Monthly archive

October 2017

November 2017 SDR – Voice for the Defense Vol. 46, No. 9

Voice for the Defense Volume 46, No. 9 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

Although the Court has been in session since the last week of September, there have been no significant decisions handed down by the SCOTUS since the July 4, 2017, SDR (Vol. 32, No. 10). In the meantime . . .

United States Court of Appeals for the Fifth Circuit

United States v. Bello-Sanchez, 16-41181, 2017 U.S. App. LEXIS 18490 (5th Cir. Sep. 25, 2017) (designated for publication)

        (1) Under U.S.S.G. § 3B1.2, a defendant may receive a two-level decrease in the offense level if the defendant played a “minor” role in the criminal activity, a four-level decrease if his role was “minimal,” and a three-level decrease for conduct falling between the two. A “minimal” participant is one who is “plainly among the least culpable of those involved in the conduct of a group” and who demonstrates a “lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others.” A “minor” participant is one “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.”

        (2) When considering relative culpability, the fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative, and the defendant may receive an adjustment if he is substantially less culpable than the “average participant” in the criminal activity. An “average participant” is a person “who actually participated in the criminal activity, so culpability is determined only by reference to his co-participants in the case.” A defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.

        (3) Under U.S.S.G. § 3B1.2 cmt. n.3(c), to address relative culpability, a district court “should consider” the following nonexhaustive factors: (i) The degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and (v) the degree to which the defendant stood to benefit from the criminal activity.

Garcia v. Sessions, 16-60015, 2017 U.S. App. LEXIS 16808 (5th Cir. Aug. 31, 2017) (designated for publication)

        (1) Under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843–844 (1984), courts afford agency interpretations of statutes “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute” or Congress has “unambiguously ex­pressed” a contrary intent (Chevron Deference).

        (2) Under 8 U.S.C. § 1229b(a), the Attorney General may cancel removal of a permanent resident alien who: (1) has been lawfully admitted for permanent residence for at least five years, (2) has resided in the United States for at least seven years after having been admitted in any status, and (3) has not been convicted of an aggravated felony.

        (3) Under 8 U.S.C. § 1101(a)(43)(F), “aggravated felony” includes “a crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(F).

        (4) Under 8 U.S.C. § 1101(a)(48)(B), a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

        (5) Under Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997), an indeterminate sentence is to be considered a sentence for the maximum term imposed.

        (6) Under 8 C.F.R. § 1240.11(a)(1), an alien may apply for cancellation of removal to the IJ overseeing his removal proceedings.

        (7) When a person is required to remain in SAFPF until he receives permission to leave, that person is under a “term of imprisonment” since under Tex. Gov. Code § 493.009(a), SAFPF exists to “confine and treat” individuals. It is irrelevant that SAFPF is a condition of community supervision. And if the person is ordered to SAFPF for “no more than 1 year,” he is deemed to be sentenced to a “term of imprisonment” of 1 year regardless of how much he spends in SAFPF.

Editor’s Note: So now SAFPF is also a sucker’s deal for the noncitizen-client, including those who are here legally. The immigration-law madness continues.

United States v. Kiekow, 14-40700, 2017 U.S. App. LEXIS 18084 (5th Cir. Sep. 18, 2017) (designated for publication)

        (1) A defendant has the right to be tried in the district in which the crime [allegedly] took place. The government must prove venue by a preponderance of the evidence. United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009). Under 18 U.S.C. § 3237(a), any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

        (2) Under United States v. Romans, 823 F.3d 299, 309–310 (5th Cir. 2016), in conspiracy cases, venue is proper in any district where the agreement was formed or an overt act occurred. An overt act is an act performed to effect the object of a conspiracy. The transportation of drugs and drug proceeds is an overt act.

        (3) Drug-quantity and a defendant’s role in the crime are factual determinations. If the district court’s account of the evidence is plausible considering the entire record, the appellate court may not reverse even if had the court been sitting as trier of fact it might have weighed the evidence differently.

        (4) Under Peugh v. United States, 133 S.Ct. 2072, 2082–2084 (2013), where the wrong U.S.S.G. are consulted and those U.S.S.G. expose a defendant to greater punishment, the district court violates the Ex Post Facto Clause. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.

Montano v. Texas, 16-20083, 2017 U.S. App. LEXIS 14945 (5th Cir. Aug. 11, 2017, revised Sep. 1, 2017) (des­ig­nated for publication)

        (1) Although the text of 28 U.S.C. § 2241 does not require exhaustion (unlike the text of 28 U.S.C. § 2254), a petitioner who files a 28 U.S.C. § 2241 petition must exhaust state court remedies before a federal court will entertain a challenge to state detention. However, exhaustion is not required where the: (1) available state remedies either are unavailable or wholly inappropriate to the relief sought, or (2) attempt to exhaust state remedies would be a patently futile course of action.

        (2) If a federal habeas petitioner asserts a claim before every available state judicial forum, the applicant has exhausted that claim for filing the federal habeas petition. This is especially where the petitioner seeks protection under the Double Jeopardy Clause, which is to bar a second prosecution, as opposed to protection under the Speedy Trial Clause, which merely seeks a faster trial.

United States v. Bennett, No. 17-60038, 2017 U.S. App. LEXIS 20176 (5th Cir. Oct. 16, 2017) (designated for pub­li­cation)

        (1) Review of the propriety of jury instructions is for abuse of discretion, and the court considers whether the entire charge is a correct statement of law. A district court abuses its discretion by failing to issue a defendant’s requested instruction if the instruction: (1) is substantively correct; (2) is not substantially cov­ered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant’s ability to present effectively a defense.

        (2) Review of the denial of a motion for mistrial is for abuse of discretion, subject to harmless-error review: If a defendant moves for a mistrial because the jury heard prejudicial testimony, a new trial is required only if there is a significant possibility that the prejudicial evidence had a substantial impact upon the jury verdict, viewed considering the entire record. If the evidence is so prejudicial that the jury will unlikely be able to erase it from their minds, then a mistrial should be ordered. Great weight is given to the trial court’s assessment of the prejudicial effect of the evidence, and prejudice may be rendered harmless by a curative instruction. A district court abuses its discretion only if the evidence, when viewed in the context of the whole trial, is so highly prejudicial that it would have had a substantial impact on the verdict.

        (3) Rights under the Fourth, Fifth, and Sixth Amendments are personal in nature and cannot be asserted vicariously.

        (4) Closing argument is to assist the jury in analyzing, evaluating, and applying the evidence. A prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence. Prosecutors may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty and may not express personal opinions on the merits of the case or the credibility of witnesses.

        (5) Expressions of individual opinion of guilt are dubious at best because they take guilt as a predetermined fact. Such remarks may lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. Or, they may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Because a defendant is entitled to the presumption of innocence, a prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial nor sit as a thirteenth juror. To make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor’s remarks, but must also consider defense counsel’s opening salvo. However, two wrongs do not make a right.

        (6) If a court determines that a prosecutor’s closing arguments are improper, the court must determine whether the arguments affected the defendant’s substantial rights (whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict) by considering: (1) the magnitude of the prejudicial effect of the prosecutor’s remark, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.

United States v. McMahan, No. 16-10255, 2017 U.S. App. LEXIS 19476 (5th Cir. Oct. 5, 2017) (designated for publication)

        (1) Under Fed. Rule Crim. Proc. 35(b), upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. The government is under no obligation to file a Rule 35(b) motion, and if it does, “the sentencing court is not bound by the government’s recommendation on whether or how much to depart but must exercise its independent discretion.”

        (2) On its face, Fed. Rule Crim. Proc. 35(b) contains no right to notice and a hearing, and a defendant has no right to notice and hearing if the government files the motion.

United States v. Oti, No. 16-10386, 2017 U.S. App. LEXIS 19180 (5th Cir. Oct. 3, 2017) (designated for publication)

        (1) If a defendant moves for an acquittal under Fed. Rule Crim. Proc. 29 at the close of the government’s case-in-chief and again postverdict, a sufficiency claim is reviewed de novo. If a defendant fails to do so, under United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012), the claim is reviewed for plain error, allowing for reversal only if there is a “manifest miscarriage of justice,” which occurs only where “the record is devoid of evidence pointing to guilt” or the evidence is so tenuous that a conviction is “shocking.”

        (2) In a sufficiency review, under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the court asks whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

        (3) Under United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014), 18 U.S.C. § 1349, and 21 U.S.C. §§ 846 & 841(a)(1), the elements of conspiracy to distribute and dispense controlled sub­stances outside the scope of professional practice are: (1) an agreement by two or more persons to unlawfully distribute or dispense a controlled substance outside the scope of professional practice and without a legitimate medical purpose; (2) the defendant’s knowledge of the unlawful purpose of the agreement; and (3) the defendant’s willful participation in the agreement. An agreement may be inferred from concert of action, knowledge may be inferred from surrounding circumstances, and voluntary participation may be inferred from a collection of circumstances.

        (4) Under 18 U.S.C. § 924(c)(1)(A)(ii), the elements of a fire­arm count in furtherance of a crime are: (1) the defendant used, carried, or brandished a firearm (2) during and in relation to a crime of violence or drug trafficking crime. “In relation to” means that the firearm must have some “purpose or effect with respect to the drug trafficking crime, and its presence or involvement cannot be the result of accident or coincidence.” “Brandish” means to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, to intimidate that person, regardless of whether the firearm is directly visible to that person.

        (5) If improper evidence was objected to, the standard of review is abuse of discretion. Reversal will not occur unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. The government bears the burden of demonstrating that the error was harmless.

        (6) If improper evidence was not objected to, the standard of review is plain error, which requires the appellant to show that: (1) there was an error; (2) the error was clear or obvious; (3) the error affected substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings such that the court should exercise its discretion to reverse.

        (7) In United States v. Haines, 803 F.3d 713, 728–734 (5th Cir. 2015), the Fifth Circuit has urged the government to use caution when case agents also function as experts because the expert label “confers upon the agent the aura of special reliability and trustworthiness surrounding expert testimony.” An expert witness is permitted to give his opinion on an “ultimate issue” of fact, assuming he is qualified.

        (8) The deliberate ignorance instruction may be given in conspiracy cases. To the extent that the instruction is merely a way of allowing the jury to arrive at the conclusion that the defendant knew the unlawful purpose of the conspiracy, it is consistent with a finding that the defendant intended to further the unlawful purpose.

        (9) The proper factual basis for the deliberate ignorance instruction exists if the record supports inferences that: (1) the defendant was subjectively aware of a high probability of the existence of illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct. In deciding whether the evidence reasonably supports the jury charge, the court reviews the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the government.

        (10) Under United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), the deliberate ignorance instruction should be given only in rare instances because once a jury learns that it can convict a defendant despite evidence of a lack of knowledge, it will be misled into thinking that it can convict based on negligent or reckless ignorance rather than intentional ignorance. In other words, the jury may erroneously apply a lesser mens rea requirement, or a “should have known” standard of knowledge. The instruction is appropriate only in the circumstances where a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.

        (11) Under United States v. St. Junius, 739 F.3d 193, 204–205 (5th Cir. 2013), when the government’s theory is that the defendant knew of the criminality, giving the instruction is harmless where there is substantial evidence of actual knowledge.

United States v. Taylor, No. 16-11384, 2017 U.S. App. LEXIS 19954 (5th Cir. Oct. 12, 2017) (designated for pub­li­ca­tion)

        (1) Under 28 U.S.C. § 2106, the SCOTUS or federal appellate court may affirm, modify, vacate, set aside, or reverse any judgment, decree, or order of a court lawfully before it for review, and may remand the cause and direct the entry of the appropriate judgment, decree, or order, or require further proceedings.

        (2) Under Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), imposing an increased sentence under the residual clause of the ACCA violates the Constitution’s guarantee of due process. Under Welch v. United States, 136 S.Ct. 1257, 1268 (2016), Johnson was a new, substantive rule and applied retroactively.

        (3) Under United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017), as a matter of statutory construction, Texas’ injury-to-a-child offense is broader than ACCA’s elements clause, and thus no longer counts as an ACCA predicate after Johnson.

United States v. Young, No. 16-60790, 2017 U.S. App. LEXIS 19602 (5th Cir. Oct. 6, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2A3.5, three base offense levels are set for failure to register as a sex offender under 18 U.S.C. § 2250(a). Each level corresponds with one of three offender tiers established under SORNA.

        (2) Under 34 U.S.C. § 20911(4), a Tier III sex offender is a sex offender whose offense is punishable by imprisonment for more than 1 year and (A) is comparable to or more severe than (i) aggravated sexual abuse or sexual abuse (as described in 18 U.S.C. §§ 2241 and 2242); or (ii) abusive sexual contact (as described in 18 U.S.C. § 2244) against a minor who has not attained the age of 13 years. If a state statute is comparable to or more severe than the federal offenses of aggravated sexual abuse, sexual abuse, or abusive sexual contact, a defendant with a prior conviction under that state statute will be subject to the Tier III base offense level.

        (3) Under 18 U.S.C. § 2246(3), “sexual contact” as used under 18 U.S.C. § 2244 means “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

Texas Court of Criminal Appeals

Ex parte Aguilar, WR-82,014-01, 2017 Tex. Crim. App. LEXIS 894 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (2) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes, and legal propositions is not excusable, and if it prejudices a client, IATC may be found.

        (3) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        (4) Under Padilla, 559 U.S. 356 (2010), when the immigration consequences of a guilty plea are clear, trial counsel has a duty to correctly advise a defendant of those consequences.

        (5) Padilla is extended to where a defendant’s guilty plea causes him to automatically lose legal immigration status and become removable.

Burnett v. State, PD-0576-16, 2017 Tex. Crim. App. LEXIS 878 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 36.14 and Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009), it is the responsibility of the trial court to deliver to the jury a written charge setting forth the “law applicable to the case.” Part of this duty includes applying the law to the facts of the case. Although the trial court is obliged to include in the jury charge statutory definitions that affect the meaning of elements of the crime, the charge must also be tailored to the facts presented at trial. Thus, in a DWI case, the trial court must submit to the jury only the portions of the statutory definition of “intoxicated” that are supported by the evidence. To do otherwise is error.

Ex parte Evans, WR-83,873-02, 2017 Tex. Crim. App. LEXIS 892 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under U.S. Const. Art. VI, cl. 2 and Marbury v. Madison, 5 U.S. 137 (1803), the ultimate authority on federal constitutional law is the SCOTUS, and under Ex parte Ramey, 382 S.W.3d 396, 397 (Tex. Crim. App. 2012), and Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010), pronouncements by the SCOTUS about federal constitutional law are binding on the TCCA.

        (2) Under Hill v. Lockhart, 474 U.S. 52, 59 (1985), a defendant is entitled to effective assistance of counsel in the guilty-plea context.

        (3) Under Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012), to prevail on a claim of IATC due to bad advice about parole eligibility, a defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

        (4) If the basis of a constitutional claim predates the finality of the conviction, the claim may be successfully asserted.

State v. Ford, PD-1299-16, 2017 Tex. Crim. App. LEXIS 879 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) An appellate court must afford almost total deference to the trial court’s determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. The prevailing party has the benefit of deference on factual findings made in her favor. However, whether the facts, as determined by the trial court, add up to reasonable suspicion or probable cause is a question to be reviewed de novo.

        (2) For an arrest to be justified under the Fourth Amendment, an officer must have “probable cause to believe that the suspect has committed or is committing an offense.” Probable cause is a “fluid concept” that cannot be readily reduced to a neat set of legal rules, and involves “a reasonable ground for be­lief of guilt” that is “particularized with respect to the person to be searched or seized.” It is a greater level of suspicion than reasonable suspicion but falls far short of a preponderance of the evidence standard. If an officer has probable cause to arrest, a search incident to arrest is valid if conducted immediately before or after a formal arrest.

        (3) A customer can exercise control over property with an intent to deprive even if the customer has not yet left the store with the property if the customer attempts to concealing the property.

Editor’s note: By disturbing the trial court’s factual findings, which were supported by the record, the TCCA violates its own rule that an appellate court must afford almost total deference to the trial court’s determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. This is not funny.

Gamino v. State, PD-0227-16, 2017 Tex. Crim. App. LEXIS 942 (Tex. Crim. App. Sep. 27, 2017) (designated for publication)

        (1) A defendant is entitled to a jury instruction on self-defense if the issue [of self-defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.

        (2) When reviewing a trial court’s decision denying a request for a self-defense instruction, a reviewing court considers the evidence in the light most favorable to the defendant’s requested submission.

        (3) A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.

        (4) Under Tex. Penal Code §9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.

        (5) Under Tex. Penal Code § 9.32, a person is justified in using deadly force if he would be justified in using force under Tex. Penal Code § 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force.

        (6) Under Tex. Penal Code § 9.04, the threat of force is justified when the use of force is justified by chapter 9. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, provided the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Ex parte Lewis, WR-83,458-01 & WR-83,458-02, 2017 Tex. Crim. App. LEXIS 943 (Tex. Crim. App. Sep. 27, 2017) (designated for publication)

        (1) Under Tex. Health & Safety Code § 481.129(a)(5)(B), a person commits a crime by “knowingly . . . possessing, obtaining, or attempting to possess or obtain a controlled substance or an increased quantity of a controlled substance through use of a fraudulent prescription form.”

        (2) Under Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012), the TCCA held that under Tex. Health & Safety Code § 481.129(a)(5)(B), “the information that is written on the form is not the form itself,” but instead, “prescription form” means the preprinted form designed to have prescription information written on it. If the State indicts under § 481.129(a)(5)(B), the state must introduce evidence that the defendant presented a “fraudulent” form, not simply that the defendant committed “fraud” by interlineating upon an otherwise legitimate form.

        (3) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (4) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes and legal propositions is not excusable and if it prejudices a client, IATC may be found.

        (5) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

Prine v. State, PD-1180-16, 2017 Tex. Crim. App. LEXIS 880 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under Strickland, 466 U.S. 668 (1984), a defendant is en­titled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (2) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.”

        (3) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        (4) Without a developed record, it is impossible to conclude that an attorney’s actions lacked reasonable strategic basis and thus amount to IATC.

Ex parte Speckman, WR-81,947-02, 2017 Tex. Crim. App. LEXIS 889 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Good-cause to allow a late-state dismissal of an application filed under Tex. Code Crim. Proc. Art. 11.07 may exist: (1) for the presentation of additional evidence, (2) the filing of an amended or supplemental application raising new claims in the habeas court, or (3) a stay of the proceedings for a reasonable time, then the applicant cannot show good cause for his motion to dismiss without prejudice.

        (2) Habeas applicants seeking to dismiss an application filed under Tex. Code Crim. Proc. Art. 11.07 after the habeas court has factually developed the record and made FFCL should provide an explanation of good cause regarding why an alternative course of action, such as moving for new evidence to be considered, amending or supplementing their claims, or moving for a stay of the proceedings, would be inadequate to cure the defect in the pleadings or proof.

Ex parte St. Aubin, WR-49,980-12, 2017 Tex. Crim. App. LEXIS 885 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) If offenses in two proceedings are the same for double jeopardy purposes (successive-prosecutions double-jeopardy claim), then the second proceeding should never have occurred—the issue of the applicant’s guilt would never have been sub­mit­ted to a jury.

        (2) In a multiple-punishments double-jeopardy claim, where convictions occur at a single criminal trial, the role of the double-jeopardy guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing mul­ti­ple punishments for the same offense. Otherwise, the State has the right to prosecute and obtain jury verdicts on two offenses in a single trial, even if the offenses are the same for double jeopardy purposes.

State v. Bolles, No. PD-0791-16, 2017 Tex. Crim. App. LEXIS 1005 (Tex. Crim. App. Oct. 18, 2017) (designated for publication)

        (1) Under Texas Penal Code § 43.26(a), Possession of Child Pornography, a person commits an offense if: (1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, 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 (2) the person knows that the material depicts the child. “Sexual conduct” means among other things the “lewd exhibition of the genitals.”

        (2) Zooming in and taking a magnified picture of a small portion of an existing photograph of a child—even a work of art—constitutes the creation of a new and separate visual depiction of that child. Such image recreation does not reset the date that the original image of that same underage child “was made,” such that the newly created image is no longer of a child under the age of 18. The manipulation of an existing image of a child is the creation of a different piece of visual material of that child at that age. A photograph captures a moment in time. The date that a photograph is taken does not change, and a photograph of a child is “made” on the date the photograph was taken. The age of the child at the time the image is made will always stay the same.

        (3) Child pornography can result from image manipulation of an original image that may not be considered child pornography.

        (4) In determining whether a visual depiction of a child constitutes a lewd exhibition of genitals, courts should consider whether: (1) the focal point of the visual depiction is the child’s genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer.

Editor’s Note: What an absurd opinion. Child pornography is vile. However, to conclude that a “crop-job” of an image that is not a “lewd exhibition” can be transformed into a “lewd exhibition” due to the crop-job defies logic. Here is The Birth of Venus, circa 1482, by Italian Renaissance painter Sandro Botticelli:

Not too long ago, some unenlightened persons who were in positions of power would have considered this classical painting to be “obscene.” Based on the TCCA’s logic, a crop-job of the same painting would take on a completely new dimension, and the same unenlightened persons who considered Renaissance paintings to be “obscene” would argue that this crop-job to be “obscener” than the original:

State v. Gutierrez, No. PD-0197-16, 2017 Tex. Crim. App. LEXIS 1005 (Tex. Crim. App. Oct. 18, 2017) (designated for publication)

        (1) Under State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), review of a trial court’s grant or denial of a motion for new trial is for an abuse of discretion. The court abuses its discretion only if its ruling is not supported by any reasonable view of the record. When deciding whether a trial court erred in granting a new-trial motion, the reviewing court views the evidence in the light most favorable to the court’s ruling and gives almost total deference to the court’s findings of historical fact. When the court does not issue findings of fact, however, the reviewing court will imply findings necessary to support the ruling if they are reasonable and supported by the record.

        (2) Under Strickland, 466 U.S. 668 (1984), a defendant is en­titled to relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient; and (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness. The prejudice prong of Strickland requires a defendant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

        (3) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes and legal propositions is not excusable and if it prejudices a client, IATC may be found.

        (4) Even if a trial court grants a MNT on an issue that earlier formed the basis for motion for mistrial earlier because the trial court changes its mind by the time a defendant filed the MNT, that is not indicative of whether the trial judge likely would have granted a mistrial at the time the bias-issue arose.

        (5) When a juror withholds material information during voir dire that the defense, using due diligence, could not uncover, the parties are denied the opportunity to exercise their challenges, which hinders their selection of an impartial jury. A violation, by itself, is insufficient for reversal: The defendant must also have been harmed. When deciding whether the withheld information is material, a juror’s good faith is largely irrelevant. The information need not prove that the juror is biased, but it must tend to show bias. If the withheld information tends to show bias, the appropriate procedure is to hold a hearing at which evidence should be adduced regarding whether the juror is biased. If a trial judge finds that the juror is not actually biased, and that finding is supported by the record, then the defendant has not been harmed by the violation of his constitutional right to an impartial jury.

Editor’s Note: Apparently during a new-trial proceeding, a trial judge cannot change his mind and reverse a prior ruling he determines to have been a mistake.

Texas Courts of Appeals

Kelly v. State, 06-16-00185-CR, 2017 Tex. App. LEXIS 8300 (Tex. App. Texarkana Aug. 31, 2017) (designated for publication)

        (1) Under Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000), a trial court’s ruling on a motion to suppress is reviewed for abuse of discretion based on a bifurcated standard of review: (1) almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor and on rulings on application of law to fact questions (mixed questions of law and fact) if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor; and (2) de novo review of the trial court’s decisions applying applicable laws.

        (2) Under Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012), when a MTS is based on an argument that the search warrant’s supporting affidavit is deficient, a reviewing court may look only to the four corners of the supporting affidavit, and should view the magistrate’s decision to issue the warrant with great deference. After reviewing the supporting affidavit in “a commonsensical and realistic manner,” a reviewing court must uphold the magistrate’s decision so long as the magistrate had a substantial basis for concluding that probable cause existed. This review does not mean the reviewing court should be a “rubber stamp,” but “the magistrate’s decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

        (3) Under Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011), the factors to consider whether a warrant is stale and thus the likelihood that the evidence sought is still available and in the same place are: (1) the type of crime—short-term intoxication versus long-term criminal enterprises or conspiracy; (2) the suspect, whether he is a “nomadic” traveler, “entrenched” resident, or established ongoing businessman; (3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a meth lab); and (4) the place to be searched—a “mere criminal forum of convenience or secure operational base”; and (5) the passage of time.

        (4) Under Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997), without evidence of tampering, most questions con­cern­ing care and custody of a substance go to the weight attached, not the admissibility, of the evidence. Under Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981), where the State shows the beginning and the end of the chain of custody, any gaps in between go to weight rather than admissibility, particularly where the chain goes inside the laboratory.

        (5) Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

        (6) Under Tex. Penal Code Ann. § 1.07(a)(39), possession means “actual care, custody, control, or management.” Under Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), it is not the number of links between the person and the drugs that is dispositive, but rather the logical force of all the direct and circumstantial evidence, so in cases where illegal drugs are not found on the defendant’s person, but are instead found in an area to which the defendant and others had access, a court considers the following factors pointing to the defendant’s participation in the illegal possession: (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Liles v. State, 12-17-00084-CR, 2017 Tex. App. LEXIS 8463 (Tex. App. Tyler Sep. 6, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 17.09 § 2, once a defendant gives bail for his appearance in answer to a criminal charge, he shall not be required to give another bond for the same criminal action. Under Tex. Code Crim. Proc. Art. 17.09 § 3, if the trial court finds that “bond is defective, excessive, or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause,” the defendant may be rearrested and required to give another bond in an amount the judge deems proper.

        (2) Under Tex. Code Crim. Proc. Art. 17.15, when exercising discretion in setting bail, judges are governed by these rules: (1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with; (2) the power to require bail is not to be so used as to make it an instrument of op­pres­sion; (3) the nature of the offense and the circumstances under which it was committed are to be considered; (4) the ability to make bail is to be regarded, and proof may be taken upon this point; (5) the future safety of a victim of the alleged offense and the community shall be considered. Under Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981), other factors are: (1) the accused’s work record; (2) the accused’s family and community ties; (3) the accused’s length of residency; (4) the accused’s prior criminal record; (5) the accused’s conformity with the conditions of any previous bond; (6) the existence of out­standing bonds; and (7) aggravating circumstances alleged to have been involved in the offense, and (8) the accused’s ability to make the bond.

        (3) For purposes of bail, where a defendant is on bond for an offense, and new formal charges add a more serious manner or means of committing the offense, the new charges are not part of the “same criminal action.”

Whaley v. State, 07-15-00373-CR, 2017 Tex. App. LEXIS 8781 (Tex. App. Amarillo Sep. 15, 2017) (designated for publication)

        (1) In determining the legal sufficiency of the evidence, the reviewing court considers the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The jury is the sole judge of the credibility and weight to attach to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When the record supports conflicting inferences, the court presumes the jury resolved the conflicts in favor of the verdict. Each fact need not point directly and in­de­pendently to guilt so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        (2) Under Tex. Code Crim. Proc. Art. 37.09(1), Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011), and Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012), to determine whether a defendant is entitled to a requested lesser-included offense instruction: (1) a court considers whether the offense contained in the requested instruction is a lesser-included offense of the charged offense, which is the case if the greater-offense alleges all the elements of the lesser-offense, and (2) if so, the court must determine whether the admitted evidence supports the instruction, which is the case if some evidence from any source raises a fact issue on whether the defendant is guilty of only the lesser, regardless of whether the evidence is weak, impeached, or contradicted. There must be evidence directly germane to the lesser that would permit the jury to find that if appellant is guilty, he is guilty only of the lesser.

        (3) Offense-contact assault is not a lesser-included offense of aggravated assault because to establish aggravated assault, the State is not required to prove a defendant knew or reasonably should have believed another person would regard the contact as offensive or provocative.

Guzman v. State, No. 01-16-00262-CR, 2017 Tex. App. LEXIS 8528 (Tex. App. Houston [1st Dist.] Sep. 7, 2017) (designated for publication)

        (1) Under Ngo v. State, 175 S.W.3d 738, 743–744 (Tex. Crim. App. 2005), review of jury-charge error requires two steps: (1) determine whether error exists in the charge, and (2) if error exists, whether sufficient harm resulted from the error to require reversal. If the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant dem­onstrates that he suffered some harm because of the error. Review a trial court’s decision not to submit an instruction in the jury charge is for an abuse of discretion.

        (2) Under Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010), and Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the defendant bears the burden of establishing that the State lost or destroyed the evidence in bad faith. The State’s duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed, and the defendant must affirmatively show that the lost evidence was favorable and material to his defense. Bad faith requires a showing of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful. When conduct is only negligent, the failure to preserve evidence does not rise to the level of a due process violation.

Statutory Changes Regarding Mentally Ill Defendants


In the following, I will review selected changes to Chapter 46B, Tex. Code Crim. Proc., as a result of SB 1326, signed by the governor on 6/12/2017 and effective on 9/1/2017.

The bill includes changes to several sections of the Texas Code of Criminal Procedure relating to management and disposition of matters involving defendants with mental illness as well as persons with an intellectual disability; readers are encouraged to look at the text of SB 1326 carefully in that regard. In addition, there are some specific changes to the Texas Health & Safety Code, as appertains to the time frame for civil commitment.

Generally speaking, this legislation represents contributions from several sources and as a result, some elements do not flow smoothly. Moreover, efforts from many with wide experience in the criminal justice community were necessary to remove some features from the final bill which would have been very troublesome; e.g., an earlier version included language permitting the court to order psychoactive medication for Class B offenders committed for restoration to an outpatient program. For example, the language included the following provision removed in conference committee:

(d) An order issued under this article may require the defendant to participate in: . . .

(2) an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086.

Of course, Sell v. United States, 539 U.S. 166 (2003), held that involuntary medical treatment involves issues of “clear constitutional importance,” and the due process clause would require a compelling state interest in forcing medication—which would ordinarily and in all likelihood not exist in matters involving confinement of six months or less (see also State ex rel F.H. 214 S.W.3d 780 (Tex. App.—Tyler 2007), Baldwin v. New York, 399 U.S. 66 (1970), United States v. Evans, 404 F.3d 227 (4th Cir. 2005)).

There are, however, other items in SB 1326 representing substantial change as to the conceptualization of restoration treatment. For example, clinical treatment is separated from “education,” and a person who is “clinically ready and can be safely transferred to a competency restoration program for education services but has not yet attained competency to stand trial” may be so transferred for the balance of the period remaining on his/her restoration commitment. See Art. 46B.079(b) (1). More about this provision will be discussed below.

In the following, however, I will address only a few of the changes imposed by SB 1326 (as many are not especially substantial in nature).

Magistrate’s Duties under Article 16.22

Tex. Code Crim. Proc. art. 16.22 has long provided for evaluation of persons believed to exhibit a mental illness or intellectual disability. With the enactment of SB 1326, however, not less than twelve (12) hours after the sheriff—or municipal jailer—has reason to believe that a person may be a person with mental illness or intellectual disability, written notice shall be provided to the magistrate. The magistrate, in turn, shall either order an examination by the local mental health authority, or other qualified mental health professional, to make a determination (either by examination or review of extant information) if, indeed, the person has a mental illness or is a person with an intellectual disability. Should the person refuse, then the magistrate may order the person to be held for a reasonable period, not to exceed 72 hours, for such evaluation to occur.

Somewhat confusing language follows (see art. 16.22(b)), such that except as otherwise permitted by the magistrate, the written assessment shall be provided within 96 hours after the original order (for persons held in custody) and for persons released, within 30 days.

The troubling portion of the language in Article 16.22—which has been extant, but largely gone unnoticed—is that the evaluation must not only answer the single issue of the presence of mental illness or intellectual disability, but “whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination.”

The foregoing is troubling because the issue is not ripe. In many if not most cases, it is not possible to raise issues of competency at this point. Defendants either toxic or mentally unstable at magistration have just been booked—persons to be charged with felonies are not yet charged and being held solely on probable cause. The indictment will follow (or not). Thus, raising the issue of competency is premature. Better to identify the person as exhibiting a mental illness or intellectual disability (which, by the way, may not easily be made in the time frame available) and allow some time to determine the manner in which the condition will impair the defendant’s ability to relate to counsel, or the person’s rational and factual knowledge of the proceedings. Note also that with the attendant focus upon provision of some mental health services in jails, a period of time allowing for the person to be re-established on medications frequently results in stability sufficient to meet the standard for competency. One possible value of identifying the need for a full competency exam during the 16.22 exam, and including that information in the 16.22 report, is to have that information immediately on hand once charges are filed, and some opportunity to stabilize has occurred. Accordingly, the 16.22 report can serve as the evidence needed to order competency proceedings unless jail-based treatment has already resulted in sufficient stability.


A trick question has long been “What is the definition of competency in Texas statutes?” But in fact, there is no definition of competency per se as Texas Code Criminal Procedure article 46B.003 defines incompetency, and there is no corresponding definition of competency in article 46B.001. However, SB 1326 adds a definition of “competency restoration” that includes the positive statement of the state to which the person is being restored, e.g.:

(9) “Competency restoration” means the treatment or education process for restoring a person’s ability to con­sult with the person’s attorney with a reasonable de­gree of rational understanding, including a rational and factual understanding of the court proceedings and charges against the person.

Noteworthy for that to which has already been alluded, herein the statement is “treatment” or “education”—separating the two.

Reporting to OCA

An addition, article 46B.026 requires courts to submit the number of reports provided to the court under this article to the Office of Court Administration (OCA) every month.

Situs of Commitment for Restoration

Likely, the most significant change to 46B are the changes to articles 46B.071 and 46B.073 concerning the differing sites for commitment of persons found incompetent based upon the nature of the charge and availability of options. The logic of SB 1326 is something like this:

a) Absent an article 17.032(a) offense, or a finding under article 42A.054(c), requiring the person to be committed to a maximum security facility, the initial question is: “Is the person not a danger to others and can the person be treated safely in the community?” If the answer is “yes” then the person is to be committed to an outpatient com­pe­tency restoration program, of which there are only cur­rently a handful in the state.

b) If the person could not be treated on an outpatient basis, or no outpatient program is available, the next alternative for the court is commitment to a jail-based competency restoration program—for which, as of August 2017, there are no programs extant in the approximately 240 jails in the State of Texas.

c) If neither an outpatient program is available nor a jail-based program (or the person could not be treated safely on an outpatient basis, or a maximum security program is required), only then may the court commit a person to a mental health facility or residential care facility.

d) Even in the case when no other option is available, a Class B defendant may not be committed to a mental health facility or residential care program unless “a li­censed or qualified mental health professional determines that a jail-based competency restoration program is not appropriate.” The standards for such determination are not specified; however, logically such standards would relate to an opinion viz. the acuity of the person’s clinical condition that would warrant the intensive struc­ture of an inpatient mental health facility. See article 46B.073(f).

e) In addition, the predicate for an order committing a person to participate in an outpatient competency res­toration program requires that the court: (1) receive and approve a comprehensive treatment plan; that (2) provides for treatment for the purposes of restoration; (3) identifies the person who will be responsible for providing that treatment to the defendant; and (4) the treatment proposed will be available to and will be provided to the defendant. See article 46B.072(c).

Content of Court Order for Outpatient Restoration Treatment

Specifically, about outpatient competency restoration, the court may order Class B defendants to participate in “an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment.” Note, however, that forced medication for Class B defendants—for the purpose of restoration—is in all likelihood invalid pursuant to Sell v. United States. For a thorough discussion of this issue, readers are encouraged to see Brian Shannon’s article in the St. Mary’s Law School Journal.1

For Class A and felony defendants, the court may order “an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including care or treatment involving the administration of psychoactive medication, including those required under Article 46B.086.” See art. 46B.072(d)(2).

Readers should be aware, however, that the requirements for judicial hearings on the issue of forced medication apply—e.g., first seeking an order under Tex. Health & Safety Code § 574.106 and if that fails, then under Tex. Code Crim. Proc. art. 46B.086.

Issues Relating to Outpatient Competency Restoration

There are several issues, or hurdles to overcome, regarding outpatient competency restoration programs. These issues should be at the forefront of any proposed plan for outpatient restoration, so as avoid a plethora of treatment failures.

The first is that it is far wiser to conceptualize release for the purpose of court-ordered treatment and not “release on bail”—unless there are no conditions whatsoever attached. The logic is that a person who has been found incompetent is to be considered as incompetent at all stages of the proceedings. (See discussion in Godinez v. Moran, 509 U.S. 389 (1993).) Consequently, an incompetent person could scarcely execute the affidavit to appear as in Tex. Code Crim. Proc. art. 17.04. Wiser, therefore, that the court would simply order release of the defendant from custody for the sole purpose of participation in an outpatient competency restoration program—much as would be the case were the defendant committed to the state hospital for an inpatient program.

The second issue has to do with housing: It is a sine qua non that defendants released to the community for purposes of restoration treatment must have stable housing. This means either that the person has familial or another housing circumstance that will provide some degree of stability—and the court should have assurance of same before commitment follows. For persons who are homeless, or whose acuity is such that they could not manage their behavior in a setting lacking controlled access and egress, or are unable to live independently—having funds for food, clothing, laundry, etc.—there are serious questions about what kind of setting would afford a sufficient degree of stability.

The third issue, and certainly related to the foregoing, has to do with the person’s willingness and ability to manage his or her own medications. If either is lacking, it would be crucial that the defendant reside in a setting where a responsible person can ensure that the defendant receives prescribed medications at the designated time daily, or at the otherwise designated interval. Moreover, forced medication under the Tex. Health & Safety Code § 574.106 permits only court intervention for persons housed in jail or inpatient settings. Even if forced medication were legally permissible on an outpatient basis, there are few psychiatric physicians bold enough to pursue this option for at least two reasons: (1) The means of forcibly administering medications to persons receiving outpatient treatment are limited. It is unlikely that any facility or program would send a team of staff to a person’s residence and exert the force necessary to medicate a person who is otherwise refusing; and the spectre of physicians or nurses riding around on motorcycles with medications in spring-loaded dart guns, zapping refusing patients on sight, is simply ludicrous. And (2), most providers would be very concerned as to the inability to monitor side effects of medications administered under such conditions—likely impossible in an outpatient setting.

Note that Professor Shannon has pointed out that an exception might be an “outpatient” program with a residential component, though such a setting is more a hybrid than a strictly “outpatient” program. What is commonly considered is to establish a defendant/patient on a long-acting psychopharmacological agent requiring injections perhaps every three weeks or once a month—before they are placed on outpatient status. Only in such circumstances could the person be managed without necessity for extraordinary efforts to administer medications. If, however, the person is not medication complaint and otherwise not on long-acting agents, then the viability of participation in an outpatient program is greatly reduced.

The fourth issue related to outpatient competency restoration is transportation to the location of the program. It is not reasonable to expect that incompetent defendants could manage public transportation (if such even existed) and arrive at the location in a timely way. Were that the case, and the person had such functional capacities, they might well be a long way toward competency! Thus either the entity or some other means, such as family members or staff at a personal care home, would be necessary to ensure that the person arrives at the program site as required.

Finally, the availability of outpatient competency restoration programs is limited in the state. Some programs are indistinguishable from conventional outpatient mental health treatment, and such are less than desirable. In fact, programs that truly incorporate features of a day-treatment program plus the educational aspects appertaining to court proceedings are truly few in number. For such would have on-site a psychiatric physician who sees the defendant/patients weekly, as well as structured programmatic activities throughout a work day (give or take, about six hours per day of structured treatment), benefits specialists to assist in re-obtaining public benefits, plus provision of lunch and mid-day medications. In addition, other staff required would include program specialists and a psychologist to conduct re-evaluations of competency meeting the standard in accord with Tex. Code Crim. Proc. art. 46B.022 Anything less is not quite the standard—nor would it be the equivalent of an in-patient program save for housing and evening programming.

The net effect is that establishing regional outpatient programs is essential—even relying upon state hospital locations, though, to my knowledge, this option has not been floated generally, and may be rejected simply because of lack of space.

Time Frames

In the new legislation, the time frames for restoration commitment are as follows (46B.073).

Note that under 46B.079, a facility or program provider may notify a court that the initial restoration period is about to expire and include a request for a 60-day extension. In the following section (46B.080) it is stated that “on a request of the head of a facility or a program provider that is made under Art. 46B.079(d) and notwithstanding any other provision of this subchapter, the court may enter an order extending the initial restoration period for an additional period of 60 days.” Thus, it appears that any one of the program offerings—i.e., outpatient, jail-based or inpatient—may be extended beyond the period of initial restoration for a period of 60 days.

Transportation of Defendant

Article 46B.075 requires that save for outpatient restoration programs, the person is to be “placed in the custody of the sheriff or sheriff’s deputy for transportation to the facility.” The statute is silent upon whether a defendant can be released on bond pending such transfer; however, an incompetent defendant could scarcely be able to execute the promise to appear required of persons on bond, as discussed earlier.

Article 46B.078 contains language that can only be described as troubling, for it states that “if the charges pending against a defendant are dismissed . . . ,” the court that issued the order shall send a copy to the sheriff of the originating county and the head of the facility, or provider of the outpatient competency restoration program. What is troubling is the next section (and note that all charges have been dismissed, thus terminating the court’s jurisdiction). “On receipt of the copy of the order, the facility or program shall discharge the defendant into the care of the sheriff or sheriff’s deputy for transportation in the manner described by Article 46B.082.” However, art. 46B.082 contemplates return of the defendant to the court. In this circumstance, the charges are dismissed and the court’s jurisdiction is terminated.

Many sheriffs will suffer apoplexy when advised they are expected to transport a person across county lines—perhaps hundreds of miles distant—with no charges pending, and lacking personal jurisdiction. Moreover, would a sheriff return a person some distance in their patrol car without restraints? And were the person returned on a Friday afternoon—when no court is open—the sheriff would have no grounds to book them back into the jail. Consequently, I would strongly encourage all courts and counsel to ensure that the defendant has been returned to the county of origin before charges are dismissed!

In the foregoing scenario, a person is likely to have charges dismissed because they are, or have, timed-out—i.e., have served that period of time in jail or in a facility equivalent to the maximum sentence he or she could have received had they been convicted on day one (cf. Tex. Code Crim. Proc. art. 46B.009 and .0095). However, some will have restored, but many will remain incompetent. It is correct that in such circumstance, concerning persons remaining incompetent, the present statute (see art. 46B.151) permits the court to retain jurisdiction after dismissal for the specific purpose of (a) transferring the matter to a court with mental health jurisdiction, and (b) ordering the person to be held in jail—brief—“pending prompt initiation of civil commitment proceedings,” and pending further orders from the court having mental health jurisdiction. But absent a 46B.151 determination, the issue is clouded.

Put simply, the wiser course is to ensure that the person is returned to the county of origin before all charges are dismissed.

Separation of Treatment and Education

Article 46B.079(b)(1) and Article 46B.0805 entitled “Competency Education Services” are reminiscent of the description of a “camel as a horse designed by a committee”; for these sections separate two elements of competency restoration not so easily separated, namely clinical treatment and education.

Art. 46B.079(b)(1) provides:

(b) The head of the facility or jail-based competency restoration [or outpatient treatment] program provider shall promptly notify the court when the head of the facility or [outpatient treatment] program provider believes that:

(1) the defendant is clinically ready and can be safely transferred to a competency restoration program for education services but has not yet attained competency to stand trial;

Then in a new section, article 46B.0805 reads:

Art. 46B.0805. COMPETENCY RESTORATION EDUCATION SERVICES. (a) On notification from the head of a facility or a jail-based competency restoration program provider under Article 46B.079(b)(1), the court shall order the defendant to receive competency restoration education services in a jail-based competency restoration program or an outpatient competency restoration program, as appropriate and if available.

These two sections serve to separate clinical treatment from education services as applied to restoration services. It is presumed that persons will be “clinically ready” but lacking viz. the education necessary to effectuate restoration. In my experience this is highly unlikely to be the case. The standard for restoration is so low that once a person has any reasonable clinical stability they are restored. For example, the Court of Criminal Appeals has held that a person with an IQ in the 60s is competent. See Ex Parte Rodriguez, 164 S.W.3d 400 (Tex. Crim. App. 2005).2 Moreover, it requires little in the way of being “stable”—inasmuch as psychosis is not dispositive of competency. See Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999), Battle v. U.S., 419 F.3d 1292 (11th Cir. 2005), Medina v. Singletary, 59 F.3d 1095 (11. Cir. 1995).

In addition, if a person cannot learn, relatively easily, the cognitive features associated with competency—e.g. the purpose of a trial, roles of parties, nature of charges, possible penalties, etc., etc.—then there is likely such a severe intellectual deficit that they are unlikely to be restored in the time frame available to the court.

It has been pointed out, however, that the concept involved wanting to have a tool in place for quick medical stabilization in the jail, and then a transfer to an outpatient treatment program with a residential component for any further “education” services, if needed. Of course, we need such programs to exist for this to be of any value.

Another issue, however, is that if a person is deemed clinically ready but in need of further education, he or she can only be sent to a jail-based or outpatient program for the remainder of the time available on the restoration commitment. Given that no jail-based programs now exist and, even in the future, few will be established due to the space, sound, and staffing requirements unavailable in modern jails, the odds of finding a suitable program with dispatch are few. Thus a person with, let us say, 40 days remaining, may wait an additional 60 days for a bed, during which time the gains made in the restoration program may be lost if the person is not held in a well-structured mental health treatment program—not existing in virtually all jail settings. One of the few settings in which the act may be helpful is that wherein there is a facility with an attendant outpatient program—providing an opportunity for step-down care of persons whose acuity has improved markedly.

In most conditions, however, this is a provision that is likely to be problematic at best, and ineffective at worst.

Continuation of Medications

Additions to 46B.0825 will allow a sheriff to seek reimbursement for providing medications prescribed for persons in restoration—though, to be sure, the sheriff is not responsible for providing unreimbursed medications. While sounding much like an especially un-useful section, this addition does emphasize the necessity for continuing persons on medications prescribed during the course of treatment.

Court Decision on Restoration

When a person is returned from a facility or program, the court shall make its determination on the issue of competency “not later than the 20th day after the date on which the court received the applicable notice under Article 46B.079, or not later than the fifth day after the date of the defendant’s return to court, whichever occurs first, regardless of whether a party objects to the report . . . and the issue is set for hearing.” See Art. 46B.084(a-1)(1). Note that the facility’s opinion on restoration or lack thereof prevails and establishes a rebuttable presumption to the contrary; see Moralez v. State, 450 S.W.3d 553 (Tex. App.—Houston [14th Dist.] 2014). As well, a decision must be made—promptly, for allowing the defendant to languish with no decision on competency having been made is improper. See Timmons v. State, 510 S.W.2d 713 (Tex. App.—El Paso 2016).

Jail-Based Competency Restoration

Article 46B.090 is amended to authorize not only a jail-based program created by the Texas Department of Health & Human Services, but article 46B.091 also adds a jail-based competency program administered by a county—or a group of counties. This statute requires at least one psychiatric physician, and other qualified mental health practitioners, providing the same number of hours of services as would be provided in an inpatient facility. As well, a psychiatrist or psychologist (as qualified under article 46B.022) shall “conduct at least two full psychiatric or psychological evaluations of the defendant during the period the defendant receives competency restoration services in the jail.”

Unfortunately, the foregoing language does not distinguish between psychiatric or psychological evaluations and forensic evaluation for the purpose of ascertaining competency to stand trial—though these are quite different evaluations, requiring different consents and with differing content.

The statute also requires operation in a “designated space that is separate from the space used for the general population of the jail,” which precludes establishing a program in virtually every jail in the state, of the 240 jails now extant—save for Lubbock County, which has a psychiatric unit within the jail itself.

One option, not mentioned statutorily but which may be possible is that of a jail-based program in which the jail provides housing and daily transports the defendants to a separate facility—i.e., a mental health facility, wherein the sheriff retains care, custody, and control, and provides deputies for security—much as would be provided were a defendant transferred temporarily to a local general hospital, yet not being subject to release.

Time Frame for Commitment to a Jail-Based Program

There is some unclarity viz. the time frame for commitment to a jail-based program. First, consider the language of art.46B.073 (italicized content is mine):

SECTION 14. Article 46B.073, Code of Criminal Procedure, is amended by amending Subsections (b), (c), (d), and (e) and adding Subsection (f) to read as follows:

(b) For purposes of further examination and competency restoration services with [treatment toward] the specific objective of the defendant attaining competency to stand trial, the court shall commit a defendant described by Subsection (a) to a mental health facility, [or] residential care facility, or jail-based competency restoration program for the applicable period as follows:

(1) a period of not more than 60 days, if the defendant is charged with an offense punishable as a misdemeanor; or

(2) a period of not more than 120 days, if the defen­dant is charged with an offense punishable as a felony.

But, in art. 46B.090 and 46B.091 it is stated as follows:

If a “defendant ordered to participate in the pilot program has not been restored to competency by the end of the 60th day after the date the defendant began to receive services [par­ticipate] in the pilot program:

(1) for a defendant charged with a felony, the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c)”

Thus, while a person charged with a felony may be committed to a jail-based program for a total of 120 days (absent a 60-day extension), if the person is not restored in 60 days, then there is a mandatory transfer to “the first available facility that is appropriate”—which would, then, be an inpatient facility. Note this would include only persons charged with a felony that was not an art. 17.032(a) or a Tex. Penal Code § 22.01(a)(1) offense, as these cases would have been committed to a maximum security facility at the outset. The most problematic issue in this model is that an inpatient program may not be immediately, or even readily, available. In such cases, gains may be lost when the person returns to the originating jail setting, absent the milieu and treatment available in a formal treatment program.

Changes to Mental Health Code

Background: Defendants found incompetent and either unlikely to be restored or not having been restored after treatment may be subject either to a dismissal and transfer to a court having men­tal health jurisdiction (see art. 46B.084(e) and (f)) or a civil commitment with charges pending.

SB 1326 changed one element in Tex. & Safety Code § 574.034—which appertains to temporary court-ordered mental health services. It now reads:

(g) An order for temporary inpatient or outpatient mental health services shall state that treatment is authorized for not longer than 45 [90] days, except that the order may specify a period not to exceed 90 days if the judge finds that the longer period is necessary.

The presumptive period of a temporary order is—as of September 1, 2018—for 45 days, though 90 days may be specified if the court finds that the longer period is necessary. No further standard is provided in the statute.


The changes effectuated by SB 1326 are complicated and rife for error as applied. Consequently, both courts and counsel are urged to read the statutes rather carefully as implementation begins.


1. Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States, 41 St. Mary’s Law Journal 309–50 (2009),

2. See also Ex Parte Bobby Wayne Woods, 296 S.W.3d 587 (Tex. Crim. App. 2009), Ex Parte Eric Dewayne Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014).

Court Costs

More than 50 years after Gideon v. Wainwright, Texas courts continue to subvert indigent defendants’ right to appointed counsel by imposing attorney’s fees post-conviction. While the practice of ordering indigent defendants to reimburse attorney’s fees is not unique to Texas1, it is problematic for a host of reasons, blatantly violating both the constitutional right of access to counsel and current Texas law.

In guaranteeing the right to appointed counsel for indigent clients, Gideon necessarily created a cost to states by obligating them to provide counsel to those who cannot afford it. States in turn have sought to circumvent this obligation by allowing judges to order defendants to pay court costs, including attorney’s fees, even after defendants are declared indigent.2 Current practices include conditioning the offer of a plea deal on the de­fen­dant’s acceptance of court costs or making fee payments a com­ponent of sentencing without a finding of financial ability to pay, practices which are antithetical to the basic principles of appointed counsel and equal protection.

The Supreme Court’s Ambivalence Towards Reimbursement Statutes

Gideon v. Wainwright3 famously guaranteed indigent defendants the right to appointed counsel in state felony cases, a right that was later extended to misdemeanor cases in Argersinger v. Hamlin.4 While these decisions marked a clear and significant step towards a fairer justice system, the indigent defendant’s right to have “counsel . . . provided for him”5 meant states had to do the providing, and a conflict arose over state statutes that allowed judges to order the reimbursement of attorney’s fees. In James v. Strange, the Supreme Court struck down a Kansas statute allowing the state to recoup attorney’s fees from indigent clients on the grounds that the statute provided for no exemptions from payment, not even exemptions recognized under Kansas’ Code of Civil Procedure.6 However, shortly after its ruling in James, the Court distinguished and upheld an Oregon recoupment statute allowing the ordering of convicted persons to repay “expenses [including the cost of legal defense] . . . as a condition of probation.”7 The Court reasoned that because the Oregon statute was “carefully designed to insure that only those who actually became capable of repaying the State will ever be obliged to do so,” it did not violate an indigent defendant’s right to counsel.8

Neither case establishes broad rules for or against reimbursement statutes in general, keeping to narrow rulings that address the exact language of the particular statute in question. What does emerge from these decisions is the principle that re­imbursement orders should only be made when defendants are actually “capable of repaying,” although the Court gives no guidance on how this capability should be determined. These cases reveal an ongoing tension between every citizen’s right to counsel and the financial burden of requiring states to provide counsel, and many states have dealt with this tension by forcing indigent defendants to be a part of shouldering this burden.

Texas Law Requires Evidence of a Defendant’s Ability to Pay

Attorney’s Fees for Indigent Defendants Represent a Significant Amount

Article 26.05(g) provides that a judge may order the defendant to “offset in part or in whole the costs of the legal services provided to the defendant.” Attorney’s fees include:

(1) Time spent in court, trial, and in any proceeding involving sworn oral testimony

(2) “[R]easonable and necessary” time out of court spent on the case

(3) Preparation for appeals

(4) Preparation for motion for rehearing

Tex. Code Crim. Proc. Art. 26.05(a)

Attorney’s fees also include “reasonable and necessary overhead costs.”9 As an example of what indigent defendants may face in an order to reimburse attorney’s fees, appointed attorneys in Harris County district courts can claim expenses ranging from $125–$350 per court day, and $40–$85 per working hour out of court.10 In Erath County, appointed counsel is compensated a flat fee of $500 in cases resulting in a guilty plea, and $300 for an Order of Dismissal.11 Under Art. 26.05(a), a defendant who has declared indigency can still be held liable for any of those costs, easily facing hundreds of dollars in attorney’s fees alone.

Judges Must Have Evidence of Defendant’s Ability to Reimburse Fees

Importantly, any defendant who “is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.” Tex. Code Crim. Proc. Art. 26.04(p) (emphasis supplied). This presumption of indigency cannot simply be overridden by a judge, and the Court of Criminal Appeals has ruled that any order to reimburse attorney’s fees must be supported by “evidence to demonstrate appellant’s financial resources to offset the costs of the legal services.”12 Earlier this month, the Texas Legislature passed an amendment to Art. 26.05(g), requiring judges to “provid[e] written notice to the defendant and an opportunity for the defendant to present information relevant to the defendant’s ability to pay” before ordering reimbursement, although the order may come “at any time during a defendant’s sentence.”13 The written-notice requirement seems to contradict the presumption of continued indigency in Art. 26.04(p) by flipping the evidential burden onto defendants, although it could also be interpreted as ensuring defendants an opportunity to rebut any evidence used by the judge to justify a reimbursement order.

It is worth noting that although judges have the authority to order defendants to pay court costs at their discretion, defendants are not informed of the possibility that they may have to pay when they request an attorney. The exact language of a request for counsel reads as follows:

On this _____________ day of ____________________, 20__, I have been advised by the (name of the court) Court of my right to representation by counsel in connection with the charge pending against me. I am without means to em­ploy counsel of my own choosing, and I hereby request the court to appoint counsel for me.

Tex. Code Crim. Proc. Art. 26.04(o)

Defendants are unlikely to expect to bear the cost of legal counsel after admitting to being “without means to employ counsel,” yet judges currently order them to do just that, with or without a finding of ability to pay.

Current Practice Violates Both Texas Statutory and Case Law

Conditioning Sentencing on Reimbursement Turns Court Costs into Punishment

When judges impose attorney’s fees only when defendants want to take a plea, they are using court costs as a component of sentencing, in direct contradiction to the Texas Court of Criminal Appeals ruling that “court costs [are] not intended by the Legislature to be punitive.”14 Without a proper finding of whether or not a defendant can actually pay after indigency has already been established, these costs function as fines, triggered by a defendant’s guilty plea. Conditioning the availability of a plea on the defendant’s agreement to pay attorney’s fees, even when previously declared indigent, turns attorney’s fees into a form of punishment by relating them to the offense and sentence.

By conditioning the grant of a plea on reimbursement, courts can keep indigent defendants incarcerated for far longer than those with the ability to pay court costs. The legal issues are especially illustrated when the plea involves probation, since indigent defendants who have an opportunity to return to the free world are kept from doing so due to an inability to pay costs that are supposed to be non-punitive. This type of situation is alarmingly similar to that of the Harris County bail bond issue currently working its way through federal courts, where poor defendants are incarcerated at a far greater rate than wealthier defendants. Both situations present equal protection issues, since wealthy defendants are given options of moving through the criminal justice system in a way that poor defendants cannot—where wealthy defendants can take a plea or pay their bond, indigent defendants must stay incarcerated as their case moves forward. Probation becomes an option only for those wealthy enough to afford it.

Indigent defendants are faced with the choice of returning to jail or giving up their indigent status, both decisions that can have severe consequences down the line. Those who agree to reimburse court costs as a part of their probation and end up unable to pay risk being issued a capias warrant, which can lead to an arrest and incarceration. Those with limited finances who do try to pay these fees join the many families who struggle to afford basic necessities like food and shelter.15

Imposing Fees Without Evidence Violates Indigent Defendant’s Due Process Rights

In addition to the substantive problems with linking pleas and court costs, current practice poses grave issues to an indigent defendant’s right to due process. Although “the defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees,”16 current practice does not include any sort of hearing on a defendant’s financial status when ordered to pay attorney’s fees, despite the fact that indigent defendants are legally presumed to be indigent for the duration of the case absent evidence showing otherwise.17 Texas law requires judges to make a “determination” that defendants can actually afford to pay when they order the reimbursement of court costs, but the lack of a formalized process or guidelines leaves defendants largely at the mercy of a judge’s personal decision-making. In addition, the Court of Criminal Appeals has ruled that because court costs are not considered punitive, they do not need to be “included in the oral pronouncement of sentence . . . as a precondition to their inclusion in the trial court’s written judgment,”18 meaning defendants may not realize a reimbursement order has been issued until after their appearance before the judge. They thus experience due process issues on both ends of a case proceeding: On the front end, defendants who request appointed counsel are not notified of the possibility of eventually having to pay for counsel, and on the back end they risk a payment order at the judge’s discretion without any formal inquiry into their financial resources.

The discretionary imposition of attorney’s fees without any formal guidelines creates a danger that defendants who are aware of this possibility may decline to request counsel, especially those who can least afford to pay. It is unknown to what degree defendants have actually been deterred from requesting counsel when faced with the possibility of a reimbursement order, although reports of such incidents do exist.19 However, the number of fees-related appeals that have been raised and denied, solely on procedural grounds, suggests that the lack of available data is more likely an indication that defendants do not realize they are being ordered to pay attorney’s fees during judgment. Given the popular (and logical) belief that an indigent defendant’s right to appointed counsel means defendants do not have to pay for said counsel, it is possible defendants do not understand that attorney’s fees are being ordered at the time of judgment.20 If defendants were more aware of the danger, the threat of reimbursement orders, especially when imposed arbitrarily, could be found to impermissibly impede indigent defendants’ right to counsel.21

Finally, from a simply logical perspective, the very definition of indigent defense services seems to preclude the expectation that clients who receive these services will be able to reimburse the costs. States may very well face budget concerns in regards to funding the criminal justice system, but to expect a population that cannot afford counsel in the first place to be the ones footing the bill is patently illogical. Texas’ current practice does nothing more than create additional ways in which poor defendants risk punishment and incarceration in ways that wealthy defendants do not. The Supreme Court notes in James that under a Kansas statute allowing reimbursement, “only $17,000 has been recovered under the statute in its almost two years of operation . . . [T]his amount is negligible compared to the total expended.”22 Unsurprisingly, poor defendants do not have large reserves of money available to contribute to the running of the criminal justice system, however much states may try to place the burden on them.

Reimbursement Orders as Part of Community Supervision Must Be Challenged Immediately

Perhaps as an indication of defendants’ lack of notice regarding Texas’ reimbursement rules, Texas’ appeals courts have seen a number of sufficiency challenges to the imposition of attorney’s fees post-judgment. In addition to making clear that reimbursement orders must be supported by evidence of a defendant’s abil­ity to pay, Mayer held that defendants retained the right to challenge the legal sufficiency of an order even if they did not raise the complaint during trial.23 However, the Court of Criminal Appeals then distinguished Mayer from a number of cases involving deferred adjudication, holding that defendants did procedurally default a claim of sufficiency if they did not bring it up “in a direct appeal from the order originally imposing community supervision24 (emphasis supplied). This claim can be procedurally defaulted even when the amount of attorney’s fees is unknown at the time of judgment,25 although several courts of appeals have made an effort to factually distinguish similar cases in finding for the defendant.26 In any case, current practitioners should be prepared to look for and raise a legal sufficiency issue in regards to attorney’s fees (and court costs in general) at the time of judgment.

Despite Texas’ statutory and case law, judges continue to place court costs on those already recognized as being unable to afford a proper defense. The fact that reimbursable court costs can include attorney’s fees without any finding of an ability to pay them is a blatant violation of the constitutional right to appointed counsel and Texas law, and we strongly encourage defense attorneys to be ready to identify and challenge the issue should it arise. A sample motion follows this article and can be used as a template. Though each individual cost may seem like a small amount, to an indigent defendant each fee can mean a day’s worth of meals, access to transportation, or even the ability to pay rent. And more often than not, those fees add up to an amount far greater than anything the individual could afford. Current practice undermines an indigent defendant’s standing in the legal system, and should be challenged whenever they arise.


1. Joseph Shapiro, As Court Fees Rise, The Poor Are Paying The Price, NPR (May 19, 2014), (finding that “[i]n at least 43 states and the District of Columbia, defendants can be billed for a public defender”).

2. Id.

3. Gideon v. Wainwright, 372 U.S. 335 (1963).

4. Argersinger v. Hamlin, 407 U.S. 25 (1972).

5. Gideon, supra note 2, at 344.

6. James v. Strange, 407 U.S. 128 (1972).

7. Fuller v. Oregon, 417 U.S. 40, 43.

8. Id. at 53.

9. Tex. Code Crim. Proc. Art. 26.05(c).

10. Time spent on appeals work ranges from $75-$100 per hour. See Current Attorney Fee Schedules,

11. Id.

12. Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (overturning a court reimbursement order when the trial court had made no finding as to the indigent defendant’s ability to pay appointed attorney fees).

13. Tex. Crim. Pro. Art. 26.05 (2015), amended by Tex. Crim. Pro. Art. 26.05(g-1) (approved June 9, 2017; effective Sept. 1, 2017).

14. Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (finding that although court costs were only assessed against convicted defendants, they were treated differently than fines and were not intended by the Legislature to be punitive).

15. See, e.g., Saneta deVuono-Powell, Chris Schweidler, Alicia Walters, and Azadeh Zohrabi. “Who Pays? The True Cost of Incarceration on Families,” 14 (2015).

16. Mayer, supra note 11, at 556.

17. See Tex. Code Crim. Proc. Art. 26.04(p).

18. Weir, supra note 13, at 367.

19. Shapiro, supra note 1.

20. See Weir, supra note 13, at 367 (2009), where the Court held that “court costs are not punitive and, therefore, did not have to be included in the oral pronouncement of sentence.”

21. See James, supra note 5, at 134 (1972), where the Court acknowledged, but declined to reach, the question of whether or not “the statutory obligations for repayment impermissibly deter the exercise of [the] right [to counsel].”

22. Id. at 133.

23. Mayer, supra note 11, at 556.

24. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013) (finding the record was insufficient to support an order to pay attorney fees, but that defendant had procedurally defaulted the claim).

25. Riles v. State, 452 S.W.3d 333 (Tex. Crim. App. 2015) (affirming that defendant procedurally defaulted sufficiency claim when she agreed to pay “all court costs including Court Appointed Attorney Fee,” even when amount was not determined until 16 days after judgment of deferred adjudication).

26. See Lawrence v. State, 420 S.W.3d 329 (Tex. App. 2014) (finding that defendant did not waive right when original judgment read “APPOINTED ATTORNEY FEES TO BE DETERMINED”); see also Molnolskey v. State, No. 14-14-00585-CR, 2015 WL 4774732 (Tex. App. Aug. 13, 2015) (finding no defaulted claim where alleged attorney’s fees did not match initial bill of costs).

Private Investigators: How to Choose One, and How to Use One—Effectively

Attorney F. Lee Bailey began his career as an investigator. Undoubtedly, that experience helped him succeed in his more noteworthy vocation. Most lawyers realize the need for superior investigation. However, they actually deal with this vital aspect of their work with the same enthusiasm they demonstrate when going to the dentist. Perhaps this reluctance is due, in part, to the unsavory mystique that has relentlessly haunted the professional private investigator since the days of Sam Spade and “The Maltese Falcon.”

Nearly all attorneys who have practiced law in the state of Texas for a few years have undoubtedly met a private investigator in one situation or another. Oftentimes, they have been the person hired to provide assistance during the discovery process and preparing cases for trial. In many instances within this adversarial process, the opposing side has employed an investigator who successfully uncovered more information than the lawyer who relied principally upon their own resources and the client’s assistance in determining the facts. Consequently, this valuable support to the practitioner can be of inestimable value when dealing with complex cases. This is particularly true in a case requiring answers to questions the average attorney would be unable to ascertain due to time constraints, lack of contacts, or even because of not knowing where to look.

Some law firms have turned over investigative responsibilities to paralegals, expecting them to abandon their LEXIS for a trench coat. Although paralegals may have other skills allowing them to work well with investigators, generally they do not have the resources available to the qualified, licensed professional investigator.

Investigative methods have changed drastically over the years. Now, many investigators routinely use sophisticated technology as a means of retrieving secondary source data in almost every investigation. Access to this information is available only to those investigators who have met stringent requirements and have been properly vetted. But many lawyers are unfamiliar with the information these resources yield. For example, the Social Security number has grown increasingly important in recent years as an investigative tool, in addition to the various methods used to obtain this valuable data.

Every attorney should become familiar enough with basic investigative techniques to manage an investigation properly and cost effectively. In all but the most conventional cases, the attorney should take time to schedule a face-to-face meeting with the investigator to seek constructive input from those of us proficient in fact-finding. Simultaneously, they should provide the investigator with all available relevant information—including documents, reports, and statements that the investigators should read, evaluate, and assimilate before their investigation commences. Failure to provide such relevant information will guarantee a duplication of efforts.

Just as attorneys specialize, so do investigators. It is important to ensure the individual whom you hire to conduct an investigation has the technical competency, objectivity, intuitiveness, personality, creativity, and the requisite background and skills to design and carry out the type of investigation that will provide you with substantive information. You want an investigator who will “leave no stone unturned.” You should also understand that some investigative agencies may be unsuitable for your needs because they lack the knowledge to properly and effectively conduct a law-related investigation. For that reason, many large law firms employ several different investigators. I cannot stress enough that it is essential to find the investigator with the right qualifications each and every time you make a referral. Clearly, this is the key to obtaining efficacious results in your case.

Taking the time to meticulously evaluate your own needs before locating and interviewing a qualified investigator will be well worth the effort. Simply stated, exercise due diligence in your selection process. Undoubtedly, the most desirable quality an investigator should possess is honesty. If your investigator’s credibility was ever called into question, you would become concerned with the integrity of the information received to date, not to mention your concern with the investigator as a potential witness in your case.

When you decide a certain case warrants the use of an investigator, consult with your colleagues if you are not certain what investigator to engage. More often than not, other attorneys will share the names of competent professionals they have employed in the past. Colleagues can objectively critique an investigator’s level of proficiency, thoroughness, and overall quality of work. It is advisable to undertake this process when hiring an investigator, just as you would when employing any other expert witness.

You are responsible for recommendations made to your client, and for the ultimate selection of an investigator, in the same way you are responsible for the direct legal services you provide throughout your representation. Accordingly, it may benefit you to interview prospective investigators before deciding whether to make a referral to them. In evaluating investigators you should review their experience in serving other attorneys. Ask for references. You should also ask for a sample of reports they might furnish you and review them for content, quality, objectivity, attention to detail, grammar, clarity of thought, insight, and especially usefulness. Because the investigator may also be working with your client, attempt to assess the kind of impression they may make upon the client. A negative impression could certainly undermine your own relationship with your client. The selection process is finally complete when you have successfully matched your firm’s long-range needs with the investigator’s capacity to undertake in-depth creative discovery.

When Do You Use An Investigator?

Following are several cases from our files, which may illustrate the value of an investigator’s services:

An individual from Georgia had allegedly absconded with a large sum of money entrusted to him by his employer. The employer’s attorney contacted me when he believed the subject might have moved to an area within the state where I provided investigative services. Although there were active warrants for the suspect’s arrest and the Georgia authorities were willing to extradite, law enforcement agencies were not particularly interested in continuing to look for this individual.

After determining that local law enforcement agencies had little, if any, substantial information to offer, we proceeded with our investigation. We uncovered a trail of assumed names and fictitious addresses left by the suspect to confuse authorities. Over time, however, using a myriad of investigatory resources we determined the suspect had moved to San Pedro, California. We subsequently ascertained his place of employment and his address. Based upon our information, California authorities arrested the suspect on a fugitive warrant, and he was returned to Georgia to stand trial and ordered to make full restitution to his former employer.

In another case, I became involved in a conspicuously dubious rape case. In this matter the state had charged the defendant with aggravated sexual misconduct based solely upon the statements of the complainant and her female companion, who had been with her and the defendant at the time of the alleged incident. The complainant alleged the defendant had forcibly raped her at gunpoint during their first date. My investigation revealed the complainant and defendant had actually been engaged in an intimate relationship for at least a month prior to the incident. Additionally, we located several corroborating witnesses who refuted the complainant’s allegations.

We also unearthed information showing the complainant was involved in an automobile accident on the date of the alleged crime. Significantly, she was driving the defendant’s vehicle. Since he did not have insurance, the defendant asked the complainant to pay for the damages to his car and to the owner of the other car involved in the collision. When she refused, the defendant threatened to reveal the details of her promiscuity, as well as that of her companion’s, to their parents. It was this threat that motivated the complaint of rape against the defendant. When the aforementioned facts were disclosed to the prosecutor he agreed voluntarily agreed to dismiss, with prejudice, the criminal charges.

Résumé fraud is a type of deception that appears with increasing frequency. One notable case involved Janet Cook of The Washington Post. Cook was a reporter who won a Pulitzer Prize based on a fabricated story. Later investigation revealed the truth and also exposed that Cook had falsified her credentials when she applied for her position at the Post.

Background investigations on prospective employees have become even more important considering the surging number of lawsuits resulting in judgments against employers who made no effort to check the credentials of a new employee. In the typical scenario, the employee is involved in a crime against a fellow employee or customer. The subsequent investigation reveals a history of violence, criminal activity, deception, or other forms of illegal and unethical conduct that could have been discovered if the employer had diligently examined the employee’s past before hiring. In some cases the courts have awarded significant judgments against the employers on the basis of their negligent hiring practices.

In summary, I suggest when considering a case for investigation, be as explicit as possible when defining the scope of the investigation and its limitations. In a tort action, for example, if liability (rather than damages) is your focus, then explicitly say so. Make sure your investigator understands the specific information you need and define it in writing. Be sure to set a timetable for completion and a maximum allowable budget. On more protracted investigations or complicated cases, give assignments in phases. Sometimes facts you discover early in the case will make the remainder of the investigation unnecessary. Assign any follow-up investigation as soon as possible. Don’t wait until contacts fade away or witnesses develop amnesia. Be sure to point out any flaws or omissions to your investigator since feedback you provide will probably enhance the end product. Despite popular belief, an investigator’s job is based upon relentless determination and thankless drudgery. Your constructive feedback helps them avoid some of this drudgery. Communicate early and often.

Also consider that you don’t always get what you pay for. In other words, an investigator’s hourly billing rate may not be a reliable measure of their quality. Additionally, some investigators assume the attorney merely passes the cost of an investigation on to their client. Consequently, an investigator’s invoice that states “for professional services rendered: $3,000” but lacks appropriated detail about the investigation, should be rejected. Use investigators who maintain detailed time and expense records in a form suitable for sharing with your clients. This is expected of lawyers. In the same vein, it should be unquestionably required of investigators.

Lastly, insist upon the details involved with each expenditure and service provided by your investigator. They should be cost-effective, always keeping your budget in mind. Be certain to ask for a list of fees for any flat-rate services or expenses (such as mileage, photographs, online data research fees, etc.). And determine how much you are charged for travel time, as opposed to field investigation. Simply stated, be sure you understand all of the costs your investigator is billing.

While a professional investigation may shape the outcome of a case, your choice of an investigator will indubitably shape the outcome of the investigation. Therefore, do your homework before deciding which investigator to hire—ask your colleagues for recommendations. Then set a budget and take a leadership role in managing the investigation. Follow up and provide constructive feedback as the investigation progresses. Lastly, demand detailed time and expense information in all your investigator’s invoices.

November 2017 Complete Issue – PDF Download



22 | Statutory Changes Regarding Mentally Ill Defendants – By Floyd L. Jennings
29 | Court Costs – By Audrey Chao
34 | Private Investigators: How to Choose One, and How to Use One—Effectively – By Jeff Wax

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

5 | CLE Seminars and Events
37 | Significant Decisions Report

President’s Message: Playing the Right Way – By David E. Moore


As I try to get this month’s message written before my October 15th deadline, I have been enthralled watching Jose Altuve put on a heroic exhibition in the early stages of what may be a long playoff run for the Astros. Vertically challenged at five feet six inches tall, the smallest player in baseball, Jose is a giant on the field. By the time you read this, hopefully he will have led Houston to a World Series Championship.

I’ll admit it. I am a baseball nut. There are few things in life I’d rather do than watch a good baseball game. Whether it’s high school, college, or the major leagues, I am totally content spending three hours watching a game, regardless of whether or not my team is playing.

My love of baseball must be something I inherited. My dad was good enough to play at the JUCO level. To hear my folks tell it, the springs and summers of my infancy were spent being toted from ballpark to ballpark throughout East Texas and North Louisiana watching my dad play. I’m guessing that so much early exposure to heat and humidity as a babe might explain some of my cognitive shortcomings.

Since then, I cannot tell you how many hours of my life I have spent either playing, coaching, or watching the game. To me, it is the ultimate example of individual achievement (or failure) in a team setting.

My wife, bless her heart, has always done her best to indulge my love of the sport. She is certainly long suffering. I am reminded of the old joke that the end of October is a strange month for the baseball fanatic—it’s when you discover that your wife left you . . . in April.

Pamela, for some unimaginable reason, just doesn’t care for the game like I do. She always struggles, seeming to have a mental block for understanding and appreciating the nuances of our National Pastime. To paraphrase Dave Barry, if Pam had to choose between catching a fly ball or saving an infant’s life, she would choose to save the child every time . . . without even considering if there are men on base!

In the past, especially when Jacob’s team would suffer a tough-break loss, my better half inevitably would try to temper my angst and sorrow by reminding me that it is only a game. I would quickly retort, usually by quoting George Will: “Baseball, it is said, is only a game. True. And the Grand Canyon is only a hole in Arizona. Not all holes, or games, are created equal.”

Eventually, she learned she was better off simply mimicking former Rangers Manager Ron Washington in saying “That’s the way baseball go!!” How could I begin to argue with genius like that?

Baseball is chock full of colorful characters and memorable quotes. Even the most casual of fans can throw down a Yogi Berra jewel or two.

But, one of my favorites involves the Yankee Clipper, “Joltin’ Joe” DiMaggio. Many of DiMaggio’s contemporaries proclaimed him the best of their generation. Ted Williams and Bob Feller both said DiMaggio was the best all-around player they had even seen.

One year, DiMaggio was in the lineup in what was an insignificant road game in front of a small crowd. You see, the Yankees had already clinched the American League pennant, and, as this was in the pre-divisional playoff days, they had secured a berth in the World Series. Some would say they were just playing out the string, trying to stay healthy going into the Series. During the game, DiMaggio came to bat and lined an apparent single into the outfield. But, when most players in that setting would have been happy with just the hit, DiMaggio aggressively turned on the jets and, with a hard slide into second, stretched the hit into a double.

After the game, a reporter asked Joe, “Why did you play so hard?”

DiMaggio replied: “Because there might have been somebody in the stands today who’d never seen me play before and might never see me play again. I owe them my best.”

Wow! What an attitude! One of the greatest ballplayers ever, going all out on every pitch. Hustling on every play. Never taking a play off. Always, always, giving it his all. If Joe were in the lineup, the fans knew he was all in. From him, spectators would always get their money’s worth, and more. Opponents knew he would battle to the last out.

Just think what our profession would be like if we all employed that kind of attitude in our practices. Every time we walk into a courtroom, even on seemingly mundane matters, we should tell ourselves that there is someone here today that has never seen me before, and they are going to see me today give it my very best, give it my all.

If we all had DiMaggio’s work ethic, our clients, their families, people in the gallery, jurors, judges, and even prosecutors would know they are going to be getting our best, day in and day out, hearing after hearing. If we do that, people will notice, and we will develop a reputation for playing the right way.

Executive Director’s Perspective: Fall in Motion – By Joseph A. Martinez


The following motions were voted on by the TCDLA Board at the September 9, 2016, Board meeting held in Fort Worth.

MOTION: Minutes, June 23, 2017
Motion to adopt the minutes from the TCDLA Annual Board Meeting in San Antonio on June 23, 2017, made by David Botsford, seconded by Michael Gross—motion carries.

Motion to approve the FY18 TCDLA Budget made by Russell Gunter, seconded by Roberto Balli—motion carries.

MOTION: Adjourn
Motion to adjourn the meeting at 1:28 pm made by Frank Sellers, seconded by Kristin Brown—motion carries.

Special thanks to Heather Barbieri (Plano), Tony Vitz (McKinney), Greg Westfall (Fort Worth), and John Ackerman (Sunrise Beach), our course directors for our four-day event, the 7th Annual Round Top Advanced Skills Training—Discovering the Story. Thanks to them and our faculty we had 51 attendees.

Special thanks to John Gilmore and Philip Goff, our course directors for the Unleashing Your Inner Beast: Defending Those Accused CLE held in Corpus Christi in October. Thanks to everyone’s help we 71 attendees.

A reminder: If you are interested in serving on the TCDLA board, the deadline to submit your application is November 1, 2017. Please go to our website for more information.

The board has set as a goal to reach 3,500 members by the end August 2018. Currently TCDLA has 3,241 dues-paying members. We ask your help in recruiting new members and members who have lapsed. Please go to the website for membership benefits and a membership application form.

Thanks to Rick Wardroup and all of our members who are updating and editing, we will be releasing the TCDLA publications in the coming months. Please check our website or look for the emails we will be sending to announce which publications are being released. Please support TCDLA by purchasing our publications, and help promote them to other lawyers.

David Moore, President (Longview), started up the Hurricane Harvey Relief committee with Danny Easterling (Houston) as chair. The committee has come up with numerous ideas how to support our brother and sisters impacted by Hurricane Harvey. We ask you to consider making a donation.

Please join us in San Antonio at the historic Menger Hotel for the 13th Annual Stuart Kinard Advanced DWI CLE November 2–3, 2017. Come hear the latest updates from the finest DWI practitioners in the state. Please go to our website for the two-day agenda.

There is a significant amount of CLE being offered by other law groups. We thank you for attending TCDLA CLE.

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

Does your local criminal bar need a speaker for your lunch meetings? Please call Melissa Schank (Assistant Executive Director, 512-478-2514) at the Home Office. The Criminal Defense Lawyers 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: Becoming the Blessing – By Sarah Roland


It’s that time of year again. The beginning of holiday season. The time when family gatherings—whether dreaded or welcomed—become commonplace. The time of year when we get to see those relatives whom we haven’t seen or talked to since the year before. And let’s just go ahead and acknowledge it: We all have one—at least one—“crazy” relative. And as the joke goes, if you don’t know who that person is in your family, it’s probably you!

All kidding and levity aside, it is a tremendous problem when people with mental health issues collide with the criminal justice system. We all have, and have had, clients with mental health issues. It generally takes considerable extra time and patience to handle these cases. We have to remind ourselves and our staff not to get irritated when the client calls multiple times or asks the same question repeatedly. We all have the shared experience of frustration when our incompetent clients languish in county jails awaiting transfer to a state hospital only to then miraculously regain competency before the order of commitment expires but then again lose that “competency” en route back to the county facility. We have a shared confusion about the different provisions in Article 46B. We owe it to these clients, especially these clients, to be at our very best levels of advocacy. After all, these are the clients who truly cannot speak for themselves.

To that end, it is imperative that we keep up with the changes and additions to the law governing competency. I am grateful to Dr. Jennings for his article in this issue outlining the statutory changes to Article 46B. Please take the time to read and digest these changes. I also encourage every practitioner in the criminal justice system—judges, prosecutors, and defense lawyers alike—to have and read Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (5th ed. 2016) (available for download at This is an invaluable resource when trying to properly navigate the criminal justice system for a client with mental illness.

It is equally important to remember that even clients who may be legally competent often do have mental health issues. Be sure to not discard these issues once competency is es­tab­lished. After all, these mental health issues may provide the very ammunition necessary for a proper defense and/or mitigation of the criminal accusation. Remember, an accused’s mental impairment at the time of the alleged incident can provide a defense to the criminal conduct. In some instances, evidence of mental impairment may negate the specific mens rea necessary for the statutory offense. See Jackson v. State, 160 S.W.3d 568, 573–74 (Tex. Crim. App. 2005) (noting that Texas does not have a diminished capacity defense but acknowledging that evidence of mental impairment can be used to provide a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense). Remember also that we have a constitutional and statutory duty to investigate cases for guilt as well as for any possible punishment. See Wiggins v. Smith, 123 S.Ct. 2527 (2003); Williams v. Taylor, 120 S.Ct. 1495 (2000); Guideline 4.1, SBOT Performance Guidelines for Non-Capital Criminal Defense Representation; Section 4-4.1(a), ABA Standard on Criminal Justice. As we know all too well, many times our fights with prosecutors and in courtrooms are not about whether our client committed the offense but rather what is a just and fair punishment given all the surrounding circumstances.

Be sure to take advantage of mental health treatment diversion courts when available, too. Mental health court, and other courts that take a rehabilitative focus, can provide help for our clients in dealing with the underlying issue(s), thereby helping our clients with the instant case, and possibly preventing them from encountering the justice system again altogether.

It is also worthwhile to look around your community for housing options and employment options for clients with mental health issues. How many mentally unwell people are arrested for minor offenses like criminal trespass or theft? Pointing our clients in the direction of second-chance housing or other facilities that provide apartments or rooms to mentally unwell people or matches them with employment opportunities can be life-changing. We often recommend AA or substance abuse treatment centers to clients with chemical dependency because we understand that treating the underlying issue will improve the person’s life, let alone the offer they may get on a specific case. Referring a person with mental illness to housing and em­ployment options accomplishes the same thing. Yes, this is beyond what we, as the defense lawyer, are expected to do. But many, if not most, of us became lawyers to help the most vulnerable members of our community—so why not take the opportunity to do exactly that?

This holiday season, let’s all remember to be thankful for what we have and to be a blessing to some of the most vulnerable among us.

Off the Back: Challenging a Warrantless Search by Police in a Constitutionally Protected Space – By Stephen Gustitis


Last month six defendants litigated a group suppression hearing that raised the issue of a warrantless search of a constitutionally protected space. The warrantless search resulted in the police observing contraband in plain view. A search warrant was subsequently secured alleging that plain view contraband created probable cause to search the space. Below is a summary of our collective research. It may give defense lawyers a place to begin when challenging their own warrantless entry/search cases. Further, I cannot take full credit for this research. In large part it was a group effort. Each defense attorney involved helped piece together this labyrinth of legal doctrine. As a result, we created a bullet-point list of legal au­thority the police may rely upon when entering constitutionally protected space without a warrant.


Before one can challenge a warrantless search, they must establish standing. Defendants with the burden of demonstrating a legitimate expectation of privacy can do so by establishing they had a subjective expectation of privacy in the place invaded that society was prepared to recognize as reasonable. Several factors are relevant when determining whether a given claim of privacy is objectionably reasonable: (1) whether the defendant had a property or pos­sessory interest in the place invaded; (2) whether the defendant was legitimately in the place invaded; (3) whether the defendant had complete dominion or control and had the right to exclude others; (4) whether, prior to the intrusion, the defendant took normal precautions customary taken by those seeking privacy; (5) whether the defendant put the place to some private use; and (6) whether their claim of privacy is consistent with historical notions of privacy. These factors are not exhaustive and none is dispositive of a particular assertion of privacy. Rather, the circumstances surrounding the search are examined in their totality. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). Once meeting the burden of proof on standing, one can now challenge the circumstances under which the police entered a protected place without a warrant.


Consent was not an issue in our suppression hearing but is routinely the starting point in any research. Searches that occur following voluntary consent are an exception to the warrant re­quirement. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010). Under Texas law, a consent search must be established by clear and convincing evidence. Id. This burden requires the prosecution to show the consent was positive, unequivocal, and without duress or coercion. Juarez v. State, 758 S.W.2d 772 (Tex. Crim. App. 1988). A third party can also consent to a search, against the privacy interest of another, if the third party had actual authority over the place to be searched. The third party may give valid consent when they, and the non-consenting person, share common authority over the premises or property. Common authority is shown by the mutual use of the property by people having joint access or control for most purposes. In this situation, the non-consenting person assumes the risk that someone with common authority might permit the common place to be searched. See Hubert v. State, 312 S.W.3d 554, 560–61 (Tex. Crim. App. 2010); also Welch v. State, 93 S.W.3d 50, 52–53 (Tex. Crim. App. 2002). If the third person consenting does not have actual authority, the police may still rely upon the third party’s “apparent” authority to consent. When an officer reasonably (though erroneously) believed a third party had actual authority to consent to a search of a place or property, apparent authority existed making the search reasonable. See Hubert at 561.

Protective Searches

A protective sweep is a quick and limited search of premises con­ducted to protect the safety of police officers or others. Maryland v. Buie, 494 U.S. 325 (1990); Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000). It is generally conducted incident to an arrest, but the absence of an arrest does not preclude a pro­tective sweep, even one within a person’s home. See United States v. Gould, 364 F.3d 578 (5th Cir. 2004). For a protective sweep to be valid, the police must not have entered or remained in the space illegally, and their presence in the space must be for a valid law enforcement purpose. Id.  at 587. A legitimate protective sweep must be supported “‘by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to’” those on the scene, and may be no more than a “cursory inspection of those spaces where a person may be found.” Id.

Exigent Circumstances

The exigent circumstances doctrine authorizes entry into a constitutionally protected place, without a warrant, if the police have probable cause and the police have articulable facts leading to a reasonable belief that exigent circumstances exist making a warrant impracticable (typically the belief that evidence is in im­mediate danger of destruction). See Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013); McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991); see also Kentucky v. King, 563 U.S. 452 (2011)(exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment). This doctrine applies when the police act in their “crime-fighting” role, rather than their “community care-taking” role. Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003).

Emergency Aid

The emergency aid doctrine authorizes entry into a constitutionally protected space, without a warrant, if the police have an “immediate reasonable belief that [they] must act to protect or preserve life or avoid serious injury.” Laney at 863 (also Mincey v. Arizona, 437 U.S. 385 (1978)). It requires that police officers be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 860. The emergency aid doctrine uses an objective standard, taking into account the facts known to the police at the time of the search. Id. at 862. The doctrine also requires the warrantless entry be circumscribed by the exigencies justifying the entry. In other words, “we do not intend our holding today to be interpreted to necessarily allow police officers to make warrantless entries and searches every time there is a need to protect or preserve life or prevent serious injury.” Id. at 863.

Cady Doctrine

The Cady doctrine applies, like the emergency doctrine, when the police are not acting in their “crime-fighting” role, but rather in their limited community care-taking function to “protect or preserve life or avoid serious injury.” Laney at 863 (citing Mincey and Welsh v. Wisconsin, 466 U.S. 740, 750 (1984)). The Cady doctrine has most often been applied to warrantless searches of automobiles. Significantly, the doctrine does not necessarily require exigency, rather it requires the police be motivated by the need for general public assistance as opposed to “crime-fighting.” Id. (citing Cady v. Dombrowski, 413 U.S. 433 (1973)). It requires a reasonable belief that a concern for the general public exists who might be endangered if the warrantless search is not conducted. Cady at 447.

Inventory Doctrine

Although this doctrine was not an issue in our suppression hearing, it still deserves a place on our list of legal authority the police may rely upon when entering constitutionally protected space without a warrant. The inventory doctrine was first conceived in Cady, but later expanded upon in South Dakota v. Opperman, 428 U.S. 364 (1976). In Opperman, the Supreme Court held that automobile inventory searches conducted pursuant to standard police procedures are reasonable under the Fourth Amendment. See also Robertson v. State, 541 S.W.2d 608 (Tex. Crim. App. 1976)(inventories following standard police procedures are reasonable).

So, the next time you face a warrantless search by police in a constitutionally protected space, consider these points when attacking the search and any seizure. You can even challenge the validity of a search warrant affidavit containing evidence derived from such a warrantless entry and search. And don’t forget standing and consent. Both can sneak up on you if you’re not careful. Good luck.

Federal Corner: What Will the Supremes Do With a Fourth Amendment Issue That Would Benefit Some of the Drivers of Rental Vehicles? – By F. R. Buck Files Jr.


For those of us who live and practice law in cities near interstate highways, it is common for us to represent clients who have been stopped by law enforcement officers while they were driving rental cars and transporting drugs. In each of these cases, we consider filing a motion to suppress the evidence discovered and seized by the officers. Often, there is an issue as to whether our clients have standing to challenge the search of their vehicles and the seizure of the drugs.

On September 28, 2017, the Supreme Court granted certiorari in Byrd v. United States, 2017 WL 2119343 (U.S.). On February 10, 2017, the United States Court of Appeals for the Third Circuit affirmed Byrd’s judgment and conviction for the offenses of possessing heroin with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possessing body armor as a prohibited person in violation of 18 U.S.C. § 931(a)(1). United States v. Byrd, 679 F.App’x 146 (3d Cir. 2017) [Panel: Circuit Judges Fisher, Krause, and Melloy. Opinion by Melloy]. Interestingly, a footnote to the opinion stated, “This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.”

[An Overview of the Opinion]

Terrence Byrd entered a conditional guilty plea to charges of possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possessing body armor as a prohibited person in violation of 18 U.S.C. § 931(a)(1). He reserved the right to appeal several suppression rulings. He now appeals, arguing: . . . the District Court erred by holding Byrd lacked standing to challenge the vehicle search. We affirm the judgment of the District Court.

[The Facts]

Byrd was driving a rental car on a four-lane divided highway near Harrisburg, Pennsylvania. A state police officer parked in the median recognized Byrd’s car as a rental and noticed the driver’s seat was reclined to an unusual degree such that the driver was not clearly visible. The officer followed Byrd and eventually pulled Byrd over. The officer claimed he observed Byrd violate a state law requiring drivers to limit use of the left-hand lane to passing maneuvers.


When the officer approached Byrd’s stopped car and asked for Byrd’s license and the rental agreement, Byrd appeared nervous and conspicuously avoided opening a center console even though Byrd had difficulty locating the requested documents. Eventually, Byrd produced an interim New York driver’s license that did not include a photo. Byrd also produced the rental agreement. The rental agreement did not list Byrd as the renter or as a permissive driver.


The officers then asked Byrd for permission to search the vehicle, but stated they did not need his consent because he was not listed on the rental agreement. The officers assert that Byrd gave his consent. They subsequently found heroin and body armor in the trunk of the car and arrested Byrd [emphasis added].

[In the District Court]

In the District Court, Byrd moved to suppress the evidence resulting from the stop and the search . . . The District Court determined that Byrd, as the sole occupant of a rented car, had no expectation of privacy because he was not listed on the rental agreement [emphasis added].


[The Circuit Split]

[B]yrd argues he did not consent to the vehicle search. A circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement. See United States v. Kennedy, 638 F.3d 159, 165–67 (3d Cir. 2011) (collecting cases). The Third Circuit has spoken as to this issue, however, and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle. See id. at 167–68 (“We therefore hold that society generally does not share or recognize an expectation of privacy for those who have gained possession and control over a rental vehicle they have borrowed without the permission of the rental company.”). As such, we need not address Byrd’s arguments concerning his lack of consent for the search [emphasis added].

        We will affirm the judgment of the District Court.

In his opinion in Byrd, Judge Melloy only notes that there is a Circuit split on the expectation of privacy issues, citing United States v. Kennedy, 638 F.3d 159 (3d Cir. 2011) [Panel: Circuit Judges Fuentes, Jordan, and Aldisert. Opinion by Fuentes, Circuit Judge].

Judge Fuentes recognizes that in the 4th, 5th, 6th, and 10th circuits, “the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an expectation of privacy.” In the 8th and 9th circuits, “an unauthorized driver of a rental has standing where the renter gives him permission to use the vehicle” [emphasis added].

Judge Fuentes’ opinion reads, in part, as follows:

[An Overview of the Opinion]

Acting on an arrest warrant, police arrested Shamone Kennedy and impounded a nearby rental car that Kennedy’s girl­friend had lent him a few days earlier. Following an in­ven­tory search, police found two guns and 200 grams of cocaine inside the car. Kennedy moved to suppress the evidence found in the car, contending he had a legitimate expectation of privacy in its contents. The District Court denied the motion. Because we find that the driver of a rental car whose name is not listed on the rental agreement generally lacks a legitimate expectation of privacy in the car, we conclude that Kennedy’s suppression motion was properly denied [emphasis added].


[The Fourth Amendment]

Fourth Amendment standing “requires that the individual challenging the search have a reasonable expectation of privacy in the property searched . . . and that he manifest a subjective expectation of privacy in the property searched[.]” United States v. Baker, 221 F.3d at 441 . . . [emphasis added].


(“Our Fourth Amendment analysis . . . inquire[s] whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.”) (internal quotation and citation omitted); Carter, 525 U.S. at 101, 119 S.Ct. 469 (1998) [emphasis added].


[The Court Joins with Four Other Circuits]

[W]e concur with the majority of circuits that have considered this factual scenario and conclude that, as a general rule, the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an expectation of privacy [emphasis added].

[The Court’s Reasoning]

[A]n individual who borrows a rental car without the permission or knowledge of the owner not only acts in contravention of the owner’s property rights, but also deceives the owner of the vehicle while increasing the risk that the property will be harmed or lost. Although property law is not controlling, neither is it irrelevant. See Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421 (“Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”). An authorized driver on the rental agreement has lawful possession of the vehicle and, within the scope of the rental agreement, may legitimately exclude others from using it. See, e.g., United States v. Walker, 237 F.3d 845, 849 (7th Cir.2001) (“A person listed as an approved driver on a rental agreement has an objective expectation of privacy in the vehicle due to his possessory and property interest in the vehicle.”). In contrast, an unauthorized driver has no cognizable property interest in the rental vehicle and therefore no accompanying right to exclude. The lack of such an interest supports the position that it is objectively unreasonable for an unauthorized driver to expect privacy in the vehicle [emphasis added].

        For the foregoing reasons, we affirm the judgment of the District Court.

The only Fifth Circuit case cited by Judge Fuentes in his opinion is United States v. Seeley, 331 F.3d 471, 2003 WL 21142908 (5th Cir. 2003) (Per Curiam). The opinion is just over a page in length and reads, in part, as follows:

[The Facts]

Seeley was convicted at a bench trial for importing marijuana into the United States and for possessing marijuana with the intent to distribute. After being convicted, he gave notice of appeal.

[Seeley’s Argument on Appeal]

Seeley contends that the district court erred in denying his motion to suppress. Because he did not object to the magistrate judge’s report recommending that the motion be denied, this court reviews for plain error.

        Seeley has not established that there was plain error in the holding that he lacked standing to challenge the search of the rental car, as he (the sole occupant of the car) was not the renter or an authorized driver.

        [S]eeley had nothing to do with the rental, never presented his driver’s license (or name) to Alamo (the rental company) and was merely given the keys by his friend just after the friend rented the car from Alamo, the friend not intending to use the car but simply, at Seeley’s request, renting it for Seeley because Seeley did not have an appropriate credit card, and the rental agreement provides “no additional renters are authorized to drive the vehicle.”

        Consequently, the judgment of the district court is affirmed.

[NOTE: This is no mention of expectation of privacy in the opinion.]

My Thoughts

  • I wish I had kept a list of the cases in which the Judges of the Courts of Appeal have ordered that they are not to be published or have stated that the opinion does not constitute binding precedent—and then watched them wind up at the Supreme Court. Byrd is one of those cases.
  • How can any defense lawyer be optimistic that the Justices of the Supreme Court will grant relief to Byrd when that would permit other defendants similarly situated to have standing to raise Fourth Amendment issues?