of guilt, differs from a deferred adjudication under Texas law, which requires a plea of guilty or nolo contendere, as well as a judicial finding that the evidence substantiates the defendant’s guilt. He therefore concluded that since an adjudication of guilt is not entered on the record in a pretrial intervention agreement, it is not “withheld” for purposes of section 101(a)(48)(A) of the Act. In addition, the Immigration Judge determined that the fees and costs imposed on a participant in the pretrial intervention program do not constitute a “form of punishment, penalty, or restraint on the alien’s liberty” that is “ordered” by a judge, as required by section 101(a)(48)(A)(ii) of the Act.

        In finding that a pretrial intervention agreement is not a conviction for immigration purposes, the Immigration Judge accorded significant weight to two opinions issued by the Attorney General of Texas. In a 2013 opinion, the Attorney General explained that “the purpose of pretrial intervention is to provide the defendant with an opportunity to have the charges dismissed prior to a finding of guilt or innocence.” Op. Tex. Att’y Gen. GA-0986, at 2 (Feb. 5, 2013) (citing Fisher v. State, 832 S.W.2d 641, 643 (Tex. Ct. App. 1992)). The Immigration Judge understood this to mean that a guilty plea is not required for entry into a pretrial intervention agreement and noted that such a requirement would be, as the Attorney General stated, “inconsistent with the purposes of pretrial intervention.” Id.

        In a 2003 opinion, the Attorney General stated that a “participant in a pretrial intervention program has not been ordered to receive services by a court but rather receives services under an agreement with a prosecutor.” Op. Tex. Att’y Gen. GA-0114, at 4 (Oct. 8, 2003). The Immigration Judge recognized that article 102.012 of the Texas Code of Criminal Procedure, which authorizes the imposition of pretrial intervention program fees and reimbursement for expenses, was amended in 2005 to require that the court with jurisdiction over the pretrial intervention agreement, rather than the CSCD, order the payment of the fees. However, he deemed this amendment to be “merely administrative” and determined that the program fees ordered by the judge are “the same as those agreed upon between the prosecutor and the defendant.” In other words, the Immigration Judge concluded that the fees were part of a contract between the respondent and the prosecutor, rather than a penalty “ordered” by the judge.

        Finding that the Texas pretrial intervention program does not fall within the statutory requirements of section 101(a)(48)(A) of the Act, the Immigration Judge concluded that the respondent’s entry into the pretrial intervention agreement is not a “conviction” for immigration purposes. He therefore determined that that the DHS did not establish the respondent’s removability and terminated the proceedings.

[The Question Presented and the Board’s Analysis]

The question presented on appeal is whether the respondent’s entry into a pretrial intervention agreement under Texas law qualifies as a conviction for immigration purposes. We review this question of law de novo and conclude that it does. 8 C.F.R. § 1003.1(d)(3)(ii) (2017) [emphasis added].

* * *

[A Conviction, for Immigration Purposes, Is a Question of Federal Law]

We note first that “whether or not a conviction exists for immigration purposes is a question of federal law and is not dependent on the vagaries of state law.” . . . If Congress intended the existence of a conviction to depend upon the operation of State law, it would have written the Federal law to that effect. . . . (“[W]hen Congress has intended for state law to control in defining when a conviction exists for a federal purpose, it has expressly said so.”). Therefore, the question is not whether the State of Texas regards a pretrial intervention agreement as a conviction, but rather whether the agreement meets the Federal definition of a “conviction” in section 101(a)(48)(A) of the Act.

        Because the term “conviction” is defined by the Act, the statutory definition alone determines what qualifies as a conviction for immigration purposes.

[Is There a Conviction When the Adjudication of Guilt Has Been Withheld?]

The question remains whether the respondent has been convicted because the “adjudication of guilt has been withheld.” To establish that an alien has been convicted in this sense, it must first be shown that “a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt.” Section 101(a)(48)(A)(i) of the Act [emphases added].

        Next, it must be demonstrated that “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Section 101(a)(48)(A)(ii) of the Act. We conclude that the respondent’s admission of guilt in the stipulation of evidence satisfies the first re­quirement, and his entry into the pretrial intervention pro­gram satisfies the second.

        Under the plain language of section 101(a)(48)(A), neither a finding of guilt by a judge or jury, nor a plea of guilty or nolo contendere is required to establish a conviction. Rather, the definition is satisfied so long as the alien “has admitted sufficient facts to warrant a finding of guilt.” . . .

        The respondent’s sworn admission of guilt brings the pretrial intervention agreement within the definition of a conviction in section 101(a)(48)(A)(i) of the Act. After he was sworn and placed under oath, the respondent admitted in the stipulation of evidence that he “committed each and every element alleged and ha[d] no defense in law.” He further admitted that he is “guilty of the offense set out [in the indictment] and all lesser included offenses charged against [him].” Moreover, he agreed that any violation of the pretrial intervention agreement would automatically result in a conviction based on the admission of guilt in the stipulation of evidence.

[Respondent Faced a Form of Punishment, Penalty or Restraint on His Liberty]

In addition, the obligations the respondent incurred in the pretrial intervention program individually and cumulatively constitute a “form of punishment, penalty, or restraint on the alien’s liberty” under section 101(a)(48)(A)(ii) of the Act. As part of his pretrial intervention agreement, the respondent entered into a pretrial intervention program administered by the CSCD. The program imposed numerous costs, conditions, and restrictions to which the respondent agreed in exchange for the prosecution’s promise to dismiss the charges. . . . These include the imposition of periods of community supervision and community service, the community supervision and pretrial intervention program fees, the order of restitution, and the no-contact order. . . .

        As previously noted, the Immigration Judge considered the program fees assessed pursuant to article 102.012 of the Texas Code of Criminal Procedure to be contract terms determined by the prosecutor, rather than a penalty “ordered” by the judge. However, since 2005, article 102.012 has required the court, as opposed to the CSCD, to order payment of the pretrial intervention program fees and expenses. Moreover, even prior to 2005, a defendant could only enter into a pretrial intervention agreement, and therefore a pretrial intervention program, with the court’s authorization. . . .


Because only a judge can authorize a pretrial intervention agreement, which in this case included community su­pervision and community service, restitution, and a no-contact order in addition to the imposition of fees, we conclude that the respondent’s admission into a pretrial intervention program under Texas law is a “form of punishment, penalty, or restraint on the alien’s liberty” that was “ordered” by a judge.

My Thoughts

  • Once again, we see the value of having a good working relationship with an outstanding immigration lawyer. Since Mohamed has received significant media coverage, I suppose I would have come across the opinion eventually. Having Richard Fischer send it to me, though, ensured that I re­ceived a copy of it quickly.
  • Mohamed has been represented by Christine Truong, a fine immigration lawyer from Houston. Although she was appropriately reticent to talk about a case that is pending, she did tell me that I could report that an appeal will be filed with the United States Court of Appeals for the Fifth Circuit.
  • While I hope she is successful, I’m concerned that Christine has an uphill battle. We should all wish her good luck and Godspeed.

Shout Outs


Shout out to 2016 TCDLA Lawyer of the Year Richard Gladden for a recent win in district court. District judge granted a motion for summary judgment Richard filed on behalf of D in a Section 1983 Civil Rights case. The Court ruled D’s federal right to procedural due process was violated by the Sex Offender Registration Bureau (SORB) at the Texas DPS in Austin. Convoluted case involved a young woman barely of legal age indicted under a “law of the parties” theory for allegedly participating in consensual sexual activity with younger sister (under 17)—together with a much older neighbor male. D charged with sexual assault of a minor, though the DA discovered that D had herself been the victim of assault by the male. Instead of dismissing the case, he offered plea bargain of 5 years’ deferred for “unlawful restraint.” More than three years later, D attempted to renew her driver’s license and DPS told her she couldn’t because she hadn’t registered as a “sex offender.” SORB said D had been committing a felony by not registering and threatened her with a motion to revoke probation plus additional felony charges.
 At which point entered our hero. Richard, faced with a runaround from officials, then learning SORB had placed D’s info online as a sex offender, burned the midnight oil preparing a complaint and applications for a temporary restraining order and preliminary injunction. A planned drive to Austin the next morning was forestalled by e-filing the docs. In a conference-call hearing with Richard and the AG’s office, U.S. District Judge Robert Pitman granted the TRO after business hours and the DPS removed D’s info pronto. A fine example of battling for justice, Richard.

Kudos to Thad Davidson of Tyler for a big win in 7th District Court, Smith County (State v. Derrick Miller), on a first-degree felony aggravated assault with deadly weapon case. D, who faced life in prison if convicted, maintained he was suddenly attacked and struck in the face by an unknown metal object, at which point he defended himself with a knife. He took and passed a polygraph well before trial, which Thad presented to the prosecutor. He also pointed out that the State’s own witnesses were vastly inconsistent, and that the alleged victim was a twice-convicted dope felon who had also been convicted of UCW. Thad warned the prosecutor that he would “bleed and gut” the alleged victim on the stand (and proceeded to do just that). It seems the prosecutor is also running for DA, perhaps a factor in pursuing the case. The jury deliberated three hours before returning the big NG. Congrats, Thad, on a righteous win.

Shout out to Board Member Michelle Tuegel and Russ Hunt of Waco for their work in the 19th State District Court. D was set to stand trial on charges of aggravated sexual assault of a child and indecency with a child. The dynamic duo filed a motion to dismiss the indictment against D or to suppress the testimony of the alleged victim, arguing she testified at D’s first trial last year—when the jury did not believe either one of two alleged victims. Both are members of D’s ex-wife’s family, and Michelle and Russ argued at trial that the accusations were false and a product of bitterness spawned by the divorce. They argued the case should be dismissed or the woman’s testimony should not be allowed under collateral estoppel, which prevents parties from re-litigating issues. The alleged victim made her allegations in 2000, but he was never arrested. Records show D passed a polygraph test and Waco police closed the case as unfounded. The alleged victim is a former employee of Bodie’s ex-wife. The judge did not dismiss the case, but he did grant the motion to suppress the alleged victim’s testimony, leaving prosecutors in limbo. Congratulations, team, on a job well done.

A big shout out to board members John Hunter Smith of Sherman and Kristin Brown of Dallas, who represented a Plano firefighter/paramedic in a DWI case with an accident in County Court at Law #3 in Collin County. D had an accident and tried to pay the individuals cash not to report the accident to law enforcement. When law enforcement arrived, D refused SFSTs and providing blood. Held in jail while a search warrant was sought, he thought he was having a heart attack. EMS was called and D was transported to the hospital. While there, D caught by law enforcement opening the IV to fullest and squeezing the saline bag. At trial—with the assistance of expert witness Janie Arvizu—John Henry and Kristin were able to discredit the State’s forensic scientist. A big upshot of this trial: Because of the State’s forensic scientist and her answers to questions on cross, District Attorney’s offices throughout North Texas must provide Brady notices on this analyst. Oh, and D was able to continue his 19-year career as a Firefighter/Paramedic. Congratulations, warriors, on the best possible outcome for all.

Kudos to Richard Torres II of Corpus Christi for a two-word verdict won recently in Bee County, Texas. Defendant faced 25 to life as a Habitual Felony Offender for Bail Jumping. After 15 months in jail and going through 5 lawyers, D saw his case finally go to trial. Richard was able to prove to the jury’s satisfaction that D was never given notice of his court date and decided in his favor. Richard is one of our new young guns. He’s been a practicing attorney for 3 years and has already worked more than 10 jury trials. Congratulations, counselor, for fighting the good fight.

Shout out to Emily Detoto of Houston for dogged perseverance: In 2015, Emily filed and successfully prosecuted a motion for a new trial for her client, who had pleaded guilty to shaking his child, causing traumatic brain injury, and was sentenced to 15 years in prison. D was recently released from prison and his case set for trial in Harris County. Dr. Rebecca Girardet testified for the State in this alleged “shaken baby” case, but a jury rejected her testimony and found D NOT GUILTY. Emily, who was ably assisted by Paul Morgan, asserts: “Do not plead those cases.” That’s telling ’em, Emily.

Kudos to Charlie Humphrey of Garland for his win in Dallas County CCC#8 in August.  The case involved a .235 blood test, a rear-end collision, and a confession that D was driving. Actually, it was initially a false confession by wife after husband fled the scene. It seems that 8 or 10 margaritas before and after the Cowboys game can cause problems for the family. But interestingly, the “victim” of the rear end collision left the scene, not the defendant, which the cops testified was weird. The victim also did not want to come to court and had to be brought by police, a fact that didn’t escape the jury. Bottom line, jury didn’t necessarily believe D, but said victim’s witness testimony wasn’t enough to overcome the highest burden of proof—a point hammered home in voir dire—in our court system. Well done, counselor.

Shout out to DWI guru (and committee co-chair) Mark Thiessen for the big NG in an emotional intoxication manslaughter trial in Lubbock, where D faced 2 to 20 for a traffic accident resulting in death. Partner Taly Jacobs was appointed to the case, and Mark tried it pro bono because of the circumstances. Mark, describing D’s financial straits, noted, “Client got her trial clothes as her Christmas presents from her parents the last three years.” Later blood draw near .19 was discounted by expert Gary Wimbish, who believed level at time of accident was a .05. Lack of police investigation into the crash scene apparently also swayed the jury, who deliberated three hours before returning the verdict. A tearful meeting with the deceased’s family followed, with Mark remarking: “I am man. I cried at the verdict.” Congratulations on a tough win.